GAYASI

STATE OF U.P.

March 17, 1981 J

[Y.V. CHANDRACHUD, C.J. AND A.P. SEN, J]

Penal Code-Crime against public servant for reasons arising out of performance of official duty-No reason for commuting death sentence to lesser sentence.

The deceased Bhagwan Singh who was working as an Amin put the appellant's lands to sale for recove1 ing certain arrears. The appellant and his two companions Moo] Chand and Daya Ram lay in wait for the deceased while he was on his way back home. Daya Ram first fired three shots at the deceased as a result of which he fell down. Immediately thereafter the appellant emerged with a sword and chopped off the head of Bhagwan Singh.

The appellant was convicted under section 302 read w.ith section 34, I.P.C. and sentenced to death. The second accused was still absconding.

On the question of sentence

HELD : There is no reason for commuting the sentence of death to the lesser sentence of imprisonment for life. The deceased had to perform his ministerial duties as an amin in putting the land to sale. He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the appellant's lands. Such crimes against public servants for reasons arising out of the performance by them of their public duties must be put down with a firm hand. [269E]

The fact that the second accused was absconding does not reduce the gravity of the appellant's offence. [269D]

F CRIMINAL APPELLATE JURISDICTDN: Criminal Appeal No. 362 of 1979.

Appeal by Special Leave from the Judgment and Order ~' dated 28.2.79 of the Allahabad High Court at Allahabad in Cr!.

Appeal No. 3500/78 and murder reference No. 33/78.

G S. K. Bisaria for the Appellant.

H. R. Bhardw(lj and R. K. Bhatt for the Respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, C. J.

The appellant's land was auctioned on H December 26, 1976 in a revenue sale held to recover arrears of land revenue.

On the same day, the land of one Moo! Chand was also sold for a similar reason.

The deceased Bhagwan Singh; who was

GAYASI v. U.P. STATE (Chandrachud. C.J.) 269

an Amin, acted as an officer of the Court in effecting the aforesaid sales.

After the sale proceedings were over, Bhagwan Singh was returning home on a bicycle, with his peon Shripat, who is examined in the case as P. W.4 The appellant, Moo! Chand and the latter's son Daya Ram lay in wait for the deceased and while he was passing along on his bicycle, Daya Ram fired three shots at him; two out of these hit Bhagwan Singh, as a result of which he fell down.

A split second thereafter, the appellant emerged with a sword and chopped off the neck of Bhagwan Singh.

Daya Ram is still absconding but the appellant was convicted by the Sessions Court under section 302 read with section 34 of the Penal Code and was sentenced to death.

He was also convicted under section 307 of the Penal Code. The sentence of death having been confirmed by the High Court, the appellant has filed this appeal by special leave. The leave is limited to the question of sentence.

We see no reason for commuting the sentence of death imposed upon the appellant to the lesser sentence of imprisonment for life.

The fact that Daya Ram is absconding does not reduce the gravity of the offence committed by the appellant.

Bhagwan Singh had but performed his ministerial duty as an Amin in putting the appellant's land to sale. He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the lands of the appellant and of Daya Ram.

Such cri1ms committed against public , •' I servants for reasons ansmg out of the performance by them of their public duties must be discouraged and put down with a firm hand.

We, therefore, confirm the sentence of death passed on the appellant and dismiss the appeal.

P.B.R \ Apral dismissed.

GAYASI

STATE OF U.P

March 17, 1981

Y.V. CHANDRACHUD, C.J.

A.P. SEN, J

Penal Code

Bhagwan Singh

Moo] Chand

Daya Ram

section 302

section 34

I.P.C

G S. K. Bisaria

H. R. Bhardw(lj

R. K. Bhatt

CHANDRACHUD

Moo! Chand

an Amin

Shripat

Moo! Chand

section 302

section 34

Penal Code

section 307

Penal Code

P.B.R \ Apral


MUNIAPPAN

1'.

STATE OF TA M)L NADU

Ml.rclt 18, 1981

[Y.V. CHANDRACHUD, C.J. AND A.P. SEN, J.]

CRIMINA L PROCEDURE CODE 1973

(I) S. 235(2)- Hearing accused on sen/ence-Formal que.TI/011 to accused as to what he lras to say-Statutory obligation whetflpr dlsclwrged-Neressity mrd object of section explained.

(2) S. 354(3)- 'Special reasons' /or awarding death sllfenre-Sesstons J11dge clraracterisillg murder 'terrific do11ble murder' and awarding death untence--

Whelher legal and valid.

PRACTICE AND PROCEDURE

(J) Advocates appearing in cast-Condurl o(-Hlr:lt Coull to make only guarded observations.

(2) Police Olficersumdul't of-Criticism by High CourJ- Prior opporltmily to etplain-Necersit.r of.

The Code of Criminal Procedure, 1973 by section 354(3) provides that when the conviction is for an offence punihable with death, the judgment shall in the case of sentence of death state 'special reasons' for such sentence.

The appcllam was charged under section 302 of the Penal Code for having. committed the murder of his maternal uncle and his son.

I The Sessions Judge convicted the appellant for murder and being of the opinion thal it was " a terrific double murder'' sentenced the npplla n t to death,

The High Court condemned the murders as "cold blooded" and confirmed the conviction and sentence.

Allowing the apJ; eal to this Court. limited 10 the question of sentence.

HELD: I. The sentence of death imposed on the appellant tS set aside and he is-sentenced to imprisonment for life. [27.5 J-]

2. The reasons given by the Sessions .tudgc for ampo~•na the death sentence :tre not 'special reasons' .... ithin the meaning of section 354(3) of the Criminal

Procedure Code. lt is not cenajn if he were cogniuot of his high responibility under that provision. that he would have imposed the de:uh sentence. [275 F.)

:t. It is not understood what is meant by "a terrific murder· as suggested by the Sessions Judge. All murders are terrific and tf the fact of the murder being

-r

MUNJAPPAN 11. TAMIL NADU 271

terrific is an adequate reason for imposing the death sentence then every murdex shall have to be visited with that senten:!.

Dath senence will then tbecome the rule, not an exception and section 354(3) wold become a dead letter. [272 F-G]

4(i). On the question of sentence it is not merely the accused but the whole society which has a stake.

(273 .B]

(ii) After the conviction is recorded , the ()ccasion to apply the provisions of section 235(2) of the Criminal Procedure Code arises. The obligation under

this section to hear the accused on tile question of sentence is not discharged by

putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the :accused all

information which will eventually bear on the question of sentence. All admis sible evidence is before the Judge but that evidence itself often furnishes a clue

to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad so'Ciologica'l point of view. Questions which the Judge can put to th..: accused under section 235(2) and the answers which the accused makes arc beyond the narrow constraints of the Evidence Act.

The Court, while on the question of sentence, is in an altogether different domain

in which facts and factors of an entirely different order operate.

[273 .B; 272 H273 A; 273 C]

In the instant case, the Sessions Judge complied with tlic form and letter of the obligation which section 235(2) imposes, forgetting the spirit and substance of that obligation. (273 D]

5. lt i~ not PO$sible to appreciate how, after. being shot in the chest and receiving the injuries described in the post-mortem report, the deceased could have survived for a" couple of hours thereafter. There is also no explanation as to why the F.I.R. was not recorded at the Police Station when P.W. I went there.

It is therefore unsafe to confirm the sentence of death imposed upon the appellant.

[273 H. 274 F, 275 El

6. It is not the normal function of the High Court to pass judgment on the conduct of lawyers who appear before the lower C()Urts. [275 C)

The High , Court should have given anoppol'tuni ty to the two police officers to explain their conduct before making criticism on it. (274 GJ

CRIMINAL iAPPELLATE JURISDICTION : Criminal Appeal No. 221 of 198l.

Appeal by Special Leave from the Judgment and Order dated 23.10.1979 of the Madras High Court in Criminal Appeal No. 759179 (Referred Trial No. 9/79).

A.1'. M. Sampath and P.N. RamaUngam for the Appellant.

A. V. Ran gam for the Respondent.

' •:

G -

SUPREME COURT REPORTS

The Judgment of the Court was delivered by,

CHANDRACHUD C. J.

The appellant, Mu_niappan,' was con. victcd by the learned Sessions Judge, Dharmapun under section 302 of the Penal Code and sentenced to death on the charge that h bad committed the murder of his mother's brother also cal!e~ Muniappan and his son Chinnaswamy.

Tl~ e conviction for murder and the sentence of death having been confirmed by the High Coun

of Madras by a Judgment dated October 23, 1979, this appeal has been filed by the accused by special leave. The leave is limited to

the question of sentence.

