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Cites 2 docs
The Opium And Revenue Laws (Extension Of Application) Act, 1950
Babulal Choukhani And Sailendra ... vs The King-Emperor on 17 February, 1938
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I.T.C. Ltd. vs Collector Of Central Excise on 9 November, 1994
Yadu Raj Singh And 2 Ors. vs State Of Rajasthan And Ors. on 17 December, 1986
Century Enka Ltd. vs Collector Of Central Excise And ... on 19 October, 1993
D.B. Raju vs H.J. Kantharaj And Others on 13 July, 1990
Rajasthan State Agricultural ... vs Govind Narain Lata And Anr. on 1 March, 2007

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crown
Supreme Court of India proclamation
Harla vs The State Of Rajasthan on 24 September, 1951 vivian bose
maharaja
Equivalent citations: 1951 AIR 467, 1952 SCR 110
Author: V Bose
Bench: Bose, Vivian

PETITIONER:

HARLA

Vs.

RESPONDENT:

THE STATE OF RAJASTHAN

DATE OF JUDGMENT:

24/09/1951

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

MAHAJAN, MEHR CHAND

CITATION:

1951 AIR 467 1952 SCR 110

CITATOR INFO :

R 1962 SC 562 (2)

RF 1978 SC1675 (194)

RF 1980 SC1230 (19)

RF 1988 SC 440 (23)

RF 1990 SC1256 (27)

ACT:

Jaipur Laws Act, 1923, s. 3(b)--Jaipur Opium Act,

1923--Law passed by Council of Ministers not promulgated or

published in Gazette--Validity of law--Necessity of promul-

gation of laws-Natural justice.

HEADNOTE:

Natural justice requires that before a law can become

operative it must be promulgated or published. It must be

broadcast in some recognisable way so that all men may know

what it is; or at least there must be some special rule or

 regulation or customary channel by or through which such

knowledge can be acquired with the exercise of due and

reasonable diligence.

The Council of Ministers appointed by the Crown Repre-

sentative for the government and administration of the

Jaipur State passed a Resolution in 1923 purporting to enact

a law called the Jaipur Opium Act, but this law was neither

promulgated or published in the Gazette nor made known to

the public. The Jaipur Laws Act, 1923, which was also

passed by the Council and which came into force on the 1st

November, 1924, provided by s. 3 (b) that the law to be

administered by the court of the Jaipur State shall be..."

(b) all the regulations now in force within the said terri-

tories and the enactments and regulations that may hereafter

be passed from time to. time by the State and published in

the Official Gazette." In 1938 the Jaipur Opium Act was

amended by adding a clause to the effect that "it shall come

into force from the 1st of September, 1924."

Held, that the mere passing of the Resolution of the

Council without further publication or promulgation of the

law was not sufficient to make the law operative and the

Jaipur Opium Act was not therefore a valid law. Held fur-

ther, that the said Act was not saved by s. 3 (b) of the

Jaipur Laws Act, 1923, as it was not a valid law in force on

the 1st November, 1924, and the mere addition of a clause in

1938 that it shall come into force in 1924 was of no use.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 5

of 1951. Appeal from the
Judgment and Order dated 18th
August, '1950, of the High Court of Judicature for Rajasthan
at Jaipur
(Nawal Kishore C.J. and Dave J.) in Criminal
Reference No. 229 of Sambat 2005.

H. J. Umrigar for the appellant.

G. C. Mathur for the respondent.

1951. September 24. The Judgment of the Court was

delivered by
Bose J.--The appellant was
convicted under section 7 of
the Jaipur Opium Act and fined Rs. 50. The case as such is
trivial but the
High Court of Rajasthan in Jaipur granted
special leave to appeal as an important point touching the
vires of the Act arises. We will state the facts chronolog-
ically.

