KAPUR T.: - (1.) THE judgment of the court was deliver- ed by
(2.) 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 obtaining 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. 50.00 or in default simple imprisonment for 15 days and for- feiture of the amounts recovered from the respondent at the time of the commission of the offence. He took a' revision to the Judicial Commissioner of Kutch, who hold 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. 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. 519 On 7/06/1951, the respondent, it was alleged committed the offence he was charged with He was convicted by the magistrate on 26/07/1951, 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 30/06/1954, and granted a certificate under Arts. 132(1) and 134(1) of the Constitution. Kutch before 1948 was what was called an Indian State. The Maharao of Kutch handed over the gover. nance of the State to the Dominion of India on 1/06/1948 and thus the whole administration of the State passed to the Dominion and it became a centrally administered area. On 31/07/1949, the then central government issued under s. 4 of the Extra Provincial Jurisdiction Act (Act XLVII 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 and territories, respectively, mentioned opposite thereto in the second column of the said table. TABLE JUDGEMENT_517_AIR(SC)_1957Html1.htm 6. `Any Court may construe the provisions of any enactment, rule, regulation, general order or byelaw 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.` On 1/08/1949, Kutch became a Chief Commissioner's province under the States Merger (Chief Commissioners Provinces) Order, 1949. Clause 2(1)(c) of this order is as follows: ` 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 Chief Commissioner's Province of Kutch.`
(3.) THE Second Schedule gives the parts of the pre-1947 Indian States which were to comprise the Chief Commissioner's Province of Kutch. Under el. 4 of this Order all laws which were in force including orders made under s. 4 of the Extra Provincial Jurisdiction Act of 1947, were to continue in force until replaced. On 1/01/1950, Merged States' Laws Act (Act LIX of 1949), came into force. By this Act certain central Acts were extended to the province of Kutch including the General Clauses Act (Act X of 1897). On 26/01/1950, the Constitution of India came into force and Adaptationof Laws Order, 1950, was promulgated the same day. Clause 4(1) of this order provides: `Whenever an expression mentioned in column 1 of the table hereunder printed occurs (otherwise than in a title or preamble or in a citation or description of an enactment) in an (existing central or Provincial Laws) whether an Act, Ordinance or Regulation mentioned in the Schedule to this Order or not, then, unless that expression is by this Order expressly directed to be otherwise adapted or modified, or to stand unmodified, or to be omitted, there shall be substituted therefor the expression set opposite to it in column 2 of the said Table, and there shall also be made in any sentence in which the expression occurs such consequential amendments as the rules of grammar may require.` The necessary portions of the table are: JUDGEMENT_517_AIR(SC)_1957Html2.htm Clauses 15 and 16 in (Part III)-Supplementary, are as follows:- 15. ` Save as is otherwise provided by this Order, all powers which under any law in force in India or any part thereof were, immediately before the appointed day, vested in or exercisable by any person or authority shall continue to be so vested or exercisable until other provision is made by some legislature or authority empowered to regulate the matter in question.` 16. ` Subject to the provisions of this Order any reference, by whatever form of words in any existing law to any authority competent at the date of the passing of that law to exercise any powers or authorities, or to discharge any functions, in any part of India shall, where a corresponding new authority has been constituted by or under the Constitution, have effect until duly repealed or amended as if it were a reference to that new authority.` 520 On 28/11/1950 the Chief Commissioner of Kutch issued the following notification: In exercise of the powers vested in him under section I of the Bombay Prevention of Gambling Act, '1887 (IV of 1887) as applied to Kutch by the Kutch (Application of Laws) Order, 1949 the Chief Commissioner has been pleased to order that all the provisions of the said Act shall come into force throughout the whole of Kutch with immediate effect. ` ;