~ /' /,

_._

• ...

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...

755 '

TRADE LINKS LTD., NBW DELHI AND ANR. ETC. ETC.

STATE OF UTTAR PRADESH ~ND ANR. ETC. ETC.

May 7, 1982

[Y.V. CHANDRACHUD C.J., V.0. TULZAPURKAR.,.

0.A. DESAI, 0. CHJNNAPPA REDDY AND

BAHARUL !SLAM, JJ.)

Uttar Pradesh Excis• ( Amendm1nt) Act 13of1979, constitutional validity of-Whether violatiVI of Artic/11 14, 19 and 31 of the constitution.

Utiar Pradesh Excise Act, 1910, Section 30(2), Proviso to clau•i ( c) and Explanation.I and llto ClauH (c) of Section 41 as amended by (Amendment/ Act l!J of 1919, whether ultra vire• the constitution.

In exercise of .the power conferred upon hiin under the amended clause

(c) of section 41; the Excise_ Commissioner_ with the previou~ sanction of the State Go'(.trnment framed Rules called tho U.P. Excise (Wholesaland Retail Vend of Foreign Liquor (2nd Amendment) Rules, 1976 by issuing the 'Notific,..,. tion No. 27/Licence-3 dated 14th April 1976, which were brought into force with effect rrom the date of.publication in the Gazette, namely, 14th April W16; by thia Notification the existing Rules 639, 641 and 642 as appearing in Ex~ Manual Vol. (1962 Edn.) were amended; Rule. 639(2) as amended provides that "Licences in form FL2 shall he settled by tho public avction" while Rule 641 as amended provides that "the foefor a licence in form FL-2 shall be the amount of money acc•pted at the auction of the licence a.r 'fixed /et' tog1ther with an "a.ru1Hd !••" chart•d on the ba.riu of thuca/eJ of surcharg• fe• prescr/lnd . in

Rule 642.

By tho very notification dated 14th of April, 1976 tho Excise Com missioner added one 111ore condition. in tho form of a proviso to the terms and conditions ofFL;2 Licence and the said addition made after condition No. 1{c),

runs thus:-

. "Provided that the assessment fee on the sales made on the licence in Ille prescribed manner ai such scales of surchare fee as . may be prescribed by the Government and announced at the . time of the auction, shall also be payable by tho licenceo."

Relying. upon, the amlndmonts made in the U.P. Excise Act, 1910 by Act S of 1976 and the amended Rules 639, 641 and 642 and the insertion of the new condition in FL-2 licence, the respondents introduced the auctioli system for tho grant of licence in form FL-2 for wholesale vend of beer and Indian Malk

',{

. G

7s6 [1982) s.c.it.

Foreign Liquor and started levying and recovering the "assessed fee" in addition to the "fixed fee" (auction money) from the gratltces of the licences.

The Pe.titiooers who were succes.Sful bidders and who had acquired vending rightS in Indian Made Foreign Liquor for the financial years '1976-77, 1977-78, 1978-79 and 1979~80 challenged the levy nf "assessed fee", in addition to , the "fixed fee" on the following grounds : (i) U0der Section 30(2) of the Principal Act or 1910 prior to its amendment by U.P. Ordinance No. 4 or 1979 and U.P.

Act 13 of 1979 it WlS open to the respondents to adopt either ooe or the other method or granting FL-2 licences and determine the licence fee payable by the grantee accordingly, that is to -say, the resporidents could grant the licence "either by' auctio'n or by caI!ing tenders" 8.nd once 'a particUJar mode was adopted it was incumbent upon hem to apply tl\e saine f.or the purpo$C of determining the sum payable by the grantee; in other words it was not opens them to adopt a combination of two or more methods and claim "assessed fee'' in -addition to "''fixed fee" dthis would be illegal and without authority of law.

A combination of twQ (!l:f more methods became available to the respondents only

I . . under Section 30(2) as amended by U.P. Ordinance No. 4.of 1979 and by U.P. Act 13 of 1979; (ii) In asmuch as the petitioners were not informed that any "assessed fee" had been fixed by the State Government, which would be payable by the successful bidder, the respondent's attempt to tevy and recover the ""-"''assessed fee" over and above the "fixed fee" (aUction money) was unwarranted and ilJegal in as much as the_ respondents could not enhance the petitioners' contrac'tual liability which was limited to tbc payment of auction money and

(iii) as per the newly inserted cOnditions in FL~2 Licence the "assessed fee" was required to be ''pre.scribed by ihe Government and <!DQounced at the time Of auction" but in the instant case such ''assessed fee" had been. prescribed :bY the Excise Commissioner and not by the State Government and was not announced at'th.e time of the auction aDd for this, 'reason also the same would not be rccoverabJe.

Di.smissing the pCtitions the_ Court,

HELD : ' 1. The levy ana recovery of the "asse.ssed fee" over and above the "fixed fee" by the respondents for granting .FL-2 iicenccs to _ah tbe petitioners would be legal 1lild valid under the U.P. Excise Act of 1910 as amended by Act 5 of 1976 and the amended: rules framed thereunder. [768 D-E]

2:1. A plain re"ading of Section 3U(2) qr -the Uttai Pradesh Excise Act 19lb prior to its amendment by U.P. Ordinance No. 4 of 1979 and by l,), P. :, Act No. 13 or 1979 makes it clear that the consideration for the grant of FL-2 , licence could be determined either by auction or by calling tenders or otherwise .

[765 C-B]

"t-' 2:2. The p_hrase "or otherwise" was sufficiently wide , and conferred on its plain grammatical construction, power on the State Government or ihe &:else Commissioner to grant thbi licence either J.ly auction or ~Y tenders _, r partly by auction.and partly by tenders or even by, adopJilll!.yet other. methos lhan by auction or by:invitiog .tend_ers._ ln ot_bcr w.or_s, the phta~ "or otherws~"

, .. •

..l

~-•

_,.--

'rkADB LINKS v. U.P. STATB 757 ·- _ enabled tbC Stat~ Government ot the Excise C<>mmissioner to adopt a combi

niition OronC Or oiol'e nlethods for gnintiog the FL-2 licence an, d determine ... the

ljtence: fecl_lllccordiagly. Hilvilig. rtgard, fb the phrase "or c:aberwise"' occu_rring in t5eProvision it can not be said that only ODC method to the Cxclusion Of the

- others could be.adopted.for granting the licence or that one type of fee -appropriate to that method could alone , be i:harsed- [ 765 E-G]

2:3. Sub-section (2) of Section 3•l as amended by U.P. Ordinance 4 of 1979 or U:P. Act 13of1979 is clarifiCa.toy .. of the Ieial pooition, which obtained under Sec. 30(2) that was operative prior to the said amendment. [765G, 766A-B]

' "' <

,3:1. The bidders who gave their bids musi be deemed to have knowledge of'\the prOtisicinsor the reJvant Rules subject tot which the auctions were. held

l!ld therefore, -the bidders including the suocessful bidders whose highest bid

. C was accepted didnot offer their bids believing that only "fixed fce"would be charged, since it was to their knowledge that the auctions for the grant of l'l,, Z !icenti> were held UJi<ler the amendd provisions of iiie Act of 1910 by the

Alllendmen_t of 1976 and thl\t Rule 641 of _Excise Manual clearly provided that the fee for'the FL2 licence'sball be the_ amount ofmoney accepted at the auctioll of the licence as ,·, fixed fee"_ltogether ith the "assessed fee" charged on the scales of surcharge fees prescribed in Rule 642. Further even according to the D petitioner!, the new condition inserted-by the EJtcise Commissioner in the said iicence was read out. -If 8.Gmittedty tho said condition inserted in FL-2 licence w&s read out at the time of auction tben it is clear . that the fact that "assessed (ce" on the sales made , on the lice1,1ce -wa_s also payable by the licensee was announced at the time of_ auction._ [i66 oca. 767 B-C] '

... -3:2. 1f once it was announcd at the time of the auction that "aSsesed E fee'' on the sales affected on lhe licence at the Prescribed Scales shallalso be pay able by -the icensee, then the bidders-were put on enquiry to find out what scS:les

of surcharge fees had been prescribed under the relevant Rule. In other Words the. bfdders presented at th~ auctions had fulJ knowledge that "assessed feC" at presctibed rates will also be-charged and it was with fulL knowledge of this position that they gave their. bids. I( that be so, there was . no question of the fcspondeD.ts' attemPting to enhance the conJr'a.ctua1 liabifity of the successful F bidder. Further admittedly, not.only di<Jrthe bidders _know that "assessed fee" Would be charged over and above the "fixed fee" (auction money) but many of them actually passed on the ~'assessed fee" at the prescribed rates 10 and

rcovercd the satrie from the retailers to wham \hey_ effected sales of beer and Indian Made ForeignLiquor. [767 C.FJ

4. Section24B(c) which expresslY decJares that "the Ecise COrilmissi6neFa$ the head of ExCise Departinent of the State shall be deemed, while

d•terml~(ng o_r realising such fee, t<> act for and on bebalf of the State Govern, Went, makes.Jr claf that the Excise Comrrlissioner..., has. n statlltorily declarc; d lo ile thc, agentofthe State Government am! "while determining" .such fees by fftmli\s the. amen_ded. Rules 642 be "acted Uo!)and on behalf of the State .

(JoVernmenf.inother words, scales of "assessed fee" under- Rule '642 must be

llm•4 \o hav~ been prescribed by the Stte Goyer0ment. p68 BCJ

H . ,

SUPRBMB COURT REPORTS ( 1982) 3 a.c.a.

ORIGINAL JURISDICTION : Writ Petition Nos. 528-529, 1645,

. 288, 293, ~62, 363, 374, 388, 404-406, SIO, _512-14, 644-46, 647, 663-65, 707, 710, 720 t~ 722, 745, 793, 1037 of 1979, 341-43, 344-47, 5257, 519, 5293, 3531-35, 4322 of 1980, 4824, 4825, 5246, 3236, 2963, 3472-74, 3415-17, 3420, 1363-65, 1327-28, 1337-41, 4101-2, 5326, 4949-50 of 1981 and 311 of 1982. , .

(Under Article 3 2 of the Constitution of India)

G.L. Sanghi, Dr, L.M. Singhvi, S.N. Kacker, Yoge1hwar Prasad, Ashok Grover, /l.N. Koura, S.C. Budhwar, L.K. Pandey, Ravindra Narain, D., N. Mishra, P. Krishna Rao, K. R. Nagaraja, Miss Kamin/ Jaiswal and Mrs. Rani Chhabra for. the appearing Petitioners. ..

L, N. Sinha,, Attorner General, S.C. Maheshwari, Additional A

0 dvocate General, O.P. Malhotra, G: N. Dikshit, H.R. Bhardwaj, B.P. Maheshwari, Suresh Sethi, Miss Asha Rani Jain, and Pravir ,

Choudhary for'the appearing Respondents.

