In Re: M.S. Mehdi and Others

Happell, J.—The petitioners are being prorecuted for an offence in contravention of the Military Stores (Unlawful Possession) Ordinance

(Ordinance XXXIII of 1943), and on the 12th January, 1946, the Additional District Magistrate of Vizagapatam framed a charge against them u/s

3 of this Ordinance. The petition before us is brought to quash the charge. The ground on which the petition is supported is shortly that the

Ordinance has expired and that, as it contains no provision within itself for the continuation of proceedings, the proceedings commenced before its

expiration have automatically determined.

By our order in In Re: Karumuthu Thiagarayan Chettiar and Others, . my learned brother and I have recently held that criminal proceedings

instituted under the orders and Ordinances with which the petitions were concerned could be continued after their expiration. These orders and

Ordinances, however, were made under the Defence of India Act and the grourds for our decision were (1) that where the orders related to

subjects enumerated in the Provincial Legislative list they could be continued by virtue of the provisions of Section 102, Sub-section (4) of the

Government of India Act, and (2) that where they related to subjects enumerated in the Central Legislative list they could be continued by virtue of

the amendment of Section 2 of the Defence of India Act made by Ordinance No. 12 of 1946 which ,made specific provision for the continuance

of proceedings instituted before the expiration of orders made under the Defence of India Act.

We agree with learned Counsel for the petitioners that the present petition does not fall within the scope of our order referred to above. The

Military Stores Ordinance No. 33 of 1943 was not promulgated under the Defence of India Act but u/s 72 of schedule IX of the Government of

India Act, 1935.

Section 72 of schedule IX of the Government of India Act, provides that any Ordinance made by the Governor-General under the section shall

have the like force of law as an Act passed by the Indian Legislature ""for the space of not more than six months from its promulgation."" Section 1,

''Sub-section (3) of the India and Burma (Emergency Provisions) Act, 1940, however, enacted that Section 72 of the Government of India Act

shall as respects Ordinances made during the period specified in Section 3 of the Act have effect as if the words ""for the space of not more than six

months from its promulgation "" were omitted. Section 3 of the India and Burma (Emergency Provisions) Act, 1940 defines the period referred to in

the preceding sections as.:

the period beginning with the date of passing of this Act and ending with such date as His Majesty may by Order in Council declare to be the end

of the emergency which was the occasion of the passing of this Act.

His Majesty by the India and Burma (Termination of Emergency) Order, 1946, declared the end of the emergency to be the first day of April,

1946.

It is contended by the learned counsel for the petitioners that the effect of Section 1, Sub-section 3 of the India and Burma Act read with

Section 3 is that ordinances made during the period specified in Section 3 terminated with the end of the emergency viz., the 1st of April, 1946, if

by then they had been in force for six months or more or, if by that do e they had been in force for less than six months, they would cease to have

effect when a period of six months from the date of their promulgation expired. In our opinion this contention cannot be accepted. Sub-section (3)

of Section 1 does not provide that the ordinances Madelyn the Governor-General shall have effect as if the words ""for the space of not more than

six months from its promulgation"" were omitted from them, but that Section 72 of the ninth schedule of the Government of India Act should have

effect during the period as if these words were omitted. In short the India and Burma Act conferred the power on the Governor-General to make

Ordinances unrestricted in duration for a certain period, a period that ended on the 1st of April, 1946. After the 1st of April, 1946 any ordinance

made by the Governor-General u/s 72 of the ninth schedule of the Government of India Act again has effect for a space of six months only ; but,

there is nothing in the India and Burma Act which says that the words "" for the space of not more than six months from its promulgation "" when put

back in Section 72 of schedule IX will affect retrospectively ordinances made during the period they were omitted. Learned Counsel for the

petitioners has. referred us to an observation in the judgment of the Privy Council in King Emperor v. Bmoari Lal Sarma (1945) 1 M.L.J. 76 :

1945 L.R. 72 IndAp 57 : L.R. (1945) Kar. 97(P.C) where Lord Simon in his judgment referred to Section 72 of the nimth schedule of the

Government of India Act, 1935 and observing that it must be read in the light of the. India and Burma (Emergency Provisions) Act, 1940,

remarked parenthetically ""whereunder the operation of the words for the space of not more than six months from its promulgation'' was suspended

during the period therein specified."" Learned Counsel emphasises the use of the word '' suspended'', but for the reasons given above this gives no

support to the construction which he seeks to put on the relevant provisions of the India and Burma Act. The suspension of the operation of the

words is not with reference to the ordinances made during the period but with reference to Section 72 of schedule IX of the Government of India

Act.

In our Order in Cr. M.P. No. 1569 of 1946 In Re: Karumuthu Thiagarayan Chettiar and Others, ., we observed that,

No doubt an ordinance promulgated by the Governor-General before the 1st of April, 1946, is, by virtue of the provisions of the India and Burma

(Emergency Provisions) Act, 1940, not restricted to six months, but will continue to have effect for the period provided in the ordinance or, if no

period -is provided, until the emergency is declared by the Governor-General to have ceased to have effect.

This observation was not necessary for the decision of the case and will not bind us ; but, in our opinion, it correctly states the position. We are.

consequently of opinion that Ordinance No. 33 of 1943 is still in force ; and, that being so, the Additional Magistrate of Vizagapatam had

jurisdiction to frame a charge against the petitioners u/s 3 of the Ordinance.

The petition is dismissed.

(Leave is granted to appeal to the Federal Court).