S.C.R.

SUPREME COURT REPORTS

HANUMANT

THE STATE OF MADHYA PRADESH.

RAOJIBHAI

ti,

THE STATE OF MADHYA PRADESH.

[MEHR CHAND MAHAJAN, DAS and BHAGWATI JJ.] Criminal trial-Circumstantial evidence-Sufficiency of evidence for conviction-Caution against basing conviction on guess or suspicion-Admission-Must be taken as a whole.

In dealing with circumstantial evidenee there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore right to remember that in cases where the evidence is of a circumstantal nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved.

In other words; there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

Reg. v. Hodge [(1838) 2 Lew. 227] referred to.

An admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. It must be used either as a whole or not at all.

CRIMINAL

APPELLATE JuRISDicTION Criminal Appeal No. 56 of 1951.

Appeals by special leave from the Judgment and Order dated the 9th March, 1950, of the High Court of Judicature at Nagpur (C. R. Hemeon J.) in Criminal Revisions Nos. 152 and 153 of 1949 arising out of Judgment and Order dated the 24th March, 1949, of the Court of the Sessions: Judge, Nagpur, in Criminal Appeals Nos. 26 and 27 of 1949 and Judgment and Order dated the 15th January, 1949, of the Court of the Special Magistrate, Nagpur, in Criminal Case No. 1 of 1948. 15-1 O S. C. India 71

Sepl. ZJ,

Hanumant 'v:"· The State of Madhya Pradesh,

1092 Sl]PRE!vfE COURT REPORTS [19?2]

N. C. Chatterjee (B. Bannerjee and A. K. Datt, with him) for the appellant in Criminal Appeal No. 56 of 1951.

Bakshi Tek Chand (K. V. Tambay, with him) for the appellant in Criminal Appeal No. 57 of 1951.

T. L. Shiv de, Advocate-General of Madhya Pradesh (T. P. Naik; with him) for the respondent.

1952. Sept. 23.

The Judgment of the Court was delivered by

MAHAJAN J.-This 1s a consolidated appeal by special kave from the two orders of the High Court of Judicature at Nagpur passed on the 9th March, 1950, 'in Criminal Revisions Nos. 152 and 153 of 1949.

, On a complaint filed by the Assistant Inspector- General of Police, Anti-Corruption Department, Nagpur, the appellant in Criminal Appeal No. 56 of 1951

. (H.

Nargundkar, Excise Commissioner, Madhya Pradesh), and tne appellant in Criminal Appeal No. 57 of 1951 (R. S. Patel) were tried in the court of _Shri

B. K.

Chaudhri, Special Magistrate, Nagpur, for the offence of conspiracy to secure the contract of Seoni Distillery from April, 1947, to March 1951 by forging the tender, Exhibit P-3A, and for commission of the offences of forgery of the tender (Exhibit P-3A) and of another document, Exhibit

P-24.

The learned-Special Magistrate convicted both the appellants on all the three charges. He sentenced

R. S.

Patel to rigorous imprisonment for one year under each charge and to pay fines of Rs. 2,000, Rs. 2,000, and Rs. 1,000, under the first, second and third charges respectively.

The appellant Nargundkar was sentenced to rigorous imprisonment for six months under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1,000, under the first, second and third charges respectively.

Each of the appellants appealed against their respective convictions and sentences to _the Court of the Sessions Judge, Nagpur.

The learned . Sessions Judge quashed the conviction of both the appellants under the first charge of criminal conspiracy under section

120-B,

I. P. C., but maintained he

conv1ct1ons and sentences under section 465, I.P.C., on the charges of forging Exhibits P-3 (A) and P-24.

Both the appellants went up in revision against this decision to the H'.1gh Court but without any success.

An application was then made under article 136 of the Constitution of India for special leave to appeal and this was allowed by this Court on 24th March, 1950.

The appellant, Nargundkar, 1s a member of the Central Provinces & Berar Provincial Service and held the substantive post of Deputy Commissioner for several years.

In April, 1946, he was appointed Excise Commissioner, Madhya Pradesh, and continued to hold that office till tl.ie 5th September, 1947.

The appellant, R. S. Patel, is a sugar Technologist and Chemical Engineer.

He received his technical education and practical trainirtg in America and after working as Chief Chemist and General Manager in factories in Madras for five years, came to the Central Provinces m 1944, when the Provincial Government gave him a licence to set up a distillery for the manufacture of industrial spirit.

On the 11th September, 1946, Nargundkar m his capacity as Excise Commissioner invited tenders for working the Government distillery at Seoni and supplying spirit to certain specified districts for a period of four years from 1st April, 1947, to 31st March, 1951.