It is conceded that the Rulers of Jaipur had full powers

of government including those of legislation.
On the 7th of
September, 1922, the late Maharaja died and at the time of
his death his successor, the
present Maharaja, was a minor.
Accordingly,-the Crown Representative appointed a Council of
Ministers to look after the government and administration of
the State during the Maharaja's minority-

On the 11th of December, 1923, this Council passed a

Resolution which purported to enact the Jaipur
Opium Act,
and the only question is whether the mere passing of the
Resolution without promulgation
or publication in the Ga-
zette, or other means to make the Act known to the public,
was sufficient to
make it law. We are of opinion that it was
not. But before giving our reasons for so holding, we will
refer to some further facts.

About the same time (that is to say, in the year 1923

we have not been given the exact date) the same
Council
enacted the Jaipur Laws Act, 1923. Section 3(b) of this Act
provided as follows :--

"3. Subject to the prerogative of the Ruler the law to

be administered by the Court of Jaipur State shall
be as
follows:

(b) All the regulations now in force within the said

territories, and the enactments and regulations that
may
hereafter be passed from time to time by the State and
published in the Official Gazette."
This law came into force on the 1st of November, 1924.
It is admitted that the Jaipur Opium Act was
never
published in the Gazette either before or after the 1st of
November, 1924. But it is contended that
was
not necessary because it was a "regulation" already in force
on that date.

The only other fact of consequence is that on the 19th

of May, 1938, section 1 of the Jaipur Opium Act
was amended
by the addition of sub-section (c) which ran as follows:
"(c) It shall come into force from
the 1st of September,
1924."

The offence for which the appellant was convicted took

place on the 8th of October, 1948.

Dealing first with the last of these Acts, namely the

one of the 19th of May, 1938, we can put that on
one side at
once because, unless the Opium Act was valid when made, the
mere addition of a clause
fourteen years later stating that
it shall come into force at a date fourteen years earlier
would be
useless. In the year 1938 there was a law which
required all enactments after the 1st of November,
1924, to
be published in the Gazette. Therefore, if the Opium Act
was not a valid Act at that date, it
could not be validated
by the publication of only one section of it in the Gazette
fourteen years later.
The Jaipur Laws Act of 1923 required
the whole of the enactment to be published; therefore publi-
cation of only one section would not validate it if it was
not already valid. We need not consider
whether a law could
be made retroactive so as to take effect from 1924 by publi-
cation in 1938,
though that point was argued. That throws us
back to the position in 1923 and raises the question
whether
a law could be brought into operation by a mere resolution
of the Jaipur Council.

We do not know what laws were operative in Jaipur re-

garding the coming into force of an enactment
in that State.
We were not shown any, nor was our attention drawn to any
custom which could be said
to govern the matter. In the
absence of any special law or custom, we are of opinion that
it would be
against the principles of natural justice to
permit the subjects of a State to be punished or penalised
by
laws of which they had no knowledge and of which they
could not even with the exercise of reasonable
diligence
have acquired any knowledge. Natural justice requires that
before a law can become
operative it must be promulgated or
published. It must be broadcast in some recognisable way so
that
all men may know what it is; or, at the very least,
there must be some special rule or regulation or
customary
channel by or through which such knowledge can be acquired
with the exercise of due and
reasonable diligence. The
thought that a decision reached in the secret recesses of a
chamber to which
the public have no access and to which even
their accredited representatives have no access and of
which
they can normally know nothing, can nevertheless affect
their lives, liberty and property by the
mere passing of a
Resolution without anything more is abhorrent to civilised
man. It shocks his
conscience. In the absence therefore of
any law, rule, regulation or custom, we hold that a law
cannot
come into being in this way. Promulgation or publica-
tion of some reasonable sort is essential.
In
England the rule is that Acts of Parliament become
law from the first moment of the day on which they
receive
the Royal assent, but Royal Proclamations only when actually
published in the official Gazette.
See footnote (a) to
paragraph 776. page 601, of Halsbury's Laws of England
(Hailsham edition),
Volume VI and 32 Halsbury's Laws of
England (Hailsham edition), page 150 note (r). But even
there it
was necessary to enact a special Act of Parliament
to enable such proclamations to become law by
publication in
the Gazette though a Royal Proclamation is the highest kind
of law, other than an Act of
Parliament, known to the Brit-
ish Constitution; and even the publication in the London
Gazette will
not make the proclamation valid in Scotland nor
will publication in the Edinburgh Gazette make it
valid for
England. It is clear therefore that the mere enacting or
signing of a Royal Proclamation is not
enough. There must
be publication before it can become law, and in England the
nature of the
publication has to be prescribed by an Act of
Parliament.