The judgments of the High Court and the Se; ions Court, in so far as the sentence is concerned, leave much to be desired. In the first place, the Sessions Court overlooked the provision. contained in section 354(3) of the Code of Criminal Procedure, 1973, which provides, in so far as is relevant, that when the conviction is for an of:cnce punishable with death. the judgment shall in the ca; e of sentence of dcat11 state special reasons for such sentence. The learnc:d Sessions Judge, in a very brief paragraph consiting of two sentences, has tbis to say on the question of sentence :

"When the accused was asked on the question of sentence, he did not say anything. The accused has cotn mitted terrific double murder and o no sympathy can be

shown to him."

The judgment of the Sessions Judge is in Tamil but we understand from the learned counsel, who appear in the case and both of whom understand Tamil well enough, th1t tl:c Tamil word "Dhayank:lrJnt" has been rightly translated as '' terrific''.

We plead our inabilitY to understand what is meant by a "tcrriik'' murder because all murdrs are terrific _and i~ tl.e fact of tr.e murder being terrilk is an adequate reason !r lmp?smg the death sentence, then every murder shall hav~ to be VJSlted wuh that sentence. In that event, death sentcn.:e Will become the rule, not an exception and tiection 354(3} will blllll~ a dead letter. We ure also not satisfied that the Jcarnd Ssstons Judge made any serious elfort to elicit fwm the accused "hat be

wan led to s_ay on the quet ion of sentence. All that the karoed Judge sa''$ u th t " h n of ' a " en the uccued wa~ asked on the questJil ie.utcnce, he did not say unything". The obligation t" hear he

a\:CUed on the qu. t f . . . d b sccuon cs 1011 o sentence wh1ch ts tmposc Y • 23((2) (>f the Criminal Procedure Code is not discharged by putting a ormal question 10 the accused us to what he has !O , saY on the

~1UNIAPPAN l'. TAMIL NADU (Chandrachud, C. J.) 273

question of sentence. The Judge must make a genuine effort to A elicit from the accused all information which will eventually bear on

the question of sentence.

All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological B point of view. The occasion to apply tbe provisions of section 235

(2) arises only after the conviction is recorded. What then remains . is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under section 235 (2) and the answers which the accused makes to those questions are beyond the narrow constraints of the C Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. The Sessions Judge, in the instant case, compHed with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of D that obligation.

The High Court condemned the murders in terms equally strong by calling them "cold blooded" and thought that its duty to consider the propriety of the death sentence began and ended' with that assertion. Its failure to see the failings of the Sessions Court in the E matter of sentencing ted to an unexamined confirmation of the death sentence.

Coming to the judgement of the High Court itself, there are certajn features of it which need a close reflection. One of the questions before the High Court was as to the time when the double F murder was committed because, upon that circumstance depended the veracity of the eye witnesses. The doctor who performed the post-mortem examination stated in his evidence that the deceased must have taken their food about four or five hours before their death.

The case of the prosecution was that the murders were committed at about 9.00 p.m. P.W. I, who is the son of the G deceased Muoiappan, stated in his evidence that the deceased had taken their foodat 8.30 p.m.. This was a very important aspect of the case to whjch the High Court should have applied its mind

with care.

Instead, it took an extempore expedient by saying: "Both the deceased might have died a couple of hours after they H substained the injuries at 9.00 p.m." . It is impossible to appreciate how, after being_ shot in the chest and receiving the kind of injuries

SUPRBMB COURTS REPORTS

[1981] 3 S.C.R.

which are described in the post-mortem report, the deceased could have survived for a couple of hours after they were shot.

Yet another question which bad an important bearing on the case was as to the delay caused in filing the F.l.R. Tbe case of the prosecution is that P.W. J went to the Police Station promptly but the solitary police constable who was present there directed him to go to the village Munsif to have his complaint recorded. Now, the record of the Police Station shows that a Sub-Inspector of Police was also present at the Police Station which falsifies the evidence that only a police constable was present at the Police Station at the material time and, therefore, the F.I.R. could not be recorded. The High Court has dealt with this aspect of the matter thus :

"Jo passing, we may mention that this is a grave dereliction of duty on the part of the policeman who was in charge of the police station at that time and is a matter that

ought to be enquired into by the higher authorities.

We hope that suitable directions wHI be issued to subordinate officers in this district to prevent a recurrence of such lapses on the part of policemen when reports of cognizable offences are given. ··

The High Court added that the Inspector of Police was not on good terms with the Sub-Inspector and, therefore, the former made a false entry that the latter was present at the police station, which, according to the High Court, was a serious matter which required to be probed by the Senior Officers. We are not quite sure whether there is credible evidence on record to show any enmity between the Inspector and the Sub-Inspector and whether the High Court merely

relied on the statement made by counsel for the State that the relations between the two Police Officers were cordial. Whatever that may be, we do not think that the Higb Court bas explained satisfactorily why the F.T.R. was not recorded at the police station when P.W.l went there. The ex-parte strictures passed by the High Court are likely to involve tbe two Police Officers or at least one of

them into grave consequences.

They should have beeo given an opportunity to explain themselves before the High Court persuaded itself to make such scathing criticism on their conduct.

There is one more aspect of the Judgment of tbe High Court, H which, with great respect, we are unable to appreciate. A question arose before the High Court as to whether a "mucb.ilikka" bears the signature of the appellant. The High Court compared the

MUNIAPPAN v. TAMIL NADU (Chandrachud, C. J.) 275

admitted signatures of the appellant with the disputed signature and came to the conclusion that the disputed sigo1atur<! was of the appellant himself. The High Court castigated the Public Prosecutor who conducted the prosecution in the Sessio:1s Court by saying that he had not followed the cross-examination of P.W.l "with attention, and not chosen to bring to the notice of P.W. 1 that the accused had signed the muchilikka, exhibit P. I. We do not know how the High Court came to know that the Public Prosecutor was not following the cross-examination of the witness with attention, but we can guess why the High Court made that observation. It added in parenthesis : "such lapses on the part of this Public Prosecutor have become frequent and have been commented upon by us, and we hope that at least hereafter he will take some interest in the cases which he is conducting." It is not the normal function of the High Court to pass judgment on the conduct of lawyers wlJO appear before the lower courts.

One should understand if the High Court were to make its guarded observation on the conduct of lawyers appearing before it.

But how the learned Judges of the High Court had, in tl1eir capacity as Judges of the High Court, come to know that "such lapses on the part of this Public Prosecutor have

become frequent ......... ," we are unable to understand.

These various matters make it unsafe to confirm the sentence of death imposed upon the appellant. The reasons given by the learned Sessions Judge for imposing the death sentence are not special reasons within the meaning of section 354(3) of the Criminal Procedure Code and we are not sure whether, if he were cognisant of his high responsibility under that provision, he would have necessarily imposed the death sentence.

Accordingly, we set aside the sentence of death and sentence the appellant to imprisonment for life.

N.V.K.

Appeal allowed.

MUNIAPPAN

STATE OF TA M)L NADU

Y.V. CHANDRACHUD, C.J.

A.P. SEN, J.

S. 235(2)

S. 354(3)

Code of Criminal Procedure, 1973

section 354(3)

section 302

Penal Code

section 354(3)

section 354(3)

section 235(2)

section 235(2)

section 235(2)

CRIMINAL iAPPELLATE JURISDICTION

M. Sampath

P.N. RamaUngam

A. V. Ran

CHANDRACHUD

section 302

Penal Code

Muniappan

Chinnaswamy

High Coun

of Madras

October 23, 1979

section 354(3)

Code of Criminal Procedure, 1973

Chandrachud

section 235

section 235

Section 235(2)

Muoiappan

Munsif

section 354(3)

N.V.K.


HARISH PAHWA

STATE OF UTTAR PRADESH & ORS.

March 18, 1981

[A.D. KOSHAL AND BAHARUL ISLAM, JJ.]

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Detenu assailing detention order-Failure of State Government to dispose of representation within reasonable time-Point not taken before High Court-Whether can be raised in Supreme Court-Representations of detenus to be dealt with cominuously and disposed of expeditiously-Duty of State Government.

The appellant who was detained by an order dated 16th May, 1980, made a representation dated 3rd June, 1980 from jail, which was received by the State Government on 4th June, 1980. Comments were called for from the Customs Authorities on the 6th of June, 1980 and were received on 13th June, 1980.

On the 17th June, 1980, the State Government referred the representation to its Law Department for opinion which was furnished on the 19th June, 1980. The representation was rejected by an order dated 24th June, 1980, which was communicated to the jail authorities two days later ..

