'7,14
UTTAM BALA RA VANKAR
_v._
ASS'IT. COLLECTOR OF CUSTuMS & CENTRAL
EXCISE, GOA &: ANR.
_August_ 3, 1970
[S. M. SlX1u AND I. D. DUA, JJ.)
_Goa,_ _Daman_ _and_ _Diu_ _(Laws) Regulation,_ 1962, _S,_ _8-'Di/Jicu/ty'_
_•mffVllng of._
###### _Power-Wrong authority for its exercise invoked-Va/idJty of •X-_
_erc/se_ _of_ _power._
_Gentral_ _Clauses_ _Act_ (IB . _of 1897)-'Central Government' includes_
_Lt. Governor_ _of Goa,_ _Daman_ _and_ _Diu._
Under s. 3(2) of the Goa, Daman and Diu (Laws) Rcgulati'>n, 1962.
November I, 1963, was the date fixed for coming into force of the Indian
Penal Code and the Indian Code of Criminal Procedure in Goa Daman
and D~u., Under s. 8 of the J.legulation if any difficulty arises in giving
effect m Goa, Daman and Diu, to any Act extended to that territory
the Central Government may make provision for the removal of the
difficulty, As some difficulties were experienced regarding the law relating to criminal procedure the Lt. Governor, on November 6. 1963,
passed an Order, not under s. 8 of the Regulation, but in purported exercise of the powers conferred by the Goa, Daman and Diu (Administration) Removal of .Difficulties Order, 1962, to the effect that all criminal
proceedings in relation to offences committed prior to the date of coming
into force of the Indian Criminal Procedure Code shall be carried on
under the Jaw in force in the territory before that date.
On Jun~ _25,_ 1963, some bars of gold were seized from the residence
of the appellant and a complaint was filed against him,' in 1966.
On the question of the procedure to be followed, the Judicial CommiMioner, in revision, held that the Order of November 6, 1963 was
_ultra_ _vi res_ the Goa, Daman and Diu (Administration) Removal of
Difficulties Order, 1962, and held that the procedure laid down in the
Indian Criminal Procedure Code shoould be followed.
In appeal this Court,
HELD:(!) The Goa, Daman and Diu (Administration) Removal of
Difficulties Order 1962 does not enable the Lt. Governor to pass the
Order dated Nov~mber 6, 1963. But s. 8 of the 1962-Regulation authorised him to pass the Order. If the power suboists, and the Lt. Governor
could justify the order uader any law, the partie• are not debarred from
relying OD, it. [717 B-DJ
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(2)_ Section 8 of the Regulation authorises _the_ Governm~nt to mW
·provision for removal of difficulties, The word 'difficulty' is not to be
construed in the narrow sense of a difficulty with respect to a concrete
case. [717 F]
Majority opinion in _Ja/an Trading_ _Co,_ (P) _Ltd._ v. _Mill Mazdoor_
_Union,_ [196711 S,C.R 15, 59, followed.
(3) Under the definition of 'Central Government' ;n the General
Oauses Act, the Lt. Governor, as the Administrator of Goa, Daman and
Diu is entitled to exercise the powers of the Central Government, [l 78
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UTTAM BALA V. ASSTT. COLLECTOR _(Sikri,_ J.) 715
A ( 4) Therefore, the procedure to be followed in the present case _is_ the
one laid down by the Portuguese Criminal Procedure Code and not by the
Indian Code of Criminal Procedure. [718 Cl
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
30 of 1970.
Before dealing with the question of the validity of this order
-0 it is necessary to give a few facts. On December 20, 1961,
Goa, Daman and Din became part of the territory of India. The
residence of the appellant was raided on June 25, 1963, and
72 bars of gold were seized. On November 1, 1963, the
Goa, Daman and Diu (Laws) 'Regulation, 1962 (Regulation
No. XII of 1962) hereinafter referred to as the Regulation was
promulgated by the President aind published in the Gazette on
lH N?Vember 22, 1962. The effect of s. 3 of the Regulation, read
with the Schedule, was _inter_ _alia_ to extend the provisions of the
Code of Criminal Procedure, 1898, to Goa, Daman and Diu.
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Appeal by special leave from the judgment and mder dated
June 19, 1969 of the Judicial Commissioner's Court, Goa, Daman
and Diu in Criminal Revision Application 23 of 1968.
_M._ C. _Chagla,_ _E._ C. _Agarwala_ and _S._ R. _Agarwal,_ for the
appellant.
_V._ _A. Seyid_ _Muhammad_ and _S._ _P._ _Nayar,_ for the respondents.
The Judgment cl the Court was delivered by
Sikrl, J. This appeal by special leave is from the judgment
and order of the Judicial Commissioner, Goa, Daman & Diu,
allowing the revision application under s. 435 of the Indian Code
of Criminal Procedure filed by the State. The only point involved in this appeal is whether the order passed by the Lt. Governor
dated November 6, 1963, was invalid. This order reads as
under:
"ORDER-GADl74l63l25007-In exercise of the
powers conferred by the Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962 and
notwithstanding anything to the contrary· cont~ed in
any law for the time being in force in this Territory,
the Lieutenant Governor makes the following order :
All criminal proceedings in relatiqn. to offences comn:itted p1~or to the date of coming into force of the
Criminal Procedure Code shall be carried on under the
law in force in the Territory before that date.
By order and in the name _ol_ the Lieutenant Governor of Goa, Daman and Din."