The Judgment of the Court was delivered by

TULZAPURKAR, J. There is no substance in this group of writ petitions filed under Art. 32 of the Constitution whereby the peti" tioners, who carry on business, inter alia, of the wholesale vend of , beer .and Indian Made Foreign Liquor at various places in th.e State ' of U.P. on the strength of licences granted to them in Form FL-2 under the U. P. Excise Act, 1910, have challenged the constitutional' validity of ss. 1(2), 3 and (5) of U.P. Excise (Amenclment) Ordinance No. 4 of 1979 as.also the constitutional validity of ss. 1(2), 3 and 5. of U.P. Excise (Amendment) Act No, 13 of 1979 (which replaced the said' Ordinance No. 4. of 1979) as being violative of their funda mental rights under Arts. 14, 19 and 31 of the Constitution; the petitiofiers have also sought a declaration that s, 30(2), proviso to

cl. (c) of s. 41 and Explanations- I and II to. cl. (c) of s. 41 of the

U.P. Excise Act-1910 as amended by ss. '3 and 5 of the said Ordinance No. 4 of 1979 as well as by ss. 3 and 5 of the said Act No. 13 of 1979 and the provisions of sub-s. (2) .of s. I of the said Ordinance (No. 4 of 1979) as well as of the said Act (No. 13 of 1979) are . ultra vires the Constitution and have prayed for the issuance of an appropriate writ, order or direction restraining the respondents (the State of U.P., the Excise Commissioner and other officers) either directiy o't through their agents, servants or otherwise from giving

effect to tlie 1111len\Jed provision,

' .,

.~·

. .i..

'fltAOE LINKS v. u.P. STATE (Tulzapurkar, J.) 759

It may be stated that 'the aforesaid challenge to the U.P.

Ordinance No. 4 of 1979, the U.P. Act No. 13 of. 1979 and the concerned amended provisions of the U.P. Excise. Act, 1910 has been made solely with a view to avoid the payment of the "•sse'ssed fee" which the respondents are seeking to recover from the peti tioners in 11ddition to the "fixed fee" (auction money) asand by way of consideration for the grant of licences in Form FL-2 for the wholesale vend of beer and Indian Made Foreign Liquor, .However,.as it became clear during the hearing that even without the amendments affected in the U.P. Excise Act, 191Q (being the Principal Act) by the said Ordinance No. 4 of 1979 and by the said Act No. 13 of i979 the "assessed fee" in addition to the "fixed fee" , (auction money) could be and was being recovered under the Principal Act of 1910 as amended by .the U.P, Amending (Re enactment and Validation) Act 5 of 1976 and the Rules framed thereunder, the aforesaid challenge was given up and no arguments in support thereof were at all advanced by' any of the counsel for the petitioners and the contentions centered round the question whether such "assessed fee"· in addition to the "fixed fee" (auction money) could be levied and recovered under the Principal Act of 1910 as amended by the.Act 5 of 1976. ·

It was not disputed before us that the grant of exclusive privilege of manufacture, supply or sale by wholesale or by retail of liquor was always governed by the provisions of the Principal Act of 1910 and the Rules framed thereunder and that licences for _wholesale vend of beer and Indian Made Foreign Liquor were granted in Form FL2 which contained the \ernls and conditions on which sales by wholesale of the said commodities could be effected by the grantees thereof. It appears that prior tq April i976 these fL-2 licences were not se!, lled under any auction system but were renewable from year to year and the licence fee was based on the . quantity of beer and Indian .Made Foreign Liquor ctually sold from the concerned shop and was assessed and charged at the rate of Rs. 5 per quart bottle on spirits and 60 p. per quart bottle ()[I

beers. But from April 1976 auction system was introduced whereunder FL-2 licences were auctioned under the provisions of para graph 373 of the U.P. Excise Manual Vol. 1 and "fixed free" being the highest bid (auction money) accepted at such auction came to ' . be carged for the grant of FL-2 licences and this system was introduced on the strength of the amendments that were made in

thePincipal Act of 1910 by ihe l\mendin~ (Reenactment and . ,

• E

760 . SUPREME COUR.T lt.EPO!t.TS 1 [1982} 3 S.C.lt. •

 Validation) Act 5 of 1976. Three or four amendments made by Act 5 of 1976 are material and we shall refer to 'these presently;

_A new s. 24A dealing with the grant of exclusive or other privilege in respect of foreign liquor was introduced in the Principal

Act, which reads as under : ·

"24-A. Grant of exclusive or other privilege in respect of foreign liquor. (I) Subject to the provisions of_Section 31, the' Excise Copimissioner. may gr.ant to any person a licence or licences for the exclusive or other privilege:

(a) of manufacturing or of supply by wholesale; or of both; or

(b) of manufacturiag or of supplying by wholesale, or of both and selling by retail; or .

(c) . of selling by wholesaJ~ (to wholesale or , retail ven-

(!ors); or

(d) of selling by retail af'hops (for consumption 'off' the premises);

-E any foreign liquor iQ any Joc11lity.

.• ··.F

(2) The grant of licence or licences under clause (d) of sub.section (!} in relation to any locality shall be without prejudice to the grant of licences for the retail sale of foreign liquor in the same locality in hotels and restaurants for consumption in their premises.

(3)- Where more licences than one .are proposed . to be granted under clause (d) of sub-section (I) in relation to any locality for the same period, advance intimrno'n of the proposal shall be given to the prospective applicants f.Q! every such licence.

(4) Tqe provisions of Section 25, and proviso to Sectio.n 39 shall apply in relation to grant of a Jicenc~ far an exclusive or other privilege (under this section as' they apply iii respect of the grant of a licence for an exclusive

privilee uQder Stio!I 24," ..

• TRADE LINKS ' U.P. STATE (Tulzapurkar J.) 761

'1', Section 24-B which was also introduced by Act 5 of .1976 in the A Principal Act reads thus :

"24-B. Removal of doubts-For the r, emoval of doubts, it is hereby declared-

(a) that the State Government :has an exclusive right or privilege of manufacture and sale of country liquor and foreian liquor ;

(bl that the amount described as licence fee in clause (c) of Section 41 is in its essence the rental or consideration for the grant of such right or privilege by the ' State Government ;

(c) that the EXcise Commissioner as the head of the Excise

Department of the State shall be deemed, while deter mining or realising such fee, to act for and on behalf of the State Government." D

By the same Act section 30 of the Principal Act was amended and the amended s. 30 read thus : .

"30. (I) Instead of or in addition to any duty leviable under the Chapter the State Government or on its behalf the Excise Commissioner may accept. payment of a sum in consideration of the grant of licence for any exclusive or pther privilege under liection 24 or Section

24-A. .

(2) The sum payable under sub-section. (I) may 'be. determined either by auction or by calling tenders or otherwise.''.

Section 41 of the Princip.al Act which confers power on the Excise Commissioner to make Rules subject to the previous sanction of the State Government touching the matters or topics specified therein was amended by.Act 5 of 1976 by substituting cl. (c) thereby conferring poiTer on the Excise Commissioner to. frame Rules on the substituted matter or topic and the amended cl. (c) runs thus :

"(C) Prescribing the scale of fees or manner of fixing .the

fees payable for an~ Jiqi; e, ~~!iiit o~ ~~s \n~\11dinf

...

'H .

762 SUPREME COUltT RE!'ORrs

(1982) 3 S.C.R'

any consideration for the grant of any exclnsive or other privilege granted under Section 24 or Section 24-A or for storing of any intoxicant."

 In exercise of the power o conferred upon him under the amended cl. (c) of s. 41, the Excise Commissioner with the previous sanction of the State Government framed Rules ca lied the U.P. facise (Wholesale and Retail Vend of Foreign Liquor) (2nd Amendment) Rules, 1976 by issuing the Notification No. 27/Licence-3 dated 14th April, 1976, which wci:e brought into force with effect from the date of publication. in the Gazette, namely, 14th April, 1976, by this Notification th~ existing Rules 639, 641 and 642 as appearing in Excise Mantia! Vol. I (1962 End.) were amended; Rule 639(2) as amended provides that "licences in form FL-2 shall be settled by public auction" while Rule 641 as amended provides that "the fee for a licence in Form FL-2 shall be the amot111t of money accepted at the auction of the licence as 'fixed fee' together with an 'assessed fee' charged on the basis of the scales. of surcharge fee prescribed in the next paragraph following" and Rule 642 as amended runs thus :

"642. The scales of licence fee applicable to whole sale licences for the vend of foreign liquor shall be as follows :

(i) For a licence in Form FL.! ......

(ii) Fot a licence in Form FL-2-The fixed fee obtained for the licence at the auction in addition ta the assessed fees according to the following scales :

(a) Spirits, Rs. 5.00per wines, liquors reputed. quart etc. of all bottle-on sale kinds. to licensed vendors.

,(b) Beer, Stout and Re. 0.60per other fermented reputed quart liquors. bottle on sale to licensed vendors.

Note: The fixed fee in respect of licence FL-2 : one fourth of the licnce fee:as obtained in the auction

TRAl>h LINKS v, u.i>, STJO.TB (Tu/zapurkar J.) t61

shalt be payable in adVance i01medfately oil tile 11CcepU1ilce of the bid and' the balance by such

' ' instalments as 01ay be specified iii the licence to

be granted;''

By the very notification dated 14th of April, 1976 the Excis\l Conrmilleionet added one more condition ill the form of a Jftoviso to tbl! terms and co11ditiolis of FL-2 Lice11ce and the said addition mtde afttr condition No. I (c); rllns thus :

 "Providtd that the asse!sment fee on the saies made O.the lieence in the prescribed, manner at such scales of surcharge fee as may be prescribed by the Gbverl!ment and announced at the time of the auction, shall 'also be

payable by thi: licencee."

dbviouslyrelying upon the aforesaid amendments made iii tlfe, PtinCipalAct of 1910, by A.ct 5 of 1976 (some of which were

vtn retrospective effect ftom the date of the 9ommencement or till! Piticlpal Act and othets from 16th August 1972) and the said amended Rules 639, 641 and 642 and the insertion of t])e new conliitiob in the' FL-2 Licence (all of which qame into1_force from

14th April, 197~, the respondents inttocllJced the auction system for the gbt of licences in Ft>rm FL-2. for wholesale 'Vend of beer and Indian Made Foreign Liquor and .started levying and recovering the "a!9essed fee" ill addition to the .. fixed fee" (auction money)

ffo1b th~ grantees ofihe licehces. Question raised is whether such le•Y.and tecovtry are legal and valid ?

- Before we deal with the question it ill be desirable to set out F ...._ ."-' the; Jats giving rile .t~. it . .that !ie itt .a. narrow compass and it ill -..... ___ suffice 1f t])e facts obta1111ng m Writ Petit1on No. 528 Of 1979, be1b~

t)'pically representative of the group, are stated.