The appellant's writ petition having been dismissed by the High Court, he came in appeal to this Court raising a new plea that the representation made by him against the detention to the State Government was not decided within a reasonable time and that the delay was fatal to the detention.

Allowing the appeal,

HELD : I. In matters of this kind where all the material necessary for the determination of a new point is available on the record, and having regard to the importance of the matter, this Court can entertain the point even if it had not been raised before the High Court. [277 F-G]

2. The order of detention declared unconstitutional and appellant directed to be set at liberty. [279 Fl

3. On numerous earlier occasions this Court has made it clear that it does not look with equanimity upon delays in considering the representations of detenus. Where the liberty of a person is involved it is the duty of the State to determine his representations with the utmost expedition and deal with it continuously until a final decision is taken and communicated to the detenu.

[278 G-H]

In the instant case no explanation had been given by the Government, as to why no action was taken on the representation of the detenu on 4th, 5th and

25th of June 1980 and what consideration was given from 13th June, 1980 to 16th June, 1980 and why the file had to travel from table to table before reaching the Chief Minister, who was the only authority to decide the representation.

[278 E-F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 183 of 1981.

Appeal by special leave from the Judgment and Order dated 30.1.1981 of the High Court of Allahabad in Civil Misc.

Habeas Corpus Writ No. 6343/80 .

R.K. Garg, Naresh K. Sharma and Mukul Mudgal for the Appellant.

R.K. Bhatt for Respondent No. 1

Hardayal Hardy and Miss A. Subhashini for the Respondents.

The Judgment of the Court was delivered by

KosHAL, J. This is an appeal by one Harish Pahwa against the judgment dated 30th January, 1981 of the High Court of Allahabad dismissing a petition presented by the appellant to it under Article 226 of the Constitution of India with a prayer that a writ of habeas corpus be issued against the State of Uttar Pradesh and Union of India in as much as the detention of the appellant by them was not in accordance with law.

The only point that has been raised before us by Mr.

Garg appearing on behalf of the appellant is that the representation made by him against his detention to the State Government was not decided within a reasnoable time and that the delay is fatal to the detention. This point was no doubt not taken before the High Court, but in view of its importance and the fact that all the material necessary for its 'determination is available -0n the record, we have allowed it to be raised before us and have overruled a preliminary objection taken by the State to the effect that it should not be entertained.

In order to decide the point we may refer to certain

admitted facts.

The order of detention is dated 16th May, 1980 and H the representation made by the appellant against it from Varanasi Jail bears date the 3rd of June, 1980. The.State Government received

SUPREME COURT REPORTS

[1981] 3 S.C.R.

the representation on the 4th June, 1980 but for two days no action was taken in connection 'with it. On the 6th of June, 1980 comments were called for from the Customs authorities with regard to the allegations made ·in the representation and such comments were received by the State Government on the 13th June, 1980.

On the 17th of June, 1980, the State Government referred the representation to its Law Department for its opinion which was furnished on the 19th of June, 1980 The rejection of the representation was ordered on the 24th of June, 1980 and it was communicated to the jail authorities two days later.

The case of the State is that the representation was with the Customs authorities who were formulating their comments from 7th June, 1980 to the 12th of June, 1980 and that the representation was under the consideration of the Government for four days from 13th June, 1980 to 16th June, 1980, of its Law Department from 17th June, 1980 to 19th June, 1980 and then again under its own consideration for six days from 19th June, 1980 to 24th June, 1980.

In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of consideration of representations made by persons detained without trial.

There is no explanation at all as to why no action was taken in reference to the representation on 4th, 5th and 25th of June, 1980. It is also not clear what consideration was given by the Government to the representation from 13th June, 1980 to 16th June, 1980 when we find that it culminated only in a reference to the Law Department, n:ir it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to :table for six days before reaching the Chief Minister wh:> was the only authority to decide the representation. We may make it clear, as we have done on 1 numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned.

Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import.

We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for

some assistance in connection with it ) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith.

N.V.K.

Appeal allowed.

HARISH PAHWA

STATE OF UTTAR PRADESH & ORS

March 18, 1981

A.D. KOSHAL

BAHARUL ISLAM, JJ.

6th of June, 1980

13th June, 1980

17th June, 1980

19th June, 1980

24th June, 1980

4th, 5th and

25th of June 1980

16th June, 1980

R.K. Garg

Naresh K. Sharma

Mukul Mudgal

R.K. Bhatt

Hardayal Hardy

A. Subhashini

KosHAL

Harish Pahwa

High Court of Allahabad

Article 226

Constitution of India

Garg

17th of June, 1980

19th of June, 1980

24th of June, 1980

7th June, 1980

12th of June, 1980

4th, 5th and 25th of June, 1980

N.V.K.


STATE OF KARNATAKA

B. RAGHURAMA SHETTY ETC.

March 24, 1981

[V.D. TULZAPURKAR, E. S. VENKATARAMJAH AND

A. N. SEN, JJ. ]

Karnataka Sales Tax Act, 1957 Section 6(i) Paddy-and rice-Whether distincl commodities-Milling of Paddy-whether involves manufacturing process-Consumption-meaning of.

The assessees (respondents) are the owners of rice mills and are registered dealers under the Karnataka Sales Tax Act, J 957. In the course of their business, they purchase paddy and after milling paddy, sell the resultant rice. During the assessment years, fhe assessees purchased paddy from agriculturists who were not liable to pay sales tax. 1 he assessing authority under the Act levied on the assessee in each of these cases purchase tax on th~ purchase turnover of paddy under section 6(i) of the Act. The appeals filed by the assessees were dismissed by the Appellate Authority except the one, holding that the conversion of paddy into rice. did not involve any manufacturing process and that the purchase turnovers of paddy in those cases were not liable to tax under section 6(i) of the Act. In the case of the other assessee, the Tribunal held that the turn over was liable to be taxed as he had manufactured milled rice out of the paddy purchased by him.

The appellant filed revision petitions in the High Court and the assessee filed revision petition in the last case.

The High Court after holding that the turn overs in questiou were not liable to tax under section 6(i) of the Act dismissed the petitions filed by the appellant and allowed the petition of the last assessee. The High Court granted a certificate of fitness to this Court.

The appellant argued that the sale price of paddy which is a taxable commodity having not been subjected to tax under section 5, the assessees were liable to tax under section 6(i) of the Act as they had consumed it in the manufacture of rice which was a different commodity for sale. The respondent argued that they had not consumed paddy when they produced rice from it by merely carrying out the process of dehusking at their mills.

Allowing the appeals,

HELD : 1. {i) Paddy and rice are two distinct commodities.

The milling of paddy involves a manufacturing process. [284 B]

(ii) The levy in question is not impermissible even though paddy and rice are liable to be taxed at a single point, as in fact there is no double taxation on the same commodity. [286 F-G]

Ganesh Trcding Co. Karna/ v. State of Haryana and Anr. 32 S.T.C. 623, Babu Ram Jagdish Kumar and Co. v. The State of Punjab and Anr. 44 S.T.C.

J 59 affirmed.

2. Consumption in the true economic sense does not mean only use of goods in the production of consumer goods or final utilisation of consumer goods by consumers involving activities like eating of food, drinking of beverages, wearing of clothes or using of an autombile by its owner for domestic purposes. A manufacturer also consumes commodities which are ordinarily called raw materials when he produces semifinished goods which have to undergo further processes of production before they can be transformed into consumer goods. At every such intermediate stage of production, some utility or value is added to goods which are used as raw materials and at every such stage the raw materials are consumed. [284 D-E]

3. At every stage of production there is consumption of goods even though at the end of it there may not be final consumotion of goods but only production of goods with higher utility which may be used in further productive processes.

[285 B-B]

M/s. Anwar Khan Mahboob Co. v. The State of Bombay and Ors. [1961] 2 S.C.R. 709 at pp. 715-716; Economics (Tenth Edition 1976) at page 168 by Professor' Paul A. Samuelson, referred to.

In the instant case, the assessees had consumed that paddy purchased by them when they converted it into rice which is commercially a different commodity for sale. The case of assessees therefore, squarely falls under section 6(i) the Act.

[286 CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1801-1805 of 1975.

From the Judgments and Orders dated the 27th January and 3rd February 1975 of the Karnataka High Court at Bangalore in STRPs Nos. 14, 15, 19, 26 & 32 of 1974.

N. Nettar for the Appellant.

J. Ramamurthy and Miss R. Vaigai for the Respondent.

Ex-parte Respondents in CAs 1801-1803 & 1805/75.

The Judgment of the Court was delivered by

VENKATARAMIAH, J.

