April 17.

SUPREME COURT REPORTS

(1953) .

MAQBOOL HUSSAIN

THE STA'l'E OF BOMBAY.

JAGJIT SINGH

THE STATE OF PUNJAB.

VIDYA RATTAN v.

THE STATE OF PUNJAB.

PARMAN AND

1!.

THE SI'ATE OF PUNJAB.

[PATANJALI SASTRI C.J., MuKHERJEA, S.R. DAs,

GHULAM HASAN and BHAGWATI JJ.]

 Constitution of India, 1B50, Art. 20(2)-Fundamental rights- ".htre fois acquit"-When subsequent prosecution barred-Confiscation of goods by Sea Customs Authorities-Whether bars prosecution u11de1 Foreign Exchange Regulation Act-Punishment by Jail Superintendent under Jail Rules - Whether bars prosecntion under Penal Gode-Sea Customs Act (VIII of 1878), s.167-Foreign Excha1'ge Regulation Act (VII of 1947), s. 23-Punjab Communist Detenus Rules, Rule 41.

The wording of Art. 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates tbe procedure.

Where a person against whom proceedings harl been taken by the Sea Customs Authorities under s. 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under s. 23 of the Foreign Exohange Regulation Act in respect of the same act:

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SUPREME COUR'r REPORTS 731

Held, that the proceeding before the Sea Customs Authorities 1958 was not a nprosecution" and the order for confiscation was not a - "punishment" inflicted by a Court or Judicial Tribunal within the Maqboo! H1main meaning of Art. 20(2) of the Constitution and the prosecution was v not barred.

The Stat• of The detenus in a jail made a general assault on jail officials Bombay. and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the J •il Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under ss. 332 and 353and147 and 149 of the Indian Penal Code:

Held, (i) that the detenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the proceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of Art. 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code ;

(ii) the Jail Superintendent having taken action under r. 41

(1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a cnmplaint against them again to the }fagistrate for the san1e offence of having com1nitted a jail offence by resorting to hunger strike.

CRIMINAL

APPELLATE JuRISDICTIO:'I: Criminal Ap.peal No. 81 of l!-!52. Appeal by special leave from the Judgment and Order dated 12th February, 1951, of the High Court ol .J udicatare at Bombay in Criminal Application No. 644 of 1950. Petitions Nos. 170, 171and172, being petitions under Art. 32 of the Constitution, were also heard along with Appeal No. 81 of 1952 ..

Ishwarlal O. Dalal for the appellant.

M. O. Setalvad, Attorney-General for India (Poru1 A. Mehta, with him) for the Snate of Bombay.

S. M. Sikri, Advocate-General of Punjab (Jindra Lal, with him) for the State of Punjab.

Jagjit Singh, Petitioner in Petition No. 170 of 1951, in person.

Other petitiopers not represented.

1953. April 17. The Judgment of the Court was delivered by Bhagwati J. 95

732 SUPREME COUR'l. 1 REPOR'l'8 (195'3]

1958 BHAGWATI J.-This appeal by special leave from a ,, b -;--H . judgmeut and order of the High Court of J udicture u<ag ooo µssarn B b . · h v. at om ay raises an irnporta!lt quest10n as to t e Th• Stats of construction of article 20(:J) of the Constitution.

Bombay.

The. appellant, a citiJrnn of Bharat, arrived at the

Bhagwau. J.

Santa Cruz airport from Jedd11h on the tith NoYemher, 1949. On landing he did not declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated the 25th August, 1948.

The Customs Authorities thereupon took action under section 167, clanRe (8), of the Sea Customs Act VITI of 1878, and confiscated the gold by an order dat@d the 19th December, 1949. 'rhe owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12,000, which option was to be exercised within four months of the date of the order.

A copy of the order was sent on the 30th .January, 1950, to the appellant. Nobody came forward to redeem the gold.

On the 22nd March, 19.50, a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay, aga.inst the appellant charging him with having committed an offence under section 8 of the Foreign Exchange Regulation Act VII of 1947, read with the notification dated the 2.5th August, 1948. 'rhe appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under article 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate wa.s in violation of the fundamental right guaranteed to him under article 20(2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, tbe determination of which was necessary for the disposal of the case, the case may be withdrawn from the file of tbe Chief Presidency Magistrate to the High Conrt and the High Court may either dispose of the case themselves or determine the question of law and return it to the Chief Presidency Magistrate's Court for disposal. A rule was issued by the High Court ou

the 26th June, 1950,, which ca.me on for hearing on 1963 the 9th August, 1950, before Ba.vdeka.r and Vyas JJ. . 'l'he rule wa~ made ab,; olute and the High Court Maqbool Hu""'" directed that the proceedings pending against the The ;; at• of• appellant in the Court of the Chief Presidency Bombay.

Magistrate be withdrawn and brought before the High Court under article 2·28 of the Constitution.

BhagwatiJ.

The case was thereupon withdrawn ani! brought before the High Court and was heard by the High Court on the 17th October, 1950. The learned Judges of the High Court, Cha.gla. C.J. and Gajendragadkar J. were of the opinion that the appellant could claim the benefit of article 20(2) only if he wa> the owner of the gold which wn.s confi, cated and that before they decided as to whether there had been a prosecution and a. punishment within the meanmg of article 20(.J) it was necesoary that the Chief Presidency Magistrate should determine the question of fact as to whether the appellant was the owner of the gold which had been confiscated and in respect of which an option was given to him as stated above.

They therefore sent the matter back to the Chief .Presidency Magistrate djrectiug him to find a:; to whether the appellant was or was not the owner of the gold stating that they would deal with the application after the finding was returned. The Chief

Presidency Magistrate recorded evidence and on the 20th January, 1950, recorded the finding hat the appellant was the owner of the gold in q uestiou and returned the finding to the High Court. Chagla C.J.

and Gajendragadkar J. heard the petition further on the 12th February, 1951. They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency M agistrate for dispesal according to law. The appellant obtained on the 1st :'jovember, 1951, special leave to appeal against the judgment and order passed by the

High Court.

The question that arises for our determination in this app.eal is whether by re11.son of the procPedin11s

SUPREME COURT REPORTS [1953]

1959 taken by the Sea Customs Aut4orities the appellant u b 7; . could be said to have been prosecuted and punished

00 v. "''"'for the same offence with which he was charged in

• Th• stats of the Court of the Chief :Presidency Magistrate, Bom- Bombay. h!Ly. There is no doubt that the act which constitutes au offence under the Sea Customs Act as also an

Bh.agwati J. offence under the Foreign Exchange Regulation' Act was one and the same, viz., importing the gold in contravention of the notification of the Government of India dated the 25th August, 1948.

The appellant could be proceeded against under section 167(8) of the Sea Customs Act as also under section 23 of the Foreign Exchange Regulation Act in respect of the said acb. Proceedings were in fact taken under section 167 (8) of the Sea Customs Act which resulted in the confiscation of the gold. Furthr proceedings were taken under section 23 of the Foreign Exchange Regulation Act by way of filing the complaint aforesaid in the Court of the Chief Presidency Magistrate, Bombay, and the plea which was taken by the accused in bar of the prosecution in the Court of the Chief Presidency Magistrate, was that he had already been prosecuted and punished for the same offence and by virtue of the provisions of article 20(2) of the Constitution he could not be prosecuted and punished agam.

'l'he word offer; ce has not been defined in the Constitution. But article 367 provides that the General Clauses Act, 1897 (Act X of 1897), shall apply for the interpretation of the Constitution.

Section 3(37) of the General Clauses Act defines an offence to mean any act or omission made punishable by any law for the time being in force and there is no doubt that both under the provisions of section 167 (8) of the Sea Customs Act and section 23 of the Foreign Exchange Regulation Act the a.ct of the appellant was made punishable and constituted an offence.

In order however to attract the operati.on of article 20(2) the appellant must have been prosecuted and punished for the same offence when proceedings were ta.ken by the Sea Customs Authorities.

The

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High Court did not go into the question as to whether l 968 tbe appellant was prosecuted when proceedings were M b ~H . • k b f h S C A h , , I , aq OO• uss•in .a en e ore t e ea ustoms ut onties. t cons1v. dered the question of punishment in the first instance The State of and thought it necessary to arrive at a finding as ta Bombay. the ownership of the confiscated gold before it could consider the application of the appellant.

In the Bhagwatt .r. opinion of the High Court the appellant could be said to have been punished only if it were established that he was the owner of the confiscated gold. If he was the owner, the confiscation was a punishment, which would not be so if he W'as not the owner of the gold.

This question of the ownership of the gold was not in our opinion material. 'l'he gold was found in the possession of the appellant when he landed at the Santa Uruz airport. '!'he appellant was detained and searched by the Customs.Authorities and the gold was seized from his person.

Proceedings under section 167 (8) were taken by the Customs Authorities and after examining witnesses an order was passed on the 19th December, 1949, confiscating the gold and giving an option to the owner to pay a fine of Rs. 12,000 in lieu of such confiscation under section 183 of the Sea Customs Act.

Copy of this order was forwarded to the appellant and for all practical purposes the appellant was treated as the owner of the confiscated gold.

As a matter of fact when evidence was recorded before the Chief Presidency Magistrate on remand the Assistant Collector of Customs gave evidence that no one else had claimed the gold and had the appellant paid the penalty and obtained the Reserve Bank permit and produced the detention slip be would have been given the gold.

Once the appellant was found. in possession of the confiscated gold the burden of proving that he was not the owner would fall upon whosoever affirmed that he was not the owner. '!.'be complaint which was filed in the Court of the Chief Presidency Magistrate, Bombay, also proceeded on the footing that the appellant committed an offence in so far as he brought the gold without the permit from

736 SUPREME COUR'l' REPORTS [i953j

I95B the Reserve Bank of India, that no permit was.ever - . applied for or granted to the appellant and that the Maqbool Hussa•n l h b · f h ' v appel ant ad een given an opportumty o s owmg ' The s; ate of whether he had obtained such permit but that he

Bombay. failed to produce the s:i, me. It appears therefore that the question of the ownership could not assume as BhagwatiJ. much importance s the High Court attached to it.

