Emperor vs Nemu Singh

Agarwala, J.—The respondent and three others were charged before the Sub-divisional Magistrate of Barh with having committed offences against Bihar; and Orissa Act 2 of 1928 which is entitled the Bihar and Orissa Opium Smoking Act of 1928. The charge against the respondent was that he was in possession of 1-1/4 tolas of prepared opium and of pipes for using prepared opium. He was also charged with having permitted his premises to be used by the three persons who were accused with him and who were unauthorized smokers. These two charges were stated to be u/s 6 and Section 7 of the Act, respectively. The three persons tried along with the respondent were charged u/s 6 of the Act with smoking prepared opium on the premises of the respondent. The learned Magistrate acquitted all the accused of all the charges. The Local Government has appealed against the order of acquittal passed in favour of the respondent only. The object of the Act, as stated in the preamble, is to regulate the smoking of opium in the province of Bihar and Orissa. Section 3 requires the Local Government to cause a register to be prepared of all persons who are not under the age of 25 years and who are in the habit of smoking opium. Section 4 provides that any person may apply to be registered in the form and manner to be prescribed by the proper authority. By Section 2 of the Act a person whose name has been entered in the register is designated a registered smoker, and Section 5 provides that a registered smoker shall,

subject to the prescribed conditions and restrictions, be entitled, notwithstanding anything to the contrary contained in any other enactment or in any rules made under such enactment, to manufacture, possess or smoke prepared opium.

By Section 6 of the Act it is provided that any person other than a registered smoker, who smokes, uses, manufactures or has in his possession any prepared opium or any pipes, utensils or apparatus used in connexion with the manufacture or smoking of prepared opium, shall, on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees, or both. Section 7 provides that any person who, being the occupier of any premises, permits those premises to be used by any unauthorized persons for manufacturing or smoking prepared opium, or who is concerned in the management of any premises used for any such purpose or sells or otherwise deals in prepared opium shall, on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. It will be noticed, therefore, that by 8s. 6 and 7 of the Act the Legislature clearly creates two offences. It does not, however, purport to create any offence by Section 5 of the Act. This difference between Section 5 on the one hand and Sections 6 and 7 on the other is still more clearly illustrated by the subsequent provisions of the Act. By Section 8 it is provided that a Magistrate who imposes a fine u/s 6 or Section 7 may direct the offender to be imprisoned in default of the payment of the fine for a term which may extend to six months and that such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced. Section 9 authorizes the confiscation of prepared opium in the case of a conviction u/s 6. Section 11, which relates to the trial of offences under the Act, provides:

No offences punishable under Sections 6 and 7 shall be tried by any Court inferior to that of a Magistrate of the Second Glass.

This section also therefore neither provides for nor contemplates a trial of anything that may be done or not done u/s 5 of the Act. Section 12, however, authorizes the Local Government to make rules for the purposes of carrying into effect the provisions of the Act, and, without prejudice to the generality of this provision, it empowers the Local Government to make rules to regulate or provide for the authority by whom and the manner in which the register of smokers has to be prepared, the form and contents of the register, the form of application and the manner in which such applications shall be submitted, and, lastly, the conditions and restrictions subject to which a registered smoker may manufacture, possess or smoke prepared opium. It is noticeable that the Act does not provide for any penalty for the breach of the conditions and the restrictions referred to in the last mentioned provision of Section 12, namely the conditions and restrictions subject to which a registered smoker may manufacture, possess or smoke prepared opium.

It is conceded by the learned Government Advocate before us that the respondent committed no offence u/s 6 or Section 7 of the Act. u/s 12, the Local Government have framed the Bihar and Orissa Opium Smoking Rules of 1928, which were published under Notification No. 694, dated 16th January 1929. The rules provide for the form and manner in which applications for registration are to be made and the procedure to be followed on such applications and for the maintenance of the register. Rule 10 contains the conditions and restrictions subject to which a registered smoker may manufacture, possess or smoke prepared opium. Sub-rule (1), Rule 10 prohibits a registered smoker from manufacturing or possessing at one time for his personal use more than half a tola in weight of prepared opium. Sub-rule (2) provides that if a registered smoker intends to change his place of residence permanently he shall, before leaving the district in which he is registered, report such change to the Collector of that district. Sub-rule (3) provides that if a registered smoker has changed his place of residence permanently he shall within 30 days of such change produce a certified copy of his registration before the Collector of the district in which he has taken up his residence. Rule 11 is in the following terms:

Any registered smoker who does not comply with any of the conditions prescribed in Rule 10, shall, on conviction before a Magistrate, be punished, (a) for breach of Sub-rule (1) of the said rule with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees, or with both; (b) for the breach of Sub-rule (2) or Sub-rule (3) of the said rule for a term which may extend to six months or with fine which may extend to two hundred rupees.