The last date for submitting the tenders was the 31st October, 1946.

In response to this tender notice, five tenders were filed including those filed by ( 1) appellant, R. $. Patel, (2) K. B. Habibur Rahman, (3) Zakirur Rahman, and (4) Edulji P.

Doongaji (P. W. 4), in sealed covers with the Excise Commissioner on the 31st October, 1946, and he handed them over with the seals intact to the office superintendent, S. W. Gadgil (P. W. 13), for safe custody.

Gadgil took them to his room and kept them under lock and key in the office safe.

The case for the prosecution 1s that on the gth November, 1946, accused Nargundkar took these sealed tenders home, that the tenders were opened b-y him at his house, that the rates of the tender (Exhibit

Hanumant v.

The State of Madhya Pradesh.

Hanumant v.

The State of

Madhya Pradesh.

Mahajan /.

P-6) of E. J. Doongaji (P. W. 4) were divulged to accused 2 (R. S. Patel), who was allowed to substitute another tender (Exhibit P-3A), containing rates lower than those of Doongaji, that thereafter these open tenders were brought to the office on the 11th November, 1946, and given to Amarnath (P.W. 20) who was the Assistant Commissioner of Excise, for submitting a report and that on the recommendation of Nargundkar the tender of accused 2 (Patel) was accepted and the contract was given to him. In May, 1947, on receipt of. an application (Exhibit P-1) from one Dilbagrai (P. W. 14), enquiries were started by the Anti-Corruption Department.

Both the accused became aware of the enqmry.

In order to create evidence in their favour they brought into existence a letter (Exhibit P-24) and antedated it to 20th November, 1946.

This document was forged with the intention of committing fraud and of causing injury to, Amarnath

(P. W. 20) and also to Doongaji (P. W. 4). Exhibit P-24 is alleged to have been typed on a typewriter (Article A) which was purchased on the 30th December, 1946, by the National Industrial Alcohol Co., Nagpur, of which accused Patel was the managmg director. It was further alleged that the endorsement made by accused 1 (Nargundkar) in the said letter "No action seems necessary. File'', and marked to Superintendent "S" was not made on the 21st November, 1946, which date it bears. This letter was handed over by accused 1 to the Office Superintendent, S. W. Gadgil (P. W. 13) about the middle of August, 1947, and thereafter accused 1 wrote a letter (Exhibit P. 26), on the 2nd October, 1947, to Sri S. Sanyal (P. W. 19) who was then the Excise Commi5.'ioner, requesting that this letter (Exhibit P-24) and a note sheet (Exhibit P-27) be kept in safe custody.

Both the accused denied the commission of the offences of criminal conspuacy, forgery and abet- / ment thereof.

Nargundkar denied having attended office on the 9th November, 1946.

He denied having taken the tenders home.

According to him, the tenders were opened by him in the office on the

11th November, 1946.

Accused 2 denied that the ). tender of Doongaji was shown to him by accused 1 between the 9th and 11th November, 1946. He stated that the tender (Exhibit P-3A) was the original t tender submitted by him on the 31st October, 1946.

As regards Exhibit P-24, it was denied that it was fabricated or antedated. Accused 2 stated that it was not typed on article A. He also alleged that the allegat tions made in exrubit P-24 were correct.

Accused ' Nargundkar stated that the endorsement was made by him on the 21st November, 1946.

The first charge .. having failed, nothing need be said about it herein.

In order to prove the second charge the prosecution had to establish that Gadgil, P. W. 13, handed over the sealed tenders on the 9th November, 1946, to accused Nargundkar, that the latter took them home, that between the 9th and the 11th November he met Patel at his house or elsewhere and that accused Nargundkar showed or communicated the particulars of the tender of Doongaji to accused Patel who substituted Exrubit

P-3A for his original tender before ) the 11th November, 1946. Admittedly there is no direct evidence to prove any of these facts except the first one, and the nature of the case is such that recourse could only be had to circumstantial evidence to establish those facts.

The fact that the sealed tenders were handed over by Gadgil to accused Nargundkar on the 9th November has been held proved solely on the uncorroborated testimony of Gadgil as against the denial of Nargundkar, Gadgil was himself a suspect in the case.

He was kept by the police away from the office for alxmt eight months during the investigation, he I was asked to proceed on leave at the instance of the police and ills leave was extended at their request.

On the expiry of his leave he was kept off duty without salary for a period of about five months but :.. later on he was paid his full salary after he had given evidence in support of the prosecution. He made additions and improvements on vital points from stage to ,. stage of his deposition and in certain particulars his -. statement was contradicted by Ramaswami, P. W. 30 . . •'~ On his , own admission he is an accomplice in respect

Hanumant

The State of

Madhya Pradesh.

