Judgment Case ID: 792

Judgment:
minal Appeal No. 185 of 1957. Appeal by special leave from the judgment and order dated the 6th December	 1955	 of the Punjab High Court (Circuit Bench) at Delhi	 in Criminal Revision No. 122 D of 1955	 arising out of the judgment and order dated July 29	 1955	 of the First Additional Sessions Judge	 Delhi	 in Cr. A. No. 367/55. Mohan Behari Lal and Eluri Udayarathnam	 for the appellant. N. section Bindra and R. H. Dhebar	 for the respondent. September 15. The Judgment of the Court was delivered by SUBBA RAO J. This appeal by special leave is directed against the order of the High Court of Punjab (Circuit Bench)	 Delhi confirming the conviction of the appellant and the sentence passed on him by the 757 Magistrate	 First Class	 Delhi	 under section 6(1 A) of the (XVII of 1933) (hereinafter called " the Act "). Jethanand	 the appellant herein	 was prosecuted	 along with another	 in the Court of the Magistrate	 First Class	 Delhi	 under section 6(1 A) of the Act for possessing a wireless transmitter in contravention of the provisions of section 3 of the Act	 and was sentenced to six months rigorous imprisonment. On appeal	 the learned First Additional Sessions Judge	 Delhi	 upheld the conviction but reduced the sentence to the period of imprisonment already undergone plus a fine of Rs. 500. On revision	 the High Court confirmed both the conviction and the sentence. On an application filed for special leave	 this Court gave the same	 but limited it to the question of sentence. Learned Counsel raised before us the following contentions: (1) section 6(1 A) of the Act was repealed	 and	 therefore	 neither the conviction nor the sentence thereunder could be sustained; and (2) if section 6(1 A) of the Act was repealed	 this Court in limiting the appeal to the question of sentence only went wrong	 for	 if that section was not on the statute book at the time of the alleged commission of the offence	 not only the sentence but also the conviction thereunder would be bad. Both the contentions raised turn upon the same point. The different steps in the argument may be stated thus: In the Act XVII of 1933	 as it originally stood	 there was no specific provision making the possession of wireless transmitter an offence. By the Indian Wireless Telegraphy (Amendment) Act	 1949 (XXXI of 1949) (hereinafter called the " 1949 Act")	 section 6(1 A) was inserted in the Act	 whereunder the possession of a wireless transmitter was constituted a separate offence. The amending Act was repealed by the Repealing and Amending Act	 1952 (XLVIII of 1952) (hereinafter called the " 1952 Act ")	 with the result that on the date of the alleged commission of the offence the said section was not on the statute book. If that was the legal position	 the limitation on the leave granted by this Court would result in an 96 758 anomaly	 namely	 that the conviction would stand but the sentence would be quashed. The argument so presented appears to be plausible	 but	 in our view	 not sound. There is a real justification for this Court limiting the scope of the special leave. The High Court by mistake cited in its judgment the provisions of section 6(1) of the Act instead of section 6(1 A) thereof. If the conviction was under section 6(1)	 the maximum sentence permissible on the first offence thereunder was only fine which may extend to Rs. 100. Presumably on the assumption that the conviction could be sustained under section 6(1)	 even if section 6(1 A) was not on the statute book there may be justification for this view	 as the words it wireless telegraphy apparatus " in section 6(1) are comprehensive enough to take in " wireless telegraphy transmitter " this Court gave leave limited to the question of sentence. The inconsistency	 if any	 was the result of the appellant 's presentation of his case at that stage	 and he cannot now be allowed to take advantage of his default to enlarge the scope of the appeal. That apart	 there are no merits in the contention. At the outset it would be convenient to read the relevant provisions of the three Acts: The . section 3 : Save as provided by section 4	 no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act. section 6(1): Whoever possesses any wireless telegraphy apparatus in contravention of the provisions of section 3 shall be punished in the case of the first offence	 with fine which may extend to one hundred rupees	 and	 in the case of a second or subsequent offence	 with fine which may extend to two hundred and fifty rupess. The Indian Wireless Telegraphy (Amendment) Act	 1949. section 5. Amendment of section 6	 Act XVII of 1933. In section 6 of the said Act	 * * * 759 (ii) after sub section (1)	 the following sub section shall be inserted	 namely: "(1A) whoever possesses any wireless transmitter in contravention of the provisions of section 3 shall be punished with imprisonment which may extend to three years	 or with fine which may extend to one thousand rupees	 or with both." REPEALING AND AMENDING ACT	 1952. section 2: The enactments specified in the First Schedule are hereby repealed to the extent mentioned in the fourth column thereof The First Schedule Year No. Short title Extent of repeal (1) (2) (3) (4) 1949 XXXI The Indian Wireless Telegraphy The whole (Amendment) Act	 1949. section 4: The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied	 incorporated or referred to; * * * The substance of the aforesaid provisions may be stated thus: The Act of 1949 inserted section 6 (1 A) in the Act of 1933. The 1949 Act was repealed by the 1952 Act	 but the latter Act saved the operation of other enactments in which the repealed enactment has been applied	 incorporated or referred to. The first question that