JIA LAL versus THE DELHI ADMINISTRATION

ma.ke complaint and the and the the proceedings without such a. compl•iint a.re a.re not without jurisdiotion.

1962 ma.ke complaint and the and the the proceedings without such J agonnal~ l'rasu a. compl•iint a.re a.re not without jurisdiotion. •• St.ate•! UU.r In our opinion the appellants were rightly Pr•deJlr convicted and we therefore dismiss this a.ppea.). KaJ>vr J, The appellant J a.ganna.th Prasad must surrender to his bail bonds.

Appeal di&misstJJ.

JIA LAL

1961 Miff J.

THE DELHI ADMINISTRATION

(B. P. SINHA, c. J., P. B. GAJENDRAGADKA.R, K. N. WAXCHOO, N. RAJAGOPA.L.A AYYANGAR and T. L. VENKATARAMA AIYAR, JJ.)

Criminal Trial-Po . .,,.8'ion of ·unliunwl arm8 SanGlion-Provision requiring Randionfor prosecution. in certain area& and nnt in other af'ell-If discriminatory-Whether offending portion of provision can. be removed anrl rrmaining portion allotted to sta.nd-lf im·alidity of p?ovision regarding •anction affectll substantive proLisio"" a/so-Indian Arm. Act, 1878 (XI of 1878), 88. 19(1)(/), 29-Canstitution of India, Art. U.

Section 29 of the Indian Arms Act, 1878, provided that for prosecution for an offence under s. 19(f) of the Act com• mittcd in the territories north of the Jumna and Ganga no sanction was required but sanction \\'as required for the pro-secution if the offence v.ras committrd in other areas. J was found in po5scssion of an unlicensed firtarm in Delhi, and though sanction under s. 29 was necessary, he was tried and convicted \vithout ohtaining s·u·h sanction. was found in possc!=o;ion of an unJicensed fire::irm in Saharanpur and as no sanction under s. 29 was necessary for his prosecution he was tried and convicted without obtaining any sanction. The respondents contended that s. 29 nffcnded Art. 14 of the Constitution and was unconstitutional. J contended that even ifs. ?9 wa~ invalid in it5 operation a~- r('gards tt'rritories to the North of the .Jurnna and Ganga it was not invalid in its

2 s.c.R. SUPREME COUR.'.l' REPORTS • • • • •

• • • • •

1962 Jia Ud v. D1lhi , .f.flminUtf'flli•n

application to the other territories as the .part• of s. 29 .were separate and severable. contended that if th'e 'portion' of s. 29 which offended Art. 14 was struck down the remaining portion was complete in itself and required . sanction ·for pro-secution in all cases, and that if s~29 was void in toto s.19 could · not stand and also become void and unenforceable.

Heltl, thats. 29 Arms Act offended Art. 14 and was unconstitutional and as such no sanction was necessary for the prosecutiol) of either J or B. The differentiation bet .. een the territories north of the Jumna and Ganga and the other territories had no relevance now to the object of the legisla-tion. The differentiation had come into heing an. account of the fact that the largest opposition to the British Government in 18,57 had come from the people to the north.of the Jumna and Ganga and they had been disarmed. But now after more than century conditions have changed and the distinction could not be sustained on any ground pertinent to the object of the law in quession.

Mehar Ohand v. Bte,te, A,I.R. (1959) All. 660, approved.

Hel<I, further, that i; was not permissible to strike out only the offending words from s. 29 and to read the section as requiring sanction for prosecution. for offences in areas north of the Jamna and Ganga. The section could not be construed as for bidding what it expressly authorised. Nor could the section insofar as it requir~d sanction for prosecution for offences committed in other territories be severed from the rest and held valid as that would· n<cCBsarily again result in discrimination. The entires. 29 must be struck down.

Bhai Singh v. State, A.I.R. (1960) All. 369, approved;

Ohamarhaugwalla v. Union of India, (1957) S.C.R. 930, referred to. .