Mahajan /.

' . 1952

Hanumant v.

The Stat.e of

Madhya Pradesh. ,-.

Mahaian ].

of the forgery of Exhibit P-27, one of the documents alleged to have been forged for purposes of. the defence but concerning which no prosecution was started.

Exhibit P-27. bears date 31st October, 1946.

Gadgil's statement about it is as follows :

~, I

' . "He (Nargundkar) put down his signature and the date 31st October, ,1946. This. order was actually written by Sh. Nargundkar \n the note-sheet, Exhibit P-27, in the month of July or August, 1947. The dates were antedated. In the margin of the note sheet I have put down my ., initials S. W. G. and put the date 31st October, 1946.

This note-sheet was not prepared on 31st October, 1946. He asked me to keep it in my custody."

The wit:lless admittedly became a party to the preparation of a forged document.

Whether he was telling the truth, or he was telling a lie, as appears likely from his cross-examination, he is in either event, not a person on whom any relian.ce could be placed.

It is curious that this aspect of the evidence of Gadgil has not been noticed by any of the three courts below.

When the ourt of first istance ad the court of appeal arnve .. t concurrent. findings of fact after believing the evidence of a witness, this court as the final court does not disturb such findings, save m most exceptional cases.

But where a finding of fact is arrivd at on the testimony. of a witness of. the character of Gadgil and the courts below depart from the rule of prudence that such . testimony should not be accepted. unless it is corroborated by some other evidence on

...

the record, a finding of that character in the circum, stances of a particular. case may well be reviewed even.

OU , special leave if the other circumstances in the c; l.Se require . it,, and sµbstantial and grave injustice has resulted.. After £ully examining t; he material on tht; record we have reached the conclusion that the courts below were in error in accepting the uncorroborated testimony of Gadgil to find . the. fact that he handed, .. over the tenders . to Nargundkar. on . the 9tli ., November, 1946.

The witness was not allowed to live ill a free atmosphere and was kept under poliC:e

t ..

surveillance during the whole of the period of investi gation and the trial and was rewarded with payment of his full salary after he had given evidence to the satisfaction of the prosecution.

He s a person who (elt no hesitation in deposing on oath that he willingly' became a party to the forgery of Exhibit P-27.

1'952

Hanumant

The State df

Maahya

Pradesh;

Assuming that the accused Nargundkar had taken Mahaian /. the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above.

No direct evidence was, adduced in proof of those facts.

Reliance was placed by the prosecution and by the courts below on certain circumstances, and intrinsic eyidence contained in the impugned document, Exhibit P-3A.

In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind.

In such cases there is always the danger that conjecture or. suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg v. Hodge (1) where lie said :-

"The mind was apt to take a pleasure in adapting .circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was ii:, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

It is well to remember that in cases where the evidence is of a circumstantial nature, the circum~ stances from which the conclusion of guilt is fo be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis, but the one proposed to be proved.

(1) (1838) 2 Lew. 227.

Hanumant

.v.

The State of

Madhya Pradesh.

MahajiJ11 f.

other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclµsion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intnns1c within Exhibit P-3A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case.

The trial magistrate was of the opinion that friendship between the two accused was of a very rapid growth and that their relations were very intimate and accused 2 was in a position to influence accused 1.

He thus found that there was motive for the commission of the crime.

The learned Sessions Judge disagreed with this finding and the High Court agreed with the Sessions Judge on this point. It observed that the evidence which tended to prove friendship or undue favour was not such as to form the basis for a finding.

It further found that there was nothing to show that the appellant Nargundkar received any illegal reward or the promise of one for showing Doongaji's tender to accused R. S. Patel.

The first circumstance therefore on which the trial Judge placed considerable reliance was negatived by the court of appeal and in revision.

It having been found that there was no motive whatsoever for accused Nargundkar to show the tenders to accused Patel and to take a substituted tender from him, the main link in the chain of reasoning of the trial court vanishes.

Amiable relations between the two accused or their official relationship could not be regarded as sufficient motive for committing the crime of forgery.

The mainstay of the prosecution case is the intrinsic evidence of the contents of Exhibit P-3A itself which according to the courts below are unusual, peculiar and strange and which according to the Advocate- General could not be there if it was a genuine

~ , .\

document.

The argument would have force provided the premises on which it is based are correct.

Having examined the contents of Exhibit P-3A, we do not find anything very unusual or extraordinary in it which could not be there without its author having seen Exhibit P-6.

Hanumant v.

The State of Madhya Pradesh.

We now proceed to examine the s0-called peculiar Mahajan /. features m Exhibit P-3A.

In order to appreciate the points made by the learned Advocate-General it is necessary to set out certain facts.

