The main legal point established in the judgment is that the provisions in section 55 of the Abkari Act relating to possession of ganja are not saved under Section 81 of the NDPS Act, and therefore, the Magistrate could not have taken cognizance of the offence under section 55(a) of the Abkari Act for possessing ganja, a narcotic drug coming within the scope of the NDPS Act.

Balanarayana Marar J.

Appeal is against acquittal. State is the appellant.

2. Respondent was charged by Excise Inspector, Mananthavady for offence punishable under section 55(a) of the Kerala Abkari Act. He is alleged to have possessed one kilogram of ganja which was detected by the Preventive Officer and party on 9-2-1987. On analysis the article was found to be ganja. The Magistrate's Court found the accused guilty, convict him and sentenced him to undergo imprisonment for a period of six months and to pay a fine of Rs. 1000/- and in default to undergo simple imprisonment for another period of one month. On appeal Sessions Judge, Waynad set aside the conviction and sentence and acquitted the accused. Hence this appeal after obtaining special leave.

3. Heard Public Prosecutor and counsel for respondent.

4. The order of acquittal is seen entered mainly for two reasons. The court below found that the offence comes under the provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act for short) and that the Magistrate should have committed the case to the Sessions. The other reason mentioned by the Sessions Judge is the incompetence of the Preventive Officer to detect an offence under the Act.

5.Challenging the order of acquittal learned Public Prosecutor contended that the Kerala Abkari Act has not been repealed by the NDPS Act and the Magistrate could have therefore tried the accused for the offence under section 55(a) of the Abkari Act. Attention is drawn to Section 81 of the NDPS Act which reads:

"Saving of State and special laws-Nothing in this Act or in the rules made there under shall affect the validity of any Provincial Act or an Act of any State Legislature for the time being in force, or of any rule made there under which imposes any restriction or provides for a punishment not imposed by or provided for under this Act or imposes a restriction or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotic drug or psychotropic substance within India."

6. Meeting this contention Sri. Padmanabhan, learned counsel for respondent points out that the Abkari Act has to be deemed to have been replaced except the provisions specifically saved under Section 81 of the NDPS Act. In order to appreciate the contentions advanced on both sides the principles to be applied in the matter of interpretation of saving clauses are to be understood.

7. A saving clause is generally inserted when a statute is repealed and re-enacted. The effect of such saving is that the repealed statute remains in force regarding the rights which the party had previously. It does not create any new right in his favour. In other words, a saving clause is introduced into the repealing Act in order to safeguard the existing rights which but for such saving would be lost. In construing such a clause it has to be seen whether the repealing Act manifests an intention to destroy the rights and liabilities under the repealed enactment.

8. The principle has been stated in Craies on Statute Law, Seventh Edition on page 220 thus:

"The true principle," say the editors of Kent's Commentaries, "undoubtedly is, that the sound interpretation and meaning of the statute on a view of the enacting clause, saving clause, and proviso, taken and construed together, are to prevail. If the principal object of the Act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy."

9. Section 81 of the NDPS Act does not expressly repeal the Abkari Act, but only saves certain provisions contained therein. The intention is therefore to preserve only some existing rule or right. In other words, the saving is only qualified or conditional. In the absence of inconsistency between the two acts the provisions contained in the Abkari