Helli, further, that s. 29 was sever11ble from the other pr~vi~ions of the Act and that its invalidity did not affect the . valld1ty qf s. 19. Section 19 was substantive provision providing punishment for violation ofss. 14 and· 15 ands. 29 was merely P.'?cedural and in general the invalidity of pro-cedural provmon could not be held to affect the validity of substantive provision. There was nothing in the Arm· Act to take it out of the general .rule. Section 29 was intended for giving protection to lite 9ubjects against frivolous and vexatious prosecutions but sanction was not one of the elements of the µ,oder olfence s, 19(f). It could n~t be .said tha~ the legisl11tµrr;

IHI

Ji• Lal

Del/ti .Aelnibri1....,ion

d(lorJ.

866 SUPREME OOURT REPORTS [11163]

would not have enacted the law without the protection afforded by s. 29.

DaDia v. Wallau, (1921)257 U.S. 477; 66 L. Ed. 325 alld Ltmka v.Farmtra' Grain Company, (1921) .258 US. 50; 1i6 L, Ed~ 458, referred to.

C!mnNAL APPELLA'rE JURISDICTION: Criminal

Appeal No. 69 of 1961.

Appeal by special leave from the judgment and order dated December 23, 1960, of the Punjab High Court (Circuit Bench) at Delhi in Criminal Appeal No. lO·D of 1960. ,

WlrH

CRIMINAL APPEAL NO. 62 of 1960.

Appeal from the judgment and order dated December 23, 1959, of the Allahabad High Court in Criminal Revision No. 1694 of 1958.

Sarjo<> Prasad and K. K. Sinha, for the appeJ. !ant in Cr. A. No. 69 of 1961.

B. K. Khanna and P. D. Ml!fllOn, for the reepon.

dent in Cr. A. No. 69 ofl96I.

R. K. Garg, D. P. Singh and S. C. Agarwala, for the respondent in Cr. A. No. 62of1960.

G.C. Mathur and C. P. LaJ, for the respondent in Cr. A. No. 62 of lgf\().

1962. May 3. The Judgment of the Oouri

was delivered by

VENKAT.ARAMA AIYAR, J.-The appellant in Criminal Appeal 69of1961 Jia Lal was searched by the Delhi Police on April 15, 1959, and was found to be in pOBSession of an English pistol for whioh he held no licence. He waa then proeecuted for aa offence under s. 20 of the Indian Arms Act of 1878 (XI of 1878), hereiJlr.fter referred to u 'the Aot',

2 S.C.R

SUPREME OOURT REPORTS ·

, ', 'I before the Additional Sessions Judge Delhi who convioted him under s. 19(f) of the Act.and sen· tenced him to rigorous imprisonment for nine months. No sanction for the prosecution had been obtained as required by s. 29 of the Act. . The appellant then took the matter in appeal to the High Court of Punjab whioh confirmed his convic· tion but reduced the sentence to 4-1/2 months ...,. "-'i rigorous imprisonment. It is against this judgment that this appeal by special leave is directed.

The appellant in Criminal Appeal 62 of 1960,

Bhagwana was searched by the Saharanpur Police on August 6, 1956, and was found to be in. posses-sion of country-made pistol and four cartridges for which he held no licence. He was prosecuted before the City Magistrate, Sa.haranpur 'under s. 19(f) of the Act and was convicted and sentenced to six: months rigorous imprisonment. No sanction was obtained for hi9 prosecution, obviously be· cause under s. 29 of the Act it is not required when the offence are committed· in certain areas and Saharanpur is within those areas. The appellant preferred an appeal against his conviction and sentence to the Sessions Judge, Saharanpur but the appeal was dismissed and the conviction and sen-tence were confirmed. The appellant then took the matter in revision to the High Court of Alla.ha· bad which rejected the same but granted c_ertificate "' under Art. 134(1) of the Constitution. This is how this appeal comes before us. Though the two appeals arise out of two different prosecutions un· connected with each other, they were heard to-gether as the same questions of law arise for determination in both.. The first question that arises for our decision -; is whether a. 29 of the Act is unconstitutional and void as contravening Art. as contravening Art. contravening Art. 14, in that it requires

a. void as contravening Art. as contravening Art. contravening Art. 14, in that it requires sanction for prosecution for offences 11pder the •ct.