The question which arises for consideration in these appeals by certificate is whether the respondents (here-

A inafter referred to as 'the assessees') are liable to pay purchase tax under section 6(i) of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as 'the Act') on the tur.nover consisting of the price paid by them for purchasing paddy for the purpose of converting it into rice for sale, in their respective rice mills.

The assessees are owners of rice mills in the State of Karnataka and are registered dealers under the Act.

In the course of their business, they purchase paddy and after milling paddy sell the resultant rice.

During the assessment years, the assessees purchased paddy from agriculturists who were not liable to pay sales tax. The assessing authority under the Act levied on the assessee in each of these cases purchase tax on the purchase turnover of paddy under section 6(i) of the Act.

The appeals filed by the assessees against the said assessments were dismissed by the appellate authority.

The Karnataka Sales Tax Appellate Tribunal allowed the appeals filed by the assessees against the orders of the appellate authority except the one filed by the assessee who is the respondent in Civil Appeal No. 1805 of 1975 holding that the conversion of paddy into rice did not involve any manufacturing process and that the purchase turnovers of paddy in those cases were not liable to tax under section 6(i) of the Act.

In the case of the assessee who is the respondent in Civil Appeal No. 1805 of 1975, the Tribunal held that the turnover was liable to be taxed as he had manufactured boiled rice out of the paddy purchased by him.

Aggrieved by the decisions of the Tribunal, the State Government filed revision petitions before the High Court under section 23( I) of the Act in the first four cases and the-assessee filed a revision petition in the last case.

The High Court after holding that the turnovers in question were not liable to tax under section 6(i) of the Act dismissed the petitions filed by the State Government and allowed the petition of the assessee who is the respondent in Civil Appeal No. 1805 of 1975.

Thereafter the High Court granted by a common order a certificate of fitness in all these cases to prefer appeals before this Court to the State Government. On. the basis of said certificate, these appeals have been filed by the State Government against the orders of the High Court. Since these appeals involve a common question of law, they are disposed of by this common judgment.

The relevant part of section 6 of te Act reads :

"6. Levy of purchase tax under certain circumstances. --Subject to the provisions of sub-section (5) of

section 5, every dealer who in the course of his business purchases any taxable goods in circumstances in which no tax under section 5 is leviable on the sale price of such goods and,

(i) either consumes such goods in the manufacture of other goods for sale or otherwise or disposes ofsuch goods in any manner other than by way of sale in the state,

(ii)

shall be liable to pay tax on the purchase price of such goods at the same rate at which it would bave been leviable on the sale price of such goods under section 5."

The contention of the State Government before the High Court was and before us is that the sale price of paddy which is a taxable commodity having not been subjected to tax under section 5 the assessees are liable to tax under section 6(i) of the Act as they had consumed it in the manufacture of rice which was a different commodity for sale. The assessees' contention which was accepted by the High Court is that paddy and rice being the same it cannot be said that they had manufactured 'other goods' out of paddy and hence section 6(i) is not attracted.

Paddy and rice have been held to be different commodities by this Court in Ganesh Trading Co., . Karna! v. State of Haryana &

Anr.(1) in which it is observed thus :

"Now, the question for our decision is whether it could be said that when paddy was dehusked and rice was produced its identity remained.

It was true that rice was produced out of paddy but it is not true to say that paddy continued to be paddy even after dehusking. It had changed its identity.

Rice is not known as paddy. It is a misnomer to call rice as paddy. They 'are two different things in ordinary parlance.

Hence quite clearly when paddy is dehusked and rice produced, there has been a change in the identity of the goods".

(1) 32 S.T.C. 623

The above view has been followed by this Court in Babu Ram Jagdish Kumar and Co. v. The State of Punjab 4 Ors.(1)

It is unfortunate that the High Court as well as the Tribunal have tried to distinguish the decision of this Court in Ganesh Trading Co.' s case (supra) on insubstantial grounds, a detailed reference to which is unnecessary We reiterate the view expressed in the above two cases and hold that paddy and rice are two distinct commodities and that the milling of paddy involves a manufacturing process.

There is no merit in the submission made on behalf of the assessees that they had not consumed paddy when they produced rice from it by merely carrying out the process of dehusking at their mills.

Consumption in the true economic sense does not mean only use of goods in the production of consumers' goods or final utilisation of consumers' goods by consumers involving activities like eating of food, drinking of beverages, wearing of clothes or . using of an automobile by its owner for domestic purposes.

A manufacturer also consumes commodities which are ordinarily called raw materials when he produces semi-finished goods which have to undergo furthi:.r processes of production before they can be transformed into consumers' goods.

At every such intermediate stage of production, some utility or value is added to goods which are used as raw materials and at every such stage the raw materials are consumed.

Take the case of bread. It passes through the first stage of production when wheat is grown by the farmer, the second stage of production when wheat is converted into flour by the miller and the third stage of production when flour is utilised by the baker to manufacture bread out of it.

The miller and the baker have consumed wheat and flour respectively in the course of their business.

We have to understand the word 'consumes' in section 6(i) of the Act in this economic sense. It may be interesting to note that this is the basis of the levy of 'Value Added Tax', popularly called as VAT, which is levied as an alternative to tax on turnover in some Western countries. The difference between 'Value Added Tax', and tax on the turnover of sales or purchases is explained by Professor Paul A. Samuelson in his book entitled 'Economics' (Tenth Edition, 1976) at page 168 thus :

"A turnover tax simply taxes every transaction made : wheat, flour, dough, bread, VAT is different because it does not include in the tax on the miller's flour that part of its

(!) 44 S.T.C. 159

value which came from the wheat he bought from the farmer. Instead, it taxes him only on the wage and salary, cost of milling, and on the interest, rent, royalty, and profit cost of this milling stage of production. (That is, the raw material costs used from earlier stages are subtracted from the miller':: selling price in calculating his "value added" and the VAT tax on value added ......... )"

At every stage of production, it is obvious there is consumption of goods even though at the end of it there may not be final consumption of goods but only production of goods with higher utility which may be used in further productive processes.

While construing the word 'consumption' which was found in the Explanation to Article 286(1)(a) as it stood prior to its deletion by the Constitution (Sixth Amendment) Act, 1956, this Court in M/s. Anwarkhan Mahboob Co. v.

The State of Bomhay & Ors.(1) observed thus :

"The Act of consumption with which people are most familiar occurs when they eat, or drink or smoke. Thus, we speak of people consuming bread, or fish or meat or vegetables, when they eat these articles of food; we speak of people consuming tea or coffee or water, when they drink these articles; we speak of people consuming cigars or cigarettes or bidis, when they smoke these. The production . of wealth, as economists put it, consists in the creation of

"utilities". Consumption consists in the act of taking such advantage of the commodities and services produced as constitutes the "utilization" thereof.

For each commodity, there is ordinariiy what is generally considered to be the final act of consumption. For some commodities, there may be even more than one kind of final consumption.

Thus grapes may be "finally consumed" by eating them as fruits; they may also be consumed by drinking the wine prepared from "grapes". Again, the final act of consumption may in some cases be spread over a considerable period of time.

Books, articles of furniture, paintings may be mentioned as examples. It may even happen in such cases, that after one consumer has performed part of the final act of consumption, another portion of the final act

(!) (1961] l.S.C.R. 709 at pp. 715-716

of consumption may be performed by his heir or successorin-interest, a transferee, or even one who has obtained possession by wrongful means.

But the fact that there is for each commodity what may be considered ordinarily to be the final act of consumption; should not make us forget that in reaching the stage at which this final act of consumption takes place the commodity may pass through different stages of production and for such different stages, there would exist one or more intermediate acts of consumption."

Applying the above test, it has to be held that the assessees had consumed the paddy purchased by them when they converted it into rice which is commercially a different commodity.

Since it is not disputed that the sales of paddy, which is a taxable commodity, in favour of the assessees had not suffered tax under section 5 in view of the circumstances in which they had taken place and it is held that the assessees had consumed paddy in the manufacture of rice which was a different commercial commodity for sale, the case of the assessees squarely falls under section 6(i) of the Act.

The charge under section 6(i) should, therefore, be given due effect.

This view is in accord with the opinion of this Court in State of Tamil Nadu v. M. K. Kandaswami etc. etc.(1) and in Ganesh Prasad Dixit v. Commissioner of Sa/es-tax,(2) where provisions corresponding to section 6(i) of the Act arose for consideration.

It is next contended that since the assessees would be exposed to! double taxation both as buyers of paddy and as sellers of rice we ' , should hold that the levy in question is impermissible because paddy and rice are liable to be [taxed at a single point.