Exhibit P-9 is the notice calling for tenders for the supply of country spirit in the Seoni distillery area.

The rates which were called for by this notice were as follows :

1. Flat rate for four years.

2. Rates on sliding scale for four years,

3. All-in-rate on the sliding scale for one year 1947-48.

4. Flat rates on the basis of the price of mahua flowers for three years 1948-51.

5. All-in-sliding scale rate on the basis of the price of mahua flowers for three years 1948-51.

The trial magistrate held on a construction of it that no rate or rates of separate years were asked for in this notice and that one flat rate was only asked for, for four years.

Habibur Rahman and Zakirur Rahman in their tenders, Exhibits P-4 and P-5, quoted one flat rate for four years and did not mention separate flat rates for separate years.

Doongaji m his tender, Exhibit

P-6, mentioned separate flat rates for each separate year also.

He did so because he consulted one Mr.

Munshi, Personal Assistant to the Excise Commissioner, whether he should quote each rate separately and Mr. Munshi told him that he could give flat rate for the combined years as well as flat rates and also sliding scale rates for each year separately.

Admittedly accused 2 was working as an agent of Habibur Rahman and his son Zakirur Rahman for the distillery contracts of Betul and Seoni, and, therefore, he must have been the author not only of his own tender but of the tenders submitted bv Habibur Rahman and Zakirur Rahman, Exhibits

Hanumant v.

The Stat~ of Madhya Pradesh,

Mahajan/,

llOO

SUPREME COURT REPORTS [1952]

P-4 and P-5.

All of them were acting together with the object of getting the contract though they were submitting three separate tenders.

The trial magistrate held that as Habibur Rahman and Zakirur Rahman gave one flat' rate for four years as called for by Exhibit P-9, but accused 2, the author of all these tenders, did not do it in Exhibit P-3A, but followed the method of Doongaji in giving the rates of each year separately as well as the rate for the combined four years.

He must have done so as he was shown the tender Exhibit P-6.

The question arises whether the circumstance that the accused Patel and Habibur Rahman and' Zakirur Rahman were acting together was such from which a necessary inference arises that the accused Patel must have been the author of all the three tenders and, if he were, that he could not have departed from the method adopted by him .in preparing Exhibits

P-4 and P-5 unless and until he had seen Exhibit P-6.

We are clearly of. the opm10n that from the premises stated this inference does not necessarily follow.

Doongaji even . aftr i; eadfr1g Eiilibii: P-9, could not make up his mind whether to submit the tender with one flat rate for all th~ four years or whether to submit it by giving separate flat rates for .each of the four years and made enquiry from .the office of the Excise Commissioner and then quoted separate rates for each of the four years separately also: Patel ho has admittedly considerable . experiene , of distillery contracts and about the method. 0f submitting tenders might very well have thought that it was best to quote a flat rate for all the years as well as a flat rate for each year separately.

The circumstance that he did, not .do so in the other two tenders prepared by him does not materially advance. the prosecution case. . The very object of submitting several tenders on behalf of three persons acting. in unison was to indiCate to the excise authorities that they were being submitt, ed by three different persons. If there . were no. variations whatsoever between tho; e tendrs that woi'.il<l have ' defeated the ,/ery purpose of submitting them.

Moreover,. a. variation of this trifling nature between Exhibits P-3A and P-4

f ,_

S.C.R.

SuPREME COURT REPORTS 1101

and P-5 cannot be said to be of such an unusual or of such an extraordinary character as to warrant the inference that it could not have been made except without a look at the tender of Doongaji. The circumstance is of a neutral character and the trial magistrate and the learned Sessions Judge gave undue importance to it being obsessed with the idea that such ' ' b a quotation of flat rates for each year could not e mentioned in a tender by a contractor merely on a construction of Exhibit P-9 and without any further inquiry or without seeing the _tender of somebody else who had followed that method.

The next <; ircumstance on which considerable reliance is placed is that accused 2 studiously maintained rates below the rates of Doongaji throughout, that when Doongaji lowered his rates for the second year accused 2 did the same, and when Doongaji raised his rates for the third and fourth years accused 2 also did so, at the same time maintaining rates lower than Doongaji's rats. , It is said that the system followed by Habibur Rahman and Zakirur Rahman and Patel originally must have been the same as Patel was the author of all the three tenders, that Habibur Rahman' s rates were higher .. than Zakirur Rahman's by six pies and this variation was constant throughout, that in Patel's original tender which must have followd the same. system his rates. would be lower than Habibur Rahman's by three pies throughout. Exhibit P-3A, however, shows that this is not so.