716 SUPREME COURT REPORTS [1971] 1 S.C.R.
Section 3 (2) of the Regulation enabled the Lt. Governor to fix
the date of coming into force of the Act in Goa, Daman and
Din. It appears that by notificatiqn dated September 24, 1963,
the date of the coming into force of the Indian Penal Code and the
Code of Criminal Procedure was changed from October l, 1963,
to November l, 1963. Accordingly, it is the latter date on
which the Code of Criminal Procedure came into force in Goa,
Daman and Din.
Section 7 of the Regulation provides :
"Until the relevant provisions of the Code of Criminal Procedure, 1898, are brought into force in Goa,
Daman and Diu, all offences under any Act shall be
investigated, inquired into, tried and otherwise dealt
with according to the provisions of the corresponding
law in force in Goa, Daman and Diu."
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The effect of s. 7, as'is clear from the section, was that offences
committed prior to the coming into force of the Criminal P~
dure Code were to be investigated, inquired into, etc., under D
the provisions of the corresponding law in force in Goa, Daman
and Din.
Sectiqn 8 of the Regulation provides :
_"Ti_ any difficulty arises in giving effect in Goa,
Daman and Din, to the provisions of any Act extended
by this Regulation to that Union territory, the Cen
tral Government may, by order in the Official Gazette,
make such provisions or give such directions as appear
to it to be itJ.eCessary for the removal of the difficulty."
It appears that some di{liculties were experienced by the Lt.
Governor and he purported to pass the impugned order which
we have set out above.
It will be noticed that the impugned order d~ not refer to
s. 8 of the Regulation but refers instead to Goa, Daman sod
Diu (Administration) Removal of Difficulties Order, 1962. We
have seen this Order and it is common ground that this Order did
not ena '1le the Lt. Governor to pass the impugned order.
On April 20, 1966, a complaint was filed against the appellant in the Court of Judicial Magistrate 1st Class, Margao, under
###### the Defence ol India Rules.. The prosecution was challenged on
various grounds but these grounds failed before the Judicial Ma###### gistrate. The order of the Judicial Magistrate is not on the
rcicord. A revision was filed to the Sessions Judge, who fint
discuwd the question of jurisdiction. He held that by virtue of
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UTTAM BALA _V._ ASSTT. COLLECTOR _(Sikri,_ _I.)_ 717
A the impugned order the procedure to be followed in the case is
one laid down by the Portuguese Criminal Procedure Code and
not by the (Indian) Code of Criminal Procedure, 1898.
On a revision filed by t!Je State, the learned Judicial Commissioner came to the conclusion that the impugned order was
_ullra_ _vires._ He agreed with the Governmemt pleader that the
impugned order was not in conformity with the 19qz Order [Goa,
Daman and Diu (Administration) Removal of Difficulties Order]
passed by the Central Government.
It is common ground that _ii_ a power subsists and the Lt.
Governor cau justify the impugned order UIDder any law, the
appellant is not debarred from relying on that law. It seems to
us that s. 8 of the Regulation clearly authorised the Lt. Governor
to pass the impugned order.
The learned counsel for the State says that the word "difficulty" in s. 8 of the Regulation has to be interpreted in a very
narrow sense aind in this connection relies on the following observations of Hidayatullah, J., as he then was, in _/a/an_ _Trading_
_Co. (Private) Ltd._ v. _Mill Mazdoor Union(1)_ :
"The order, of course, would be passw within the
four-comers of the parliamentary legislation and would
only apply the Act to concrete cases as the courts do
when they consider the applicatiQ!l _oi._ ·an Act."
He says that there was no concrete case arising in this case and,
therefore, the impugned order cannot be justified by reference to
s. 8 of the Regulation. But Hidayatullah, J., was in minority
and Shah, J., speaking for the majority, proceeded. on the basis
that the section wider consideration authorised the Government
to dete1mine for itself what the purposes of the Act were and to
make provisions for removal of doubts or difficulties. Shah, J.,
did not give any limited meaning to the word "difficulty" in that
case.
We may mention here that neither the appellant nor the respondent has urged before us that s. 8 _oi._ the Regulation itself is
invalid .
It seems to us that difficulty was bound to arise in giving effect
to the Code of Criminal Procedure because this Code contem~
###### plates investigation and trial under the Code. If investigations
had been done under the Portuguese Criminal Procedure Code,
unless there was some clear provision to deem that investigation
as investigation wider the Code of Criminal Procedure, fresh
(1) [1967] I S. C. 11.. 15. 59.
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718 SUPREME COURT REPORTS [19711 1 S.C.R.
investigations under the Code of Criminal Procedure would **have** **A**
to be undertaken. Be that as it may, whatever the difficulties
which impelled the Lt. Governor to act, he was competent to
make provisions to remove the difficulties.
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We may mention that although s. 8 of the Regulation enables the Central Government to remove the difficulty, by relding the definition of the "Central Government" in the General
Clauses Act, the Administrator of Goa, Daman and Diu is entitled to exercise the powers of the Central Government, nnd
the Lt. Governor is the Administrator of. Goa, Daman and Diu.
We are accordingly of the opinion that the impugned order is
valid and the prosecution must be conducted i11 accordance with
its provisions.
In the result the appeal is allowed, the judgment and order
of. the Judicial Commissioner set aside and that of the learned
Sessions Judge restored.
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V.P.S. _Appeal_ _allowed._ D