The petitioners iii. that petition are liquor dealers and carry on business inter a/ia of wholesale vevd .; if beer and' Indian Made Foreign Liquor and for that purpose have wholesale dpots in various districts in the State

of U.P. For the financial years !'976-77 and 1977-78 they acquited by, auctien blds wholesale vending rights iri respect of Indilln Mad~ Foreigo Liquor at Agtil1 Meerut, Varanasi, Kanpur; Bareilly and Dehradun; for the financial year 197g,79 they similarly acquired whble1111Je vending rights in Indian Made Foreign Liquor at Agra, Meerut and. Varanaai and for t])e financial year 1979-80 thi!y acquired by auction similar rights at Agra, Meerut, Ghaziabad

764 (1982] 3 s.C.ll.

and Pilibhit. lo other words being the highest bidder at these places for these years licences for the wholesale vend of Indian Made Foreign Liquor in Form FL-2 . were granted to them.' At the time of acceptance of their bids at these auctions the petitioners deposited the entire auction money called the "fixed fee" in respect of each of the said years with the resp.ondents.

The petitioners' case is that thereafter the respondents are seeking to levy and recover from them the "assessed fee" at the rate of Rs. 5 per quart bottle on spirits and 60 p. per quart bottle on beers actually sold during each of the financial years by their concerned shops or depots in addition the "fixed fee". Such levy and recovery of _the "assessed feee" by the respondents is challenged on two or three grounds.indicated hereunder.

In the first place Counsel for the petitioners have contended that under s. 30(2) of the Principal Act of 1910 prior to its amendment by u:P. Ordinance No. 4 of 1979 and U.P. Act 13 of 1979 it was opento the respondents to adopt either one or the other method of granting FL-2 licences and determine the licence fee payable by the grantee accordingly, that is to say the respondents could grant the licence "either by auction or by calling tenders" and once a particular mode was adopted it was incum1>ent upon them to apply . the same for the purpose of determining the sum payable by the grantie; in other . words the contention has been that it was not open to them to adopt a combination of two or more methods and claim "assessed fee" in addition to "fixed fee" 8J!d therefore the instant attempt on the part of the respondents to levy' and recover the "assessed fee" in addition to "fixed fee" would be illegal and without authority of law. According to the

petitioners a combination of two or more methods became available - to the respondents only under sec. 30(2) as amended by U.P. ordi- / _.,,- nance No. 4 of 1979 and by U.P. Act 13 of 1979. Secondly, the.--"' petitioners have averred that at-the time of the aid auctions hel~ < for each of the said .financial years the bidders \vere not informed ..}. that any "assessed fee" had been fixed by the State Government which would be payable by the successful bidder and therefore the persons who gave their bids including the petitioners whose highest bids were accepted were led to believe that no fee over and above the. auction money would be charged and that the successful bidder would be granted FL-2 licence merely on payment o~ the auction money. Counsel for the petitioners have therefore contended that the respondents' attempt to levy and recover the "assessed fee" over

tllADB LINltS 1'. U.P. STATE (tu/zapurkar, J.) 165

and above the "fixed fee" (auction money) is unwarranted and illegal in as much as the respondents cannot enhance the petitioners' coniractual liability which was limited to the payment .of the alctio'!c money. Yet another contention raised by Counsel for the petitioners has been that as per the newly inserted condition in FL-2 licence the "assessed fee" was required to be "prescribed by Government an4 announced at the time of auction" but in the instant case such

"assessed fee'' has been preacribed by the Excise Commissioner and . not by the State Government and was not announced at the time of the auction and for this reason also the same onld not be recoverable: As will be shown presently none of these contentions bas an}' merit and each one is liable to be rejected. '

As regards the first contention a plaiii reading of s. 30(2) prior to its amendment by U.P. Ordinance No. 4 of 1979 and by U.P.

Act No. 13 of 1979 will show that there is no substance in it. The \ .said provision ran thus :

"2. The sum payable under sub-sec. (I) may by determined either by auction or by calling tenders or otherwise."

'In other words, the consideration for the grant of FL-2 licence could be determined either by auction or by calling tenders' or otherwise.

The phras.~ "or otherwise" was sufficiently wide and conferred on its plain grammatical construction power on. the State Government or the Excise Commissioner to grant the licence either by auction or by tenders or partly by auction and partly by tenders or even by adopting yet other methods than by auction or by inviting tenders.

In other words, the phrase "or otherwise" enabled the State Govern

ment or the Excise Commissioner to adopt a combination of one or more methods for granting the FL-2 licence and determine the licence fee accordingly. Having regard to the phrase "or otherwise" occurring in the provision it is impossible to accept the contention 'that only one method to te exclusion of the others could be adopted by the respondents for granting the licence or that one type of fee appropriate to that method could alone be charged. It is true \hat sub-sec. (2) of s. 30 as amended by U.P. Ordinance No. 4 of 1979 or by U.P. Act No. 13 of 1979 runs thus:

"2. The sum payable under suJt..sec. (I) may either H be fixed by auction or inviting tenders or otherwise or be assessed on the basis of the sales made or quota lifted

.,.

sbl'!IEMI! cOURT REi>ollts !1982) s.c.tt.

under the licence. or partly fixed and partly assessed in the aforesaid manner."

But in our view it is manifestly clear that the aforesaid amended provision is clatificatory of the legal position which obtained under sec., 30(2) that was operative prior to the said amendment. lo this view of the matter the first contention has to be rejected. •

The second contention has been that since at the time of . holding the concerned auctions the bidders were not informed that any. "assessed fee" had been prescribed by the State Government whiAh would be payable by the successful bidder and since bids were offered on the representation that the successful bidder would be granted FL-2 licence merely on payment of the "fixed fee" (auction money) the respondents' attempt to levy and recover the. "assessed fee'' over an.d abo\.e the "faed fee" would be unwarranted and illegal because the respondents cannot enhance the contractual liability of the succes&ful bidder which was limited to payment of the auction money. There are two answers to this contention. In the first place it was not disputed before us that to the knowledge of all the bidders these auctions for tho grant of FL-2 licences were held under the provisions of the Principal Act of 1910 as amended by Act 5 of 1976 and the Rules framed. thereunder which were 'then in force. We have already referred to the provisions of the amended Rules 639(2), 641 and 642 which were published in. the Gazette and broagbt into force with effect from 14th of April, 1976 and admit' tedlyall auctions for the financial year 1976,77 were held subl; equent to that date. Under the amended Rule 641 it was clearly provided that th'e fee for the . FL-2 licence shall be the amount' of money accepted at the auction of the licence as "fixed fee" together with the "assessed fee" charged on the basis of the scales of Surcharge· fee prescribed in the next 'following Rule and the amended Rule 642 prescribed the scales . at which the "assessed fee" would be so charged.' In 'other words, the bidders who gave their bids must be deemed to have knowledge of the provisions of the aforesaid Rules subject to which the auctions were held and therefore it is difficult to accept the contention that tb'C bidders including the successftil bidder whose highest bid was accepted offered their bids believing that only "fixed.fee" would be charged.

Secondly, the averment of the petitioners that at the time of these auctions the bidders were

ot intormed .that any "assessed fee" bad been .fixed or prescribed which woul!l he payable by the successful bidder is' not quite correct. 'It bas been admitted by the petitioners that. at the time of these

' -

( -

'l'llADB LINKS v. U.P; STATE (Tu/zapurkar J.) 767 ·

a.uctions the new condition that was inserted by the Excise Com missioner in the FL-2 licece by bis Notification dl!tcd 14th April, 1976 was read out and thi~ newly inserted condition runs thus :

"Provided that the assessment fee on the sales made on the licence in the prescribed manner al such scales of surcbarse fee as may be prescribed by the Governm'ent and announced at the timec of 01e auction, shall also. be payable by licensee~· . • If admittedly the aforesaid condition inserted in FL-2 :licence was read out at the time of the auction then it is clear that the fact that "assessed fee" on the. sales. made on the licence was also , payable by theJicensee was announced at the time of the auction. The only grievance made by the petitioners bas been that the prescribed scales of surcharge fee (under Rule 642) were not announced but that is neither here nor there, for, if once. it was.announced at the time of

the auction tha( "assessed foe" on sales effected on the licence at the prescribed scales shall also be payable by the licensee. then obviously the bidders were put on enquiry to find out what scales of surcharge fee had been prescribed . under , the relevant: Rule. In other words the bidders present at these auctions had full knowledge that "assessed fee" at prescribed rates will also . be charged and it was with'full knowledge of this position that they ga, ve their bids.

If that be so, there is no question of the respondents' attempting to enhance the contractual liability of the successful bidder. It will Ile interesting to mention in ibis context that the respondents have stated in their counter-affidavirthat not only did the bidders know that "assessed fee" would be .charged over and above the "fixed fde"

(auction money) but many of the successful bidders to whom FL-2 licences were granted have actually passed on the "as&essed fee" at the prescribed rates to and recovered the same from the retailers to whom they have effected sales of ber and Indian Made Foreign Liquor. At least in the case of those petitioners before

us who have done so the aforesaid plea put forward on their behalf cannot be regarded as honest. The second col)tention therefore fails and is rejected.

The last contention is merely required to be stated to be rejected. In support of that contention reliance was placed on . the newly inserted condition in FL-2 licence which states that the assessed fee "at such scales ofsurcharge fe1 as may be prescribed by the Government" shall also be payable by the licensee while

768 SUPREME COUllT Rl!POllTS iI982) 3 s.c.ll. ' ' actually the scales of surcharge. fe~ have been prescribed by the Excise Commissioner by framing the amended Rule 642 in exercise of the powers conferred upon him by cl, (c) of 41 qf the P, iincipal Act. Counsel urged that scales of sntcharge fee ought to have been prescribed by th.e Government. In. this connection we might refer to sec. 24B(c) whieh expressly declares that "the Excise Commissioner as the head of the Excise Department of the State shall be deemed, while determining or realising such fee, to act for and on behalf of the State Government". It is thus clear. that the Excise Commissioner has been statutorily declared to be the agent of the State Government and "while determining such fee" by framing the amended Rule 642 he acted for and on behalf of the State Government. In other words, scales of "assessed fee" under Rule 642 must be deemed to have been prescribed by the State Government.

As regards the alleged non announcement at the time of the auctions we have already dalt with that aspect of the matter while dealing with .and disposing of the second contention.

No other point was raised. It is therefore clear that the levy .and recovery of the "assessed fee" over and above the "fixed fee"

by the respondents for .granting FL-2 licences to all the petitioners_ would'belegal and valid under. the U.P. Excise Principal Act of 1910 as amended by Act 5 of 1976 and the amended Rules framed thereunder and all the petitions are liable to be dismissed. We accordingly dismiss all the writ petitions with costs and quantify. the costs payable by each of the._ petitioners separately at Rs. 5000.

S.R.

Petitions dismissed.

• ,

( ,,~'

..>- -"{;

STATE OF UTTAR PRADESH AND ANR. ETC. ETC

Y.V. CHANDRACHUD C.J.