Patel abandoned . the system when he . found that his rates on his original scheme would be higher than the corresponding rates of Doongaji. earned Advoate General contended that it was impossible for Patel unless he had seen Exhibit P-6, to quote rates of a large number of items numbering about 197, in every case lower than the rates given in Exhibit P-6 and the circumstance that in not a single case. he has quoted a higher rate than Exhibit P-6 is conclusive of the fact that he had done so after he had seen Exhibit P-6.

as al.so said that there is no satisfactory explanation' why Patel abandoned the scheme adopted by him in

Hanumant v.

The State of

Madhya Pradesh.

Mahajan J.

Hanumant v.

Tht Stat• of

Madhya Pradesh.

MahaJan /.

drawing up Exhibits P-4 and P-5 and his original tender.

In our view, this circumstance again is not so strange or peculiar as was made out by the learned Advocate-General or in the courts below. In the first place, there is no material whatsoever for the assumption that the so-called original tender was drawn up on the same scheme as Exhibits P-4 and P-5 or that there was a constant variation in rates between it and Habibur Rahman's tender.

It has been assumed on !J1ere surmise that the first five rates in the tender, Exhibit P-3A, are the rates that had been originally quoted.

The original "tender is not forthcoming and there is no evidence at all about its contents.

Moreover, in the deposition of Doongaji it was elicited that in the year 1942 when tenders for the Seoni distillery contract were called for, the rates quoted by Ratanshah were lower than his rates for all items. He, however, voluntarily added that Ratanshah obtained his rates of the previous contracts before he submitted his tender for the year 1942 and that he had made a reduction of annas two to three in those rates but he was forced to admit that the rate of Ratanshah in the tender was not only lower than his but was also lower throughout than the rates of Laxminarain, Haji Ismail and Habibur Rahman even without seeing their tenders.

From this statement it is quite clear that even without seeing the tenders of different tenderers a eontractor may quote rock-bottom rates of all items on his own calculation or impelled by the desire of taking the contract anyhow.

We do not follow why Patel could not do in 1946 what was done by Ratanshah in his tenders in 1942 and quote rates lower in all particulars and regarding all items than the rates of Doongaji. If a person is out to give rockbottom rates and his calculation is such that his rates work out lower than tihe rates of others, it may well be that he may quote lower rates in respect of all items. .

It was then said that Patel had adopted a particular plan in submitting the three tenders, . of himself, Habibur Rahman and Zakirur Rahman and that his plan was that his rates should be l<Jss by three pies

. than the rates he had quoted for Habibur Rahman, that in the first five items of Exhibit 145 he stuck to that plan and did not alter the rates of those items as originally submitted by him, as those rates were lower than the rates of Doongaji but from the sixth item onwards he substituted new rates for the ones he had originally submitted and he departed from the plan so that his rates for each item were to be lower only by three pies as compared with the rates of Habibur Rahman.

It is no doubt true that Patel did not adhere to the plan that he adopted in the first five items of his tender but is that a circumstance from which any inference can be drawn that the first five items are a part of his original tender or that he did so depart from them because he had seen Exhibit P-6 and he wanted to underbid Doongaji. As we have already said, the object of submitting three separate tenders ostensibly by persons who were acting together was to secure the contract in one or the other name and Patel who was the author of all the three documents may very well in his own document have quoted much lower figures than were quoted by Habibur Rahman and Zakirur Rahman, in order also to give the impression that all these tenders had not been submitted by one and the same person.

Be that as it may, a closer examination of the tenders of Doongaji and Patel completely negatives the theory of the courts below.

The rates quoted in the first five items of Exhibit P-145 are lower than the rates of Doongaji by 102, 69, 18, 12 and 9 pies respectively.

Even in the subsequent quotations except in one case where the disparity in the rates of Doongaji and Patel is only two pies, the disparity in the rates is from 9 to 11 pies.

Patel is certainly a businessman and the whole object of quoting the rates was to earn the maximum profit.

If he had seen the tender of Doongaji he would have modelled the rates in a manner that would give him the highest profit.

The learned Advocate-General could not suggest any reason whatsoever why Patel would maintain his quotation for the quantity of 50,000 gallons at Rs. 2-10-6 when the rate of Doongaji was Rs. 3-3-0.

Hanumant 1'.

The State of

Madhya

Pradesh.

Mahaian /.

1952 ,_,_

Hanumant . v.

The State of ' Madhya

Pradesh.

Mahajan /.

•• . i. i ' j - • . [195~]

He, could easily raise the quotation to Rs. 3 and similarly in all other cases he could have underbid Doongaji by 2, 3 or 6 pies at the most. He need not have maintained a disparity of 9 to 11 pies between his rates and the rates of Doongaji.