Ji4 Lal v.

DJ hi AdmifJi1' ralion

IHI Jio Lal v.

Dtlh I Admj•i.Jt1Glio1

868 SUPREME OOURT REPORTS [1963]

when they are committed in some areas, but not in • others. Section 29 of the Act is as follows:-

"Where an offence punishable under

seotion 19, clause (f), haa been committed within three months from the date ·on whioh this Aot comes into force in any State, district or place to which section 32, olause 2 of Aot XXXI of 1860 applies at such date, or where suoh an offence has been committed ··- , . in any part of India not being such dis-triot, State or place, no prooeedings shall be instituted aga_inst any person in respect of such offence without the previous sanotion of the Magistrat-e of the district or, in presi· denoy - town, of the Commissioner of police."

For oorreot understanding of the true scope of the seotion, it is neceBSary to refer to the history of the Legislation relating to it.

The earliest enactment dealing with this

subjeot is the Arms and Ammunition and Military Stores Act 18 of 1841 whioh came into force on August 30, 1841, and that prohibited the export of arms and ammunition out of the territories belonging to the East India Company and enacted oertain prohibitions as regards the storing of allllllunition, Thie Act was repealed by Aot 13 oi 1852. After the uprising against the British • rnle in 1857, the Government felt that more stringent law was required for preventing insur-rections and maintaining order and so new Act was passed, Aot 28 of 1857. Thill Aot is compre-hensive one dealing with many matters not dealt with in previous legislation, and contains elaborat& provisions as regards the manufacture, import, sale, .,. poeeeasion and use of arms and ammunition. Of particular reltvanoe to the present discusillon is 1 , 2-4 pf" this Act which epipOll'l!Jed the Governor.

2 S.C.R. SUPREME COURT REPORTS

General to order general search for arms and ammunition in any district. In· exercise of the power conferred by this section, the Governor· General issued notification on .December 21, 1858, ordering general search and seizure of arms in in the territories north of the Jumna and Ganga then known as North Western Provinces. The reason for this was that it was this territory 'that was the main seat of the disturbances of 1857.

Act 28 of 1857 was temporary Act which was to be in force for period of twl) years and after some extentions it finaly lapsed on October 1, 1860. On that date new Act, Arms and Ammuni-tion Act 31 . of 1860 came into force. This statute cont&ine in addition to what was enacted in Act 28 of 1857, cert.a.in new provisions, of which s. 32 is material for our disoussivn. It is as follows:-

"Clause 1. ·It shall be lawful for th~ Governor-General of India in Council or for the. Ex6C'utive Government of any Presidency or for any Lieutenant Governor, or with the sanction of the Gevernor General in Council for the Chief Commissioner or Commissioner of any ProVince, District or place subject to their administration respectively,· when-ever it shall appear necessary for·tbe public safety, .to order that any Province, Diatriot, or place shall be disarmed.

''Clause 2.

In 'every ·. iin~b Province;

District, or place as well as in any ProvinO!l, 1'istrict, or place in which an order for general search for arms has been issued and is still in operatiqn under Act llvIIl of 1857, it shall not be lawful for any person to have in' his. possession any arms of the description me!ltioned Jn s. 6 of th!s .Act-•. or any perOUEs10n caps, sulphur, g11npc5\\ldei' or other anununitio11 wi~out lioeaoe. ·. -

Ie6B JiaLal ••

D1W Allminlmflllon

J951 Jic Lal v. D1lh; A4min,Str11tion

870 SUPREME OOURT REPORTS (1963]

This Act again wa.s present Indian Arms enacted.

