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 CJ and Dave J in Criminal Reference No 229 of Sambat 2005
H J Umrigar for the appellant
G C Mathur for the respondent
111 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 3b 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 112 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 113 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 114 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 publicationif 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 vs 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  115 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 vs Manghumal Tekuml1 Shakoor vs King Emperor 2 and Babulal vs 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 3b 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 re spondent PA Mehta
1 ILR 1944 Karachi Nag 762


Summary:
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 section 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 section 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