No provision is shown to us which bars such taxation when the commodities are different. In fact, in this case there is no double taxation on the

samecommodity. A similar contention was rejected by this Court in the case of Babu Ram Jagdish Kumar (supra) thus :

"We may at this stage refer to one other subsidiary argument urged on behalf of the appellants. It is argued that because paddy and rice are not different kinds of goods

(1) [1976] ! S.C.R. 38.

(2) [ 1969] 3 S. C.R. 490.

but one and the same, the inclusion of both paddy and rice in Schedule C to the Act would amount to imposition of double taxation under the Act. There is no merit in this contention also because the assumption that paddy and rice are one and the same is erroneous.

In Ganesh Trading Co., Karna/ v. State of Haryana (1973) 32 S.T.C. 623 (S.C.), arising under the Act, this Court has held that although rice is produced out of paddy, ,..it is not true to say that paddy continued to be paddy even after dehusking; that rice and paddy are two different things in ordinary parlance and, therefore, when paddy is dehusked and rice produced, there is a change in the identity of the goods."

In the result these appeals are allowed, the judgments of the High Court against which these appeals are filed are set aside and the turnover in question in each case is held to be taxable under section 6(i) of the Act. There shall, however, be no order as to costs.

N.K.A.

Appeals allowed.

STATE OF KARNATAKA

B. RAGHURAMA SHETTY ETC

March 24, 1981

V.D. TULZAPURKAR

A. N. SEN, JJ.

Karnataka Sales Tax Act, 1957

Section 6(i)

section 6(i)

section 6(i)

section 6(i)

section 5

section 6(i)

[1961] 2 S.C.R. 709

Paul A. Samuelson

section 6(i)

N. Nettar

J. Ramamurthy

R. Vaigai

VENKATARAMIAH

section 6(i)

Karnataka Sales Tax Act, 1957

Karnataka

section 6(i)

Karnataka Sales Tax Appellate Tribunal

section 6(i)

section 23( I)

section 6(i)

section 6

section 5

section 5

section 5

section 5

section 6(i)

section 6(i)

Ganesh Trading Co.

section 6(i)

Article 286(1)(a)

section 5

section 6(i)

section 6(i)

section 6(i)

Babu Ram Jagdish Kumar

1969] 3 S. C.R. 490

section 6(i)


.DAGADU

STATE OF MAHARASHTRA

. ·-··-·-~-··--- March 24, 1981

(S. MURTAZA FAZAL ALI, BAHARUL ISLAM AND A. VARADARAJAN, JJ.J

Code of Criminal Procedure, 1973, section 384 (section 421 of 1898 Code) ;.fl -Powers of the High Court to reject appeal summarily-The lfigh Court should ordinarily pass a 'speaking order'.

Although under section 421 of the Code of Criminal Procedure, I 898 (which is sectiofl 384 of the Code of. Criminal Prccedure, 1973) the High Court has the undoubted power to summarily dismiss a first appeal against conviction of an accused yet in very serious cases like those under section 302 Indian Penal Code, or other cases where death or life irnprisoninent can be awarded, the High Court should consider the appeal on merits instead of dismissing it summarily, unless the evidence is so cle3r and cogent, reliable and creditworthy -that on the face of it no case for the barest consideration is made out. Even if the High Court chooses to dismiss the appeal summarily some brief reasons should be giVen so as to_ enable the Supreme Court to judge whether or not ' the case requires any further examination. If no reasons are given then the ·

task of the Supreme Court becomes onerous in as much as the Judges have to perform the function of the High Court itself by reappraising the entire

tvc"<rce J{!ltt:rg in fericus harasrrcnt and expense to the accused.

[289 C, 290 CJ

Govinda Kadtuji Kadam and Ors. v. State of Maharashtra, [1970] 1SCC469 and Sita Ram & Ors. v. State of U.P., [1979] 2 SCR 1085, followed •.

CRIMINAL APPELLATE JuRISDICTION: Criminal Appeal No. 313 of 1974. r G Appeal by Special Leave from the Judgment and Order dated 23-7-1973 .of the Bombay.High Court in Cr!. Appeal No. 759/73.

Harjinder Singh for the Appellant.

H O.P. Rana.and R .. N. Podar for the Respondent.

DAGADU v. MAHARASHTRA (Fazal Ali, J.) 289

The Order of the Court was delivered by

FAZAL ALI, J.

In this appeal by special leave the appellant has been convicted under section 302 Indian Penal Code and sentenced to imprisonment for life.

After having gone through the judgment of the Sessions Judge and the grounds taken by the appellant in his appeal by , special leave we are satisfied that this case does raise some arguable points which merit serious consideration by the High Court. We would like to point out that although under section 421 of the Code of Criminal Procedure, 1898 which is section 384 of the Code of Criminal Procedure, 1973 the High Court has the undoubted power to summarily dismiss a first appeal against conviction of an accused yet in very serious cases like those under section 302 Indian Penal Code, or other cases where death or life imprisonment can be awarded, the High Court should consider the appeal on men ts instead of dismissing it summarily, unless the evidence is so clear and cogent, reliable and creditworthy that on the face of it no case for the barest consideration is made out.

This Court in Govinda Kridtuji Kadom and Ors. v. State of Maharastrc;(') while laying down the guidelines for dismissing an appeal summarily observed as follows :

"The summar.y decision is accordingly a judicial decision which vitally affects the convicted appellant and in a fit case it is also open to challenge on appeal in this Court. An order summarily dismissing an appeal by the word 'rejected', as is tl'e case before us, though not violative of any statutory provision removes nearly every opportunity for detection of errors in the order.

Such an order does not speak and is inscrutable giving no indication , of the reasoning underlying it. It may at times embarrass this Court when the order appealed against prima fade gives rise to arguable points which this Court is required to consider without having the benefit of the views of the High Court on those points.

In our opinion, therefore, when an appeal in the High Court raises a serious and substantial point which is prima facie arguable it is improper for that Court to dismiss it summarily without giving some indicat_ion of its view on the points raised."

To the same effect is the later decision of this Court in Sita Ram and Ors. v. State of U.P.(2) where this Court reiterated as follows :

(I) (1971] I S.C.C. 469.

(2) (1979] 2 S.C.R. 1085.

SUPREME COURT REPORTS

[1981] 3 S.C.R.

"The order summarily dismissing an appeal by the High Court by the word 'rejected' is not violative of any statutory provision.

While holding that a summary rejection of the appeal by the High Court is not violative of any statutory provision, this Court pointed out that it is desirable that reasons are recorded by the High Court when prima facie arguable issues have been raised as that would enable the Supreme Court to appreciate the reasons • for rejection of the appeal by the High Court."

We, therefore, hold that even if the High Court chooses to dismiss the appeal summarily some brief reasons should be given so as to enable this Court to judge whether or not the case requires any further examination. If no reasons are given then the task of this Court becomes onerous inasmuch as \e have to perform the function of the High Court itself by reappraising the entire evidence resulting in serious harassment and expense to the accused. In these circumstances, we set aside the order of the High Court dismissing the appeal and direct the High Court to re-admit the appeal and hear it according to Jaw within three months from today, as far as practicable. As the case is a very old one the High Court should give top priority to the case.

The, entire record and the paper books which have been prepared in thls Court should be sent to the High Court which has only to hear the counsel for the parties and decide the case.

V.D.K.

Appeal allowed.

DAGADU

STATE OF MAHARASHTRA

March 24, 1981

S. MURTAZA FAZAL ALI

BAHARUL ISLAM

A. VARADARAJAN, JJ

Code of Criminal Procedure, 1973

section 384

section 421

section 421

Code of Criminal Procedure

section 302

Indian Penal Code

Supreme Court

[1979] 2 SCR 1085

Harjinder Singh

H O.P. Rana.and

R .. N. Podar

Fazal Ali

FAZAL ALI

section 302

Indian Penal Code

section 421

Code of Criminal Procedure, 1898

section 384

Code of Criminal Procedure, 1973

section 302

Indian Penal Code

(1979] 2 S.C.R. 1085

V.D.K.


.. ¥"'

....

BHUDEO MANDAL & OTHERS

STATE OF BIHAR

March 24, 1981

[S. MURTAZA fAZAL ALI, BAHARUL !SLAM, AND

A. VARADARAJAN, JJ.)

Indian Penal Code 1860-S. 149-Conviction under clear finding regarding common object of assembly-Necessity of.

When the appellants wanted to irrigate the land they were prevented from doing so by the deceased as a result of which the !st appellant who is now dead gave a bhala blow to the deceased. The other appellants were supposed to have been armed with lathis but they did not cause any injuries either to the witnesses or to the deceased.