V.0. TULZAPURKAR

0.A. DESAI

0. CHJNNAPPA REDDY

Utiar Pradesh Excise Act, 1910

Section 30(2)

Section 41

section 41

Excise Act, 1910

Section 30(2)

Section 30(2)

Section 3U(2)

Section 3

Sec. 30(2)

Article 3

Constitution of India

G.L. Sanghi

L.M. Singhvi

S.N. Kacker

Yoge1hwar Prasad

Ashok Grover

N. Koura

S.C. Budhwar

L.K. Pandey

Ravindra Narain

N. Mishra

P. Krishna Rao

K. R. Nagaraja

Kamin/ Jaiswal

Rani Chhabra

N. Sinha

S.C. Maheshwari

O.P. Malhotra

N. Dikshit

H.R. Bhardwaj

B.P. Maheshwari

Suresh Sethi

Asha Rani Jain

Pravir ,

Choudhary

TULZAPURKAR

Art. 32

Excise Act, 1910

ss. 1(2), 3

ss. 1(2), 3 and 5

Arts. 14, 19 and 31

s. 41

s. 41

ss. 3 and 5

State of U.P.

Tulzapurkar

s. 24A

Section 31

Section 25

Section 24

Section 41

section 30

s. 30

Section

24

Section 41

Section 24

Section 24

s. 41

Kanpur

Bareilly

Dehradun

Agra

Meerut

Ghaziabad

s. 30(2)

sec. 30(2)

zapurkar

s. 30(2)

s. 30

14th of April, 1976

sec. 24B(c)

Excise Principal Act


D. RAMASWAMI

STATB OF TAMIL NADU

• January 28, 1982

(0. Cl!INNAPPA REDDY AND A. P. SEN, JJ.)

Service matter-Fundamental Rule 56 (d}-Government Servant earned quick, promotiona solely on merit-One adverse entry in confidential file-Exonerated after full enquiry-Promoted to selection post-No adverse entry since then-.

Compulsorily retired under F. R. 56 ( d) within a few months thereafter-Validity of.

Starting as a Lower Division Clerk in 1953, by quick successive promotions the appeUant rose to the prCstigious position of a n1ember of the Sales Tax .Appellate Tribunal in 1ess than 25 years of service. His service book showed

that he had an excelJent record of service, earned several encomiums, commenda- D tions and appreciations. But a solitary entry made .in 1969 in his confidential file stated that his reputation was "not at all good'' in that he was in lhe habit of threateningdealers and taking money from tl}ern. An enquiry was conducted by the Directorate of Vigilance and Anti-Corruption. After framing charges and obtaining his explanation the full Board of Revenue reported that the charges "could not be pursued and proved" and suggested that "the charges be dropped".

Jn November 1974 the Government dropped the charges. A few months later in E May 1975 he was promoted to the selection post of Deputy Commissioner of Commercial Taxes and posted as Member of the Sales Tax Appellate Tribunal.

Immediately thereafter in September 1975, invoking F. R. 56 (d), he was compulsorily retired from service:

Allowing the appeal to this Court,

HELD : In "the face of the appellant's promotion a few months before his compulsory retirement under F. R. 56 (d) and nothing even mildly suggestive of ineptitude or inefficiency after his promotion, it is impossible to sustain the order of the Government retiring him from service. (79 G]

When the Government exonerated hii:n_ of the chafges levelled against him, the basis of the adverse entry in his confidential file was knocked out. By reason of the proffiotion of the selection post of Deputy Commissioner and posting as a Member of the Sales Tax Appellate Tribunal, the effect of the entry was further blotted out. Since then, there was no adverse entry in his service record to discredit him or hinting even remotely that he had outlived his utility as a Government servant. Had there been another adverse entry after his promotion it would have been possible to read them all in conjunction and say that it was time for him to quit Government service. But that was not so. It was therefor€;

odd that he was retired a few months after his promotion. [79 A-CJ

- A

SUPREME COURT REPORTS (1982] 3 s.c.R.

A11 this is not to say that previous history of a Government servant should be completely ignored once he is promoted. Sometimes past events might help to assess the present conduct, but when there was nothing in the present conduct casting any doubt on the wisdom of the promotion there was llo justi

fication for needless digging into the past. [80 A-Bl

Swami Saran Saksena v, State of U.P., [1980] I SCR 923; Baldev Raj Chadha v. Union of India & Ors., [1981] I SCR 430; State of Punjab v. Dewan Chuni Lal, [1970] 3 SCR 694; and Union of India etc. v. M. E. Re#y & Anr., [1980] 1 SCR 736; referred to.

CIVIL APPELLATE JURISDicnON : Civil Appeal No. 3436 of 1979.

From the Judgment and Order dated the 19th April, 1978 of the Madras High Court in Writ Appeal No. 224/78.

M.K. Ramamurthi, and c., s. Vaidyanathan for the Appellant.

Dr. Y.S. Chitale and A. V. Rangam for the Respondents.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.

An order of pre-mature retirement following close upon the heels of promotion and appointment to a coveted Selection post is bound to perplex any right thinking man. and make him wonder whether the right hand knows what the left band bas done. If in the month of May a Government servant is found to possess 'such high merit and ability, which naturally includes integrity, as to entitle him not merely to be promoted to a selection post but to be appointed to a very responsible and much desired post in that cadre, what could have happened between May and September to merit his being weeded out altogether from service in September under the rule which enables the Government to retire a Government servant in the public interest after he has attained the age of 50 years or after he has completed 25 years of qualifying service. One would expect that some grave and grim situation bad developed in the interregnum to warrant the pursuit of such a drastic course. But.surprisingly, we found nothing whatsoever had happened in this case during that period. Let us look at the totality of the facts~

't-

J ,

D. AAMASWAMi v. TAMiL NADU (Chinnapfa Reddy, J.) . 77

The appellant appears to have had quite a noteworthy career.

Starting at the lowest rung as a Lower Division Clerk in 1953, he was promoted as an Assistant Commercial Tax Officer in 1954, next as a Deputy Commercial Tax. Officer in 1957, then as a Joint Commercial. Tax Officer in 1962, thereafter as a Commercial Tax Officer in-1966, later as an Assistant Commissioner of Commercial Taxes in 1972 and finally as Deputy Commissioner of Commercial Taxes on 7-5-1975. On promotion as Deputy Commissioner of Commercial Taxe_s he was posted as .Member of the Sales Tax Appellate Tribunal in the same cadre. On September 28, 1975, he was retired under Fundamental Rule 56(d).

His Service Book shows

that he had an excellent record of service. He had earned several C encomius, commendations and appreciations.

The several promotions gained by him reflect his good record of service.

But there was one dark spot. In 1969 when he was working as Commercial Tax Officer it was noted in his Confidential file by the Deputy Commissioner of Commercial Taxes as follows :

"This Commercial Tax Officer is a very intelligent and capable officer who kept the entire district under his control in perfect discipline. Unfortuately, his reputation is not at all good. There were complaints that he used to threaten dealers and take money. The entire matter is under investigation by the Vigilance and Anti-Corruption Department".

There was an enquiry qy the Directorate of Vigilance and Anti Corruption. Charges were framed against the appellant by the Board of Revenue. The explanation of the appellant was obtained. The Full Board of Revenue then reported that the charges should be dropped. The Government accepted the report of the Full Board and dropped the charges making the foll owing order on 29-11-1974 :

"As the preliminary enquiry disclosed a prima facie case of corruption, a detailed enquiry was taken up by the Directoraie of Vigilance and Anti-Corruption. Out of eleven allegations levelled against Thiru D. Ramaswami, seven allegations were not substantiated, in the enquiry made by the Directorate of Vigilence and Anti-Corruption.

The Government, examined the report of the Directorate

SUPREMB COURT RBPORTS [ ! 9S2] 3 s.c.9..

and considered that there was a prima facie case in respect of certain allegations and this was sufficient to proceed against Thiru D. Ramaswami. The Board of Revenue (CT) was therefore requested to frame charges straightaway as for a major penalty against Thiru D. Ramaswami on the basis of allegations levelled against him. The Board accordingly framed •charges against him in respect of allegations substantiated, obtained his explanation and sent its report thereon. The Full Board considered that all the charges framed against °Thiru D. Ramaswami in consequence of the detailed enquiry conducted by the Vigilence Department cannot be pursued and proved. The Full Board bas therefore expressed the view that the said charges may be dropped. The Government accept the views of the Full Board and direct that all the charges framed against Thiru D. Ramaswami be dropped".

D The effect of the order of November 29, 1974 of the Government was to grant absolution to the appellant from the repercussions of rthe note of the Deputy Commissioner of Commercial Taxes, made in 1969. If there was any ambiguity about the effect of the Government Order, it was cleared by the circnmstance that, within a few months, on May 7, 1975, he was promoted as Deputy E Commissioner of Commercial Taxes andposted as Member, Sales Tax Appellate Tribunal, a prestigious post.

It has to be mentioned here that the post of a Deputy Commissioner of Commercial Taxes is a Selection post. Under Rule 36(b) (i) of the Tamil Nadu General Rules for the State and Subordinate Services :

F "Promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and abilify, seniority being considered only where merit and ability are approximately equal".

Under Rule 2(b) of the Tamil Nadu Special Rules for Com-

G . mercial Taxes Service :

"All promotions shall be made on grounds of merit and ability, seniority being considerd only where merit and ability are approximately equal".

So, what do we have? There was an adverse entrr in the confidential file of the appellant iin 1969. The basis of the entry

b. ti.AMASWAMI v. TAMIL NAbU (Chinnappa Reddy, J.) 19

was knocked out by the Order dated November 29, 1974 of the ' Government; and the effect of the entry was blotted out by the promotion of the appellant as Deputy Commissioner. After his promotion as Deputy Commissioner there was no entry in the service Book to his discredit or hinting even remotely that be bad outlived bis utility as a Govt. snvant. If there was some entry, not wholly favourable to the appellant after his promotion, one might hark back to similar or like entries in the past, read them all in conjunction and conclude that the time bad arrived for the Government servant to quit Government service. But, with nothing of the sort, it is indeed odd to retire .a Government servant a few months after promoting him to a Selection post. In the present case, we made a vain search in Service record of the appellant to find something adverse to the appellant apart from the 1969 entry . . All that we could find was some stray mildly deprecating entries such as the one in 1964 which said :

"He is sincere and hardworking. He manages his office very well. He exercises adequate control over subordinates. He maintains a cordial relationship with public.

Because of his stiff attitude some of the assessees complain about him stating that he is rude in his behaviour This perhaps is due to his unbending attitude. With a little more tact he will be an asset to the Department".

One curious feature of the case is that while the I 969 entry noted that an enquiry was pending with the Vigilance and Anti-Corruption Department in regard to the allegations against the appellant, the ultimate result of th! enquiry which was that the charges should be dropped was nowhere noted in the personal file .of the appellant. . One wonders whether the failure to note the result of the enquiry in the personal file led to the impugned order !