In our opinion, therefore, no conclusion of any character could be drawn from the disparity in the rates of Doongaji or of Patel or of the expected uniformity in the rates of Habibur Rahman or of R. S. Patel which would establish that Exhibit P-3A had been prepared by having a look at Exhibit P-6.

Another circumstance on which reliance was placed was that certain rates in Exhibit P-3A are lower than the corresponding rates in Exhibit P-6 by only one or two pies.

There is no doubt that one or two rates are lower by two pies than the rates in Exhibit P-6 but 'nothing follows from that innocent circumstance, unless one starts with a presumption of guilt. Once it is assumed that the tender of Doongaji was shown to Patel, all these circumstances might to some extent fit in with the view that in certain respects it may have been copied from Exhibit P-6.

The courts below fell into this error and departed from the rule that in a criminal case an accused person is to be presumed to be innocent and that it is for thP. prosecution to establish his guilt conclusively.

Next it was urged that in the covering letter Exhibit P-3 sent by Patel he memions three appen- dices numbered 1, 2 and 3. The same expressioP. finds place in the covering letter Exhibit P-4 of Habibur Rahman and Exhibit P-5 of Zakirur Rahman, that appendices 1 to 3 of the tender of Habibur Rahman and Zakirur Rahman correctly answer to the reference in the covering letters but this is not so in Patel's case; on the other hand, instead of appendix 1, Patel has appendix l(a) and l(b) and the _number of his appendices thus goes' up t<i four and this departure from Exhibits P-4 and P-5 came about because of his having seeri Exhibit P-6 and the number of appendices annexed to it.

It was urged that 'the original tender of Patel must have contained three appendices like those of Habibur "Rahman amt . ' . !

.. -

Zakirur Rahman and not appendix l(a) and I(b) as now found and that this circumstance showed substitution of the tender.

The learned magistrate, in our opinion, in giving importance to this circumstance mislead himself completely.

In the first place, it is not accurate to say that the expression appendices 1, 2 and 3 was common to the covering letters Exhibits

P-4 and

P-5.

In Exhibit P-5 the appendices are marked A, B and C.

Therefore, no uniform method was adopted by Patel in marking the appendices to the tenders, Exhibits P-4 and P-5.

Secondly, there is no conflict in the expression of the appendices of Habbibur Rahman and Patel. They have been marked as 1, 2 and 3 and a mere subdivision of the first appendix into (a) and (b) could not be taken to be a departure from the method adopted in the description of the appendices.

It may further be observed that the covering letter signed by Patel mentions four appendices, while the covering letters of Habibur and Zakirur Rahman only mention three appendices. The trial magistrate as well as the Sessions Judge ignorc; d all these differences in the method of the description of the appendices and assumed that they had been uniformly described.

The result therefore is that all these so-called peculiar features found by the courts below in Exhibit P-3A should be eliminated from consideration and it must be held that there are really no cucumstances inconsistent with Exhibit

P-3A being a genuine document.

It could have been made out without looking at Exhibit P-6.

In this view of the case the whole basis on which the judgments of the courts below are founded vanishes, and in the absence of any evidence of motive, we are of the opinion that the facts did not on any just or legal view of them warrant a conviction, and although the proceedings are taken to have been unobjectionable in form, justice has gravely and injurious1y miscarried.

We therefore set aside the convktion of both the appellants on the second charge and acquit them.

Hanumant v.

The State of Madhya Pradesh.

Mahajan /.

Hanumant v.

The Stai. of Madhya Pradesh.

Mahajan /.

In order to appreciate the third charge, it Is necessary to set out the terms of Exhibit P-24 which it IS said was antedated in order tt> create evidence for the defence of the accused and to miure Amarnath.

It is in these terms : " Congress Nagar, Nagpur, 20th November, 1946.

The Commissioner of Excise, C. P. & Berar, Nagpur.

Dear Sir,

I beg to submit few of my complaints for such action as you may be pleased to take, which aie as under.

I went to see Mr. Amarnath last week, at his residence in connection with Seoni Distillery work. I saw Mr. Edulji and his partner with Mr. Amarnath in the office room of his residence with some office files.

From the papers I could recognize my tender open on the table in front of them.

As soon as I went there, all of them were astonished and they could not speak with me for a moment, and then they carried on some dry general conversation with me.

Same way after about a week, when I went to Seoni for mahua bill, when Mr.

Amarnath visited for sanctioning the advance, I had the opportunity to see Mr. Amarnath in dak bungalow at about 9-30 p. m. when I saw Mr. Mehta the ex-manager of Mr. Edulji (who ii also the manager of Seoni Electric Co.) with Mr. Amarnath near table with the same file of the tender. No doubt after seeing the above two incidents I requested Mr. Amarnath to be fair in this affair.

