dedol-hf/india-case-legal-rag huggingface dataset:
from  the Mills and using those bales to make up  the  defi-
ciency in the bales of quota cloth of superior quality which
they  used  to dispose of in the black market  in  collusion
with the Mills. Besides, the firm Rattan Chand Mathra  Dass,
as  would be evident from the attached lists signed  by  the
District Organiser, had been dealing in free sale cloth  and
had also been importing cloth as Reserve of Kangra and  also
Provincial  Reserve. Most of this quota also found  its  way
into the black market.  Similarly the firm Madan Gopal  Nand
Lall  and Company had been dealing in free sale cloth  on  a
large  scale.  It would be evident from the  attached  list.
Santi  Sarup, the Secretary of the Corporation, is  believed
to  be a partner in the firm Hari Chand Bindra Ban and  this
firm also had been dealing in free sale cloth. The free sale
cloth  acquired  by them used to be invariably sold  in  the
black  market as reported by the District Organiser  in  his
Memo  No. 6306/6734-M/CT/Do. 7  dated 1st August,  1950,  in
reply  to my Memo. No. nil dated 30th July, 1951.  There  is
absolutely  no  bar  for the  wholesale  cloth  corporation,
Jullundur, to its getting free sale cloth from the Mills  or
other  wholesale dealers nor is there any bar for the  firms
Rattan Chand Mathra Dass and Madan Gopal Nand Lal and Co. to
the acquiring of free sale cloth."
    It was next argued on behalf of the appellants that  the
only  order of detention made against them was the order  of
the  2nd July and that did not refer to any section  of  the
Preventive Detention Act and did not suggest that there  was
any  satisfaction of the detaining authority. It was  argued
that  no order of the 19th of June was ever shown to any  of
the appellants or served on them and therefore their  deten-
tion  was illegal. It should be pointed out that these  con-
tentionsare  raised  in the affidavits not of  the  detained
persons,  but of their relations.  Their affidavits  do  not
show that they have any personal knowledge. The affidavits
27
on this point are based only on their belief and information
and the source of the information is not even disclosed.  As
against this, there is the affidavit of the District  Magis-
trate which expressly states that the terms of the Order  of
the  19th of June were fully explained to each of the  dete-
nus.   The  petitions for the writs of  habeas  corpus  were
filed within a week after the service of the detention order
and  we do not think there is any reason to doubt  the  cor-
rectness  of the statements of the District Magistrate.   In
our opinion this ground of attack on the order of  detention
has no substance and the detention cannot be held illegal on
that ground.  The judgment of the High Court was attacked on
these  grounds and as we are unable to accept any  of  these
contentions the appeals must fail.
    One  of the appellants is the secretary of one  corpora-
tion  and  another  is a salesman and clerk in  one  of  the
firms.  On  their behalf it was urged that  they  could  not
indulge in black market activities. We are unable to  accept
this contention in view of what is stated in the  affidavits
of the District Magistrate.  It is there pointed out that in
addition to being a secretary or a clerk and in those capac-
ities actively participating in the black market  activities
of their principals, they were themselves indulging in black
market  activities  in cloth.  If these and other  facts  in
respect  of the appellants are disputed the matter  will  be
considered by the Advisory Board.  The question of the truth
of  those statements however is not within the  jurisdiction
of  this Court to decide.  As all the grounds urged  against
the  judgment of the High Court fail, all the  five  appeals
are dismissed.
                               Appeals dismissed.
    Agent for the appellants in all the appeals: R.S.  Naru-
la.
    Agent for the respondent and Intervener: P.A. Mehta.
28
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.
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 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
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  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.
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  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.
116