repealed in 1878 and the Act (XI of 1878) was

Now examining s. 29 in the light of the history of the legislation a.s aforesaid, it will be seen tba.t it makes a. distinction between the areas to which s. 32 of Act 31 of 1860 applied a.nd the other a.rea.s. The former included territories which ba.d been disarmed under orders of the Governor· General in accordance with cl. (I) a.nd those in which genera.I search had been ordered under cl. (2) which under the notification of December 1858 comprised the territories north of the Jumna and Ganga. Section 29 provides that for prosecution for offences committerl within the areas to which s. 32 applied, !JO sanction was required but such sanction was required for prosecution for the same offence when com-mitted in other areas. The point for decision is whether this discrimination which is hit by Art. 14 of the Constitution. '-

Now the principles governing the a.pplica.tion

of Art. 14 are well settled and there is no need to restate them. Article 14 prohibitl! hostile legis-lation directed against individuals or groups of individuals, but it does not forbid reasonable classi-fication. And in order that classifca.tion might be valid, it must rest on a.n intelligent differentia which distinguishes it from others a.nd that further ' that must have reasonable relation to the ob-ject of the legislation. There oa.n be valid classi-fication based on geographical differentia, but even "then, that differentia must be pertinent to the object of the legislation. The short question for decision th3refore is whethet· the differentiation between the territories north of the Jumna and Ganga, on the one hand and the other territories, ob tbe other, has all)' relevance to the object of

2 S.C.R.

the legislation. As already pointed out this differen. 1962 situation during tiation came to be made as result 1857, and has reference of the political to the Ji~~1 fact that the largest oppoeitfon to the British D,l~i A.dmbtlstralio • Government came from the Taluqdars to the north --A.i1ar J. of the Jumna and Ganga. ut more than cen· tury has since elapsed and the conditions have so radically changed that it is impossible now to sustain any distinction between tha territories north of the Jumna and Ganga and the other terri· tories on any ground pertinent to the objei:t of the law in question and on the well known principles applic1tble to the matter it must be held that the differentiation is discrimination 'repugnant to Art. 14. That was the the view taken by the Allahabad High Court in Mehar Chand v. State(') and we are in agreement with it. The correctness of ,this decision on this point has been assailed before us.

On this conclusion two questions arise for

decision: (i) Is s. 29, omitting that part of it which contravenes Art: 14, valid, and are th<) prosecutions in the instant cases bad for want of sanction there· under; and (ii) ifs. 29 is void in toto whether s. I 9 also becomes void and unenforceable.

On the first question our attention has been

drawn to two decisions of the High Court of Allaha· bad where this point has been considered. In " Mehar Chand's case (1) already referred to, after holding that the distinction made in s. 29 between offences committed in territories to the north of the Jumna and Ganga and those committed else-where was repugnant to Art. 14, the learned Judges stated as its consequence that sanction for prosecu· tion under the ,Act was necessary in all cases. But this decision was overruled by Full Bench of the Allahabad High Court in Bhai Singh v. The State('), (I) A.I.R. (1959) All. 660. (2) A.i.R. (1960) All, 369.

IHI Jio Loi ••

D1llai AU.W.111tohM

1172 SUPREME OOURT REPORTS [J.963)

where it was held that the effeot of the finding that the section was in part unoonstitutional was to render it void in its entirety and that accordingly no sanction was neoeBBar:v for instituting prosecu-tion& under the Act. The respondent relies on this decision, and oontends that the present pro-ceedings are not illegal for want of sanction.

The position of the appellants in the two ap-peals in relation to this question is somewhat dift' e-rent. In Criminal Appeal 69 of 1961 the appellant comes "from an area which is not to the north of theJumna and Ganga and under s.29 sanction would be required fo,r hiR proeecuti on but the appellant in Criminal Appeal 62 of 1960 comes from an area north of the Jumna and Ganga and no sanction would be required under that section for his pro-eecution. The arguments of learned. counsel on this question therefore prooeeded on somewhat different lines. Mr. Sarju Prasad appearing on behalf of the appellant in Criminal Appeal 69 of 1961 contended that the decision in Bhai Singh'a case ([1]) was erroneoue, that the fact that the section was invalid in its operation as regards territories to the north of the Jumna and Ganga did not render it invalid in its application to the other territories, as the two parta of the section were distinct and severable end that on the principles enunciated by this Court in R.M.D. Chamarbaug-walla v. The Union of Indi-:J ('),that port.ion of the section which requires sanction must be held to be valid.