I am bringing these incidents to your notice, as I fear that something underhand may not be going on, and I am afraid that my tender may be tampered with.

Hoping to get justice,

Yours faithfully, Sd. R. S. Patel."

' ..

• -

The words "Congress Nagar, Nagpur, 20th November, 1946" are in manuscr 11pt, while the rest of the letter has been typed.

The digit 6 of the year 1946 has been over-written on digit 7 written in continental style and i't is apparent to the naked eye that originally the writer wrote 7 and subsequently changed it to 6.

It was contended by the learned Advocate- General,-and this is the finding of the courts below, -that this letter was written some time during the investigation of the case in July or August 1947, and was antedated in order to implicate Amarnath and to use it as evidence in defence.

The point for decision is whether there is any evidence whatsoever to establish this fact.

We have not been able to discover any such evidence on the reconi; on the other hand the instrinsic evidence in the letter proves that most likely jn came into existence on the date It

bears.

The relevant facts are that the tenders were opened by accused Nargundkar on the 11th November, 1946, he handed them over after making the endorsements to Amarnath and Amarnath had to submit a report about them.

It is alleged in thi~ letter that "last week", i.e., during the week commencing on the 11th November, 1946, accused Patel went to see Amarnath and there he saw Edulji Doongaji with him with his tender open on his table in front of him and that he was astonished at it, that about a week later he again went to Seoni and had the opportunity to see Amarnath and Mr.

Mehta, exmanager of Edulji Doongaji, was with him and the tender file was lying there.

It was stated that he had requested Amarnath to be fair in this affair and the Commissioner was asked that he should see that his tender was not tampered with and he got justice. The whole purpose and object of this letter was to protect himself against any underhand dealing in the grant ing of the contract. In his statement under section 342, Cr. P. C., Patel said that he saw Amarnatt on the morning of the 15th or 16th November, 1946, and he met Amarnath at Seoni at the distillery premises on the 16th November, 1946, and on the sam<!

16-10 S. C. India 71

Hanumant v.

The State of Madhya Prades/J.

Mahajan/.

Hanumant v.

TheState of Madhya Pradesh.

Mahajan J.

day he met him at about 9 p.m. at: the Seoni dak bungalow and that he agam met Him on the 17th November, at 10 a.m.

He also stabed that he had gone to see Amarnath at his residence at Nagpur between the dates 12th and 18th November.

It was contended by the learned Advocate-General that his statement was inconsistent with the recitals contained

111 Exhibit P-24.

We see nothing inconsistent between this statement and the recitals.

If accused Patel saw Amarnath on the 12th, the letter having been written on the 20th November, it would be quite a correct thing to say that he saw him "last week" and the next recital when he said that about a week thereafter he saw him again is quite consistent with his going and seeing him on the 16th or 17th November.

That would be about a week after the first visit.

To draw any conclusion adverse to 'the accused from a slight inaccuracy in the description of dates and to conclude therefrom that it was established that the accused Patel had seen Amarnath on the 9th November, 1946, amounts to unnecessarily stretching a point against the accused.

The recitals m the letter, true or false, are quite consistent with the letter bearing date 20th November, 1946.

The magistrate observed that the vagueness about the date and the week shows that the allegations therein are not correct.

We have not been able to understand how the vagueness about the date could lead to the conclusion arrived at.

Emphasis was laid on the overwriting of the figure 6 over the figure 7 in the manuscript part of the letter. It was said that the normal expenence is that it becomes a subconscious habit •o automatically write the year correctly when several months have elaped after the change of the year 2nd that by sheer force of habit the correct year must have been put down when the date was entered in the letter Exhibit P-24 and that the figure was subsequently changed to 6 and this fact was an indication tliat the letter was written some time in the year 1947.

In our view this argument again involves an element

' •

of conjecture.

The mistake may well have been inadvertently made and the correction made there and then.

That such mistakes are not very uncommon or unusual and occur in official documents is fully established on the record, in para 93 of the judgment of the learned Sessions Judge and it is said as follows:

"The appellants have produced a file which is Exhibit ID-35. It contains a sheet which bears pages 9 and 10.

On the 10th page there are two office notesone is written by A. M. Naidu and the other by the appellant Nargundkar.

A. M. Naidu below his signature has written '6-4-1948'.

The appellant Nargundkar below his signature has written '6-4-1947'.

The other notes in the office file show that the correct date of the two signatures was 6th August,

1947. Thus in this sheet there are two mistakes in mentioning the number of the month and one mistake in mentioning the number of the year. The appellants contend that such mistakes are possible. Nobody can deny that such mistakes are possible ; but it has to be decided what inferences can be drawn from such mistakes, if there is other evidence also."