The Sessions Judge convicted the l st appellant under section 304 Part I of the Indian Penal Code and sentenced him to undergo imprisonment for life and the other appellants under section 326/149 of the Indian Penal Code and sentenced them to undergo 3 years' rigorous imprisonment but affirmed the acquittal of the individual charges under sections 323 and 325 I.P.C. The High Court while convicting the appellant under sections 325/149 of the I.P.C. has given no finding regarding the common object of the unlawful assembly.

Accepting the appeal, the Court

HELD : In the instant case, there is neither any evidence nor any finding that any of the ingredients of section 149 have been established by the prosecution. Even on the prosecution case itself the occurrence took place as a result of an inigation dispute and the appellants were merely acting under a bona fide claim or belief that they had the right to irrigate the land. There is no overt act attributed to any of the appellants in regard to the deceased and the mere fact that the appellants were armed with lathis by itself would not prove that they shared the common object with which the deceased was inspired. [292 G-H]

2. Before the High Court upheld the conviction of the appellants under sections 326/149 I.P.C. it should have recorded a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt. [293 A]

3. Whenever the High Court convicts any person or persons of an H offence with the aid of section 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must

SUPREME COURT REPORT

[1981] 3 S.C.R.

show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 of the l.P.C. the essential ingredients of section 141 of the I.P.C. must be established. [293 DJ

I CRIMINAL APPELLATE JURISDICTION ; Criminal Appeal No. 365 of 1974.

Appeal by Special Leave from the Judgment and Order dated 24.1.1974 of the Patna High Court at Patna in Criminal Appeal No.

306/ I 969.

U. P. Singh for the Appellants.

K. G. Bhaget and U. N. Prasad for the Respondent.

The Judgment of the Court was delivered by

FAZAL Au, J. This appeal by special leave is directed against the judgment of the Patna High Court dated 24.1.1974 and has been preferred by appellants Dayanand Manda!, Bhubneshwar Manda!, Kuldip Manda!, Bhagwat Mandal, Nemo Manda!, and Udin Yadav.

The occurrence seems to have arisen out of an irrigation dispute. According to the prosecution case the appellants wanted to irrigate the land and when they were prevented from doing so, Mainu Manda! resisted as a result of which Bhudeo Manda! who is now dead gave a bhala blow to the deceased Mainu Manda!.

So far as the other appellants are concerned, they are supposed to have been armed With laihis but they did not cause any injuries either to the witnesses or to the deceased. The Sessions Judge had convicted the accused Bhudeo Manda! under section 304 Part I of the Indian Penal Code and sentenced him to undergo imprisonment for life and the other appellants under section 326/I 49 of the Indian Penal Code and sentenced them to 3 years rigorous imprisonment but affirmed the acquittal of the accused of the individual charges under sections 323 and 325 of the Indian l'enal Code by the Sessions Judge.

We have gone through the judgment of the High Court which while convicting the appellant under section 326/149 of the Indian Penal Code has given no finding regarding the common object of the unlawful assembly.

Even on the prosecution case itself the occurrence took place as a result of an irrigatin dispute and the appellants were merely acting under a bona fide claim or belief that they had the right to irrigate the land.

There is no overt act attributed to any of the appellants on the deceased and the mere fact that the appellants were armed with Iathis by itself would not prove that they shared the common

BHUDEO MANDAL v. BIHAR (Fazal Ali, J.) 293

object with which Bhudeo Manda! was inspired. Before the High Court could have upheld the conviction of the appellants under section 326/149 of the Indian Penal Code, it should have recorded a clear finding as to what was the object of the unlawful assembly and if so whether the object was to commit murder, grievous hurt or simple hurt.

In these circumstances we find ourselves in complete agreement with the argument of Mr. U.P. Singh, learned counsel for the appellants that there is no material to support the conviction of the appellants under section 326/149 of the Indian Penal Code.

Mr. Bhagat appearing for the State fairly conceded that in the circumstances of this case it would not be possible for him to support the conviction mainly on the ground that since the main accused was convicted under section 304, Part I the other appellants should also have been convicted under section 304/ l 49 and not under section 326 of the Indian Penal Code.

We should like to point out that whenever the High Court convicts any person or persons of an offence with the aid of section 149 a clear finding regarding the comn:ion object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful.

Before recording a conviction under section 149 of the Indian Penal Code, the essential ingredient of section 141 of the Indian Penal Code must be established.

Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object.

In tbe instant case there is neither any evidence nor any finding that any of the ingredients of section 149 have been established by the prosecution.

In the result the appeal is allowed and the conv1ct10n and sentence of the appellants are set aside and the appellants are acquitted of the charge framed against them. The appellants are hereby discharged from their bail bonds and need not surrender.

N.K.A.

Appeal allowed.

BHUDEO MANDAL & OTHERS

STATE OF BIHAR

March 24, 1981

S. MURTAZA fAZAL ALI

A. VARADARAJAN, JJ.

Indian Penal Code 1860

S. 149

section 304

Part I of the Indian Penal Code

section 326

Indian Penal Code

sections 323 and 325

I.P.C

sections 325

I.P.C

section 149

sections 326

I.P.C

section 149

section 149

section 141

I.P.C

U. P. Singh

K. G. Bhaget

U. N. Prasad

FAZAL Au

Dayanand Manda

Bhubneshwar Manda

Kuldip Manda

Bhagwat Mandal

Nemo Manda

Udin Yadav

Mainu Manda

Bhudeo Manda

section 304

Part I of the Indian Penal Code

section 326

Indian Penal Code

sections 323 and 325

section 326

Indian Penal Code

section 326

Indian Penal Code

U.P. Singh

section 326

Indian Penal Code

Bhagat

section 304

section 304

section 326

Indian Penal Code

section 149

section 149

Indian Penal Code

section 141

Indian Penal Code

Section 149

section 149


INDO INTERNATIONAL INDUSTRIES

COMMISSfONER OF SALES TAX,

UTTAR PRADESH.

March 25, 1981

[ V.D. TULZAPURKAR, E.S. VENKATARAMIAH AND

AMRENDRA NATH SEN, JJ. ]

Uttar Pradesh Sales Tax Act, 1948, Entry Nu. 39 of the First Schedule thereto-" Hypodermic clinical syringes"-whether a glass ware.

Upto November 30, 1973, there were two competing entries in the First Schedule to the U. P. Sales Tax Act, 1948, so far as the item "hypodermic. clinical syringes" is concerned, namely, Entry 39 which ran : "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus"and for an item faJJing under the former the rate of tax was 1 (, % while uncier the latter the rate of tax was 4 % and for an unclassified item the rate was 3-1/2%. From December l, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within entry 39 it became an unclassified item under .section 3A(2A) of the U .P. Sales Tax Act, 1948 and the rate of tax was 7%. In view of this position that obtained for the relevant periods during the assessment year 1973-74 the appellant-assessee had claimed before "the assessing autho1ities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3-1 /2% as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December I, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassifieci item. But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fe]J within the expression "glass ware" occurring in Entry 39 and hence the appeal by special leave on the question whether hypodermic clinical syringes could be regarded as glass ware.

Allowing the appeal, the Court

HELD : ]. The assessee's turnover up to November :•O, 1973 will fall under Entry 44 dealing with "hospital <quipmem" and the same would be taxable at the rate of 4% and its turnover from December 1, 1974 will be taxable at the rate of 7% as an unclassified item. [298 H]

2 : ]. It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should! be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning-attached to them by those dealing in them. If any term or expression has been defined in the enactment tren it must be understcod in the sense in which it is defined

but in the absence of any definition, being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.

[297 C-D]

Ramavatar Budhiaprasad etc. v. Assistant Sales Tax Officer,' Ako/a, [1961] 1 SCR 279 and Commissioner of Sales Tax, Madhya Pradesh v. las.want Singh Charan Singh, [1967] 2 SCR 720, followed.

2 : 2. The clinical syringes which the assessee manufactures and sells cannot be considered as" glass ware" falling within Entry 39 of the First Schedule of the Act. (a) Jn commercial sense, glass ware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility: (b) in popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers etc. which articles though made of glass, are normally available in medical stores or with the manufacturers thereof .like the assessee; (c) it is equally unlikely that consumer would ask for such articles from a glass ware shop.

Further in popular sense when one talks of glass ware such specialised articles like clinical syringes do not come up to one's mind. [298 E-F]

State of Orissa v. Janta Medical Stores, 37 STC 33, approved.

Commissioner of Sales Tax v. S.S.R. Syringes and Thermometers, 1973 Law Diary 178, overruled.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 151 of 1981.