arises for consideration is whether the amendments inserted by the 1949 Act in the 1933 Act were saved by reason of section 4 of the 1952 Act. The general object of a repealing and amending Act is stated in Halsbury 's Laws of England	 2nd Edition	 Vol. 31	 at p. 563	 thus: "A statute Law Revision Act does not alter the law	 but simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos. " In Khuda Bux vs Manager	 Caledonian Press Chakravartti	 C.J.	 neatly brings out the purpose and (1) A.I.R. 1954 Cal. 760 scope of such Acts. The learned Chief Justice says at p. 486: " Such Acts have no Legislative effect	 but are designed for editorial revision	 being intended only to excise dead matter from the statute book and to reduce its volume. Mostly	 they expurgate amending Acts	 because having imparted the amendments to the main Acts	 those Acts have served their purpose and have no further reason for their existence. At times inconsistencies are also removed by repealing and 'amending Acts. The only object of such Acts	 which in England are called Statute Law Revision Acts	 is legislative spring cleaning and they are not intended to make any change in the law. Even so	 they are guarded by saving clauses drawn with elaborate care	. It is	 therefore	 clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. The object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949	 along with similar Acts	 which had served its purpose. The next question is whether section 4 of the Act of 1952 saved the operation of the amendments that had been inserted in the Act of 1933 by the repealed Act. The relevant part of section 4 only saved other enactments in which the repealed enactments have been applied	 incorporated or referred to. Can it be said that the amendments are covered by the language of the crucial words in section 4 of the Act of 1952	 namely	 applied	 incorporated or referred to". We think not. Section 4 of the said Act is designed to provide for a different situation	 namely	 the repeal of an earlier Act which has been applied	 incorporated or referred to in a later Act. Under hat section the repeal of the earlier Act does not affect the subsequent Act. The said principle has been succinctly stated in Maxwell on Interpretation of Statutes	 10th Edition	 page 406: Where the provisions of one statute are	 by reference	 incorporated in another and the earlier 761 statute is afterwards repealed the provisions so in corporated obviously continue in force so far as they form part of the second enactment. " So too	 in Craies on Statute Law	 3rd Edition	 the sama idea is expressed in the following words	 at p. 349: " Sometimes an Act of Parliament	 instead of expressly repeating the words of a section contained in a former Act	 merely refers to it	 and by relation applies its provisions to some new state of things created by the subsequent Act. In such a case the is rule of construction is that where a statute is incorporated by reference into a second statute	 the repeal of the first statute by a third does not affect the second ". The Judicial Committee in Secretary of State for India in Council vs Hindusthan Co operative Insurance Society	 Ltd. (1) endorsed the said principle and restated the same	 at p. 267	 thus: " This doctrine finds expression in a common form section which regularly appears in the amending and repealing Acts which are passed from time to time in India. The section runs: " The repeal by this Act of any enactment shall not affect any Act. . . in which such enactment has been applied	 incorporated or referred to." The independent existence of the two Acts is therefore recognized; despite the death of the parent Act	 its offspring survives in the incorporating Act. Though no such saving clause appears in the 	 their Lordships think that the principle involved is as applicable in India as it is in this country. " It is	 therefore	 manifest that section 4 of the 1952 Act has no application to a case of a later amending Act inserting new provisions in an earlier Act	 for	 where an earlier Act is amended by a later Act	 it cannot be said that the earlier Act applies	 incorporates or refers to the amending Act. The earlier Act cannot incorporate the later Act	 but can only be amended by it. We cannot	 therefore	 agree with the view expressed by the Punjab High Court in Mohinder Singh vs Mst. (1) L.R. 58 I.A. 259. 762 Harbhajan Kaur (1) and in Darbara Singh vs Shrimati Karnail Kaur(2)that section 4 of the Repealing and Amending Act of 1952 applies to a case of repeal of an amending Act. This legal position does not really help the appellant	 for the case on hand directly falls within the four corners of section 6 A of the (X of 1897). The above section reads: "Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission	 insertion or substitution of any matter	 then	 unless a different intention appears	 the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." As	 by the amending Act of 1949	 the text of the Act XVII of 1933	 was amended by the insertion of 6 (1 A) therein	 the repeal of the amending Act by the 1952 Act did not affect the continuance of the amendment made by the enactment so repealed. It is said that for the application of section 6 A of the 	 the text of any enactment should have been amended; but in the present case the insertion of section 6 (1 A) was not a textual amendment but a substantial one. The text of an enactment	 the argument proceeds	 is the phraseology or the terminology used in the Act	 but not the content of that Act. This argument	 if we may say so	 is more subtle than sound. The word " text "	 in its dictionary meaning	 means " subject or theme ". When an enactment amends the text of another	 it amends the