The repeal of an amending Act does not affect the continuance of an amendment made by the repealed Act, unless a different intention appears.

Judgment

SUBBA RAO, J. : This appeal by special leave is directed against the order of the High Court of Punjab (Circuit Bench), Delhi confirming the conviction of the appellant and the sentence passed on him by the Magistrate, First Class, Delhi, under S. 6(1-A) of the Indian Wireless Telegraph Act, 1933 (XVII of 1933) (hereinafter called "the Act").

2. Jethanand, the appellant herein, was prosecuted, along with another, in the Court of the Magistrate, First Class, Delhi, under S. 6 (1-A) of the Act for possessing a wireless transmitter in contravention of the provisions of S. 3 of the Act, and was sentenced to six months rigorous imprisonment. On appeal, the learned First Additional Sessions Judge, Delhi, upheld the conviction but reduced the sentence to the period of imprisonment already undergone plus a fine of Rs. 500. On revision, the High Court confirmed both the conviction and the sentence. On an application filed for special leave, this Court gave the same but limited it to the question of sentence.

3. Learned Counsel raised before us the following contentions : (1) S. 6 (1-A) of the Act was repealed, and, therefore, neither the conviction nor the sentence thereunder could be sustained; and (2) if S. 6 (1-A) of the Act was repealed, this Court in limiting the appeal to the question of sentence only went wrong, for, if that section was not on the statute book at the time of the alleged commission of the offence, not only the sentence but also the conviction thereunder would be bad. Both the contentions raised turn upon the same point. The different steps in the argument may be stated thus : In the Act XVII of 1933, as it originally stood, there was no specific provisions making the possession of wireless transmitter an offence. By the Indian Wireless Telegraphy (Amendment) Act, 1949 (XXXI of 1949) (hereinafter called the "1949 Act"). S. 6 (1-A) was inserted in the Act, whereunder the possession of a wireless transmitter was constituted a separate offence. The amending Act was repealed by the Repealing and Amending Act, 1952 (XLVIII of 1952) (hereinafter called the "1952 Act"), with the result that on the date of the alleged commission of the offence the said section was not on the statute book. If that was the legal position, the limitation on the leave granted by this Court would result in an anomaly, namely, that the conviction would stand but the sentence would be quashed. The argument so presented appears to be plausible, but, in our view, not sound.

4. There is a real justification for this Court limiting the scope of the special leave. The High Court by mistake cited in its judgment the provisions of S. 6 (1) of the Act instead of S. 6 (1-A) thereof. If the conviction was under S. 6 (1), the maximum sentence permissible on the first offence thereunder was only fine which may extend to Rs. 100. Presumably on the assumption that the conviction could be sustained under S. 6 (1), even if S. 6(1-A) was not on the statute book - there may be justification for this view, as the words "wireless telegraphy apparatus" in S. 6 (1) are comprehensive enough to take in "wireless telegraph transmitter" - this Court gave leave limited to the question of sentence. The inconsistency, if any, was the result of the appellant s presentation of his case at that stage, and he cannot now be allowed to take advantage of his default to enlarge the scope of the appeal.

5. That apart, there are no merits in the contention. At the outset it would be convenient to read the relevant provisions of the three Acts :

"The Indian Wireless Telegraphy Act, 1933."

Section 3 : Save as provided by S. 4, no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act.

Section 6 (1) : Whoever possesses any wireless telegraph apparatus in contravention of the provisions of S. 3 shall be punished in the case of the first offence, with fine which may extend to one hundred rupees, and, in the case of a second