There is also a provision for the infliction of further imprisonment in default of payment of any fine that may be imposed for breach of Sub-rules (a) and (b). The question for decision in this appeal is whether Rule 11 of the rules is ultra vires. As has already been indicated, the Act does not itself impose a penalty for a breach of the terms of a license granted to a registered smoker nor does it expressly empower the rule-making authority to provide for such penalty. The question, therefore, is whether an authority on whom the rule-making power has been conferred is authorized to create an offence and impose a penalty for a breach of the rules. We have not been able to find any reported cases exactly on the point in the decisions of the Courts in India, but we have been referred to two cases decided in England. The first of these is Hall v. Nixon (1874) 10 QB 152. The facts which gave rise to that case were as follows:

Local Boards were empowered by 21 & 22 Vict., C. 98, to make bye-laws with respect to levels and the construction of new streets, the structure of walls of new buildings, sufficiency of ventilation and with respect to the drainage of buildings, etc., and were further authorized to provide for the observance of the bye-laws by enacting therein such provisions as they might think necessary as to the giving of notices, as to the deposit of plans and sections by persons intending to lay out streets or to construct buildings and as to inspection by the Local Board and as to the power of the Local Board to remove, alter or pull down any work begun, or done in contravention of the bye-laws. The sixth bye-law framed under the power thus conferred, required that a person proposing to put up a new building should give notice to a surveyor of the Board and it was further provided that the notice should be given 14 days before the work began. The sixth bye-law concluded with the following paragraph.:

Any person who shall erect any new building without giving such notice, and delivering such plans and sections as aforesaid, or without having the said plans and sections approved of by the Local Board, or in anywise contrary to plans and sections which have been approved of by the Local Board; shall be liable for each offence to a penalty of 40s.

A question arose whether the Local Board acted within its powers providing for a penalty of a breach of the bye-laws. It was held that the bye-law was intra vires. In the course of his judgment in that case Mellor, J. referred to Young v. Edwards (1864) 33 LJ MC 227 and Hattersley v. Barr (1866) 4 H & 0 523, in which cases it was held that an authority on whom had been conferred power to make rules had no power to create offences and impose penalties for those offences. The learned Judge, however, stated that he was unable to see the reasons for this decision and expressed his own view that a bye-law with a penalty for disobedience must necessarily be the mode of carrying out the Act and, therefore, the bye-law was intra vires. Lush and Quain, JJ. also delivered judgments agreeing with Mellor, J. It is to be observed, however, that Section 34 of 21 & 22 Vict., C. 98 provided that that Act and 11 & 12 Vict., G. 63 were to be read together as one Act and Section 115 of 11 & 12 Vict., G. 63 expressly gave power to impose reasonable penalties not exceeding �5 for any breach of the bye-laws. The next case was Queen v. Sankey (1877) 3 QB 379 which arose under the Elementary Education Acts (33 & 34 Vict., G. 75 and 36 & 37 Vict., C. 86). These Acts impose a penalty for the offence of personating any one entitled to vote at the election of a School Board, but do not provide for the offence of personation at the voting for a resolution for application for a School Board. An order in Council purporting to be made under these Acts, however, imposed a penalty upon any one guilty of the latter offence. It was held to be ultra vires by Mellor, J. and Lush, J. who had taken part in the decision in Hall v. Nixon (1874) 10 QB 152. Mellor. J. said in the course of his judgment:

We should be proceeding against all the recognized principle of construction, if without express authority, we were to extend the power of the School Board Commissioners, so as to enable them to make personation an offence without a direct statutory authority so to do;

and Lush, J. said:

I certainly cannot think we are justified in holding upon any principle of construction that such words convey by implication or give a legislative power to create an offence which the statutes have refrained from doing. They may have no meaning at all for aught I know, but certainly we cannot construe words of an ambiguous meaning as conveying a power to create a new offence.

In the first of these two cases, therefore, there was in existence a statutory provision authorizing the rule-making authority to impose a penalty for breach of its bye-laws, and the second case is a direct decision that without statutory authority there is no power to create an offence and impose a penalty for it. In pay view, in the present instance, therefore, Rule 11, Bihar and Orissa Opium Smoking Rules, is ultra vires and the respondent has committed no offence for which he is liable to imprisonment or fine. The appeal is dismissed.

Varma, J.

I agree.