Mr. Garg appearing

for

the "ppellant in

Criminal Appeal 62 of 1960 also contended that sanction was required for prosecution under the Act and hie argument in support of the contention ma.y thWI be stated : If the portion of s. 29 (I) A.J .R. (1960) All. 969. (2) (1957) S.C.R. 930.

, ' [-]

' 2 S.C.R. SUPREME COURT REPORTS 873

which offends Art. 14 is . struck out, what remains will read as follows:-

"Where an offence under section 19 clause (f) has been committed" in any part of India;

No proceedings shall be instituted against any person in respect of such of .offence without the previous sanction of the Magis-trate of the District."

The section as thus expurgated is complete in itself and in harmony with the rest of the Act. The appropriate rule of interpretation applicable to this situation is thus stated in Chamarbaugwalki.'s GaSe (1) :

"On the other hand, if they are so disti-nct and separate that after striking out what is invalid, what remains is in itself complete oode independent of the rest, then it will be upheld notwithstanding th:it the rest has become unenforceable. " (p. · 951).

On this test, the part of s. 29 which requires sanc-tion must be held to be severable from the portion, under which no sanction is required, and therefore valid.

This contention must fail for the simple

, reason, that if accepted it must result in defeating the intention clearly and unequivocally expressed in the section, that no sanction is required for prosecution for offences committed north of the Jumna and Ganga. It will be . opposed . to all recognised canons of interpretation, to construe statute as forbidding what it expressly authorises. We cannot therefore so read the section as to -j require sanction for prosecution for offences in the areas north of the Jumna and Ganga. When once this conolWlion is reached it is difficult to acoept (I) (11158) s.c.R. 980.

Jia Loi v. Delhi ddminislr4"an d9'1r J.

IHI Jio Lei v. De/Ai . 'd111U.isbolin A.;,.r J.

8'14 SUPREME OOURT REPORTS [1963]

• the contention of Mr. Sarju Prasad that the section insofar as it requires sanction for prosecution for offences committed in territories other than those to the north of the Jumna and Ganga is severable from the rest and that to that extent the law is valid. If this contention is oorreot, it must nece· ssarily result in discrimination between persona who commit offences in the territ<>ries to the. north of the Jumna and Ganga and those who commit the same offences ebewhere in that while the latter cannot be prosecuted without sanction, ·the former can be. It will then be open to the persons who are charged with offences committed to the north of the Jumna and Ganga to assail the law on the ground that it discriminates against them, and there can be no answer to it as we have held that the classification made by the section is not valid. The fact is. that it is inherent iµ the very vice of discrimination that it is incapable of being broken up into what is good and what is bad. The gravemen of the charge that Art. 14 has been contravened is that it makes an irrational distinc-tion among persons who are similarly circumstanced and where such charge is well founded the section must in its entirety be struck down. We are accordingly of the opinion that on our conclusion that the section is repugnent to Art. 14 in that it discriminates between the per-sons who commit offence in areas north of the Jumna. a.nd Ganga and those who commit the ea.me offences elsewhere, the whole of it ought to to be held to be bad.

It is next contended that if e. 29 is void in

ite entirety, s. 19(f) of the Act should also be held to be void, as both these provisions form integral parts of single scheme and must stand or fall together. It is argue? that the P<?licy behi~d s. 29 was manifestly to give protection to mnooent enbject.a against frivolous and vexatious proee-011tion, and that eaootion under that 1ection must