If the Court came to the conclusion that the appellant was prosecuted wheu proceedings were taken by the 8ea Customs Authorities there was not much scope left fort-he argument that he was not punished by the confiscation of tlle gold and the option given to him to pay a fine of Rs. 12,000 in lien of such confiscation. 'fo be deprived of the right of possession of valuable goods may well be regarded in certain circumstances as by itself a punishment.

We have therefore got to determine whether under the circumstances the appellant cau be said to have been prosecuted when proceedings were taken by the Sea Customs Authorities.

The fundamental right which is guaranteed in article 20(2) enunci&tes the principle of "autrefois convict" or "double jeopardy". 'fhe roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence." (Per Charles J. in Reg. v. Miles (1). 'l'o the same effect is the ancient maxim "Nemo bis debet punire pro uno delicto'', that is to say that uo one ought to be twice punished for one offence or q, s it is sometimes written "pro eadem causa'', , that is, for the same cause . . :This is the principle on which the party pursued h-as available to him the plea of "autrefois convict" or"autrefois acquit''. "'rhe plea of 'autrefois convict' or 'autrefois acquit' a,; ers that the defendant has 'been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arrnigned ...... The question for the 'jury

(I) •4 Q.B.D. 423,

 on the issus is whether the defendant has previouqly 1953 been ip jeopardy iu re;; pect of the charge on which he,, 6 -;--H . . . d f h l f [ , ; uaq OO• ussain is arra1gne , or t e ru e o aw Is that a person must v. not be put in peril twice for the same offence.

The ThB Stat• of test is whether the former offence .and the offence no~ Bombay. charged have theme 1ngrer11e.uts IU the sense that - . the facts constitutmg the oue are sufficient to justify Bhagwat• .r. a conviction of the other, not that the facts relied on by the Crown are the same in the two trials.

A plea of 'autrefois acquit' is not proved unless it is shown that the verdict of aGquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbnry's Laws of England, Hailsham Edition, Vol. 9, pages 152 and 163, paragraph 212).

This principle found recognition in section 26 of the General Clauses Act, 1897 ,-

"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished nuder either or any of those enactment& but shall not be liable to be punished twice for the same offence,"

and also in section 403 (1) of the Criminal Procedure Code, 1898,-

" A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237."

The Fifth Amendment of the American Constitu tion enunciated this principle in the manner follow ing:-

" ............... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself .......... , .... "

SUPREME COURT REPORTS [1953]

t95B Willis in his Constitutional Law, at page .528, obserb -19 . ves that the phrase "jeopardy of lifo or limb" indicates Maq oo ussa<n h 1• • • • • d t f h v t at tue 1mmumty 1s restncte o crimes o t e

The stt• of big best grade, and this is the way Blackstone states Bombay. the rule: "Yet, by a gradual process of liberal con struction the courts have extended the scope of the Bhagwali J. clause to make i~ applicable to all indictable offences, including misdemeanours." .......... " Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impanelled and sworn. It is not necessary to have a verdict.

The protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned." These wre the materials which formed the background of the guarantee of fundamental right given in article 20(2). It incorporated within its scope the plea of "autrefois convict" _as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the fir3t instance in order to operate as a bar to a second prosecution and punishment for the same offence.

The words "before a court of law or judicial tribunal" are not to be found in article 20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oa.th. The very wording of article 20 and the words use<l therein:-" convicted", " commission of

the act charged as an offence", "he subjected to a 1968 penalty", "commission of the offence"," prnsecutedM b -lH . d . h d" " d f ff " ld aq oo u•M•n an pums e , accuse o any o euce , won v. indicate that the proceedings therein contemplated The state of are of the nature of criminal proceedings before a Bombay, court of law or a judicial tribunal and the prosecution in this context would mean an initiation or start- Bhagwati ' ing of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.

The tests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi(') in the following passage quoted with approval by Mahajan and Mukherjea JJ. from Oocper v. Wilson(') at page 340 :-

"A true judicial decision presupposes n existing dispute between two or more parties and then involves four requisites :-(1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the di, pute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) If the dispute between them is a question of law, the submission of legal argument by the parties; and ( 4) A decision which r"' disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling npon any disputed question of law."

The question whether the Sea Customs Authorities when they entertained proceedings for confiscation of tbe gold in question acted as a judicial tribunal has got to be determined in accordance with the abov~ tests.

The Sea Customs Act, 1878, was enacted to consolidate and amend the law relating to the levy of sea customs duties. The hierarchy of the officials are the

(1) (1950] S.C.R. 459,

(2) [1937] 2 K.B. 309. •

1958 Customs Collector, who is the officer of Customs for u b . the time being in separate charge of a custom house,

00 v ussaintbe Chief Customs Officer who is the 'Chief Execu-

Th• Stat• of tive Officer of the Sea Customs for a port and the

Bombay.

Chief Customs Authority which is the Central Board of Revenue.

Sections 18 'and 19 enact prohibitions Bhagwati J. and restrictions on importation and exportation of goods and section 19 (a) provides for detention and confiscation of goods whose importation is prohibited.

After making various provisions for the levy of sea customs duties, Chapter XVI enacts offences and penalties and several offences mentioned in the first column of the scheaule to section 167 are made punishable with penalties mentioned in the third column thereof. Item 8 relates to the offence committed by the importation of goods contrary to the prohibition or restriction imposed in that behalf under sections 18 and 19 of the Act and penalty prescribed for such an offence is:-

"Such goods shall be liable to confiscation; any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees."

Chapter XVII prescribes the procedure relating to offences, appeals, etc. Powers of search are given to the officers of customs but provision is made that a person about to be searched can require the officer to take him previous to search before the nearest Magistrate or Customs Collector. Search warrant can only be issued by the Magistrate and can be executed in the same way and has the same effect as a search warrant issued under a law relating to criminal procedure.

Powers are also given to the officers of Customs to arrest persons reasonably suspected ol _having committed an offence under the Act but the person arrested is to be forthwith taken before the nearest Magistrate or Customs Collector. The Magis

trate is entitled either to commit such person to jail or order him to be kept in custody of the police for such time as is necessary to enable the Magistrate to communicl'.te with the proper officers of Customs. No

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SUPREME COUH'l' REPORTS 741

such power is given to the Customs Collector. Sec- 1953 tion 18l(A) also prnvides for the detention of pack- - · bl . . d h Maqboo! Himain age' conta1111ng cei:t1a1 pu teat100.; unporte mto t e States. Section 182 provides that except in the case Th• ~tao/ of certain offences therein mentioned which involve Bombay. proceedings before a Magistrate confiscation, increased rate of duty or penalty can be adjudged by the Bh?gwati J.

Customs Authorities therein mentioned and section 183 provides for option to be given to the owner of the goods confiscated to pay in lieu of confiscation such fine as the officer thinks fit. Section 186 provides that the award of any confiscation, penalty or increased rate of duty under the Act by an officer of Customs is not to prevent the infliction of any punish ment to which the person affected thereby is liable under any other law. An :ippea, l is provided under section 188 from a decision or order of the officer of Customs to the Chief Customs Anthoritv who is thereupon to make such further enquiry" and pass such order as he thinks fit confirming, altering or annulling the deuision or or.der appealed against.

Section 191 provides .for a revision by the Central Government on the application of a person aggr.ieved by any decision or order passed by an officer of Customs or the Chief Customs Authority from which no appeal lies. Section 193 provides for the enforcement of the payment of penalty or increased rate of duty as adjudged against any person by an officer of Customs. If such officer is not able to realise the unpaid amount from other goods in charge he can notify in writing tQ any Magistrate within the local limits of whose jurisdiction such person may be, his name and residence and the amonnt of penalty or increased rate of duty unrecovered and such Magistrate is thereupon to proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself.

It is clear on a perusal of the above provi,; ions that the powers of search, arrest and detention are given to the Cnstoms Authorities for the levy of sea cnstoms duties and provision is made at the same tie for a

742 SUPREME COURT REPOR'i'S [1953j

1963 reference to the Magistrate in all cases where search

b - 1- . warrants are needed and detention of the arrested Mag oo HuS3a•n · d C ff f t v. person 1s require . ertam o ences o a senous na ure Th• St•te of are to be tried only by Magistrates who are the only Bombay. authorities who can inflict punishments by way of imprisonment. l!; ven though the customs officers are Bhagwati J. invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty which can be inflicted is Rs. 1,000. Confiscation is no doubt one of the penalties which the Customs Authorities can impose but that is more in the nature of proceedings in rem than proceedings in parsonam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit.

All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties.

There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal Procedure Code. 'l 1he Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness.

The appeals, if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority. In the matter of the enforcement of the payment of penalty or increased rate of duty also the Customs Officer can only proceed against other goods of the party in the possession of the Customs Authorities. But if such penalty or increased rate of duty cannot be realised therefrom the only thing which he can do is to notify the matter to the appropriate Magistrate who is the only person empowered to enforce payment as if such penalby or

increased rate of duty had been a fine inflicted by

I9M himself. The process of recovery can be issued only - . b th M . d b h C A h .

Magbool Huuain y e ag1strate an not y t e ustoms ut onty. v All these provisions go to show that far from being Th• s; at• of authorities bound by any rules of evidence or proced- Bombay. ure established by law and invested with power to enforce their own judgments or orders the Sea Cus- Bhagwati J. toms Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty preseribed in the Act.

The same view of the functions and powers of Sea Customs Officers was expressed in a decision of the Bombay High Court to which our attention was called. (See Mahadev Ganesh Jamsandekar v. The Secretary of State for India in Council(').

We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy.

It therefore follows that when the Customs Authorities confiscated the gold in question neither the

proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have l)een "prosecuted and punished" for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under section 23 of the Foreign Exchange .Regulation Act.