In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service.

The learned

Counsel for the State of Tamil Nidu argued that the Government H was entitled to take Into consideration the entire history of the appellant including that part of it which was prior to his promotion.

so SUi>RBMB COURt RBPoRts

(1982) s.c.a.

We do not say that the previous history of a Government servant should be completely ignored, once he is promoted.

Sometimes, past events may help to assess present conduct.

But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no ju$tification for needless digging into the past.

The learned Counsel for the appellant relied on the decisions in Swami Saran Sakstna v. Slate of U.P., (') Baldev Raj Chadha v.

Union of India & Ors., (2) State of Punjab v. Dewan Chuni Lal, (') while the learned counsel for respo odent relied on the decision in Union of India etc. v. M.E. Reddy & Anr. (') All the decisions have been considered by us in reaching our conclusion. The appeal is allowed.G. 0. Ms. No. 1112 dated September 19, 1975, Commercial • Taxes Religious Endowments Department, Government of Tamil Nadu is quashed. The appellant will be reinstated in service and paid the arrears of salary due to him under the rules. He is entitled to his costs.

P.B.R.

Cll [1980) I SCR 923. (2l r1981J 1 s.c.R. 430.

(3) (1970) 3 S.C.R. 694. (4l [1980] I S.C.R. 736,

Appeal allowed.

D. RAMASWAMI

STATB OF TAMIL NADU

January 28, 1982

0. Cl!INNAPPA REDDY

A. P. SEN, JJ.

[1970] 3 SCR 694

[1980] 1 SCR 736

CIVIL APPELLATE JURISDicnON

M.K. Ramamurthi

s. Vaidyanathan

Y.S. Chitale

A. V. Rangam

CHINNAPPA REDDY

September 28, 1975

Thiru D. Ramaswami

Board of Revenue (CT)

November 29, 1974

May 7, 1975

Chinnappa Reddy

State of Tamil Nidu

September 19, 1975

(1970) 3 S.C.R. 694


ae है et elem i,

PHILLIPPA ANNE DUKE 7 4

: . प्र .

| THE STATE OF TAMIL NADU

& ORS' | क्र, 71982...

i | [O. Cumnappa REppy, J]

Conservation of Forel; |: ट Pe ff Foreign Exchange and Prevention of Smuggling Activities

OS. 8 and 77 and Constitution of india, 1950, Article 22 (5). "

Advisory Board-Legal répratehiaiton or 'fr i : न riend} i detenu-Grant of. Sacility-When arises, - ? oe '

. | v

wi Detention order-Representation of the detenu to the Central Governmentat is-Bout De Papiere to Prime Mintster-Petitions memorial to Minister- Whether statutory representation. है

न + * D

The two petitioners who were British nationals and friends and collaborators in smuggling enterprises were detained under the provisions of the Conserva- -

"on of Foreign Exchange and Prevention of Smuggling Activities Act 1974 for

smuggling electronic equipment and goods worth several lakhs of tupees in secret

.compartments and hidden cavities of a Mercedez Benz van.

The High Court dismissed their petitions for release from detention, ~

In their writ petitions under Article 32 it was contended that ; (1) the representation made by them to the Centra] Government to revoke the orders of detention as 1008 back as March 1982 remained undisposed of and oa this ground

alone bey were entitled to be released; (2) the Bout De Papier presented to the Prime Minister of India during her visit to England pointing out that the order FR

of detention passed against the petitioners might be lifted and the deteaus be - cither released or charged and brought to trial without delay, had not been dis-

: been denied the right to be represented before the bosed of; and (3) that they bad Te कपिल मत नल सन

Advisory Bourd by ao Advocate or at least by Mae tio denied a ceanies to make ao appropriate and effective representation to the

Advisory Board.

: G Dismissing the petitions,

HELD है (1) Representations from whatever source aie we

€ver officer of one or other department of the eon, tao

fepresentations to the Government under the CO A. 4 H

Minister during her visit to he Prime ted to the ry by

(2) The Bout De Papier eT es d to the External Affairs Minist Britain and the subsequent reminder q

gt i ee 0००

'laced and Jined, as it were,

SUPREME COURT REPORTS [1982] 3 s.c.p.

the British High Commission are not representations to the Central Government, They were merely diplomatic communications between the Governments of the two countries which will be answered through appropriate diplomatic channels in proper time.

Such diplomatic communications between one country and another

cannot be treated as representations to the statutory authorities functioning under the COFEPOSA. [771 G-H; 772 A-E] _ *

3(i) The Advisory Board consisting of three Judges of the High Court considered it unnecessary and inadvisable to allow legal representation to the detenus.

That was a matter for decision of the Advisory Board and this Court - would not be justified to substitute its judgment in place of the Boards judgment, [774 C]

(ii) A 'friendly' representation would have been provided by the Board had it been demanded.

But it was not for the Advisory Board to offer 'friendly' representation to the detenus without being asked for. [774 D-E]

In the instant case the order of detention made on January 7, 1982 was considered by the Advisory Board on February 8, 1982 and its report showed

that the detention was justified. [775 C-D]

ORIGINAL JURISDICTION; Writ Petition (Criminal) Nos. 27!-272

of 1982.

(Under Article 32 of the Constitution of India)

Ram Jethmalani and Miss Rani Jethmalani for the Petitioner. |

R.K. Garg and A.V. Rangam, for the Respondents.

The Judgment of the Court was delivered by

_CHINNAPPA Reppy, J.

Richard Beale and Paul Duncan Zawadzki, two British nationals, said to be friends and collaborators in smuggling enterprises are now under detention under the' Provisions of the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act, Richard Beale arrived at Madras from Singapore on December 11, 1981, He brought with hin a Mercedez Benz van. On examination by the customs authorities. the van was

found to have secret compartments and hidden cavities: It was

with all manner of electronic equipment

hs Ms rupees. Richard Beale was interroement. ile was arrested and produced before eed meals Magistrate of Madras. His friend and

arrived in lodia Pgs sag Zawadzki, who had separately

was also intero बाद, | कम दि to contact Richard Beals. siifaa Hlexi 83 66, later arrested and produced before the Metro- Pp Sgistrate.

Orders of detention under the COFEPOSA

and goods worth several Jak gated and made a statemen

ark, oem,

PHILLIPPA ANNE ४, TAMIL NADU (Chinnoppa Reddy, 2) 79)

were made against both of them on January 7, 1982 and grounds

of detention were duly served on them.

The detenus moved the High Court of Tamil Nadu for their release from detention, but

their applications were dismissed.

They have now come ms this

Court seeking Writs of Habeas Corpus under Art. 32 of the Constitution, The two petitions were argued {together by Shri Jethmalant and they may be convenienty disposed of by & single

order."

The first submission of the learned Counsel was that the representation made by the detenus to the Central Government to _ revoke the orders of detention so long back as March, 1932 remained undisposed of till this day and on that ground alone, the detenus were entitled to be~ released.

Shri Jethmalani drew my ' attention

099. 11 of the COFEPOSA which enables the Central Government to revoke or modify an order of detention made by .the State Government or its officers and to the

decisions of this Court laying down that delay by the Central Government im dealing with representations of the detenu would

also entail the detention invalidating itself. Apart from the fact

that there is no proper foundation for the submission, Lam not

satisfied that there is any merit in the submission.

The Writ

Petitions were filed on March 12, 1982 and there was then no hint

of this submission.

The counter-affidavit on behalf of the State of

Tamil Nadu was filed on April 5, 1982, Thereafter, the clerk

of the learned Counsel for the Petitioners has sworn to an ellidavit

mentioning the facts giving rise to the present Ppl

appears from the affidavit that wheo the Prime oes ° owe

was recently in Baglaad, 3 pee cents Pear en a

delegation accompanying er, © ड़ Duncaa Zawadzki

tion without trial of Richard Be i at 1 गहरे! and We

and suggesting that the oo Te ता डा com tel os cant

detenus either released oF charged aoe © High Commission in bat the British Hi delay.

It further appears f dd al Affairs, Sore a India also 8601 De Papiere preseated to India, aad nae pene ia Britain during her visit to that

the pee iene to Shri Jethmalapi, the Bout De st gel ci op "Minister"s delegation in Britaio and the subsequen eee _ सात High Commission constitute a see reminder by t eevee Government demanding their rian tation to the terms of the provisions of the राह सो न nag Saar that a Bout De Papier and the reminder, diplomatic no dou :

Hi :

i & पर 172 -

7 # SUPREME COURT REPORTS [1982] 8.¢ ९.

communications that they are between the Governments of the 'two countries, will be attended to and answered through appropriate diplomatic channels in proper time and with necessary. expedition. _ But | find it difficult to treat such diplomatic communications between one country and another as representations to the statutory authorities functioning under the

COFEPOSA, as

representations. which require immediate consideration by the statutory authorities and which if aot considered immediately, would

entitle the detenus to be set at liberty.

Nor is it possible to

treat the countless petitions, memorials and representations which

are everywhere presented to the Prime Minister and other Ministers as statutory appeals or petitions, statutorily obliging them to consider and dispose of such appeals and petitions in the manner

provided. by statute.

No doubt the Prime Minister and other: Ministers, as leaders in whom the people have reposed faith and confidence, will deal with such appeals and petitions with due and deserved despatch.

But quite obviously that will not be because hey are discharging statutory obligations.

It is not also possible to

treat representations from whatever source addressed to whomsoever officer of one or other department of the Government as a representation 'to the Government requiring the appropriate authority under the COFEPOSA to consider' the matter.

I do not consider that the Bout de Papiere presented to the Prime Minister during her visit to Britain and the subsequent reminder: addsesed to the External Affairs Ministry by the British High Commission are representations to the Central Government which are required to be dealt with in the manner provided by the

COFEPOSA ¢

It was next submitted by the learned Counsel that the Chief Minister, who according to the Rules of Business of the Government of Taniil Nadu, was required to deal with matters telating to preventive detention neither applied his mind to the making of the orders of detention, nor , considered the representation of the detenus himself.

The relevait files have been produced by the learned Counsel for the State of Tamil Nadu and on perusing them, I find no substance in the submission of the 'learned Counsel. -

The submission which was most strenuously Urged by the learned counsel was that the detenus had been denied the right to

PHILLIPPA ANNE vy. TAMIL NADU (Chinnappa Reddy, J.) 773

be represented before the Advisory Board by an Advocate or at

least by a friend and that they were thus denied the right to make a proper and effective representation to the Advisory Board.

This was sufficient, said the learned Counsel, to vitiate the detention.

The learned Counsel urgkd that the detenus were foreigh nationals and they-were under a handicap being ignorant of the laws and procedurés of this country. To deny legal representation to them

was an unreasonable exercise of the discretion vested in the Advisory Board to permit or not to permit legal representation.

