Emperor vs Bhogilal Chimanlal Nanavati on 23 January, 1931

Bombay High Court Emperor vs Bhogilal Chimanlal Nanavati on 23 January, 1931 Equivalent citations: (1931) 33 BOMLR 648 Author: J Beaumont Bench: J Beaumont, Kt., Murphy JUDGMENT John Beaumont, C.J. 1. This is a reference by the Sessions Judge of Ahmedabad in which he raises the question whether the sentence is a proper one. The two accused were charged under Sections 47(c) of the Bombay Salt Act, 1890, and 17(J) of the Criminal Law Amendment Act XIV of 1908, and they were sentenced to a fine of Rs. 100 on each charge. The facts as appearing from the reference are these that the accused about half past eight on the night of October 21 were stopped by a head constable in a gharry in which they were traveling and they were found to be accompanying two boxes of salt stamped with the words "Gujerat Prantik Samiti" and "Swarajya Sabras." The "Gujerat Prantik Samiti" was declared an unlawful association by the Government of Bombay in a notification dated October 10, 1980, and the accused were, therefore, convicted, first of all, of being in possession of contraband salt under Section 47(c) of the Bombay Salt Act, and, secondly, under Section 17(1) of the Criminal Law Amendment Act in that they had by the possession of salt stamped with the name of an unlawful association assisted the operations of that association. The learned Sessions Judge is of opinion that they were not liable to be punished twice for the same offence having regard to Section 26 of the General Clauses Act, and that in this case they had been punished twice for the same offence. 2. The first point to determine is whether there are really two acts constituting two offences, or one single act constituting two offences. I think the word "act," whether in the General Clauses Act or in the Criminal Procedure Code must be construed in the light of common sense, and not in a metaphysical sense. It seems to me that in this case there was only one act, that act consisting of being in possession of contraband salt. It may well be that the case might have been framed so as to constitute two acts. The evidence might have shown, first of all, that the accused were in possession of contraband salt, and, secondly, that they were taking that salt to the headquarters of an unlawful association with a view to enabling that association to dispose of the salt, in which case I think they would clearly have been guilty of the second offence of assisting the operations of an unlawful association. Bat here, as far as I can see, the only offence proved was that of being in possession of contraband salt which happened to be in boxes with the name of the unlawful association upon it. I do not think that the last fact is enough to constitute a second act. That being so, the case falls precisely within the words of Section 26 of the General Clauses Act, X of 1897, which provides: "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." The word "offence" at the end of that section, read with the definition in Section 3, Sub-section (37), means, I think, an act or omission. In the present case you have got an act alleged to constitute an offence under two enactments, and Section 26 of the General Clauses Act expressly provides that the accused shall not be punished twice for the same act. I think, therefore, that the accused were only liable to be fined once, and that the second sentence of fine must be set aside. 3. The learned Sessions Judge has also discussed the question as to how far Section 26 of the General Clauses Act can be reconciled with Section 71 of the Indian Penal Code. It seems to me by no means easy to reconcile the provisions of Section 26 of the General Clauses Act with the second paragraph of Section 71 of the Indian Penal Code. But whether those sections can be reconciled or whether they are to be treated as inconsistent with each other, the General Clauses Act is the later enactment and where you get a case clearly falling within the words of Section 26 it seems to me that effect must be given to that section. I think, therefore, that we must accept the reference and discharge the second sentence. Murphy, J.
Indian Kanoon - http://indiankanoon.org/doc/1321047/ 1

Emperor vs Bhogilal Chimanlal Nanavati on 23 January, 1931

4. The facts were that the two convicted persons were arrested on the eve of Divali day driving past a Municipal Octroi station in a hired tonga with two boxes containing 1,500 packets of contraband salt labelled with the name of the Gujerat Prantik Samiti, an association declared unlawful. They have been convicted of an offence under the Bombay Salt Act, and also of one punishable under Section 17(1) of the Indian Criminal Law Amendment Act, XIV of 1908. There is no question as to the legality of the convictions. The doubt is as to the propriety of a fine of Rs. 100 for each offence. 5. The two fines do not, I think, contravene the provisions of Section 71 of the Indian Penal Code, but the learned Sessions Judge who has made the reference has referred to Section 26 of the General Clauses Act, which provides: "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." The learned Sessions Judge thinks the word "offence" in this context means "act or omission", and this is clearly so, for it is so defined earlier in the same Act. The short point in the reference, therefore, is, whether the convicted persons were by their action guilty of one or of two separately punishable acts. 'Act' is nowhere defined. It must necessarily be something short of a transaction which is composed of a series of acts, but cannot, I think, in ordinary language, be restricted to every separate willed movement of a human being; for when we speak of an act of shooting or stabbing, we mean the action taken as a whole, and not the numerous separate movements involved. I, therefore, think that we must treat the case from this point of view. 6. There is no doubt that the two accused were in possession of the contraband salt, and that that possession constitutes a punishable act. From the circumstances of their hiring a tonga, and the labels on the boxes, coupled with the date--which was the eve of a day on which salt is customarily specially bought and sold--it has been inferred that the accused were assisting the operations of an unlawful association by distributing the contraband salt, one of the objects of that association. But I doubt if their 'act' had got to this point, which here is a matter of inference rather than of evidence, and that there was really a separate 'act', beyond that of taking possession; and if I am correct the double sentence would not be legal. I agree, therefore, that the reference of the learned Sessions Judge must be accepted and the second sentence should be set aside.

Indian Kanoon - http://indiankanoon.org/doc/1321047/