The result therefore is that the appeal fails a.nd must be dismissed.

Petitions Nos. 170, 171 and 172 of 1951.

{I) 119221 I.L.R. 46 Bom. 732.

SUPHEME COURT REPORTS [1953j

1958 By an order of this Co.urt dated the26th Novemb - 1- . her, 1952, these petitions were ordered to be heard by Moq

00 vHuss••• the Constitution Bench along with Criminal Appeal The s; ateof No. 81of1952, as the same point as regards "autre-

Bombay. fois convict" or "double jeopardy" was also involved therein. Jagjit Singh, Vidya Rattan and Parma Nand, Bhagwati J. the three petitioners in the respective petitions were detenus under the Preventive Detention Act, 1950, detained in the Central Jail, Ferozepur, and governed by the Punjab Communist Detenus Rules, 1950, framed by the Government of Punjab under section 4(a) of the Act.

On the 6th J?ebruary, 1950, it is alleged, a general assault on jail officials was made by the detenus including J agjit Singh. An alarm was rung and the warder guard after some time overpowered the detenus who were responsible for the assault.

Thirteen jail officials and twelve detenus sustained injuries and the detenus were all removed to cells. On the 7th February, 1950, the three detenu petitioners resorted to a hunger strike which continued upto the 10th April, 1950. They were separately confined from and after the 6th February, 1950. '!'heir letters and interviews were stopped for two months with effect from the 7th February, 1950, and papers and books were stopped with effect from the 8th February, 1950, for the duration of the hunger strike.

The. hunger strike continued and they continued to be separately confined till the 10th April,

1950. It appears that more than H months after the hunger strike the Jail Superintendent, Shri K. K.

Mattu, filed a complaint against .Jagjit ':iingh in the Court of Shri P. L. Soudhi, M.LC., Ferozepur, under rule 41(2) of the Punjab Communist Detenus Rules charging him with having committed a jail offence in resorting to hunger strike. He also filed a complaint before the same Magistrate against Jagjit 8ingh for having committed offences under sections 332 and 353 and sections 147 and 149 of the Indian Penal

Code.

He further filed against Vidya Rattan and Parma Nand complaints under rule 41 (2) of the Punjab Communist Datenus Rules for having committed

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SUPREME COUR'f REPORTS 745

a. jail offenoe in resorting to hunger strike.

On I91iB the 16th February. 1951, the three detenu petitioners M b lH . filed before this Court petitions under article 32 of •q

v. '"'""' the Constitution asking for the issue of a writ of pro- The state of hibition not to proceed with the prosecutions of the Bombay. petitioners in the said cases on the ground that they had been prosecuted and punished for the same Bhagwati J. offence already by the Jail Superintendent and therefore they could not be prosecuted and punished for the same offence once again and that the prosecutions which were launched against them in the Court of

Shri P. L. Soudhi, M.I.C., Ferozepur, could not lie as being in contravention of the fundamental right guaranteed nuder article 20 (2) of the Constitution.

J agjit Singh argued his own petition in person.

Vidya Rattan had intimated to this Court tha.t he would be satisfied with the decision on Jagjit Singh's

petition and wanted his absence to be excused. Parma Nand did not appear at t!:ie hearing even though notice of the hearing was served upon him.

It was urged by Jagjit Singh that the proceedings which were adopted by the Jail Superintendent against the petitioners amounted to their prosecution and punishment for the same offence and that therefore the prosecution which was now launched against them was not competent as it exposed them to double jeopardy and violated the fundamental right guaranteed to them nuder article 20(2). It was on the other hand urged by the Advocate-General of Punjab that the Jail Superintendent merely took disciplinary action against the petitioners and the punishment if any which was meted out to them was for breaches of discipline within the meaning of section 4(a) of the Act and the Punjab Communist Detenus Rules, 1950, framed thereunder, that there was no prosecution and punishment of the petitioners within the meaning of article 20(2) and that therefore the petitions were liable to be dismissed.

Section 4 of the Preventive Detention Act, 1950 (Act No. IV of 1950), provides for power to regulate place and conditions of detention. ·

SUPREME COURT REPORTS (1953)

19sa " Every person in respect of whom a detention - . order has been made shall be liable- Magbooz Hussa,~.n . v.

(a) to be detained m such place and under such Th• State of conditions, including conditions as to maintenance,

Bombay. discipline and punishment for breaches of discipline, as the appropriate Government may, by general or Bhagwati J. . l d . f ,, spema or er, spem y ........... . 'rhe Punjab Communist Detenus Rules, 1950, were framed by the Government of Punjab in exercise of the powers conferred by section 4 (a) of the Act.

Rules 39, 40 and 41 provide for offences and punishments. Rule 39 lays down certain rules of discipline and rule 40 provides.that any detenu who contravenes any of the provisions of rule 39 or refuses to obey any order issued thereunder, or does any of the acts

entioned in the following portion cf the rule 40, vie.:-

{i) assaults, insults, threatens or obstructs any fellow prisoner, any officer of the jail or any other Government servant, or any person employed in or visiting the jail, or .............. .. (xii-a) goes on hunger-strike (other than a token strike), or .......... shall be deemed to have committed a jail offence.

Rule 41 is important and bears particularly on the question which we have to decide. It provides:-

"(l) Where upon suoh enquiry as 3e thinks fit to make, the Superintendent is satisfied that a detenu is guilty of a jail offence, he may a.ward the detenu one or more of the following punishments :-

(a) confinement in cells for a period not exceeding 14 days .........

(d) cancellation or reduction, for a period not exceeding two months of the privilege of writing and receiving letters or of receiving newspapers and books,

(e) cancellation or reduction, for a period not exceeding two months of the privilege of having inerviews ........ ,

(2) If any detenu is guilty of a jail offence which 19~8

by reason of his having frequently committed such M qboo!Hussain

offences or otherwise is in the opinion of the Superin- " v. tendent not adequately punishable by him under the Th• Stat• of provisions of sub-rule (1), he may forward such Bombay. detenu to t'he Court of a Magistrate of the first class having jurisdiction, and such Magistrae shall there- Bhagwati J. upon inquire into and try the charge so brought against the deteuu and upon conviction shall sentence him to imprisonment for a term not exceeding one year: Provided that where the act coustit_utiug the offence constitutes an offence punishable under the Indian Penal Code with imprisonment for a term exceeding one year, nothing in this rule shall preclude the deteuu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code."

It is clear from the above rules that the Jail Superintendent is constituted the authority for determining whether a detenu is guilty of a jail offence and for the award to such a deteuu of one or more of the punishments prescribed in rule 41. If this punishment is considered to be a, dequate the Jail Superintendent is to award him the appropriate punishment. No procedure is prescribed by the rules and the Superintendent is not required to act only on evidence given on oath.

He can punish after such enquiry as he thinks fit to make.

Thus he may not take any evidence or, make any judicial enquiry at all but may yot punish.

If however the detenn cannot in the opinion of the Ja.il Superintendent be adequately punished by him by reason of his having frequently committed such offence or otherwise the Jail Superintendent is empowered to forward such a detenu to the Court of a Magistrate of the First Class having jurisdiction and the jail offence in that case can be enquired into by the Magistrate who would try the charge brought against the deteuu, <; onvict him and sentence him to imprisonment for a term not exceeding one year.

Tbe proviso covers the cases where the offence is punishable with imprisonment for a term exceeding 97

1958 one year under the India'.l Penal Code aHd nothing in

Maqbooi Hu,, ain rule 41 is to preclude th,3 detenu from being tried and v. sentenced for such offence in accordance with the Tho Stat• of provisions of the Indian Penal Code. 'l'he whole Bombay. scheme of rule 41 is to constitute the Jail Superintendent only an administrative authority to maintain Bhagwati J. jail discipline and inflict summary punishment on the detenus for breach of that discipline by committing a jail offence. It is only when the Jail Superintendent considers that the offence is not adequately punishable .by him that he can send the case to the Magistrate. If he actually himself punishes he cannot, under this rule, refer the case again to the Magistrate.

A reference by him after punishment will be wholly unauthorised and without jurisdiction and the prosecution before the Magistrate would be illegal and not in accordance with procedure established by law.

It was contended that nuder sections 45, 46 and 52 of the Prisons Act ([X of 1894) the Jail Superintendent was constituted an authority bound to act judicially for the purposes of enquiry into and trial of the prisoners for similar offences and the detenus under the Punjab Communist Detenus Rules, 1950, being put in the same category as civil prisoners the proceedings before the Jail Superintendent for having committed the Jail offences under rules 40 and 41 above amounted to a prosecution of the petitioners before him as a judicial tribunal. It was on the other hand contended by the Advocate-General of Punjab that the Punjab Communist Detenus Rules, 1950, constituted a self-contained code regulating the place and conditions of detention of these detenus, that the aforesaid sections of the Prisons Act, 1894, had no application to their case and the proceedings which took place before the Jail Superintendent in the present case were therefore riot judicial proceedings and there was no prosecution and punishment of the petitioners within the meaning of article 20

(2). We accept the contention of the Advocate- General of Punjab. The petitioners were communist detenus and were governed by the Punjab Communist

Detenus Rutes, 1950, which were framed by the 1959 Government of Punjab under section 4(a) of the Pre-- - . ventive Detention Act set out above and which Maqbooi Hussain constituted the body of rules prescribing the condi- Tho ~to of tions of their maintenance, discipline, etc.

Their Bombay. confinement in the prisons was for the sake of administrative convenience and was also prescribed by Bhagwati J. the rules themselves and the provisions of the Prisons Act did not apply to them. It could not therefore be validly contended that the proceedings taken against the petitioners by the Jail Superintendent constituted a prosecution and punishment of the petitioners before a judicial tribunal. .