Appeal by Special Leave from the Judgment and Order dated 16.8.1969 of the Addi. Judge (Revions) Sales Tax, Saharanpur in Revision Appln. No. 1688/78.

J. R,1mamurthi and Miss R. Vaigai for the Appellant.

S. C. Manchroida, B. P. Maheshwari and Suresh Sethi for the F Respondent.

The Judgment of the Court was delivered by

TULZAPURKAR, J.

This appeal by special leave raises the question whether hypodermic clinical . syringes could be regarded as "glass ware"' under Entry No. 39 of the First Schedule to U.P_ G Sales Tax Act, 1948 ?

The facts giving rise to the question lie in a narrow compass.

The appellant firm (hereinafter called the assessee) manufactures and sells hypodermic clinical syringes.

For the assessment year H 1973-74 the assessee filed a return disclosing net U.P. sales of such syringes at Rs. 95,065.

The disclosed turnover was accepted by the

Sales Tax Officer, Sector III Muzaffarnagar, but as regards the rate of tax the assessee contended that the clinical syringes in respect of their turnover of Rs. 91,513 up to November 30, 197 3 should be regarded as an unclassified item and taxed at the rate of 3t% or at 4% as "hospital equipment and apparatus" under Entry 44 of the First Schedule to the Act and on the turnover of Rs. 3,552/- for the period from December l, 1973 to March 31, 197 4 at the rate of 7% as an unclassified item.

The Sales Tax Officer, however, treated the syringes as "glass ware" and taxed the entire turnover of Rs. 95,065/- at the rate of 10% under Entry No. 39 of the First Schedule.

The said assessment was upheld in appeal by the Assistant Commissioner (Judicial), Sales Tax, Muzaffarnagar and also in revision by the Additional Judge (Revision), Sales Tax, Saharanpur on August 16, 1979. It is this view taken by the assessing authorities as well as by the Additional Judge in revision that is being challenged by the assessee before us in this appeal.

It may be stated that up to November 30, 1973 there were two competing entries in the First Schedule to the U.P. Sales Tax Act so far as the item in question is concerned, namely, Entry 39 which ran : "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran : "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4 % and for an unclassified item the rate was 3 %.

From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within Entry 39 it became an unclassified item under s. 3A (2A) of the Act and tl; e rate of tax was 7%. In view of this position that obtained for the relevant periods during the assessment year 1973-74 the a'sessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3; % as an unclassified item or in tbe alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December I, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item.

But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glass ware" occurring in Entry 39.

Counsel for the assessee contended before us that in the absence of any definition of "glass ware" in the Act that expression must be understood in the ordinary commercial parlance and not in any scientific and technical sense and if such test were applied to the instant case then clinical syringes manufactured and sold by the

.__,

~ .

assessee could never be regarded as "glass ware".

Counsel pointed out that the Revising Authority negatived the contention of the assessee in view of a decision of the Allahabad High Court in the case of Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers(1) but urged that the contrary view taken by the Orisa High Court in the case of State of Orissa v. Jania Medical Stores(') that thermometers, lactometers, syringes, eye-glasses, etc. do not come within the meaning of the expression "glass ware" in Entry No. 38 in the Schedule to the relevant Notification issued under the first proviso to s. 5(1) of .the Orissa Sales Tax Act, 1947 was correct.

In our view counsel's contention has considerable force and deserves acceptance.

c It is well settled that in interpretting items in statutes like the \/" Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those D dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In_ Ramavatar Budhiaprasad, etc.

v. Assistant Sales Tax Officer, Akola(3) the question was whether E 'betel leaves' fell within item 'vegetable' so as to earn exemption from sales tax and this Court held that word 'vegetable' had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen garden and F are used for the table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation: In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh(4) the question was whether the item 'coal' under Entry I of Part III of Second Schedule to Madhya Pradesh General Sales Tax Act, 1958 included charcoal or not and this Court observed thus : G

"Now, there can be no dispute that while coal is tecbni-. cally understood as a mineral product, charcoal is manu-

(!) 1973 Law Diary 178.

(2) 37 S.T.C. 33.

(3) (1961] 1 S.C.R. 279.

(4) (1967) 2 S.C.R. 720.

factured by human agency from products like wood and other things.

But it is now well-settled that w bile interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense."

Viewing the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term "coal", and held that 'charcoal' fell within the concerned Entry No. 1 of Part III of Schedule II of the Act.

Having regard to the aforesaid well-settled test the question is whether clinical syringes could be regarded as "glass ware" falling within Entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression "glass ware" is "articles made of glass" (See : Websters New World Dictionary). However, in commercial sense glass ware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc. which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that consumer would ask for such articles from a glass ware shop. In popular sense when one talks of glass ware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to one's mind.

Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be con sidered as "glass ware" falling within Entry 39 of the First Schedule of the Act.

In our opinion, the view taken by the Orissa High Court in State of Orissa v. Jania Medical Stoi'es (supra) is correct and the view of the Allahabad High Court in Commissioner of Sales Tax v.

M/s S.S.R. Syringes and Thermometers (supra) is unsustainable.

In this view of the matter it is clear that the assessee's turnover up to November 30, 1973 will fall under Entry 44 dealing with

~·

"hospital equipment" and the same would be taxable at the rate of 4% and its turnover from December 1, 1973 to March 31, 1974 will be taxable at the rate 7% as an unclassified item and the assessment will have to be made accordingly.

In the result the appeal is allowed but there will be no order as to costs.

S. R.

Appeal allowed.

INDO INTERNATIONAL INDUSTRIES

COMMISSIONER OF SALES TAX, UTTAR PRADESH

March 25, 1981

V.D. TULZAPURKAR

E.S. VENKATARAMIAH

AMRENDRA NATH SEN, JJ.

Uttar Pradesh Sales Tax Act, 1948

First Schedule

First Schedule

Sales Tax Act, 1948

December l, 1973

section 3A(2A)

Sales Tax Act, 1948

[1961] 1 SCR 279

[1967] 2 SCR 720

First Schedule

CIVIL APPELLATE JURISDICTION

J. R,1mamurthi

R. Vaigai

S. C. Manchroida

B. P. Maheshwari

Suresh Sethi

TULZAPURKAR

First Schedule

Sales Tax Act, 1948

November 30, 197 3

First Schedule

March 31, 197

First Schedule

Muzaffarnagar

August 16, 1979

November 30, 1973

First Schedule

Sales Tax Act

December 1, 1973

s. 3A

March 31, 1974

Allahabad High Court

Orisa High Court

s. 5(1)

Orissa Sales Tax Act, 1947

Excise Tax Acts or Sales Tax Act

(1961] 1 S.C.R. 279

(1967) 2 S.C.R. 720

Part III of Schedule II of the Act

First Schedule

First Schedule

Orissa High Court


NEW INDIA SUGAR WORKS ETC. ETC.

STATE OF UTTAR PRADESH AND ORS.

February 27, 1981

' [S. MU.RTAZA FAZAL Au AND 0. CHINNAPPA REDDY, JJ.] B

Retrospective operation of law-Order levying duty on Khandsari issued- Order, whet.her applies to existing stocks or only to future stockSc--Price fixed less than manufacturing cost-Order, if liable to be quashed.

On the questions (I) whether an order imposing a levy on Khandsari could have retrospective operation so as to apply to sugar 1manufactured prior to the date of the order and (2) whether in fixing the price of levy sugar the Government C should consider that the price fixed should be sufficient to •cover ihe manufacturing cost.

HELD : L It is not the question of retrospectivity of a statute but its actual working that is relevant.. It is settled law that where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included. Once the notifieation for imposing the levy was made it will naturally apply to the existing stocks of khandsari with the petitioners irrepsective of whether it was manufactured before or after . the order. [31B; 30G]

2; The policy of price control has for its dominant object equitable disJ tribution and availability of: the commodity at fair price to benefifthe consumers; Individual interest, however. precious, must yield to the larger interest of the community namely the consumers. Even if the petitioners have to bar some loss there could be no question of the restrictions imposed on 'them being unreasonabfo. [32 Bl . ' ~-' .

The fixation of price would be in the interest of consumers rather than that of the producers.. Moreover since the petitioners were allowed to sell freely at any rate they: liked, the.remaining 50% of sugar after, ecluding the 50% w)lich they had \o give to levey as also the produce by the second anf} third processes, the loss; if any, caused to the petitioners, would be mininal. (32 G] . '\, ..

ORIGIJ"AL JURISDICTION: Writ .Petition•Nos. 896/81,,, 8Q~~8901

577~591, 592-606,. 6Q7-621,. 622:628,. 629-633, ; 634-37,·; 964~88, 544.

