STATE Vs. GOPAL SINGH
LAWS(MPH)-1955-9-1
HIGH COURT OF MADHYA PRADESH
Decided on September 21,1955

STATE Appellant
VERSUS
GOPAL SINGH Respondents

JUDGEMENT

- (1.) THE question referred to this Full Bench for decision is whether judicial notice of Government notifications can be taken under Section 57, Evidence Act and, if so. of what notifications. It is necessary to state the facts of the case to understand the implications of the question. The respondent Gopal Singh was tried by the Sub-Divisional Magistrate of Mhow on a charge under Section 33 (a), 'madhya Bharat Madak Dravya Vidhan' for being in possession, without a permit, of liquor in excess of the maximum quantity prescribed by a notification issued under the Act. m the trial the notification was neither produced nor exhibited. The trial Magistrate, therefore, relying on -- State v. Bachchulal', Madh-B LJ 1952 HCR 119 (A) held that the prosecution by its omission to prove the notification had failed to establish the essential fact that it was an offence to possess liquor in excessi of a certain quantity and that no judicial notice could be taken of any such notification. Accordingly he acquitted the respondent The State had now preferred this appeal against the acquittal of the respondent Gopal Singh. The appeal first came up for hearing before a Division Bench consisting of our learned brothers Nevaskar and Samvatsar JJ. , whose attention was drawn to two decisions of this Court, namely: The State v. Gendalal AIR 1950 Madh-B 89 (B) where judicial notice of a notification fixing the maximum price of cloth under Cloth and Yarn Control Order was taken; and - 'madh-B LJ 1952 HCR 119 (A)', where it was held that no. judicial notice could be taken of a notification issued by the Textile Commissioner fixing the maximum ftriee of cloth ox yarn under Clause 13, Madhya Bharat Textile (Control) Order, 1948. Each is a decision of a Division Bench and they are, considered to be in conflict. It was in. consequence of the considered conflict that this appeal has been posted before a Full Bench.
(2.) BEFORE proceeding to state the arguments-of the learned Advocate-General and to discuss, the conflicting decisions on the question, I shae refer to the statutory provisions which have a bearing on the question. Under Section 57, Evidence Act, the Court is required to take judicial notice* of the facts specified in Clauses (1) to (13 ). Clause (1) of Section 57 as adapted by the Adaptation of Laws Order 1950, reads as follows: All laws in force in the territory of India. The last paragraph of Section 57 says: If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. The expression' "all lawsi in force in the territory of India" has not been defined in the Evidence Act or in the General Clauses Act, 1897. Section 3 (29), General Clauses Act, 1897, however, defines 'indian Law' as follows: 'indian Law shall mean any Act, Ordinance, Regulation, Rule, Order or Bye-law, which before the commencement of the Constitution had the force of law in any Provinces of India or part thereof, and thereafter has the force of law in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, Rule or other Instrument made under such Act. The above definition is not of much assistance in determining the meaning of 'law in force' in a Part B State. But the following definitions of the terms "law" and "existing laws" given in the Constitution, though for the purposes of the Constitution, have great relevancy here. Article 13 (1) (a) of the Constitution defines "law" as including "any Ordinance, Order, Bye-law, Rule, Regulation, Notification, custom or usage having in the territory of India the force of law". The term 'existing law' has been defined in Article 366 (10) of the Constitution thus: " 'existing law' means any Law, Ordinance, Order, Bye-law, Rule or Regulation passed or made before the commencement of this Constitution by any Legislature, Authority or person having power to make such Law. Ordinance, Order, Bye-law, Rule or Regulation. " It is pertinent to note that Article 372 of the Constitution speaks of the continuance of "all the laws in force in the territory of India". The Supreme Court has pointed out in - "edward Mills Co. Ltd. v. State of Ajmer' (S)' , that there is no material difference between an 'existing law' as defined in Article 366 (10) and "a law in force"; that the words "law in force" as used in Article 372 are wide enough to include not merely a legislative enactment but also any regulation Or order which has the force of law; that an order must be a legislative and not an executive order before it can come within the definition of law.
(3.) NOW, it has never been doubted that a public or general Act falling within tin definition of law must be noticed judicially by Courts and ex officio, although not formally set forth by a party relying on it; and they require no proof. The question is whether a notification issued by Government or by other competent authority is within the definition of law, Article 366 (10) of the Constitution makes no mention of a notification. But there can be no doubt that if a notification is a part of any Act, Ordinance, or Order, it would be within the definition of law or 'existing law". In his arguments, the learned Advocate-General drew a distinction between notification issued by Government or by competent authority in the exercise of the powers delegated by the Legislature under an Act or Ordinance, and notifications issued by such authority in the exercise of its executive functions and powers. It was said that whereas the former class of notifications could be regarded as part "of the law" and as such could be judicially noticed under Section 57, Evidence Act, the latter category of notifications was not a part of the law and required to be tendered in evidence an proved according to the provisions of the Evidence Act. The learned Advocate-General proceeded to say that if an Act, Ordinance, or Order makes it an offence to sell goods at a price higher than the maximum price specified in that behalf or to possess certain goods in quantities larger than the prescribed quantity and delegates to certain authority the power to prescribe by notification the maximum price or the maximum quantity then sucti a notification would be one made in the exercise of the delegated powe,r of legislation and would be a part of the law itself; that in the case of AIR 1950 Madh-B 89 (B), judicial notice was taken of a notification issued in the exercise of delegated power of legislation; that in the case of Madh-B LJ 1952 HCR 119 (A), though the notification was one made by the Textile Commissioner in the exercise of the power delegated to him under the Cotton Cloth and Yarn Control Order, it was, however, held On the authority of ?- (D), that no judicial notice could be taken on the notification and no reference was made to AIR 1950 Madh-B 89 (B); that the Allahabad case related to a notification issued by the U. P. Government in the exercise of its executive and not delegated legislative power and that, therefore, it has no relevancy to the facts, in the case of 'state v. Bachchulal (A ). The learned Advocate-General relied on - 'public Prosecutor y. Thippayya' AIR 1949 Mad 459 (E) as supporting his contention. He also referred us to the decisions of the Lahore High Court in - 'bawa Samp Singh v. Emperor' AIR 1925 Lah 299 (F) and - 'nanak Chand v. Emperor' AIR 1931 Lah 273 (G), where it was held that a notification issued by the Government in the exercise of its executive authority even if not tendered in evidence in the trial, could be produced for the first timp before thp High Court and Its genuineness could be presumed under Section 81, Evidence Act, and to the deehon of thp Nagpur High Court in - 'mathuradas' v. The State' AIR 1954 Nag 296 (H), in which it was held that no judicial notice could be taken of a notification fixing the retail price of yam under thp Citton Textile (Control) Order, 1948. It was said that the view taken in the Lahore and Nagpur cases was not correct.;


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