According

to the learned Counsel, this was a clear case where legal representation should have been permitted. "In any case, it was urged, the detenus ought to have been offered at least 'friendly' representation,

if not legal representation.

Reliance was placed upon the following observations of the Constituyjon Bench ia A.K. Roy vy, Union of India :() |

"Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal

practitioners should not be extended so as to prevent the detenu from being aided or assisted by 4 friend who, in truth and substance, is not a legal practitioner.

Every person whose interests are adversely affected asa result of

the proceedings which have 8 serious import, is entitled to be heard in those proceedings and be assisted bya friend.

A detenu, taken straight from his cell to the Board's room, may lack the ease and composure to present his point of view.

He may be "tongue-tied, nervous, confused or wanting in intelligence' (see Pett

v. Greyhound Racing Association Ltd., 1969, 1 QB 125), and if justice is to he ' done, he must at least have the help of a friend who can

_ assist him to give coherence to his stray and wandering -- ideas, Incarceration makes a man and his thoughts dishevelled.

Just as a pergsgn who is dumb ig entitled, as he

must, to be represented by a person who has speech, even 80, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who

is better situated to appreciate the facts of the case © and the language of the law.

Yt may be that denial of

legal representation is not denial of natural. justice

(1) ALR. 1982 S.C. 710.

. ११4

SUPREME COURT REPORTS. [1988] 3 8.०.४. |

per se, and, therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow

it. Fairness, as said-by Lord Denning M.R., in Maynard

v. Osmond [197] 1 QB 240, 253, can be obtained without legal, representation.

But, it is not fair, and the statute | does not exclude that right, that the detenu should not even

" be allowed to take the aid of a friend.

Whenever demanded,

the Advisory Boards must grant that facility."

In the present case, the Advisory Board consisting of three Judges of the High Court of Taniil-Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus

It was a matter for the decision of the Advisory Board

and-I do not think I will be justified in substituting my judgment in the place of their judgment.

The detenus were heard personally by

the Advisory Board.

After seeing and hearing them personally also,

the Board did not feel it nécessaryto provide. legal representation

to them which they would certainly have done if they had thought

.that the detenus appeared to require such representation.

Regarding representation by a friend, there was never any such demand by the

detenus.

A 'friendly' representation would certainly have been provided if-it had been so demanded.

It was not. for the Advisory Board to offer 'friendly' representation to the detenus even if the

Affidavit of Shri Thiru Bhaskaran that representation not only by a lawyer, but by a friend was also considered not necessary. by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation.

Shri Thiru Bhaskaran was speaking for the State of Tamil Nadu and not for the 'Advisory Board.

I have perused the file of the Advisory Board which was produced before mé and I have also perused the communications addressed by the Advisory Board to the Government of Tami Nadu and to the detenus.

I do not find the slightest hint of a demand 07

'friendly' representation or its denial anywhere.

The Advisory Board was neither asked nor did the Board deny any 'friendly representation

A'charge was made against the Advisory Board that there was inequality of treatment.

It was said that while. the detaining authority was allowed to be represented by its.officers and advisers, the detenus were allowed no representation.

There is no substance

latter did not ask for it.

Relying upon a sentence in the counter-

PHILLIPPA ANNE y. TAMIL NADU (Chinnappa Reddy, J.) 775

in this charge.

From the affidavit of the Chairman of the Advisory: Board, I find that all that happened was that some customs officers

_ were allowed to be present in the. corridor'so as to enable them to

produce the relevant files whenever required for perusal by the Board. The charge of inequality of treatment is, therefore,

baseless, ay x

Yet another submission of the. learned Counsel was that the Advisory Board failed to consider the question whether the detention continued 10 0६. justified on :the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention, The order of detention was made on 7.1:82 and the consideration by the Advisory Board was on 8.2.82. The passage

of time was not so long nor had any circumstances intervened to

justify any compartment-wise' consideration of the justification for

~ the detention on the date of the making of the order of detention and on the date of the réport of the Advisory Board.

In the ciscumstances of the case, I think that the report of the Advisory Board that. there was sufficient cause for 'the detention of Richard -

Beale. and Paui Duncan Zawadzki necessarily implied that the detention was found by the Board to be justified on the date of its report.as also on the date of the making of the order of detention.

A complaint was also made that the. Advisory Board carried on

its correspondence with the detenus through the Government." This,

it was stated, gave rise to a suspicion that everything was done by

the Board at the behest or in 'consultation with the Government.

This complaint is wholly unjustified.

As already mentioned by me,

the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his Affidavit, the

correspondence etc. is carried.on through the Government because

the Board has no separate administrative office of its own.

All the

points urged on behalf of the detenus fail and the petitions are,

therefore,. dismissed. ह

_NLV.K, .

Petitions dismissed.

PHILLIPPA ANNE DUKE

THE STATE OF TAMIL NADU

Article 22

Article 32

India

England

Bout De Papier

British High Commission

Central Government

January 7, 1982

February 8, 1982

Article 32

Constitution of India

Ram Jethmalani

Rani Jethmalani

R.K. Garg

A.V. Rangam

CHINNAPPA Reppy

Richard Beale

Paul Duncan Zawadzki

of Smuggling Activities Act

Madras

Singapore

Richard Beale

Richard Beals

PHILLIPPA ANNE

TAMIL NADU

Chinnoppa Reddy

High Court of Tamil Nadu

Art. 32

Jethmalant

Jethmalani

Jethmalapi

It further appears f dd al Affairs, Sore a India also 8601 De Papiere preseated to India, aad nae pene ia Britain during her visit to that

the pee iene to Shri Jethmalapi, the Bout De st gel ci op "Minister"s delegation in Britaio and the subsequen eee _ सात High Commission constitute a see reminder by t eevee Government demanding their rian tation to the terms of the provisions of the राह सो न nag Saar that a Bout De Papier and the reminder, diplomatic no dou :

Hi :

i & पर 172 -

7 SUPREME COURT REPORTS [1982] 8.¢ ९.

Britain

British High Commission

State of Tamil Nadu

Chinnappa Reddy

A.K. Roy vy

Denning M.R.

High Court of Taniil-Nadu

Thiru Bhaskaran

Thiru Bhaskaran

State of Tamil Nadu

Government of Tami Nadu

TAMIL NADU

Richard -

Beale

Paui Duncan Zawadzki


STATE OF MADHYA PRADESH

DEWADAS & ORS.

January 29, 1982

(A.D. KOSHAL, A.P. SEN AND V. BALAK.RISHNA ERADI, JJ.)

Code of Criminal Procedure, 1973 S. 378 (3)-State Government's application for leave to appeal-Hearing and disposal by Single Judge under r.1 (q),

Chapter I, Parl 1 of M.P. High Court Rules-WMther legal?

The Code of Criminal Procedure, 1973, provi.des inttra/ia, by sub-s. (3) of s. 3i8 that no appeal against an order of acquittal passed by a lower court shall be entertained under sub-s. (1) or sub-s. (2) except with the leave of the High Court.

A practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an. appeal under sub-s. (I) or sub-s. (2) of s. 378 of the Code, to make an application for leave under sub-s. (3) thereof, and it was registered as a Miscellaneous Crimi- , nal Case and treated as a petition and as such placed before a Single Judge for hearing as per r. 1 (q), Chapter I, Part I, of the Madhya Pradesh High Court Rules. It was only when the Single Judge granted leave to appeal under sub-s. (3), that the petition for leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub-s. (!) of s. 384.

The State Government of Madhya Pradesh having decided to prefer an appeal under sub-s. (I) of s. 378 filed an application for leave to appeal under sub-s. (3) setting out therein the grounds of appeal and the Single Judge who beard it refused to grant the leave. The State Government made an application for grant of certificate under Ar\icle 134 (l) (c) of the Constitution. The application was heard by a Division Bench. The contention was that there was inherent lack of jurisdiction on the part of the Single Judge to hear and decide an app, lica tion for leave under sub-s. (3) of s. 378 of the Code, inasmuch as under r. 1 (q)

(ii) of the Madhya Pradesh High Court Rules, Chapter I, Part I, the matter had to be dealt with by a Bench of two Judges.

The High Court, following its earlier decision in State of.Madhya Pradesh

v. Narendraslngh, (1974) MPLJ (N) 102, rejected the contention, holding that the State bad to obtain 'leave' of the High Court under sub-s. (3) of s. 378, before an appeal against acquittal was preferred under sub-s. (1) thereof and therefore the learned Single Judge had jurisdiction to deal with the application for leave under sub ... (3).

82 strPRl!Mil COURT REPORTS

(1982) 3 'S.C.1'.

... In appeal to this Court the State Government contended that the making of an app1ication for leave under sub-s. (3) of s. 378 is tantamount to filing an appeal under sub-s. (1) thereof, that the High Court could grant leave and entertain the appeal at one and the same time inasmuch as an application under sub-s.

(3) would be transmuted into an appeal under sub-s. (1) when leave is granted under sub-s. (3) and, therefore, the application for leave under sub-s. (3) must have been laid before a Bench of two Judges under r. I (q) (ii) of the High Court Rules.

Allowing the appeal,

HELD : I. An application for 'leave' to appeal under oub-s. (3) of s. 378 without which no appeal under sub-s. (J) or sub-s. (2) thereof can be entei1ained, being an integral part of the appeal, must be laid before a Bench of two Judges of the High Court under r .. 1 (q) (ii), Chapter I, Part I of the Madhya Pradesh Higb Court Rules (as it stood before the amendment) and could not be heard and disposed of by a Single Judge of the High Court under r. I (q) of the Rules, as it stood prior to its amendment. [92 E-F; 83 DJ

2. Sub-s. (3) of s. 378 was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State CJ:overnment or the Central Government under sub-s. (I) or sub-s. (2) thereof from an order of acquittal passed in a case instituted otherwise than upon a complaint. There is a difference in the procedure regulating entertainment of State appeals under sub-s. (!) or sub-s. (2) of s. 378 and appeals against acquittals filed by a complainant under suo-s. (4) of s. 378. On a compamon of the language employed in sub-s. (3) and subs. (4) of s. 378, it is clear that in the case of an appeal by the State Government or the Central Government under sub:.s. (l) or sub-s. (2), the Code does not contemplate the making of an application for leave under sub-s.

(3) while making of an application under sub-s. (4) is a condition precedent for the grant of special leave to a complainant under sub-s. (4).

The difference in language used in sub-s. (3) and sub-s. (4) of s. 378 manifests the legislative intent to preserve a distinction between the two Classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals.

While a period of limitation has been prescribed in subs. (5) of s. 378 for an application of the complainant under sub-s. (4), there is no period of Jirµitation

prescribe-d. for an application for grant of leave to appeal under sub-s. (3), obviously because the Code does not contemplate the making of an application for leave under sub-s. (3) of s. 378. It, therefore, fo1lows that the State Government or the Central Government may, while preferring an appeal under sub-s. (I) or sub-s. (2) of s. 378 incorporate a prayer in the memorandum of appeal for grant of leave under sub-s. (3) thereof, or make a separate application for grant of leave under sub-s. (3) of s. 378, but the making of such an application is not a condition precedent for a State appeal. [90 F-H; 91 A-C; 88 G-H; 91 C-D]

State of Madhya Pradesh v. Narendra Singh, (1974] MPLJ (N) 102 overruled.