So far as the jail offence alleged to have been committed by reason of the petitioners having resorted to hunger strike was concerned, the Jail Superintendent obviously considered that he could adequately punish the petitioners for that jail offence and he did not think it necessary to have resort to the provisions of rule 41 (2) and forward the petitioners to the Court of the Magistrate without having himself dealt with them. It .is common ground that the Jail Superintendent acted under rule 41 (1), and having satisfied himself that the petitioners were guilty of that jail offence awarded them one or more of the punishments therein prescribed, viz., stopping the letters and interviews for two months with effect from the 7th February, 1950, .and stopping the papers and books for the duration of the hunger strike. In our opinion this was tantamount to inflicting punishment on all the three petitioners for this jail offence and that having been done it was not competent to the Jail Superintendent after H months of the hunger strike to forward the petitioners to the Court of the Magistrate as he purported to do, and such reference was wholly unauthorised by the rule . and without jurisdiction and the prosecution before the Magistrate is obviously noi in accordance with procedure established by law and the petitioners may well complain of a breach or a threatened breach of the fundamental right guaranteed to them by article 21 of the Constitution in that the prosecution of the

750 SUPREME COURT REPOR'l'S (1953]

1953 petitioners before the Magistrate for the jail offence - . of having resorted to the hunger strike was not com- Magboo!Huss•in d. h d bl. h db I v. petent a.ccor mg to t e proce ure esta 1s e y aw.

Th• Stateof The Petitions Nos.171of1951and172 of 1951 filed

Bombay. by Vidya Hattan and Parma Nand must therefore be accepted rmd their prosecution in the Court of Shri Bh•gwati J, P. L. Sondhi, M.I.C., Ferozepnr, under rule 41(2) of the Punjb Communist Detenus Rules, 1950, for having committed a jail offence in resorting to hunger strike must be quashed.

The same order will also be passed in the petition of Jagjit Singh, being Petition No. 170 of 1951, in regard to the jail offence committed by him by having resorted to the hunger strike.

Jagjit Singh however is being prosecuted in the Court of the Magistrate for having committed offences under sections 332 and 353 as also sections 147 and 149 of the Indian Penal Code. It waa contended by the Advocate-

General of Punjab that there was no. prosecution and no punishment awarded to J agjit Singh in regard to these offences and he relied upon tile entries in the punishment register under the date 6th February, 1950, with reference to these offences.

These entries in the punishment register show tha11 Jagjit Singh was not punished for any of these offonces but he was to be sent up for trial and in the meantime he was to be separately confined.

Jagjit Singh on the other hand relied in particular on the evidence of Sher Singh who was the Assistant

Superintendent of the Central Jail, Ferozepur, at all material times and his evidence would have helped Jagjit Singh considerably had it not been for the fact that the entries in the punishment register completely belie his version and he further states that J agjit Singh was punished not only for the offence of assault but also rioting which could in no event have been done by the Jail Superintendent under the rules.

So far as the prosecution under sections 147 and 149 of the Indian Penal Code is concerned that is an

offence which' is not comprised in the jail offences 1963 enumerated iu rlile 40 nor could it have been dealt M b -~ . with by the Jail Superintendent under rule 41 (l). •g

00 v ussa•n 'l'bat offence was moreover covered by the proviso to Th• s;.1, of rule 41(2) and was exclusively triable by the Ma.gist- Bombay. rate. The prosecution of Jagjit Singh therefore before the Magistrate for the offences under sections 332 Bhagwati J. and 353 and sections 147 and 149 of the Indian Pen11.l Code is not in violation of article 20 (2) or article 21 of the Constitution and must therefore proceed.

The result therefore is that the Petition No. 170 of 1951 filed by Jagjit Singh will be allowed only to the extent that the appropriate writ of prohibition shall issue against the respondent in regard to his prosecution for having committed a jail offence in resorting to hunger strike, but bis prosecution under sections' 332 and 353 and sections 147 and 149 of the Indian Penal Code will not be affected by this order. 'l'he Petitions Nos. 171of1951and172 of 1951 filed by Vidya Rattan and Parma Nand respectively 'will be accepted and the appropriate writs of prohibition shall issue against the respondent as prayed for therein.

Appeal No. 81 dismissed.

Petitions Nos. 171 and 172 allowed.

Petition No. 170 partly lillowed.

Agent for the appellant m Criminal Appeal No. 81: P. K. Chatterjee.

Agent for the respondent in Criminal Appeal No. 81 and Petitions Nos. 170, 171 & 172: G. K.

Raj adhyaksha.

MAQBOOL HUSSAIN

PATANJALI SASTRI C.J.

MuKHERJEA

S.R. DAs

GHULAM HASAN

BHAGWATI JJ.

Constitution of India

Art. 20(2)

Customs Act

s. 23

Punjab Communist Detenus Rules

Art. 20

s. 167

Customs Act

s. 23

Art. 20(2)

ss. 332 and 353

Indian Penal Code

Prisons Act

Art. 20

Indian Penal Code

Art. 32

Ishwarlal O. Dalal

M. O. Setalvad

A. Mehta

S. M. Sikri

Jindra Lal

Jagjit Singh

Bhagwati

article 20(:J)

Government of India

25th August, 1948

section 167

Customs Act

19th December, 1949

30th .January, 1950

22nd March, 19.50

Chief Presidency Magistrate, Bombay

section 8

Regulation Act VII of 1947

2.5th August, 1948

12th June, 1950

High Court of Bombay

article 228

article 20(2)

Ba.vdeka.r and

Vyas

Court of the Chief Presidency Bombay

article 2

BhagwatiJ.

Cha.gla. C.J.

Gajendragadkar

article 20(2)

article 20(.J)

Chief Presidency Magistrate

20th January, 1950

Chagla

12th February, 1951

Bh.agwati

section 167(8)

Customs Act

section 23

section 167

Customs Act

section 23

article 20(2)

article 367

General Clauses Act, 1897

Section 3(37)

General Clauses Act

section 167

Customs Act

section 23

article 20(2)

Bombay

Santa Uruz

section 167

section 183

Customs Act

Reserve Bank of India

article 20(2)

England

Charles

section 26

General Clauses Act, 1897

section 403

Criminal Procedure Code, 1898

section 236

section 237

United States

article 20(2)

article 20(2)

article 20(2)

article 20

Mahajan

Mukherjea

Sea Customs Act, 1878

Sections 18

section 19

section 167

sections 18 and 19

Section 182

section 183

Section 186

section 188

Section 191

Central Government

Section 193

Chief Customs Authority

Magbool Huuain

Bombay High Court

Customs Act

section 23

Vidya Rattan

Parma Nand

Preventive Detention Act, 1950

Punjab Communist Detenus Rules, 1950

Government of Punjab

section 4(a)

6th J?ebruary, 1950

J agjit Singh

7th February, 1950

10th April, 1950

6th February, 1950

8th February, 1950

10th April,

1950

K. K.

Mattu

.Jagjit ':iingh

P. L. Soudhi

Ferozepur

Jagjit 8ingh

sections 332 and 353

sections 147 and 149

Vidya Rattan

Parma Nand

16th February. 1951

article 32

article 20

J agjit Singh

Jagjit Singh

article 20(2)

Punjab

section 4(a)

article 20(2)

Section 4

Preventive Detention Act, 1950

Magbooz Hussa,~.n

Punjab Communist Detenus Rules, 1950

section 4

Indian Penal Code

Indian Penal Code

Penal Code

Maqbooi Hu

Indian Penal Code

sections 45, 46 and 52

Prisons Act

Prisons Act, 1894

article 20

section 4(a)

Maqbooi Hussain

Prisons Act

article 21

Vidya Hattan

Bh•gwati

P. L. Sondhi

Punjb Communist Detenus Rules, 1950

sections 332 and 353

sections 147 and 149

Indian Penal Code

Sher Singh

sections 147 and 149

Indian Penal Code

sections 332

sections 147 and 149

article 20

article 21

sections 147 and 149

Indian Penal Code

P. K. Chatterjee

G. K.

Raj adhyaksha


195li

Ganpat Rai Hira Lal and Another v.

Aggarwal Chamber of Oonimerce Ltd.

SUPREME COURT REPORTS [1953)

the appeals are not competent is, in' om opinion, erroneous.

The result is that Appeal No. 152 of .1951 is dismissed with costs throughout, while Appeals Nos. 167 and 167 A of 19.51 are allowed with costs throughout.

Appeal No. 12.5 dismissed.

Appeals Nos. 167 and 167 A .allowed.

Ghandrasekhara Agents for the a.ppllants in Appeals Nos. 167 AiyarJ. and 167A: Mohan Behan Lal.

March 12.

Agent for the appellant in Appeal No. 152 : Kitndan Lal Mehta.

Agent for respondents in Appeals Nos. 167 and 167 A: Naunit Lal.

Agent for respondent in Appeal No. 152: Mohan Behari Lal.

HIRALAL AND OTHERS

BADKULAL AND OTHERS. [MEHR CHAND MAHAJAN and BHAGWATI JJ.]

Acknowledgment-Whether gives fresh cause of action-Practice -Party in possession of documentary evidence-Duty to produce.

Where the defendants who had dealings with the plaintiffs for several years signed the following entry in the plaintiffs' account book underneath the earlier entries:

"After adjusting the aceounts Rs. 34,000 found correct payable".

Held, that this amounted to an unqualified acknowledgment of liability to pay and implied a promise to pay and could be made the basis of the suit and gave rise to a fresh cause of action.

Maniram v. Seth Rup Chand (33 I.A. 165), Fateh Chn.nd v.

Ganga Singh II.L.R. 10 Lab. 745) and Kahan Chand Dularam v.

Daya1al Amritlal (I.L.R. 10 Lah. 748) relied on. Gh11lam M11rtuza

v. Fasih1mnissa (I.L.R. 57 All. 434) overruled.

It is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court written evidence which is in their possession which could throw light upon the. issues in controversy and tc rely upon the mere doctrine of onus of proof.

Murugesam Pillai v. Manickavasaka Pandara (44 I.A. 99) referred to.

CIVIL Ar°FELLATE JURISDICTION: Civil Appeal No. 168 of 1952.