2 s.o.R. StJPRnlli: COUltT REPORTS

therefore be regarded a.s one of the essential elements, which go to make the offence. Support for this contention was also sought in the statement of objects and rea.sons, made when the measure wa.s introduced in the Legislature, wherein it was said that ·ample safeguards were provided ••to prevent this prohibition pressing unfairly against respectable persons". It was !trongly preBBed on us that in view of the above statement, it ought to be inferred that the Legislature would not have enacted s. 19, if it had known that s. 29 was void, and on that the conclusion must follow that the two sections are inseverable. In support of this argu-ment reliance was placed ori certain obsPrvations in Daria v. Wallace (') and Lemke v. Farmers' Grain Oompany ([1]). In Daflia Wall.ace (1) the point for decision was whether when provision which is in the nature of an exception is held to be unconstit-utional, the main provision which it is intended to qualify can be enforced in its own terms. In answering it in the negative the Court observed : "Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should . he taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State ; and no other authol'ity is competent to give them larger application." ·

. In Lemke Farmers Grain Company ('), law

of North Dakota was assailed as unconstitutional cin the ground that it Wal\ one on interstate com-merce which tJie State Legislature could not enact. One of the contentions raised .was that there were certain provisions in the Act which could be sus-tained as within the competence of State Legisla-ture. In rejecting this contention the Court

(I) (1921) 257 U.S. 477 ; 66. L. Ed. 325, 329.

(2J (1921) 2li8 U.S. 50: ti6 L. Ed. f68.

Jia Lal

Delhi Adminislra'ion

Jia r..i v.

De/Ai AJmilriJtration JfQor J,

SUPREME OOURT REPORTS (1963]

observed : "It is insisted that the prios-fixing feature of tho statute may be ignored, and its other ref?ulator.v features of inspection and grading eustaim•d if not contrary t<> valid FPderal regula· tions of the :;a mo subject. Bnt the fe,~tur1>s of this act, clearly regulatory of interstate commerce, are essential and vital parts of the general plan of the statute to control the purchase of grain and to determine the profit at whkh it may be sold. It is apparent that, without these sections, the State legislature would not have paBSed the act. Without their enforcement the plan and scope of the aot fails of accnmplishing its manifest purpose. We have no authority.to elimiJJat" an essential feature of the law for tht purp,ose of saving the conetitut· · ionality of parts of it. '

It is contended that on the rule of construe•

tion laid down above, s. 19 must be held to be insevorablo from s. 29, and must be struck down.

We aro unable to agree. The contention that

sanction under s. 29 should be rPgarded as a.n essential iugrcclinnt of the offonce under s. 19 proceeds on misconoeption as to the true soope of that Bection. The scheme of the a.ct is that it imposes cert:~in obligations a.nri breaches thereof are ma.de offences for which penalties are prescribed. These provisions pertain to the domain of substa-ntive law. Thus with reference to the matters involved i11 this appeal, ss. 14 and 15, enact that no person shall have possession of arms, and ammunition, specified therein, without licenCP, and under s. l!J(f) <:untra.vcntion of these eectione is an offcnoo punishitble, as provided therein. The offence is complete, when the conditinne mentioned in sectil>llH 14 and 15 artl satisfied, and sanction is thus not 011" of the clements which enter into thu constitution of the uffence. Then comes e. 29. It is purely procedural. It comes

2 s.c.R.

into operation only when there is an offence al-ready completed. It cannot therefore be regarded as an ingredient of the offence, which is to be punished under s. l9(f). This must be further clear from the fact that offences under the Act are punishable under s. 19, without sanction under s. 29, when they are committed in the territories to the north of the Jumna and Ganga. It cannot be contended that the contents of ss. 14 and 1-0, for example, which are punishable under s. 19(f) differ according as they are to be applied to areas north of the J umna a.nd Ganga or elsewhere.