State of Rajasthan v. Ramdeen & Ors. (1977] 3 S.C.R. 139 relied oo.

M.P. STATB v. DBWADAS (Sen. J.) 83

C!l!MINAL APPELLATE JURISDICTION : Criminal Appeal No. 278 of 1975.

Appeal by special leave from the judgment and order dated, the 16th October, 1974 of the Madhya Pradesh High Court in Misc.

Criminal Case No. 786 of 197 4.

Gopa/ Subramaniam for the Appellant.

P.D .. Sharma, for the Respondent.

The Judgment of the Court was delivered by :

SEN, J. The short question involved in this appeal by special leave from the judgment and order of the Madhya J>radesh High Court is, whether ari application for 'leave' to appeal under sub-s.

(3) of s. 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), without which no 'appeal under sub-s. (I) or .sub-s. (2) thereof can be entertained, being an integral par! of the appeal, must be laid before a Bench of two Judges of the High Court, under r. 1 (q) (ii), Chap. I, Part I, of the Madhya Pradesh High Court Rules, or can be heard and disposed of by a Single

Judge of the High Court under r. l (q) of the Rules.

The material facts giving rise to the appeal are these. The State Government of Madhya Pradesh having decided to prefer an appeal under sub-s. (I) of s. 378 of the Code, filed an application for 'leave' to appeal under subs. (3) thereof, setting out therein the grounds of appeal. According to the practice prevalent in the Madhya Pradesh High Court, the application was listed before a Single Judge, as per rule I (q), Chapter I, Prt I of. the Madhya Pradesh High Court Rules. 'The learned Single Judge refused to grant leave to appeal under subs. (3) of s. 378 on the ground that the judgment of acquittal was based on appreciation of evidence and was not perverse or unreasonable. The State Government applied for grant of a certificate under Art. 134 (1) (cl of the Constitution.

The application for grant of a certificate was placed before and heard by a Division Bench. The contention on behalf of the State

Government was that an application for grant of leave under sub-s,

(3) of s. 378 of the Code must be treated as a part of the appeal preferred by the State Government under subs. (1) thereof, and

sbPRl!Mil coukt llllro!!.Ts (i982] 3 S.C.ll.

therefore, should have been placed before a Bench of two Judges and consequently the order of the learned Single Judge rejecting the application for grant of leave under subs. (3) of s. 378 of the Code. was a nullity. The Division Bench, following the decision of another Division Bench in the State of Madhya Pradesh v. Narendrasingh,( 1) rejected the contention of the State that the learned Single Judge had no jurisdiction to entertain or decide the application for leave to appeal under sub-s. (3) of s. 378 of the Code. It however, noticed the incongruity of the requirement that an appeal under subs. (I) or sub-s. (2) of s. 378 should be placed before a Bench of two Judges under r. I (q) (ii) of the Madhya Pradesh High Court Rules and the hearing and disposal of an application for leave under sub-s. (3) thereof should be by a Single Judge, and observed :

"The matter is being examined by the rule making Committee. It is rather anomalous that under rule 1 (q) item (ii) of Chapter I of the Madhya Pradesh High Court Rules, an appeal against acquittal filed by the State Government has to be heard by a Division Bench, still the application for leave under section 378 (3) of the Code should be laid before a Single Judge."

As the case involved an important question relating to pro cedure and practice, and as the correctness of the decision of the High Court in Narendrasingh' s case was open to question, special leave was granted by this Court.

It appears that a practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an appeal under subs. (1) or sub-s. (2) of s. 378 of the Code, to make an application for leave under sub-s. (3) thereof, and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before a Single Judge for hearing as per r. 1 (q), Chap. I, Part I, of the Madhya Pradesh High Court Rules. It was only when the Single Judge grante<l leave to app-.al under sub-s. (3), that the petition for leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub-s. (I) of s. 384 of the Code.

(I) (1974) MPU (N) 102.

M.R. STATE v. DEVADAS (Sen, J.) 85

The contention that there was inherent lack of jurisdiction on the part of a Single Judge to hear and decide an application for leave under sub-s. (3) of s. 378 of the Code and, therefore, the proceedings were null and void is based on the provisions contained in r. J (ql(ii), Chap. I, Part I, of the Madhya Pradesh High Court Rules, which read as follows :

"I. The following matters shall ordinarily be heard and disposed of by a Judge sitting alone:

xx xx xx xx

(q) An appeal, petition or reference under the Code of Criminal Procedure, other than ;

xx xx xx xx

(ii) an appeal by the Provincial Government nnder section 417 of the Code from an order of acquittal."

The heading of Chap. I in which the rule fin ls pla<:e is "Jurisdiction of a Single Judge and of Benches of the Court." It is urged that any breach of the rule would render the judgment a nullity. Rule 4 of the said Rules provides that 'Save as provided by law or by rules or by special orders of the Chief Justice, all mattrs shall be heard and disposed of by a Bench of two Judges'. By reason of s. 8 (2) of the General Clauses Act, 1897, reference to an appeal against acquittal under s. 417 (I) of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code') by the Provincial Goverment has to be read as an appeal against acquittal by the State

Government under sub-s. (I) of s. 378.

It is contended on behalf of the State Government that the making of an application for leave under sub-s. (3) of s. 378 of the Code is tantamount to filing an appeal under subs. (I) thereof, and the High Court can grant leave and entertain the appeal at one and the same time, inasmuch as such an application by the State

Government under sub-s. (3) is transn)uted into an appeal against acquittal under sub-s. (1) of s. 378, when leave is granted under sub-s. (3) and, therefore, the application for leave under subs. (3)

)111d to b~ heard by a Beuc4 gf two J ud9es; Jt is urged that a comparison of the language employed in sub-ss. (3) and (4) of s. 378 would make it clear that the Parliament never intended, in the case of an acquittal, that the State Government should first make an application for leave under sub-(3) of s. 378, and then, if leave is granted, present an appeal under sub-s. (I) of s. 378. It is further urged that the jurisdiction of a Single' Judge is limited by the words 'other than' in r. 1. (q) of the Madhya Pradesh High Court Rules, and an appeal preferred by the State Government under sub-s. (I) of s. 378 of the Code could be heard and decided only by a Bench of two Judges as required by r. I (q) (ii) of the Rules.

The submission advanced on behalf of the respondents, on the other hand, is that the introduction of the new provision in suh-s. (3) of s. 378 and the use. of the words 'leave of the High Court' and the word 'entertained' clearly indicates the legislative intent to prescribe for two different stages : (I) the making of an application for leave under sub-s. (3) of s. 378, and (2) then, if leave is granted, presenting the petition of appeal under s. 382 of the Code. It is urged that the State Government must obtain- 'leave' of the High Court under sub-s. (3) of s. 378, before an appeal against acquittal is preferred under sub-s: (I) thereof, as in the case of a private_ complainant under sub-s. ( 4) of s. 3 78, and the difference in language in sub-s. (3) and subs. (4) is of little con sequence.

Jn Narendrasingh' s case, the State Government being desirous of preferring an appeal against acquittal under sub-s. (I) of s. 378, made an application for grant of leave under sub-s. (3) and the proposed memorandum of appeal was annexed thereto. An application was filed on behalf of the State Government stating that the prayer for grant of leave under sub-s. (3) be treated as a part of the appeal itself and not separately. It was further prayed that the case, which had originally been registered as a Miscellaneous Criminal Case relating to the grant of leave, should be registered as a 'Criminal Appeal'. The matter was, therefore, placed before a Division Bench. The learned Judges of the High Court referred to the report of the Law Commission(') and observed that the legislative object in re-enacting the provisions of s. 417 of the old Code with the addition of the new provision contained in sub-s. (3)

(1) 48th Report, Vol. !I, Chapters 30-57, paras 28-34, at pp. 810-81.l,

M.P. STATE v. DEWADAS (Sen, J.) 87

of s. 378 of the Code, was that there had to ha a further scrutiny of a State appeal by the Court even prior to the stage of admission, requiring the Court to eonsider at the very outset whether the appeal should be entertained or not. It wa~ only after the appeal was entertained with the 'le ave' of the Court that it had to be heard for admission and it may be dismissed summarily without J!Otice to the other side. It was further observed that the legislature brought about the change while accepting the recommendation of the Law Commission to retain the power of the High Court to dismiss State appeals summa. ily without notice to the respondents.

In substance, the decision in Narendrasingh's case, as expressed in the words of the learned Judges, may be thus stated :

"(A)t the very outset on an appeal against acquittal being lodged by the State, the High Court is to consider whether leave should be granted or not. I.t is only when leave is granted under section 378(3) that the appeal is entertained. On the appeal being so entertained as a consequence of the grant of leave, it is to be listed for admission and in case it is not dismissed summarily under section 384 (I) notice is to be issued to the accused under section 385 (I) (iv).

xx xx xx xx

The appeal being entertained only on the grant of leave under sec. 378 (3), the matter relating to grant of leave has to be ordinarily heard and disposed of by a Single Bench of this Court accoding to Rules. The appeal itself bein-g entertained only when leave is granted, there is, in fact, no appeal as such till the leave is granted, even though it may have been lodged while praying for leave. The matter has, therefore, to be initially registered only as a 'Miscellaneous Criminal Case' and it is only when the leave is. . granted resulting in the appeal being entertained that it can be registered as a criminal appeal. Thereafter it has io be listed before the Division Belich for admission."

In making these observations the learned Judges appear to have been wayed by a practice which was prevalent in their Co11rt.

SUPRBMB COURT REPORTS

(1982) 3 s.c.n.

A The jurisdiction of the Court in these matters is, however, statutory and the Court is not entitled to go outside the provisions of a statute but must interpret them as they are.

The answer to the question involved must tum on a proper construction of sub-s. (3) of s. 378 of the Code.

Section 378 of the Code corresponds to s. 417 of the old Code, as amended in 1955.

Sub-s. (I) of s. 378 of the Code is in terms the same as sub-s. (I) of s. 417 of the old Code and it provides that 'Save as otherwise provided in sub-s. (2) and subject to the provisions of sub-ss. (3) and (5), the State Government may, in any case, direct the Public Prosecutor. to present an appeal to the High Court from an original or appellate order of acquittal passed by a court other than a High Court'. Sub-s. (2) of s. 378 corresponds to sub-s. (2) of s. 417 and confers the right of appeal on the Central Government in certain class of cases subject to the provisions of sub-s. (3) from such an order of acquittal. Sub-s. (3) of s. 378 is a new provision inserted to implement the recommendation of the Law Commission made in its 48th Report on Appeals against Acquittals, and pro vides that:

"3. No appeal under sub-s. (1) or sub-s. (2) shall be entertained except with the leave of the High Court."