Appeal from a Judgment and Decree dated 23rd July, 1951, of the Court of the Judicial Commissioner, Vindhya Pradesh, in Civil First Appeal No. 26 of 1951 arising out of the Judgment and Decree dated 14th .:\farch, 1951, of the CouPt of the District Judge, Umaria, in Case No. 32 of 1951.

N. S. Bindra (S. L. Chhibber, with him) for the appellants.

S. P. Sinha (K. B. Asthana, with him) for the respondents.

1953.

March 12. The Judgment of the Court was delivered by

MAHAJAN J.-The suit out of which this appeal arises was instituted by the plaintiff-respondents in the court of the district judge of Umaria, for recovery of Rs. 34,000 principal, and Rs. 2,626 interest, due on foot of muual dealings. The suit was dismissed by the district judge but was decreed on appeal by the Judicial Commissioner of Vindhya Pradesh.

A certificate for leave to appeal to this Court was granted as the case fulfilled all the conditions and requirements in force relating to appeals to the Supreme Court.

The defendants did not admit the claim and it was pleaded that no accounts were explained to fihem when the signatures of Bhaiyalal and Hiralal were obtained in the plaintiffs' ledger on 3rd September, 1949, acknowledging the snit amount as due from them.

It was further pleaded that no suit could be based merely on an acknowledgment of the debt.

In paragraph 4 of the written statement it was alleged that the plaintiff No. 2 Dipchand having threatened to bring a suit against defendants 1 and 2 whose financial position was bad and having represented that plaintiff No. 1 Badkulal would be angry and abuse plaintiff No. 2, and having assured on oath by placing his hand on a deity in a temple that no suit shall be

lliralal and Others

Badhulal and Others.

Hiralal and 0th""'.

Badknlal and Othe1s.

760 SUPREME COURT REPOR'rS [1953]

brought, and that amouni of interest wouid be reduced, asked defendants 1 and 2 to sign the khata, who signed the same without going through the accounts,' on the faith of these statements made by Dipchand and that foe defendants were not bound by these signatures.

In paragraph 9 of the written statement it was alleged th'at in• fact Hs. 15,000 or 16,000 as principal sum were due to plaintiffs from defendants but the suit had been filed for a much larger sum than due. Issue 1 framed by the district judge, was in these terms :

"Did the defendants Hiralal and Bhaiyalal sign on Bhadon Sudi 11 Samvat 2006 in the capacity of manager and head of the family, on the khata of the plaintiffs after understanding the debit and credit accounts and accepting Rs. 34,000 as the correct balance due to the plaintiffs."

It would have been more correct had a separate issue been framed on the two points compositely mentioned in this issue, Be that as it may, the form in which the issue was framed is uot material for the decision of the appeal.

Issue 7 was in t'hese terms : "Did the plaintiff Dipchand obtain the signature of defendants 1 and 2, in their bahi under the threat of instituting a suit and giving the assurance of the suit being not filed and leaving the interest which is incorrect and very much exaggerated, by saying that Badkulal shall he very angry with him ... ".

The frame of the issue shows that the learned judge at this stage made no effort to ascertain or apprehend the nature of the plea taken in the written statement.

He seems to have acted more as an ~.utomaton than as a judge in the discharge of his responsible duties.

Before framing an issue like this it was his duty to examine the parties and to find out the precise nature of the plea involved within these facts; in other words, whether the a.efendants wished to plead in defence fraud, coercion, undue influence or a mistake of fact entitling them to reopen the accounts.

Mr. Bindra for the appellants was unable to tell us

what real plea was involved in the facts stated under th is issue.

The manner in which the learned judge dealt with this issue lends support to our view that he did uot at all apprehend what he had to decide.

It was held that the defendants did not sign the entry after understanding, settling, and adjusting oi the accounts, hut that plaintiff Dipchand obtained their signatures without explaining the accounts to them.

The fact that the entry was signed by both the defendants who represented their family was not denied.

Hiralal, defendant, in the witness box admitted that the defendants deal in gold, silver and kirana and maintain regular books of account. It was also admitted that two or three muneems are in their employ for maintflining regular boo.ks of the business dealings. Hiralal was questioned " How much money was due from the defendants-firm to the plaintiflsfirm?".

The answer was evasive, viz., "He could not say how much was due". When questioned about his accounts, he replied that he had not filed them as he was ill.

He further deposed that he had looked into his accounts and Rs. 10,000 to Rs. 15,000 as principal and interest were due but he could not say what was the correct amount. vVhen asked whether on the date of signing the acknowledgment he looked into the books to see what amount was due from him, his answer was in the negative. He further said that even after receiving notice he did not look into his own accounts to check as to what the correct balance was .. A leading question was put to him whether on Bhadon Sudi 11 Samvat 2006 there was an entry of Rs. 34,000 in the defendants' kbata as being the balance due from them to the plaintiffs.

The answer was again evasive. He said "I couid not say whether there was any such entry in bis books." In these circumstances there was no justification for throwing out the plaintiffs' suit on the ground that the accounts were not explained to the defendants by the plaintiffs. The defendants had written the accounts in their own books from which the true, bala.nce co11ld

Hiralal and Others

V, Badkulal and Others.

Mahajan J.

Hiralal and Others

Badkulal and Others.

Mahajan J.

be ascertained. An inference from the "statement of Hiralal can easily be raised that the balance entry of Rs. 34,000 r1lso existed in his own books. Mr. Bindra tried to get out of this situation by urging that it was no part of the defendants' duty to produce the books unless they were called upon to do so and the onus rested on. the plaintiffs to prove their case.

This argument has to be negatived in view of the observations of their Lordships of he Privy Conncil in Murugesam Pillai v. Manickavasaka Pandara('), which appositely apply here. 'fhis is what their Lordships observed:

"A practice has grown up in Indian procedtue of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof,.and failing, accordingly, to furnish to the courts the best material for its decision. With regard to third parties this may be right enonghthey hf1.ve no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition."

This rule was again reiterated in Rameshwar Singh

v. Rajit Lal Pathak('). . .

On the evidence of the parties it is clear that both parties are businessmen and each party has been maintaining accounts of their mutual dealings, and they met on 3rd September and in the plaintiffs' book the defendants signed an entry on page 58 of bhe ledger which runs thus:-

"Rs. 34,000 balance due to be received up to Bhadon Sudi 11 Samvat 2006 made by check and understanding of accounts with Hiralalji's books."

This acknowledgment was made below a number of entries made in this khata on the credit and debi& side and the mutual dealings had continued since

(!) (1917) 44 I.A; 99,

8.0.R.

SUPREME COUR'r REPOR'rs 763

several years.· The acknowldgment is signed by Hiralal and Bhaiyalal, with the following endorsement:

"After adjusting the' accounts Rs. 34,000 fonnd correct payab-Ie."

In these circumstances we are not able to understand the view of the district judge that it was not proved that the accounts were explained to the defendants by Dipchand. It was unnecessary to do so because the defendants themselves were keeping accounts and they would not have signed the balance for Rs. 34,000 with the endorsement above cited, without reference to their own books or in the manner suggested in the written statement. Plaintiff Dipchand in the witness box supported the plaintiffs' case as laid in the plaint.

He deposed that "This accounting was done by my muneem Puranfai and Ram Prasad, muneem of Hiralal. ........... Muneems explained and Hiralal signed after understanding it." In cross-examination he said that muneems were checking the accounts and when both the mnneems said that so much was the bala, nce, Hiralal then signed and that Hiralal and Bhaiyalal themelves did not check any account. The learned district judge and Mr. Bindra criticized the evidence of this witness and it was urged that he had made false and highly . improbable statements with regard to the manner and circumstances in which the entry was signed.

The discrepancies in the statement relate to matters of no consequence. In our opinion, his evidence along with the entry was sufficient to hold the plaintiffs' case proved when the best evidence of their own books to disprove the plaintiffs' case had been withheld by the defendants. No satisfactory explanation had been given for the non-production of the defendants' books, and the evidence given by Hiralal does not do much credit to him.

Mr. Bindra contended that it should have been held that Bhaiyalal did not sign at the same time when the entry was written but he signed later on.

On this point Hiralal deposed that when he signed Bhaiyalal

Hiralal and Others

Badkulal and Others.

Mahajan J,

Hiralal and Others

Badkulal and Others.

Mahajan J.

was not present, that he signed afterwttrds, that Kulai muneem came with the bahi s:!.ying that Badkulal and Dipchand had quarrelled among themselves that there should also be the signature of Bhaiyalal, that Bhaiyalal questioned him as to why the witness had signed, that he replied that Dipchand had told him l!.fter pointing his hand towards God that he would take no action so long as he lived, so he did not check, nor any one explained him the accounts, that on this he asked Bhaiy1tlal to sign and on his asking he signed. It was for Bhaiyalal to explain his signature by going into the witness box but he did not give evidence in the case and there is no explanation why he did not do so. Mr. Bindra's contention therefore that it should be held that Bhaiyalal was not present when the acknowledgment was signed cannot be sustained.

'1 1he defendants tried to support their case by the statements of Kulai Prasad, muneem, and the other two muneems Ram Prasad aud Puraulal. So far as Kulai Prasad is concerned, he was in the plaintiffs' service and was dismissed by Badkulal, plaintiff, on 31st March, 1950. Much reliance cannot be placed on the statement of a dismissed and disgruntled employee. He stated that Hiralal was not made to understand auy accounts and Dipchand assured him on oath that he would raise no trouble during his life and asked Hiralal to sign and that Bhaiyalal signed on a different date.

This evidence is of a partisan character and no reliance can be placed on it.

Ram Prasaa stated that he did not check the accounts of the plaintiffs from Bhadon Samvat 2006 and that Hiralal did not sign in bis presence. In cross-examination he admitted that there were mutual dealings between the parties and that Hiralal might have signed after accounting was done. He pretended ignorance of what happened on Bbadon Samvat 2006.