subject or theme of it	 though sometimes it may expunge unnecessary words without altering the subject. We must	 therefore	 hold that the word " text " is comprehensive enough to take in the subject as well as the terminology used in a statute. Another escape from the operation of section 6 A of the is sought to be effected on the basis of the words " unless a different intention (1) I.L.R. 1955 Punj. (2) 763 appears ". The repealing Act does not indicate any intention different from that envisaged by the said section. Indeed	 the object of the said Act is not to give it any legislative effect but to excise dead matter from the statute book. The learned Counsel placed before us the historical background of the amending Act with a view to establish that the intention of the legislature in passing the said Act was to expurgate section 6 (1 A) from the statute as it was redundant and unnecessary. It is said that the (XIII of 1885) provided for the offence covered by section 6 (1 A)	 and	 therefore	 the legislature though	 by the Act of 1948	 inserted the said section in the Act of 1933	 removed it in the year 1952 as the said amendment was unnecessary and redundant. There is no foundation for this argument	 and the entire premises is wrong. Section 20 of Act XIII of 1885 reads; section 20 (1): If any person establishes	 maintains or works a telegraph within India in contravention of the provisions of section 4 or otherwise than as permitted by rules made under that section	 he shall be punished	 if the telegraph is a wireless telegraph with imprisoment which may extend to three years	 or with fine	 or with both	 and in any other case	 with a fine which may extend to one thousand rupees. Though the words are comprehensive enough to take in a wireless transmitter	 the section does not prohibit the possession of a wireless apparatus. As the Act only gave power to control the establishment	 maintenance and working of wireless apparatus	 in practice it was found that the detection of unlicenced apparatus and the successful prosecution of the offenders were difficult	 with the result that the State was losing revenue. To remove this defect	 Act XVII of 1933 was passed to prohibit the possession without licence of a wireless apparatus. Under section 6	 the penalty for such illegal possession of a wireless telegraphy apparatus was made an offence	 but the sentence prescribed was rather lenient. Subsequently	 the legislature thought that the possession of a wireless transmitter 764 was a graver offence; sometimes involving the security of the State	 and so an amendment was introduced in 1949 constituting the possession of such apparatus a graver offence and imposing a more severe punishment. Therefore	 it cannot be said that section 6(1 A)	 inserted in the Act XVII of 1933 by the amending Act of 1949	 is either covered by the provisions of the 	 or a surplusage not serving any definite purpose. Even from the history of the legislation we find it not possible to say that it disclosed an intention different from that envisaged in section 6 A of the . For the aforesaid reasons	 we hold that section 6 (1 A) of the Act continued to be on the statute book even after the amending Act of 1949 was repealed by Act XLVIII of 1952	 and that it was in force when the offence was committed by the appellant. The appeal fails and is dismissed.

Summary:
Section 3 of the provided that no person shall possess wireless telegraphy apparatus without a licence and section 6 made such possession punishable. The Indian Wireless Telegraphy (Amendment) Act	 1949	 introduced section 6(1A) in the 1933 Act	 which provided for a heavier sentence for possession of a wireless transmitter without a licence. The Repealing and Amending Act	 1952	 repealed the whole of the Amendment Act of 1949	 but by section 4 provided that the repeal shall not affect any other enactment in which the repealed enactment had been applied	 incorporated or referred to. The appellant was convicted under section 6(1A) for being	 in possession of a wireless transmitter on July 31	 1953. He contended that section 6(1A) had been repealed and his conviction and sentence thereunder could not be sustained. Held	 that section 6(1A) was saved by section 6A of the 	 though section 4 of the Repealing and Amending Act	 1952	 did not save it. 756 The object of the Repealing and Amending Act	 1952	 was to strike out unnecessary Acts and to excise dead matter from the statute book. Khuda Bux vs Manager	 Caledonian Press	 A.I.R. 1954 Cal. 484	 referred to. Section 4 of the Repealing and Amending Act	 1952	 only saved other enactments in which the repealed enactment had been applied	 incorporated or referred to. It had no application to the case of a later amending Act inserting a new provision in an earlier Act as it could not be said that the earlier Act applied	 incorporated or referred to the Amending Act. Secretary of State for India in Council vs Hindusthan Co operative Insurance Society	 Ltd.	 L.R. 58 I.A. 259	 followed. Mohinder Singh vs Mst. Harbhajan Kaur	 I.L.R. 1955 Punj. 625 and Darbara Singh vs Shrimati Karnail Kaur	 61 P.L.R. 762	 disapproved. Section 6A of the provided that when any Central Act repealed any enactment by which the text of any Central Act was amended then unless a different intention appeared the repeal would not affect such amendment. The word " text " in section 6A was comprehensive enough to include the subject as well as the terminology used in a statute	 and the insertion of section 6(1A) in the 1933 Act was an amendment in the text. No different intention appeared either from the repealing Act or from the history of the legislation and section 6A applied to the repeal of the Amendment Act	 1949.