In Re: Nagalingam and Another

Alfred Henry Lionel Leach, C.J.—These two petitions may be dealt with together. The petitioner in Criminal Revision Case No. 88 of 1946

is the husband of the petitioner in Crl. R.C. No. 89 of 1946. They were convicted by the City First Class Magistrate of Madura of having

committed an offence under Rule 90-B (2) read with Rule 121 of the Defence of India Rules and each was fined Rs. 1,000. They appealed to the

Sessions Judge of Madura who by an order dated the 29th October, 1945, dismissed their appeals. This Court is asked to set aside the

convictions under its revisional powers because it is said the rules under which the accused were convicted are ultra vires the Central Government.

The accused are residents of Jaffna. In the month of December, 1944 they visited Madura, where during that month and the month of January,

1945 they purchased gold which they had made into small cylindrical blocks. The case against them was that they had bought the gold and had it

made into ingots in preparation for export to Ceylon, an offence under Rule 90-B (2). The facts are not in dispute. The only question which the

Court is called upon to decide is whether the rules referred to are within the rule-making power of the Central Government.

Rule 90-B (2) states that no person shall, except with the permission of the Reserve Bank of India or of a person authorised in this behalf by the

Bank, take or send out of British India money in excess of such amount as may be specified by the Bank or any gold. Rule 121 provides that a

person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to a contravention of any of the provisions of the

Defence of India Rules or of any order made thereunder, shall be deemed to have contravened that provision or, as the case may be, that order.

Rule 90-B (3) provides the punishment which may be inflicted for the wrongful export of money or gold.

The case for the accused is based on the wording of Section 2(3) of the Defence of India Act. Sub-section (1) of that section says that the

Central Government may, by notification in the Official Gazette, make such rules as appear to it to be necessary or expedient for securing the

defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the war, or for maintaining supplies and

services essential to the life of the community. Sub-section (2) says that without prejudice to the generality of the powers conferred by Sub-section

(1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the matters enumerated in the sub-section

. Subsection (3) says that the rules made under Sub-section (1) may make further provisions which are specified. Sub-section (3)(ii) reads as

follows:

The rules made under Sub-section (1) may further provide that any contravention of, or any attempt to contravene, and any abetment of, or

attempt to abet, the contravention of any of the provisions of the rules, or any order issued under any such provision, shall be punishable with

imprisonment for a term which may extend to seven years or with fine or with both.

The learned Counsel for the accused says that as this clause does not make the preparation for the commission of an offence, an offence, the

Central Government had no power to include in Rule 121 the statement that a person who does an act preparatory to the contravention of the

rules shall be deemed to have contravened ''the rules. If Sub-section (3) of Section 2 of the Act stood alone, there might be force in this argument;

but Sub-section (3) does not detract from the very wide powers given to the Central Government by Sub-section (1). As we have already pointed

out, the provisions of Sub-section (2) are without prejudice to the generality of the powers conferred by Sub-section (1) and Sub-section (3) says

that the rules "" may further provide "".

In King-Emperor v. Sibnalh Banerji (1945) F.C.R. 195 (P.C.) : 1945 F.L.J. 222 : (1945) 2 M.L.J. 325 (P.C.) the Privy Council said:

the function of Sub-section (2) is merely an illustrative one; the rule mating power is conferred by Sub-section (1) and ""the rules"" which are

referred to in the opening sentence of Sub-section (2) are the rules which are authorised by, and made under, Sub-section (1); the provisions of

Sub-section (2) are not restrictive of Sub-section (1), as indeed, is expressly stated by the words without prejudice to the generality of the powers

conferred by Sub-section (1) ''.

If Sub-section (2) is not restrictive of the powers, Sub-section (3) cannot be. In the clearest terms the Judicial Committee has stated that the wide

powers of Sub-section (1) are not restricted by what follows.

Rule 121 is a rule made u/s 2(1) of the Act and is within the powers conferred upon the Central Government by that clause. The accused were

preparing to contravene the Act. The fact that Sub-section (3) of Section 2 does not contain any reference to preparation does not affect the

validity of Rule 121. The case was rightly decided by the Courts below and the petitions must be dismissed.