As regards Puranlal, be stated that after looking inlio the accounts and after mutual talk, Exhibit P-1

was written on Dip Chand's asking, that accounts might have been told by Dipchand on the basis of the statement which he had with him, that no ac-- counts were explained. He further stated that Hiralal said to Dipchand "Please see me", on which Dipchand replied after raising his hand towards the temple "I shall not do anything unfair in my lifetime." In cross-examination he admitted that the words" signed Bhurey Naik Raghunandan Prasad

Bakala.rn Hira Lal", and the words " after adjusting the accounts Rs. 34,000 found correctly payable signed Hinllal " were written by Hiralal himself. It was further elicited in cross-examination that the witness had forged a receipt and for forging that receipt he was sentenced to one year's imprisonment in a criminal case started by Badkulal, plaintiff. 'l'his evidence therefore is not of much consequence in this case.

In these circumstances we are satisfied that the district judge not only approached the decision of the case from an erroneous point of view but he also incorrectly appreciated the material on the record. The learned Judicial Commissioner was therefore perfectly justified in reversing his decision and in holding that on 3rd September, 1949, there was an adjustment of accounts actually done by the muneems and accepted by the principals and the story of coercion and misrepresentation was false. ·

Mr. Bindra next urged that the plaintiff's suit should have been dismissed because it could not be maintained merely on the basis of au acknowledgment of liability, that such an acknowledgment could only save limitation but could not furnish a cause of i>ction on which a suit could be maintained. The Judicial Commissioner took the view that an unqualified acknowledgment like the one in the suit, and the statement of the account under which the entry had been made, were sufficient to furnish a cause of action to the plaintiffs for maintaining the present suit. We are satisfied that no exception can be taken to this conclusion. It was held by the Privy Council in

Hiralal and Other's

Bodkulol and Others.

ltfa, hajan J.

Hiralal and Others

Badkulal and Others.

Mahajan J.

SUPREME COURT REPORTS [19/i3j

Maniram v. Seth Rupchand('), that an unconditional acknowledgment implies a promise to pay because .that is the natural inference if nothing is said to the contrary. It is what every honest man would mean to do. In Fateh Chand v. Ganga Singh(') the same view was taken. It was held. that a suit on the basis of a balance was competent In Kahanchand Dularam v.

Dayaram Amritlal(3) the same view was expressed and it was observed that the three expressions "balance due", " account adjusted " and "balance struck" must mean that the parties had been through the account.

The defendant there accepted the statement of account contained in the plaintiff's account book, and made it his own by signing it and it thus amounted to an "accounts stated between them" in the language of article 64 of the Limitation Act. 'l'he same happened in the present case. The acknowledgment which forms the basis of the suit was made in the ledger of the plaintiffs in which earlier mutual accounts had been entered and truly speaking, the snit was not based merely on this acknowledgment but was based on the mutual dealings and the accounts stated between them and was thus clearly maintainable.

Mr. Bindra drew our attention to a decision of the Allahabad High Court in Ghulam Murtuza v. Fasihunnissa('), wherein it was held that even if an acknowledgment implies a promise to pay it cannot be made the basis of suit and treated as giving rise to a fresh ca use of action. We have examined the decision and we are satisfied that it does not lay down good law.

For the reasons stated above this appeal has no merits and we accordingly dismiss it with costs.

Appeal dismissed.

Agent for the appellants: Govind Saran Singh.

Agent for the respondents : A. D. Mathur.

(r) (I906) 33 I.A. I65.

(2) (I929) I.L.R, Io Lah, 748.

(3) (I929) l.L.R. Io Lah. 745.

(4) (I935) I.L.R. 57 All. 434,

Ghandrasekhara

Mohan Behan Lal

Kitndan Lal Mehta

Naunit Lal

Mohan Behari Lal

HIRALAL AND OTHERS

BADKULAL AND OTHERS

MEHR CHAND MAHAJAN

BHAGWATI JJ.

N. S. Bindra

S. L. Chhibber

S. P. Sinha

K. B. Asthana

MAHAJAN

Vindhya Pradesh

Supreme Court

Bhaiyalal

Hiralal

3rd September, 1949

Dipchand

Badkulal

lliralal

Badhulal

Hiralal

Badknlal

Dipchand

Bhaiyalal

Bhadon Sudi 11 Samvat 2006

Badkulal

Bindra

vVhen

Hiralal

Badkulal

Mahajan

Hiralalji

muneem Puranfai

Ram Prasad

Kulai muneem

Kulai Prasad

Ram Prasad aud Puraulal

Kulai Prasad

31st March, 1950

Ram Prasaa

Puranlal

Dip Chand

Bodkulol

article 64

Limitation Act

Allahabad High Court

Govind Saran Singh

A. D. Mathur


S.C.R.

SUPREME COURT REPORTS 767

OHAIRM AN OF THE BANKURA

MUNICIPALITY

LALJI RAJA AND SONS. [MEHR CHAND MAHAJAN and BHAGWATI JJ.]

Calcutta High Court Rules, Part I, Chap . .11, R1!le 9-J,, risdiction of Single Judge-"Order of fo1Jeiture of property"-Forfeit1!re, meaning of- Order directing di, posal of 1inwholesome food under }1fonicipal laws- Whether forfeiture-Bengal Afonicipal Act,

1932, SS. 428, 431, 432.

An order of a District Magistrate under ss. 431 and 432 of the Bengal Municipal Act (XV of 1932) for the disposal of an article of food which has been seized under s. 428 of the said Act is not an order of forfeiture of property within the meaning of the proviso to rule 9 of Chap. II of Part II of the Calcutta High Court Rules, and a Single Judge of the said High Court has jurisdiction to hear a reference from such an order.

Unless the loss or deprivation of property is by way of penalty or punishment for a crime, offence or breach of engagement it would not amount to a "forfeiture" of property.

CtUMINAL

APPELLATE JURISDICTION: Criminal Appeal No. 23 of 1952. Appeal from an Order dated 18th January, 1952, of the High Court of Judicature at Calcutta (Chunder J.) in Criminal Reference Case No. llO of 1951.

N. 0. Talukdar antl A. D. Dutt for the appellant.

Ajit Kumar Dutta and S. N. Mukherjee for the respondents.

1953. March 12. The Judgment of the Court was delivered hy

BHAGWATI J.-This is an appeal under arti cle 134(c) of the Constitution and raises the point whether a single Judge of the High Court of Judicature at Calcutta could hear a reference from an order under sections 431 and 432 of the Bengal Municipal Act XV of 1932. 'rhe jurisdiction of a single Judge of the High Court in criminal matters is defined in the proviso to

March lfl.

19/J3

Chairman. of the Bankura

rule 9, Cb apter II, Part I of the. Rules of the High Court and the relevant portion of the proviso runs as under:-

Lalji Raja

and Sons.

Bhaawati J.

"Provided that a single Judge may hear any Appeal, Reference, or Application for revision other than the following:-

(1) One relating to an order of sentence of death, transportation, penal servitude, forfeiture of property or of imprisonment, not being an order of imprisonment in defanlt of payment of fine ......................... "

A single Judge therefore has no jurisdiction to deal with any reference or application for revision which relates to an order of forfeiture of property, and the question that arises in this appeal is wbenher the order passed by the learned District Magistrate, Bankura, under sections 431 and 432 of the Bengal Municipal Act, 1932, amounted to an order of forfeitu:e of property within the meaning of the above proviso.

'fhe relevant facts may be shortly stated as follows.

The respondents are ; he proprietors of several oil mills in the town of Dankura within the Bankura Municipality. The Sanitary Inspector of the Municipality received on 6th Marnh, Hl50, information that the Manager of the Bree Gonranga Oil Mill, belonging to the respondents had dep"osited about 300 ba.gs of rotten, decomposed, unwholesome mustard seeds in the courtyard of the Rice Mill of Bree Hanseswar Maji and about 600 bags of unwholesome mnstard seeds in the 1p.ill godown of the respondents for sale and for the preparation of oil therefrom for sale. On an application made by him in that behalf the 8ub- Divisional Officer, Bankura, duly issued a search warrant and the Sanitary Inspector on the same day found in possession of the respondents a huge q uantity of mustard seeds which were found to be highly unsound, unwholesome and unfit for human consumption. He seized the said seeds between the 6th March, 1950, and the 8th March, 1950, and after the completion of the seizure asked for written consent of the

respondents for destruction of t.he said mustard seeds which they refused. 'rhe Sanitary Inspector therefore kept all the bags thus seized, viz., 951! bags, in the mill .godowns of the respondents with their consent. .After sever:ol proceedings which it is not necessary to mention for the purpose of this appeal, the District Magistrate, Bankura, in M. P. No. 58 of 1950 under sections 431 and 432 of the Bengal Municipal Act on the 14th Auguot, 1951, found that the stock of mustard seeds which was seized on the 6th March, 1950, was on that date and still was unfit for human consumption. J3ut in so far as no oil was coming out of the seeds and the seeds were capable of being used as manure or for cattle-food he would not direct their destruction but directed that they should be disposed of by the Commissioners of the Bankura Municipality as manure or as cattle-food ensuring before such disposal that the stocks in question had been rendered incapable of being used as human food.

The respondents.filed a petition under section 435 of the Criminal Procedure Code before the Additional Sessions Judge, Bankura, against the order of the District Magistrate, for a reference to the High Court.

The Additional Sessions Judge held that the seizure of the mustard seeds was illegal and that there was no evidence to show that the seeds in question were deposited in or brought to the places for the purpose of their sale or of preparation of oil for human consumption. He therefore made a reference under section 438 of the Criminal Procedure Code to the High Court for gnashing the proceedings.

Chunder J. accepted the reference, set aside the order of the District Magistrate and remanded , the case for retrial by some other Magistrate, as in the opinion of the learned Judge, the District Magistrate had decided the matter upon his own observations formed during the inspectidn of the mustard seeds and not on the material in the record. An application was made to a Bench of the High Court and leave was allowed on the point whether Chunder J. had jurisdiction sitting singly to bear th~ reference in view of the rule cited a]Jov~,

Chair11ia11 of the Bankura.