We agree with the appellants that the object s. 29 was to give protection to subjects against harassment. That appears clearly on the reading of the section. Thll1·~ was some argument before us as to whether the statement of objects and reasons relied on for the appellants is admissible in evidence. It is well settled that proceedings of the Legislature cannot be called in aid for constructing Reotion, vide Administrator General of Benqal · v. Prem Lal Mullick ([1]), Krishna Ayyangar v. Nellaperu-mal 1'). "It is clear" observed Lord Wright in Assam Railway & Trading Oo. Ltd. v. Inland Reve-nue Commissioner (') · "that the language of Minister of the Crown in proposing in Parliament a. measure which eventually becomes law is inadmis-sible." The question whethe& the statement of objects and reasons admissible in evidence for construing the statue arose directly for decision in Aswini Kumar Ghosh v. Arabinda Bose('), and it was held that it was not.

It was argued that the history of legisla-tion would be admissible for ascertaining the legislative intent when the question is one of &ever ability. That is so as held by this Court in B.M.D. OharnarbaugwaUa's case(•) at pages 951-952.

l 'l (18•5122 l.A.107, 118, l2) (1919) L.k. 47 I.A. 33, 42. (3) (1935) A.C. 44$, 458. (4J (1953) S.C.R. I, 28.

(5) (1957) S.C.R. 930.

Ji• Lal •• Delhi Admini1 Atyar --·· J.

JHJ Ji• Lal •• Del/ti tfthninisl10lion J.(1or J.

But the statement of objects and reasons ie not part of the history of the legielation. It is merely an expression of what according to the mover of the Bill are the scope and purpose of the legielation. But the question. of aeverability has to be judged on the intention of the legislature a.a. expreB&ed in the Bill as paBBed, and to ascertain it the statement of the mover of the Bill i8 no more admit&· ible than speech made on the floor of the House.

It may '.>e mentioned that there are obser-vations' in some of the judgments 0f this Court judgments of this that the statement of objects and reasons but for Act right be admissible not for conetru-ing the Act but for ascertaining the conditions whioh prevailed when the legislation was enacted. Vide !he Stat,e of West Bengal v. Subodh Gupal Boae (I), M. K. Ranganathan v. Government of Madras('), A. Thangal Kunju Mudaliar v. M. Venkitachalam Potti(') and Commissioner of lncome-f,ax, Madhya Pradeah v. Sm. Sodra Devi. (').

It is sufficient for the purpose of this case to say that the statement of objects and reaeone ie sought to be used by tho appellants not for ascertaining the conditions which existed at the time when the statute wae passed but for showing that the legislature would not have enacted the law without the protoction afforded by s. 29. In our opinion it is clearly not admissible for thie purpose.

But even apart from the statement of object&, it ie clear on the face of the section that it hae been enacted with view to giving protection to the subjects. But i~ this sufficient to support the con-clusion that the legislature would not have enacted s. 19 if it had known tha.t s. 29 was void ? It is \his that the appellant has to establish before he (1) (1954) S.C.R. 5S7, 628. (2) (1955) 2 S.C.R. 37+, 385. (lJ (19~) ~ S C.R. 1196,.1237. (4) (19.SSJ S.C.R. I.

2 S.C.R.

can succeed, and the policy behind s. 29 is only one element in the decision of it. Now it appears to us that what is really determinative of the question is what has been already stated thats. 19 is substan· tive provision, whereas s. 29 iA an adjectival one, and in general, the invalidity of procedural enact· · ment cannot be held to affect the validity of substantive provision. It might be possible to conceive of cases in which the invalidity of pro-cedural section or rule might so react on suostantive provision, as to render it ineffective. But such oases must be exceptional. And we see nothing in the present statute to take it ,out of the general rule. On the other hand, the paramount intention behind the law was to punish certain offences. No doubt s. 29 was enacted with view to give some measure of protection to the ~ubjeots. But if the legislature had been told that s. 29 would be bad, can there be any doubt as to whether it would have enacted the statute without s. 29 ? The consequence of with· drawing the protection of that section is only that the accused will have to take up his trial in court, but there ultimately justice will be done. Therefore if the choice was given to the legislature between allowing an offence against the State to go unpunished, and failing to give protection to subject against frivolous prosecution, it is not diffi-cult to see where it would have fallen. We cannot he mistaken if we conclude that the intention of the legislature was to enact the law, with s. 29 if that was possible, without it, if necessary. And that is also the inference that is suggested by the provi· sion in s. 29, exempting certain areas from ·ih1 operation. _

The American authorities cited for the appel·

}ants do not rfquire detailed consideration, as the principles laid down therein have been approved by this Court in Okamarbaugwalla's case (I) at pages 950-951. The question is only one of application (I) (19$7) S.C.R,:930.