Sub-s. ( 4) and sub-s. (5) deal with an. order of acquittal passed in any case instituted upon a complaint. Sub-s. (4) provides that if an order of acquittal is passed in such a case, and the High Court on an application made to it by the complainant in that behalf, grants 'special leave' to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Sub-s. (5) provides for two distinct periods of limitation. No application under sub-s. (4) for grant of special leave to appeal from an order of acquittal in a complaint case shall be entertained by the High Court at the expiry of six months where the complainant is a public servant and sixty days in other cases computed from the date of the order Qf acquittal. There is no period of limitation prescribed for presenting an application for jlrant of leave to appeal under sub-s. (3) of s. 378 from an order of acquittal passed in a case instituted otherwise than upon a complaint, obviously because the Code does not contemplate the making of an application for leave µoder sub-s. (3) of s. 378 of the Code: Thus, the period of limita-

, '

M.P. STATB v. DEWADAS (Sen, J.) 89

tion in such a case, is for an appeal from an order of acquittal under sub-s. (I) or sub-s. (2) of s. 378 of the Code, as prescribed by Art. 114 of the Limitation Act, 1963. The period of limitation prescribed therefor is sixty days from the date of the order appealed from. ·

Under the scheme of the Code, the State Government or the Central Government may prefer an appeal under subs. (I) or sub-s. (2) of s. 378 of the Code, but such appeal shall not be entertained unless \he High Court grants 'leave' under sub-s. (3) thereof .. The words 'No appeal under subs. (1) or sub-s.

(2) shall be entertained' used in sub-s. (3) of s. 378 create a qualified bar to the entertainment of an appeal filed by the State Government or the Central Government under sub-s. (I) or sub-s. (2) from an order of acquittal passed in a case instituted otherwise than upon a complaint. The Code, by enacting sub-s. (3) of s. 378, therefore, brought about a change in that there is no longer an unrestricted right of appeal against the orders of acquittal passed in such cases. The making of an application for grant of leave to appeal by the State Government or the-Central Government under sub-s. (3) of s. 378 is, however, not a condition precedent to the entertainment of such an appeal. The prayer for grant of leave under subs. (3) may, as it should, be contained in the petition of appeal filed under s. 382 of the Code.

There is no warrant for the view expressed by the High Court in Narendrasingh's case that the legislative object in re-enacting the provisions of s. 417 of the old Code with the addition of the new provision contained in sub-s. (3) of s. 378 of the Code, was that there was to be a preliminary scrutiny of a State appeal by the Court even prior to the stage of admission, requiring the Court to consider at the very outset whether the appeal should be entertained or not, and that it was only after the appeal was entertained with the leave of the Court that it was to be heard for admission under sub-s. (I) of s. 384 read with subs. (I) of s. 385 of the Code. The High Court appears to rest its decision more on the Report of the Law Commission than the actual language of sub-s. (3) of s. 378 of the Code, in coming to the conclusion that sub-s. (3) contemplated two stages.

Subs. (3) of s. 378 is not susceptible of any such construction.

Th~ Law Commission in its 48th RepQft hd ol; lrved : ' • • • - I '

"While one may grant that cases of unmerited acquittals do adse in practice, there must be some limit as to the nature of cases in which the right should be available."

And, keeping in view the general rule in most common law countries not to allow an unrestricted right of appeal against acquittals, it B recommended :

"With these considerations in view, we recommend that appeals against acquittals under s. 417, eveu at the instance of the Central Government or the State Government, should be allowed only if the High Court grants special leave.

It may be pointed out that even now the High Court can summarily dismiss an appeal against an acquittal, or for that matter, any criminal appeal. (Setion 422, Criminal P.C.). ·

Therefore, the amendment which we are recommending will not be so radical a departure as may appear at the first sight. It will place the State and the private complainant on equal footing.

Besides this, we ought to add that under s. 422 of the Code, it is at present competent to the appellate Court to dismiss the appeal both of the State and of the complainant against acquittal at the preliminary hearing."

' The recommendations of the Law Commission were not, however, fully carried into effect. Sub-s. (3) of s. 378 of the Code was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State Government or the Central Government under sub-s. (I) or subs. (2) of s. 378 from an order of acquittal passed in a case instituted otherwise than upon complaint.

At the same time, Parliament re-enacted sub-ss. (3) and (4) of s. 417 as subss. (4) and (5) of s. 378, which deal with an order of acquittal passed in any case instituted upon a complaint. The result of this has been that there is a difference in the procedure regulating entertainment of State appeals against acquittals under sub-s. (1) or suh-s.

(2) of s. 378 and appeals against acquittals filed by a complainant under sub-s. (5) of s. 378.

On a comparison of the language employed in sub-s. (3) and sub-s. (4) of s. 378, it is clear that the

Jeislature bas chosen to treat State appea, ls in a manner jffre!!i

'>(

M.P. STATB ~. DBWADAS (Sen, J.) 91

from appeals by a complainant in the matter of preferring appeals against acquittals. In the case of an appeal from an order of acquittal passed in a case instituted otherwise t&an upon complaint preferred by the State Government or the Central Government under sub-s. (I) or sub:s. (2) of s 378, the Code does not contemplate the making of an application for leave under sub-s. (3) thereof, while the making of an application under sub-s: (4) of s: 378 is a condition precedent for the grant of 'special leave' to a complainant under suli-s. (5). The difference in language used in sub.s. (3) and sub-s. (4) of s. 378 manifests the legislative intent to preserve a distinction between the two classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals.

It, therefore, follows that the State Government or the Central Government may, while preferring an appeal against acquittal under sub -s. {I) or sub-s. (2) of s. 378, incorporate a prayer in the memorandu111 of appeal for grant of leave under sub-s. (3) thereof, or make a separate application for grant of leave under sub-s. (3) of s. 3 78, but the making of such an application is not a condition precedent for a State appeal.

In the State of Rajasthan v. Ramdeen & O~.<., (1) this Court dealt with a case where the Rajasthan High Court granted the State Government leave to appeal under sub-s. (3) of s. 378 of the Code, but dis111issed the appeal filed thereafter on the ground that it bad not been filed within ninety days fro111 the judgment appealed from and was therefore barred by limitation under Art. I 14 of the Limita tion Act, 1963.

The application for grant of leave under sub-s. (3) contained all the requisites of a memorandum of appeal and had been filed within ninety days from the date of order of acquittal but was not acompanied by a petition of appeal.

It was held that an <ippeal under sub-s. (I} of s. 378 was an integral part of an application for leave to appeal under sub-s (3).

Accordingly, the order passed by the High Court dismissing the appeal as barred by limita tion was set aside. In dealing with the question, it was observed :

"Under the law it will be perfectly in order if a com posite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal witb. a i>rayer for leave to enter-

(I) [1977] 3 S.C.R. 139.

tain the appeal .. It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of.leave by the High Court an appeal may be preferred against the order of acquittal.

If such a procedure is adopted, as above, it is likely, as it has happened in this case; the appeal may be time-barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on application'filed before it does not, in law, s_olve the legal issue.

The right conferred by section 378 (1), Cr. P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted,· for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378 Cr. P.C., which is likely to affect adversely or even perhaps to destroy that right,"

The view expressed by the High Court in Nqrendrasingh's case being in conflict with the. decision of. this Court in Ramdeen' s case must be overruled.

It must accordingly be held that the learned Single Judge bad no competence to entertain, hear '.lr dispose of the question of grant ofleave under sub-s. (3) of s. 378, as it had virtually entailed dismissal of the appeal preferred by the State Government UI\der sub-s. (I} thereof.

The matter should have been dealt with by a Bench of two Judges in terms of r. 1 (q) (ii), Chap. I, Part I, of the Madhya Pradesh High Court Rules.

The question at issue has now become academic.

As already stated, the High Court while refusing the grant of certificate of fitness, bad adverted to the fact that the matter was being examined . by the Rule-Making Committee. It has since amended r. 1 (q) and made a distinction between appeals from orders of acquittals under sub-s. (I) of s: 378 in respect of: (J) offences punishable with senience of death or imprisonment for life and triable by Court of Sessions, and (2) other offences.

All appeals falling under category (1), together with applications for leave under sub-s. (3) of s. 378, have to be beard by a Bench of two .Judges, and other appeals falling under category (2), together with applications for leave under sul)-~,

(3) of s. 378, are to be heard by a Sinle Judge.

- .

• I

.----r- ,.

' _,

id.I>. stATE v. l>EWAl>AS (Sen, J.) 9:\

In the result, the appeal must succeed and is allowed. The order passed by the High Court, dismissing the application for leave under sub-s. (J) of s. 378 of the Code of Criminal Procedure, 1973,

filed by the State Government of Madhya Pradesh, is set_ aside, and it is directed that the application shall be dealt with by a Bench of two Judges as required by r. I (q) (1i), Chap. I, Part I, of the Madhya Pradesh High Corut Rules, prior to its amendment.

H.L.C.

Appeal allowed.

STATE OF MADHYA PRADESH

DEWADAS & ORS

January 29, 1982

A.D. KOSHAL

A.P. SEN

V. BALAK.RISHNA ERADI, JJ.

Code of Criminal Procedure, 1973

S. 378

High Court Rules

Code of Criminal Procedure, 1973

s. 3

Madhya Pradesh High Court

Central Government

s. 378

s. 384

State Government of Madhya Pradesh

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

Parliament

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

(1977] 3 S.C.R. 139

Gopa/ Subramaniam

P.D .. Sharma

SEN

Madhya J>radesh High Court

s. 378

Code of Criminal Procedure, 1973

s. 378

s. 378

Art. 134

s. 378

s. 378

s. 378

s. 378

section 378

Narendrasingh

s. 378

s. 384

s. 378

Code of Criminal Procedure

section 417

s. 8

General Clauses Act, 1897

s. 417

Code of Criminal Procedure, 1898

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

s. 378

s. 382

s. 378

s. 3

Jn Narendrasingh

s. 378

s. 417

s. 378

section 378(3)

section 384

section 385

sec. 378

s. 378

Section 378

s. 417

s. 378

s. 417

s. 378

s. 417

s. 378

s. 378

s. 378

s. 378

Art. 114

Limitation Act, 1963

s. 378

s. 378

s. 378

s. 378

s. 382

s. 417

s. 378

s. 384

s. 385

s. 378

s. 378

s. 417

s. 422

s. 378

s. 378

s. 417

s. 378

s. 378

s. 378

s. 378

DBWADAS (Sen

s 378

s. 378

s. 378

s. 3

Rajasthan High Court

s. 378

Limita tion Act, 1963

s. 378

[1977] 3 S.C.R. 139

section 378

section 378

Nqrendrasingh

Ramdeen

s. 378

s. 378

s. 378

Sen

s. 378

Code of Criminal Procedure, 1973