M11nicipality

v, J; alji Raja and Sons.

Bhag1oati J.

SUPREME COURT REPORTS [1953)

1968 Sri N. C. Taluqdar for the appellants urged tha.t

Chair<nan of the order made by the District Magistrate, Bankura,

th• Bankura under sections 431 and 432 of the Bengal Municipal Municipality Act, 1932, was an order for forfeiture of property v.

Lalji Raja

and Sons.

Bhagtoati J.

within the meaning of the proviso to the rule and Chunder J. had no jurisdiction to deal with the reference and his order should be quashed.

Section 431 provides :-

" ( l) Where any living thing, article of food, drug, ......... seized under section 428 is not destroyed by consent under sub-section (1) of section 429, or where an article of food so seized which is perishable is not dealt with under sub-section (2) of that section, it shall be taken before a Magistrate as soon as ma, y be after such seizure.

(2) If it appears to the Magistrate that any such Ii ving thing is diseased or unsound or that any such food or drug is unsound, unwholesome or unfit for human food or for medicine, as the case may he ............... he shall cause the same to be destroyed at the expense of the person .in whose possession it was at the time of its seizure, or to be otherwise disposed of by the Commissioners so as not to be capable of being used as human food or medicine ......... "

Section 432 provides : -

"When any authority directs in exercise of any powers conferred by this chapter, the destruction of any living thing, food or any drug, or the disposal of the same so as to prevent its being used as food or medicine, the same sh~)] thereupon be deemed to be the property of the Commissioners."

The word "forfeiture" is efined in Murray's Oxford Dictionary:-" The fact of losing or becoming liable to deprivation of goods in consequence of a crime, 'offence, or breach of engagement" ......... "the penalty of the transgression" or a "punishment for an offence". It was contended that in so far as section 432 provided for the vesting of the condemned food or drug in the Commissioners the owner of the property was divested or deprived of the proprietary

rights therein and that the order made by the Magistrate under section 431 (2) was thus an order of forfeiture of the property.

This contention in our opinion is unsound. According to the dictionary meaning of the word "forfeiture" the loss or the deprivation of goods has got to be in consequence of a crime, offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an offence.

Unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime, offence or breach of engagement it would no& come within the definition of for .. feiture. What is provided under section 431(2) is the destruction of the food or drug which is unsound, unwholesome or unfit for human food or medicine or the otherwise disposal of the same by the Commissioners so as not to be capable of being used as human food or medicine.

The vesting of such coqdemned food or drug iu the Commissioners which is provided by section 432 is with a view to facilitate the destruction or the otherwise disposal of such food or drug by the Commissioners and is in no way Ii fo1- f eiture of such food or drug by the Municipality.· The condemned food or drug by reason of its being found unsound, unwholesome or unfit for human food or medicine cannot be dealt with by the owner.

It must be destroyed or otherwise disposed of so as to prevent its being used as human food or medicine.

What the Municipal Commissioners are empowered to do therefore is what the owner himself would be expected to do and what is ordered to be done therefore cannot amount to a forfeiture of the property.

The order is not a punishment for a crime but is a measure to ensure that the condemned food er drug is not used as human food or medicine.

That this is the t.rue position is clear from the provisions of Chapter XXIV of the Act which provides for penalties. Sections 501 to 504 prescribe pnalties for specific offences and section 500 prescribes generally penalties for the several offences therein mentioned.

Section 431 however does not figure therein.

Chairman of ths Bankura Municipality

Lalji Raja and Sons.

Bhagwati J.

Chairnian of the R1inkura

llfumcipality

V, Lalji Raja

and Sons.

Bhagwati J.

SUPREME COURT REPORTS [1953]

Forfeiture of property is thus not one of the penalties or punishments for any of the offences mentioned n the Bengal Municipal Act.

In the relevant provision in the rule of the High Court an order of sentence of death, transportation, penal servitude, forfeiture of property or of imprisonmeut are grouped together. 'rhese orders are purely orders by way 'of penalty or punishm.ent for the commissiou of crimes or offences and the forfeiture of property mentioned there is no other than the one which is entailed as a consequence of the commission of a crime or offence.

In order that such forfeiture of property would bar the jurisdiction of the single Judge it has to be a forfeiture of property which is provided by way of penalty or punishment for the commission of a crime or offence.

In spite of his labours Shri N. C. Taluqdar hs.s not been able to point out to us any provision of the Beugal Municipal Act, 1932, which constitutes what is con temp lated under section 431(2), a penalty or punishment for the commission of a crime or offence. The offence that the respondent could be charged with i~ deened in section 421 of the Act and the punishment for that offence provided in section 500 is fine and not forfeiture.

vVe are therefore of the opinion that the order of the District Magistrate, Bankura, under sections 431 and 432 of the Bengal Municipal Act, 1932, dated 14th August, 1951, was not an order of forfeiture of property within the meaning of the proviso to rule 9, Chapter II, Part I, of the Rules of the High Court, and Chunder J. had the jurisdiction to entertain and decide the reference.

The result is that the appeal fails and is dismissed.

Appeal dismissed.

Agent for the appellant : Sukumar Ghose.

Agent for respondent: R. R. Biswas. ·

~--

LALJI RAJA AND SONS

MEHR CHAND MAHAJAN

BHAGWATI JJ.

Calcutta High Court Rules

SS. 428, 431, 432

ss. 431 and 432

s. 428

A. D. Dutt

Ajit Kumar Dutta

S. N. Mukherjee

High Court of Judicature at Calcutta

sections 431 and 432

Municipal Act XV of 1932

Lalji Raja

Bhaawati

District Magistrate, Bankura

sections 431 and 432

Bengal Municipal Act, 1932

Dankura

Bankura Municipality

Bree Gonranga Oil Mill

Bree Hanseswar Maji

Bankura

6th March, 1950

8th March, 1950

sections 431 and 432

14th Auguot, 1951

section 435

Additional Sessions Judge, Bankura

section 438

Chunder

N. C. Taluqdar

sections 431 and 432

Bengal Municipal Municipality Act, 1932

Lalji Raja

Bhagtoati

Section 431

section 428

section 429

Section 432

Murray

section 432

section 431

section 431(2)

section 432

Chapter XXIV of the Act

Sections 501 to 504

section 500

Section 431

Bhagwati

V, Lalji Raja

N. C. Taluqdar

Beugal Municipal Act, 1932

section 431(2)

section 421

section 500

sections 431 and 432

Bengal Municipal Act, 1932

14th August, 1951

Sukumar Ghose

R. R. Biswas


S.C.R.

SUPREME COURT REPORTS 773

THE STATE OF BOMBAY

PANDURANG VINAYAR CHAPHALKAR

AND OTHERS. [MEHR CHAND MAHAJAN andBHAGWATI JJ.]

Bombay Bnilding (Control on Erection) Act, 1948, s. 15-Bornbay General Clauses Act, 1904, s. 25-Repeal of Ordinance and reenactment as Act-Notifications issued under Ordinance whether continue in force-Construction of Act-Stat,.tory fictions.

The Bombay Building (Control on !Crection) Ordinance of 1948 applied to certain areas mentioned in the Schedule to the Ordinance, and in exercise of the powers vested in it by the Ordinance the Government extended its provisions to certain other areas including Ratnagiri in respect of buildings intended to be used for cinemas and other places of entertainment, by a notifica~ tion of the 15th January, 1948. This Ordinance was repealed by the Bombay Building (Control on Erection) Act of 1948 the provisions of which were similar to those of tbe earlier Ordinance.

Section 15(1) of the Act repealed that Ordinance and declared that "the provisions of ss. 7 and 25, Bombay General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were an enactment."

Held, reversing the judgment of the Bombay High Court, that on a true construction of s. 15(1) of the abovesaid Act and s. 25 of the Bombay General Clauses Act, 1904, the notification issued on the 15th January, 1948, under the Ordinance continued in force under t_he Act of 1948 and that by it the provisions of the Act stood extended to other areas in the State including Ratnagiri to the extent indicated in the notification.

Ex parte Walton: In re Levy (17 Cb. D. 746) and East End Dwelling Co. Ltd. v. Finsbury Borough Cotmcil ([1952] A.G. 109) referred to.

CRUIINAL APPELLATE

JURISDICTION: Criminal Appeal No. 62 of 1951.

Appeal by special leave granted by the Supreme Court of India on the 14th May, 1951, from the Judgment and Order dated the 9th August, 1950, of the High Court of Judicature at Bombay (Bavdekar and Vyas JJ.) in Criminal Appeal No. 319of1950 arising ou-t of the Judgment and Order dated the 6th Januiuy, 1950, of the Court of the Sub-Divisional Magistrate F.C., Ratnagiri City, in Criminal Case No. 77 of 1949.

l~J.53

ltfarch 13.

The State of

Bo1?Jbay

Pandurang

Vina.yak Ghaphalkar and Others.

Mahajan J.

774 8UPREME COURT REPoRts [1953]

M. C. Setalvad, Attorney-General fol' India (.G. N.

Joshi and P. A. Mehta, with him) for the appella, nt.

K. R. Chaudhury for the respondent.

1953. March 13. Tha Judgment of the Court was delivered by

MAHA.JAN J.-The respondents were charged with having committed an offence punishable under section 9(2) read with section 4 of the Bomba, y Building (Control on Erection) Act, 1948, for commencing the work of erection of a cinema theatre without obtaining the necessary permission from the controller of buildings, Bombay.

The sub-divisional magistrate, Ratnagiri, held that the Act not having been validly extended to Ratnagiri, no permission of the controller of buildings was necessuy for the construction.

He accordingly acquitted them.

On appeal by the State Government, the order of acquittal was maintained by the High Court.

This appeal is before us by special leave from the concur!ent orders of acquittal.

Special leave was granted on the Attorney-General for India undertaking on behalf of the State Government of Bombay that whatever the decision of the court might be, no proceedings will be taken against the respondents in respect of the subject-matter under appeal.

