Judgement

KAPUR J. : Two important questions arise for decision in this case of a small magnitude and the State has filed this appeal not for the purpose of obtains a conviction but because of the importance of the questions raised and implications of the judgment of the Judicial Commissioner. The respondent was convicted of an offence under S.12(a) of the Bombay Prevention of Gambling Act (Act IV of 1887 hereinafter termed the Bombay Act) as applied to Kutch and was sentenced to a fine of Rs. 50 or in default simple imprisonment for 15 days and forfeiture of the amounts recovered from the respondent of the time of the commission of the offence. He took a revision to the Judicial Commissioner of Kutch, who held that the Act under which the respondent had been convicted had not been validly extended to and was not in force in the State of Kutch. It is the correctness of this decision which has been canvassed before us.

2. There was sufficient evidence against the respondent which was accepted by the trying magistrate; and if the Act was validly extended to and was in operation in the State of Kutch, his conviction by the learned magistrate was correct and his acquittal by the learned Judicial Commissioner erroneous.

3. On June 7, 1951, the respondent, it was alleged committed the offence he was charged with. He was convicted by the magistrate on July 26, 1951, and his revision to the Sessions Judge was dismissed. He then took a revision to the Judicial Commissioner of Kutch who allowed his petition on June 30, 1954, and granted a certificate under Arts. 132 (1) and 134 (1) of the Constitution.

4. Kutch before 1948 was what was called an Indian State. The Maharao of Kutch handed over the governance of the State to the Dominion of India on June 1, 1948, and thus the whole administration of the State passed to the Dominion and it became a Centrally administered area. On July 31, 1949, the then Central Government issued under S.4 of the Extra Provincial Jurisdiction Act (Act XL VII of 1947), an order called the Kutch (Application of Laws) Order, 1949. Under Cl. 3 of this order certain enactments were applied to Kutch with effect from the date of the commencement of the order. One of these enactments was the Bombay Act. Clauses 4 and 6 of this order are important and may be quoted;

4. "Except as otherwise specifically provided in the first schedule to this order the enactments applied by this order shall be construed as if references therein to the authorities and territories mentioned in the first column of the table hereunder printed were references to the authorities & territories, respectively, mentioned opposite thereto in the second column of the said table.

TABLE

1 . Provincial Government, Governor or Chief Controlling Revenue Authorrity. The Chief Commissioner of Kutch.

2. Government The Central Government or the Chief Commissioner, as the context may require.

3. High Court Court of the Judicial Commissioner Kutch.

4. Provinces of India, any Province of India or any part thereof. Kutch or any part thereof.

5. The province or Presidency of Bombay or any part thereof. Kutch or any part thereof."

6. "Any Court may construe the provisions of any enactment, rule, regulation, general order or by law applied to Kutch or any part thereof by this order, with such modifications not affecting the substance as may be necessary or proper in the circumstances."

5. On August 1, 1949, Kutch became a Chief commissioner s Province under the State Merger (Chief Commissioner s Provinces) Order, 1949. Clause 2 (1)(c) of this order is as follow:

"As from the appointed day, the parts of States specified in the Second Schedule to this order shall be administered in all respects as if they were a Chief Commissioner s Province, and shall be known as the Chief Commissioner s Province of Kutch."

6. The Second Schedule gives the parts of the pre-1947 Indian State which were to comprise the Chief Commissioner s Province of Kutch. Under Cl. 4 of this Order