Ordinances promulgated under the emergency powers of the Governor-General during the period specified in the India and Burma (Emergency Provisions) Act, 1940, had perpetual duration unless repealed.

Judgement

BHAGWATI, J.- This appeal with special leave under Art. 136 of the Constitution raises the question whether the High Denomination Bank Notes (Demonetization) Ordinance of 1946 (Ordinance No.III of 1946) promulgated by the Governor- General of India on 12th January 1946, was in operation on 11th July 1953 when the offence under S.7 read with S.4 thereof was committed by the appellant herein.

2. The appellant who was the accused No. 1 before the Additional Chief Presidency Magistrate s Court, Bombay, was charged along with the accused Nos. 2,3,5 & 6 with having on or about 11th July 1953, transferred by sale 10 High Denomination Bank Notes of the Denomination of .Rs. 1000 each to one Velji Lakhamashi Joshi for Rs. 1,800 at the rate of Rs. 180 per note and thus contravened the provisions of S.4 of the Ordinance and committed an offence punishable under S.7 of the Ordinance read with S.109. I.P.C.

3. A preliminary objection was urged by the learned counsel for the appellant that the said Ordinance was not in operation at the date when the offence was alleged to have been committed and that therefore the prosecution was not maintainable. This objection was overruled by the learned Presidency Magistrate and the trial ended in the conviction of the appellant along with the co-accused of the offence with which they had been charged. The appellant was sentenced to pay a fine of Rs. 8,000 and in default suffer six months rigorous imprisonment and the co-accused of the appellant were awarded varying sentences of fine with which however we are not concerned.

4. The appellant took an appeal to the High Court of Judicature at Bombay being criminal Appeal No.156 of 1955. The State of Bombay, the respondent herein, also filed an application for enhancement of the sentence, being criminal Revision Application No.435 of 1955. The co-accused of the appellant had also filed appeals against their convictions and sentences of fine imposed upon them and all these appeals and the application of the respondent were heard together by a Division Bench of the High Court. The High Court agreed with the learned Presidency Magistrate in regard to the finding of fact and held that the appellant had in fact transferred by sale 10 High Denomination Bank Notes of Rs. 1,000 each to the possession of Velji Lakhamashi and his act fell within the prohibition enacted in S.4 of the Ordinance. The High Court also overruled the contentions which were urged before it in regard to the Ordinance having lapsed and ceased to be in operation before 1lth July 1953, the date on which the offence was alleged to have been committed. It accordingly confirmed the conviction recorded against the appellant by the learned Additional Chief Presidency Magistrate. In regard to the sentence the High Court saw no ground for enhancing the same and confirmed the sentence of fine of Rs. 8,000 and in default six months rigorous imprisonment which had been awarded by the learned Presidency Magistrate to the appellant.

5. The appellant applied to the High Court for a certificate under Art. 134(1) (c) of the Constitution. The said application was however dismissed by the High Court with the result that he applied for and obtained from this Court special leave under Art. 136 of the Constitution.

6. The decision of this appeal turns on the construction of S.72 of the 9th Schedule of the Government of India Act, 1935 (25 & 26 Geo, 5 Chap. 42) and S. 1(3) of the India and Burma (Emergency Provisions) Act, 1940 (3 &4 Geo. 6 Chap. 33).

7. Section 72 of the 9th Schedule of the Government of India Art, 1935 read as follows:

The Governor- General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the peace of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinance under this section