At the hearing of the appeal it was made plain by the learned Attorney-General that no adverse consequences will flow to the respondents or to their building being completed, by the acquittal order being pronounced as bad, and that the State Government will not in any way interfere with the respondents when they take steps to complete the building, the construction of which was commenced without the permission of the controller.

The State Government merely wants to have the question of law decided as a test case because the decision of the High Court, if left unchallenged, would have far-reaching effects.

The facts giving rise -to the prosecution of the res.pondents, shortly stated, are these: There was in force in the State of Bombay an Ordinance, Bombay

Builing (Control on Erection) Ordinance, 1948. It was applicable to certain areas specified in the schedule. The district of Ratnagiri was not one of the areas therein specified. Sub-section ( 4) of section 1 of the Ordinance empowered the provincial government by notification in the official gazette to extend to any other area specified in such notification its provisions.

It further empowered the provincial government to direct that it shall apply only in respect of buildings intended to be used for such purpose as may be specified in the notification. On 15th January, 1948, the Government of Bombay issued the following notification :--

"In exercise of the powers conferred by sub-section

(4) of section 1 of the Bombay Building (Control on Erection) Ordinance, 1948 (Ordinance No. I of 1948), the Government of Bombay is pleased to direct that the said ordinance shall also extend to all areas in the province of Bombay other than the areas specified in the schedule to the said Act and that it shall apply to said areas only in respect of buildings intended to be used for the purpose of cinemas, theatres and other places of amusement or entertai)lment."

The consequence of this notification was that in the district of Ratnagiri no cinema building could be commenced without the permission of the controller after that date.

Ordinance I of 1948 was repealed by Act XXXI of 1948, "The Bombay Building (Control on Erection) Act, 1948". It was made applicable to areas specified in the schedule.

Sub-section (3) of section 1 authoried the provincial government by notification in the official gazette to direct that it shall also extend to anyother areas specified therein. It further authorized the provincial government to direct that it shall apply only in respect of buildings intended to be used for such purposes as may be specified in the notification. B.y section 15(1) of the Act it was provided that-

" The Bombay Building (Control on Erection) Ordinance, 1948, is hereby repealed andit is hereby

The State of

Boniba11

I'andivrang

Vinayak Chaphalkar and Other11.

}, fahajan J.

The State of Bombay v.

Pandurang

Vinayak Chaphalkar and Others.

Mahajan J.

776 SUPREM:in COURT R]jPORTS (1953j

declared that the provisions of sections 7 and 25 of the Bombay General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were an enactment."

The respondents started constructing a. cinema at Ratnagiri on 15th August,.1948, after the commQncement of Act XXXI of 1948 without obtaining the permission of the controller of buildings as required by the Act under the. impression that the A.ct had application only to areas specified in the schedule and the district of Ratnagiri not having been specified in the schedule, the provisions of the Act had no application to that area.

As above stated, they were prosecuted for committing an offence .under section 9(2) read with section 4 with the results abovementioned.

The order of acquittal was based on the ground that although the notification extended the scope of the ordinance to areas other than those which were mentioned specifically in the schedule thereto, it did not extend to those aieas the provisions of the Act in spite of the application of the provisions of section 25 of the Bombay Gene.ral Clauses Act. In our judgment, the construction placed by the High Court on the language of section 15 is erroneous and full effect has not been given to its provisions or to the provisions of section 25 o! the Bombay General Clauses Act.

We think on a true construction of section 15 of the Act and section 25 of the Bombay General Clauses Act, the notification issued on 15th January, 1948, under the ordinance continued in force under Act XXXI of 1948 and that by it the provisions of the Act stood extended to other areas in the State to the extent indicated in the notification. Section 25 of the Bombay General Clauses Act, 1904, provides-

" where any enactment is, :ifte1 the commencement of this Act, repealed and re-enacted by a Bombay Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye-law or form made or issued under the repealed enactment shall, so far as it is nob incl>nsistent with the provisions re-enacted,

continue in. force, and be deemed to have been made or issued nuder the provisions so re-enacted unless and until it is superseded by any appointment, notification, order, scheme, rule, bye-law or form made or issued under the provisions so re-enacted."

It cannot be contended that the notification was inconsistent with the provisions of Act XXXI

of 1948.

It is clearly in accordance with its scheme and purpose. The High CourG did not combat the proposition that in view of the provisions of section 25 of the Bombay General Clauses Act the notification continued in force after the coming into force of the Act. It, however, held that even if the notification was taken as having been issued under Act :{CXXI of 1948, the notification merely extended the ordinance to these areas and not the Act. In the opinion of the High Court, the word "Act" instead of " Ordinance" could not be read in the words of the notification by the force of section 25 of the Bombay General Clauses Act and the notification literally construed, only extended the ordinance to those areas.

It was considered that if the intention. was to extend the Act to these areas, such an intention could only be carried out by enacting in Act XXXI of 1948 a proviso like the one enacted in the Cotton Cloth and Yarn (Control) Order, 1945, or by use of language similar to the one used in section 9 of the Bombay General Clauses Act, 1904. The proviso in the Cotton Cloth and Yarn (Control) Order is in these terms:-

" Provided further any reference in any order issued under the Defence of India Rules or in any notification issued thereunder to any provision of the

Cotton Cloth and Yarn (Control) Order, 1943, shall, unless a different intention appears, be construed as reference to the corresponding provision of this

Order."

We do not find it possible to support this line of reasoning. It appears to us that the attention of the learned Judges was not pointedly drawn to the concluding words of section 15 (1) of the Act. It is specifically provided therein tha, t the provisions of

The State of Bombay v.

Pandurang Vinayalc Chaphalkar and Others. ·

Mahajan J.

)958

The State of Botnbay v.

Pa.ndnrana

Vtnayak Ohaphalkar and Others.

l.1a.hajan J.

sections 7 and 25 of the Bombay General Clauses Act shall apply to the repeal as if the ordinance were an enactment. The ordinance by use of those words was given the status of an enactment and therefore the word "ordinance" occurring in the notification has to be read accordingly aud as extending the Act to those areas, and unless that is done, full effect cannot be given to the concluding words used in section 15(1) of the Act. The conch:ding words of section 15(1) of the Act achieve the purpose that was achieved in the Cotton Cloth and Yarn (Control) Order by the "proviso." By reason of the deeming provisions of section 15, the language used in the notification extending the ordinance to those are:i, s as a necessary consequence has the effect of extending the operation of the Act to those areas. When a statute enacts that something shall he deemed to have been done, which_ in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. [Vide Lord Justice James in Ex parte Walton: In re Levy(')). If the purpose of the statutory fiction mentioned in section 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which It has been construed by the High Court. In East End Dwellings Co. Ltd. v. Finsbury Borough Council( 2), Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as follows :-

" If yon are bidden to treat an imaginary state of affairs as real, yon must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ....... The statute says that yon must imagine a certain state of. affairs; it does not

(r) 17 C4. D, 746, at p. 756,

(2) (1952) A.C. 109,

say that having done so, you must cause or permi~ your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

The corollary thus of declaring the provisions of section 25 of the Bombay General Clauses Act applicable to the repeal of the ordinance and of deeming that ordinance an enactment is that wherever the word "ordinance" occurs in the notification, that word has to be read as an enactment.

For the reasons given above we are satisfied that the High Court. was in error in holding that the notification only extended the provisions of the ordinance to Ratnagiri district and not the provisions of Act XXXI of 1948 to that area. It may, however, be observed that the manner ail.opted by the legislature in keeping alive the notifications issued under the ordinance by use of somewhat involved language iu matters where the rights of the citi"ens regarding the construction of buildings were being affected was not yery happy. It has certainly led three judges to think that the intention of the legislature was not brought out by the language. People who are not lawyers ma.y well be misled into thinking that the notifica.tion issued under the ordinance has terminated with its repeal and not having been re-issued under the Act, the provisions of which again in clear language provide that it only extends to areas specified in the schedule and which gives power to extend it, that those areas are excluded from the scope of the Act. It would have been much simpler if the legislature made its intention clear by use of simple and unambiguous language.

Because of the undertaking given by the learned Attorney-General not to proceed any further in this matter, it is not necessary to set aside the acquittal order of the respondents, \Vhich will remain as it stands.

Appeal allowed.

Acquittal not set aside.

Agent for the appellant: G. H. Rajadhyaksha.

Agent for the respondents: Ganpat Rai,

The State of Bombay v.

Pand1trang

Vtnayak Gh'lphalkar and Others,

Mahajan J.

773

THE STATE OF BOMBAY

PANDURANG VINAYAR CHAPHALKAR

AND OTHERS

MEHR CHAND MAHAJAN

s. 15

Bornbay General Clauses Act, 1904

s. 25

15th January, 1948

Section 15(1)

ss. 7 and 25

Bombay General Clauses Act, 1904

Bombay High Court

s. 15(1)

s. 25

Bombay General Clauses Act, 1904

Ratnagiri

Bavdekar

Vyas

State of

Bo1?Jbay

Pandurang

Vina.yak Ghaphalkar

Mahajan

M. C. Setalvad

.G. N.

Joshi

P. A. Mehta

K. R. Chaudhury

MAHA.JAN

section 9(2)

section 4

India

Bombay

section 1

Government of Bombay

section 1

section 1

section 15(1)

State of

Boniba11

fahajan

sections 7 and 25

Bombay General Clauses Act, 1904

section 9(2)

section 4

section 25

section 15

section 25

General Clauses Act

section 15

section 25

General Clauses Act

Section 25

Bombay General Clauses Act, 1904

section 25

General Clauses Act

section 25

General Clauses Act

section 9

Bombay General Clauses Act, 1904

section 15

sections 7 and 25

General Clauses Act

section 15(1)

section 15(1)

section 15

James

section 15

section 25

General Clauses Act

Ratnagiri district

G. H. Rajadhyaksha

Ganpat Rai

Vtnayak Gh'lphalkar