SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS W BENGAL Vs. NESARUDDIN SHAIKH
LAWS(CAL)-1961-9-15
HIGH COURT OF CALCUTTA
Decided on September 29,1961

SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, W.BENGAL Appellant
VERSUS
NESARUDDIN SHAIKH Respondents

JUDGEMENT

S.K.Sen, J. - (1.) This is an appeal by the Legal Remembrancer, Gov-ernment of West Bengal on behalf of the State of West Bengal against an order by Shri S. K. Chakravarti, Sessions Judge, Murshidabad acquitting the respondent Nesaruddin snaikh in respect of a charge under Section 5 of the Explosive Substances Act, 1908 on a preliminary point of law. The respondent was committed for trial to the Court of the Sessions Judge, Murshidabad under Section 5 of the Explosive Substances Act, 1908, the allegation against him being that on 19th December, 1956 six country-made throw-down crackers dangerous to life were found in the possession ot the respondent. When the case came up for trial before the learned Sessions Judge, a preliminary objection on a point of law was taken, that as consent under Section 7 of the Explosive Substances Act had been given by the State Government and not by the Central Government as required by the Section, the trial could not proceed, me learned Judge accepted this preliminary objection on the strength of a decision of the Allahabad High Court Chaitanya Prakash v. State.
(2.) The point for decision before us is whether the consent given by the State Government is a sufficient con- sent in terms of Section 7 of the Explosive Substances Act, 1903.
(3.) Section 7 of the Explosive Substances Act as it stands at present is as follows: "No Court shall proceed with the trial of any person for an offence against this Act except with the consent of the Central Government." In the Allahabad case, Desai, J. referred to the Notification No. 25/1/54 Police-1, dated 31-8-54, by which the power of the Central Government under Section 7 of the Explosive Substances Act was delegated to the State Governments. Desai, J., however, held that such order of delegation was invalid. He observed that there was no provision in the Explosive Substances Act itself conferring any power upon the Central Government to delegate its powers and duties to any authority subordinate to it; that what is required is the specific consent by the Central Government to the particular prosecution and not a general consent; and the direction by the Central Government that it gives can-sent to all prosecutions that are consented to or sanctioned by a subordinate authority cannot be accepted as a valid consent to a particular prosecution by the Central Government, even though the subordinate authority has given specific consent to the same.;


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