545-575, 766-774; 775-776, 902-63, 897-901, 535-37, 532-J<J,, 529-$31,;

639and540-43/8L ., ., .. 1 ,,.,, .. . . . . . (Under Article 32 of the Constlttio.n) ' . ' . ' ' . ''1

R.K. Puri for the Petitioners 'hiWP 8'96/81; '• ; '' Vimal Dve for the Petitioners in WPs 865:890/81.

A.K. Sen; R.M. Dube and Sal'va Mitter for' the 'Petitioers in WPs 540-43/81.

A Soli J. Sorabjee, S.S. Ray, A.K. Sen and R.K. Jain for the Petitioners in WPs 529·37, 544-575, 577-638, 766-776 and 897-988/81.

S.S. Ray, Soli J. Sorabjee and R.K. Jain for the Petitioners in WPs 634-37/81.

Lal Narain Sinha, Attorney General, O.P. Rana, and Mrs. S.

B Dikshit for the Respondent (State of U.P.) in WPs 540-43, 529-37, 540-43, 544-77 and 5.77-638/81.

MK. Banerjee Addi. Sol. Genl. and S.K. Gambhir for the State of Madhya Pradesh.

Miss A. Subhashini for Union of India.

The Order of the Court was delivered by

FAZAL ALI, J. Having heard counsel for the parties at great length we are satisfied that there is no violation of the fundamental right of the petitioners enshrined in Art. l 9(1)(g) of the Constitution of India nor is Art. 14 attracted to the facts of the present case.

There is, therefore, no good ground to entertain the petitions. We would, however, like to add that on the materials placed before us the Government may consider the desirability of adopting such measures as may soften the rigours of the impugned orders which, though not arbitrary or excessive so as to violate Art. 14 or 19, do merit some consideration by the Government in order to effectuate the policy under which the impugned notification was made.

There are, however, two arguments urged before us which need special mention. In the first place it was submitted that in th~ U.P. cases the order impugned imposing a levy on the khandsaii produced by the petitioners cannot have any retrospective operation so as io apply to the stock of sugar manufactured prior to the date of the order and would apply only to the sugar produced after the coming into force of the impugned notification. So far as this argunment is concerned we find no substance in the same because it is not a question of retrospectivity of the statute but its actual working. Once the notification imposing the levy was made it will obviously apply to stock of khandsari produced by the petitioners either before or after the order. This principle has been clearly laid down by the Constitution Bench of this Court in the case of Trimbak Damodar Raipurkar v. Assaram Hiraman Patil and Ors.(1) where Gajendragadkar, J. speaking for the Court regarding the

(1) [1962] Supp. 1 S.C.R. 700.

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NEW INDIA SUGAR WORKS v. U.P. STATE (Faza! Ali, J.) 31

scope of a Rent Act and Amendment in Rent Act observed as A follows:

"In this connection it is relevant to distinguish between an existing right and a vested right.

Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included."

This Court.followed the dictum of Buckley, L.J. in the case of West v. Gwynne.(1) In the aforesaid case Buckley, L.J. while construing an amendment in the Act by which the contract was governed observed as follows : - ·

c "The Act of 1881 thus expressed that in the case of leases made either before or after the commencement of the Act a covenant not to assign without licence should be enforceable just as before......

This section is to be read as if' it were contained in the Act of 1881, and is dealing with a subjectmatter mentioned in the Act of 1881, and as to which there D is in that Act a provision that the enactment shall apply to leases made either before or after commencement of the Act."

Hardy, M.R. in a concurring judgment while construing second amendment in section 14 of the Conveyancing Act pointed out thus:- E

"In the first place, the language of the section is perfectly general, "in all leases," and there is nothing in the section itself to confine it to leases subsequent to the Act.

Almost every statute affects rights which would have been in existence but for the statute."

In these circumstances, therefore, once the notification for imposing the levy was made it will naturally apply to the stock of sugar which was with the petitioners irrespective of the fact that it was manufactured before or after the Order.

It was next strongly contended that in fixation of the price of levy sugar the Government has not taken into consideration the fact that the petitioners would undergo a serious loss because the price would not be sufficient even to cover their manufacturing cost. We

(I) [1911) 2 Ch.D. I.

are, however, unable to agree with this argument. The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price so as to benefit the consumers. It is manifest that individual interests; however, precious they may be must yield to the larger interest of the community namely, in the instant case, the large body of the consumers of sugar. In fact, even if the petitioners have to bear some loss there can be no question of the restrictions imposed on the petitioners being unreasonable. In Shree Meenakshi Mills Ltd. v. U.0.1.(1) this Court observed as follows ;·

"If fair price is to be fixed. leaving a reasonable margin of profit, there is never any question of infringement of fnda mental right to carry on business by imposing' reasonable restrictions.

In dtermh.; ing the reasonableness of 'a 'resti:ictlon imposed by law i_n the. field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged fn these are alleging loss after the. impsitin of law will not render the law unreasonable." (Emphasis Supplied)

Similar view was taken by this Court in the case of Prag Ice and Oil Mills and Anr. etc. v. Union of lndia(2) where the Court speaking through Beg, CJ., observed as follows.:

"It has also to be remembered that tl1e object is to secure equitable distribution and availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time."

In this view of the matter the primary consideration in the fixation of price would be the interest of the consumers rather than that of the producers. Moreover, we think .that since the petitioners are allowed to sell freely at any rate they like the remaining fifty per cent of sugar (after excluding the fifty per cent which they have to give for levy) as also the produce by the second and third pro

cesses, the loss if any caused to the petitioners would be minimal.

Lastly, it was urged that Sub-Clause (5)-which is Sub-Clause

(3) in the notification issued by the Madhya Pradesh Government-

(1) [1974] 2 S.C.R. 398.

/--

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NEW INDIA SUGAR WORKS v. U.P. STATE (Fazal Ali, J.) 33

in the impugned notification issued by the U.P. Government is extremely arbitrary inasmuch as by insisting on certificates it deprived the petitioners of the free ; sale of . sugar of the. remaining amount of fifty per cent as also the Khandsari produced by second and third processes.

We see some force in this argument but the Attorney General frankly conceded that he will see that no inconvenience on this score is caused to the petitioners.

He gave an undertaking to the Court that he will get the respective Sub-Clauses 5 and 3 of the impugned orders of the U.P. and Madhya Pradesh Governments deleted or withdrawn so as to allow the petitioners to sell the remaining amount of sugar as also the stock produced by the second and third processes without any hitch or hindrance. , This will, however, be subject to routine and quick inspection. In view of this undertaking, therefore we feel that a substantial part of the grievances of the petitioners would be removed. To be on the safe side, however we allow the stay granted in all the petitions to continue until the provisions of respective Sub-Clauses 3 and 5 passed by the State Governments concerned are withdrawn.

I .

We may also emphasise the fact that the amount of sugar taken by the Government through levy should be properly stored and duly protected froni.. rain and rot and be despatched .to the various control depots expeditiously in order . to ensure a quick and. equitable distribution of the commodity amongst the people at moderate rates. .,.

The Government may also consider the desirability of giving a bare minimum hearing to the representative of the owners of the cane crushers in future before fixing the rate at which. the levy is ..

' .

~ ,; I ' ' • -, ': , . ' ", taken from the .owners so as ro see that the owners . of the crushers ' aie'ii.oui~'t to such grat loss that they are completely wiped out.

from busi'ness. :1 .. _,, '

With these observations the petitions are dismissed. . '

N.K.A> .r Petitions disrnlssed.·

' ..

.•I:

'•i , I!

L 1, 1_1

, "°J

, I) -, 11 '.

'. ! . ,_,, .... ,

, -,..I l: II• !

NEW INDIA SUGAR WORKS ETC. ETC

STATE OF UTTAR PRADESH AND ORS

February 27, 1981

0. CHINNAPPA REDDY, JJ.

Article 32

R.K. Puri

Vimal Dve

A.K. Sen

R.M. Dube

Sal'va Mitter

A Soli J. Sorabjee

S.S. Ray

R.K. Jain

Soli J. Sorabjee

Lal Narain Sinha

O.P. Rana

S.

B Dikshit

MK. Banerjee Addi. Sol. Genl

S.K. Gambhir

A. Subhashini

FAZAL ALI

Constitution of India

Art. 14

Art. 14

Constitution Bench

Gajendragadkar

Rent Act and Amendment in Rent Act

Buckley

Hardy

section 14

Beg

[1974] 2 S.C.R. 398

U.P. and Madhya Pradesh Governments