Ji• r..1 v.

D1lhi .A.tlmlnistr•lin Aiyar J.

JV. lAJ ••

Dtl1'i .Adniini1a1alio11

of the rulos of interpretation la.id down therein to particular legislation. It is however worthy of note that in Davis v. Wallace (1) as well as Lemke v . Farmers· Grain Company (') the point for d<>cision was to what t.he effect was of holding that a. sub-stantive provision in law was unconstitutional, on another substantive law in the same statute.

We a.re a.ware that it has Rome times been stated that a. distinction should be ma.de in the matter of severa.bility between Criminal a.nd Civil Laws, and that penal Rtatute must be oonstrued strictly against the State. But there are numerous decisions in which the samo rules of construction have b"cn s;1plied in deciding question of sever· ability of Criminal statute as in the case of a. Civil Law, and on principle it is diflioult to see any good gro1111d for th<> distinction. "Perhaps the most that can be 'aid'' Ray~ Sutherland,"for the distinction betu;cei1 criminal and civil statutes is that the penal nature of statute may be ma.kewoi~ht on the side of inseparability" Vide Statutory Construction Vol. 2 p. 197 para 2418. In the present case the fact that s. 29 iR a. procedural and not substantivo enactment is sufficient to turn tho scale heavily in favour of the State.

On consideration of the schemr, of the Ant, and its provisions, we are of opinion that s. 29 is severable from the othor portions of th'l Aot, and that its invalidity does not affect the validity of s. 19.

In Criminal Appeal 69 of 1961 contention

Wl!.8 a.Im ra.is~d that the pistol of which the appel-lant. was in poBSeseion was not in fit condition to be effectively used, and it had no chamber, and it ther<'fore did not fall within the definition of 'Arms' in s. 4( I) of the Act. Th<"re is no force in this

11) (IQ'II) 2o7U.S.47'.: 661.Ed.~75 329. (t)' (1921) 258 U.S. 50; 66 J. Ed. 458.

2 S.C.R. SUPREME COUR'!'. REPORTS

contention which is accordingly rejected. In Crimi. nal Appeal 62 of 1960 an argument was advanced that the State had launehed prosecutions under the Act, some wit.h, and others withput sanction; and that was disorimin:ttion hit by Art. 14. 'fhere is no substance in t;his contention, which also is rejected.

In the result both these appeals are dismissed.

Appeal dismissed.

PRABHU

STATE OF U. P.

(S. K. DAs, A. K. SARKAR, and

M. HIDAYATULLAH, JJ;)

Evidence-.M,,rder-llecovery of blood 1tained axe and clothes ai instance of acrn.11ed-Sta'emenls by accu.~ed t}1at axe was one u~th u'hich he committed murder and that blood stained clof,hes were his-Admis8ibiUty of-Indian Evidence Act, 1872 (I of 1872), s. 27. ,

The appellant was tried and convicted for the murder of one B. The evidence against him was circumstantial and consisted of ( 1) motive to kill which he had in common with his father, (II) the recovery at his instance of an , axe, shirt and dhoti stained with human blood and (III) his statements made to Sub-Inspector of Police before the recovery that the axe was one with which he had killed and that the shirt and Dhoti belonged to him. No independent evidence was led to prove that the axe shirt and dhoti belonged to the appellant. '

• J!el.d, that the statem~n.ts mad~ by the appellent were madm1ss1ble and the remaining evidence was not suffici-ent to bring home the guilt to the appellant. The state. ments were ~ncriminating ones· made to police officer and were !111 by ss. 25 and 26 of the Evidence Act,

19fl Jia Lal •• D1lh; Aim;nistro1ian

MayB.