The Act of Parliament regulating this matter is the

Crown Office Act of 1877' (40 and 41 Victoria Ch.
41). That
Act, in addition to making provision for publication in
certain official Gazettes, also provides
for the
making of rules by Order in Council for the best means of
making Proclamations known to the
public. The British Par-
liament has therefore insisted in the Crown Office Act that
not only must there
be publication in the Gazette but in
addition there must be other modes of publication,if an
Order in
Council so directs, so that the people at large may
know what these special laws are. The Crown Office
Act
directs His Majesty in Council carefully to consider the
best mode of making these laws known to
the public and
empowers that body to draw up rules for the same and embody
them in an Order in
Council. We take it that if these Proc-
lamations are not published strictly in accordance with the
rules
so drawn up, they will not be valid law.
The principle underlying this question has been judi-
cially
considered in England. For example, on a somewhat
lower plane, it was held in Johnson v. Sargant (1)
that an
Order of the Food Controller under the Beans, Peas and Pulse
(Requisition) Order, 1917 does
not become operative until it
is made known to the public, and the difference between an
Order of that
kind and an Act of the British Parliament is
Stressed. The difference is obvious. Acts of the British
Parliament are publicly enacted. The debates are open to the
public and the Acts are passed by the
accredited representa-
tives of the people who in theory can be trusted to see that
their constituents
know what has been done. They also re-
ceive wide publicity in papers and, now, over the wireless.
Not so Royal Proclamations and Orders of a Food Controller
and so forth. There must therefore be
promulgation and
publication in their cases. The mode of publication can
vary; what is a good method
in one country may not neces-
sarily be the best in another. But reasonable publication
of some sort
there must be.

Nor is the principle peculiar to England. It was ap-

plied to France by the Code Napoleon, the first
Article of
which states that the laws are executory "by virtue of the
promulgation thereof" and that they
shall come into effect
"from the moment at which their
(1) [1918] 1 K.B. 10I; 67 L.J.K.B. 122.

promulgation can have been known." So also it has been

applied in India in, for instance, matters
arising under
Rule 119 of the Defence of India Rules. See, for example,
Crown v. Manghumal
Tekuml(1), Shakoor v. King Emperor (2)
and Babulal v. King Emperor (3). It is true none of these
cases is analogous to the one before us but they are only
particular applications of a deeper rule which
is rounded on
natural justice.

The Council of Ministers which passed the Jaipur Opium

Act was not a sovereign body nor did it
function of its own
right. It was brought into being by the Crown Representa-
tive, and the Jaipur
Gazette Notification dated the 11th
August, 1923, defined and limited its powers. We are enti-
tled
therefore to import into this matter consideration of
the principles and notions of natural justice which
underlie
the British Constitution, for it is inconceivable that a
representative of His Britannic Majesty
could have contem-
plated the creation of a body which could wield powers so
abhorrent to the
fundamental principles of natural justice
which all freedom loving peoples share. We hold that, in
the
absence of some specific law or custom to the contrary,
a mere resolution of a Council of Ministers in
the Jaipur
State without further publication or promulgation would not
be sufficient to make a law
operative.

It is necessary to consider another point. It was urged

that section 3(b) of the Jaipur Laws Act of 1923
saved all
regulations then in force from the necessity of publication
in the Gazette. That may be so, but
the Act only saved laws
which were valid at the time and not resolutions which had
never acquired the
force of law.

The appeal succeeds. The conviction and sentence are

set aside. The fine, if paid, will be refunded.

Appeal allowed.

Agent for the appellant: R.A. Govind. Agent for the re-
spondent: P.A. Mehta.

(1) I.L.R. 1944 Karachi 107. (3) I.L.R. 1945

Nag. 762.

(2) I.L.R. 1944 Nag. 150.