We have looked in vain for other evidern; e to prove that the letter was not written on the date it bears.

Even Gadgil could not explain why he said that the letter was written in July, 1946. It is clear that he is not telling the truth in this respect.

The endorsement made on the letter by accused Nargundkar clearly bears the date 21st November, 1946, and if this letter was not given to him on the date of the endorsement and was given to him several months afterwards he would in ordinary course have made some note either on the letter or in the receipt register of his office when that letter was received by him.

Then it was said that this letter was not in the file of the tenders which were kept separate.

The Commissioner had noted that the letter be filed and he sent it to the office.

If the office people did not put it in the file, from that circumstance no adverse inference could

Hanumant v.

The State of

Madhya Pr.adesh.

Mahajan /.

Hanumant v.

The State of Madhya Pradesh.

Mahajan/.

lllO

SUPREME COURT REPORTS [1952]

be drawn as to the date that the letter bears.

It is clear that no forger would have in such a clumsy manner corrected 1947 into 1946 so as to leave the original figure "7" intact and thus leave evidence of its suspicious character writ large on its face.

There was no hurry about it, and a second letter without the alteration could easily have been typed.

Next it was argued that the letter was not typed on the office typewriter that was in those davs, viz., article B, and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946.

On this point evidence of certain experts was led.

The High Court rightly held that opinion of such experts was not admissible under the Jndian Evidence Act as they did not fall within the ambit of section 45 of the Act. This view of the High Court was not, contested before us.

It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it. The trial magistrate and the learned Sessions Judge used this evide1ice to arrive at the finding that, as the letter wa~ typed on article A which had not reached Nagpur till the end of December, 1946, obviously the letter was antedated. Their conclusion based on inadmissible evidence has therefore to be ignored.

It was further held that the evidence of experts was corroborated by the statements of the accused recorded under section 342.

The accused Patel, when questioned about this letter, made the following : i statement:

"Exhibit P-31 was typed on the office typewriter article B. Exhibit P-24 being my personal complaint letter was typed by my Personal Assistant on one of the typewriters which were brought in the same office for trial, with a view to purchase. As this was my personal complaint no copy of it was kept in the Correspondence Files Exhibit P-34 and Exhibit P-35 just

as there is no copy in these files of my tender Exhibit P-3A.......... In the month of September, October and November, 1946, several machines were brought for trial from various parties in our office till the typewriter article A was purchased by National Industrial Alcohol Ltd. Company."

If the evidence of the experts is elimimated, there is no material for holding that Exhibit P-24 was typed on article A.

The trial magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A.

Such use of the statement of the accused was wholly unwarranted.

It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.

An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there rema.ins no material on the record from which any inference could be drawn that the letter was not written on the date it bears.

For the reasons given above we hold that there is no evidence whatsoever on the record to prove that this letter Exhibit P-24 was antedated and ttl1at being so, the charge in respect of forgery of this letter also fails.

Read as a whole, this letter cannot be said to have been written with the intention of causing any injury to Amarnath or for the purpose of creating a defence in respect of the second charge.

The letter read as a whole is an innocuous document and its dominant purpose and intent was to safeguard the interests of accused Patel and to protect him against any underhand or unfair act of his ri!val contractors.

We cannot infer any intent to defraud or any intention to injure Amarnath, though in order to protect himself accused Patel maL!c certain allegations against him.

We therefore set aside the conviction of both the appeallants under the third charge and acquit them.

Hanumant v.

The State of Madhya Pradesh.

Mahajan/.

Hanumant v. T lie State of Madhya Pradesh.

Mahaian /.

Oct. 16.

The result is that the consolidated appeal is allowed, the judgments of all the three courts below are set aside and the appellants are acquitted.

Appellants acquitted.

Agent for the appellant in Criminal Appeal No. 56 of 1951 : Ganpat Rai.

Agent for the appellant in Criminal Appeal No. 57 of 1951 : Rajinder Narain.

Agent for the respondent: P. A. Mehta.

STATE OF TRAVANCORE-COCHIN AND

OTHERS

THE BOMBAY CO. LTD.

STATE OF TRAVANCORE-COCHIN AND

ANOTHER

MICHAEL FREDERICK AND BROS.

STATE OF TRAVANCORE-COCHIN AND

ANOTHER

STAGBROOK RUBBER AND TEA

ESTATES LTD.

UNION OF

INDIA,

STATE OF

BOMBAY, STATil OF

MADRAS, STATil OF

HYDERABAD,

STATE OF

PUNJAB, STATil OF

MYSORE,

STATE

OF 0RISSA

AND

STATE OF UTIAR PRADESH-Interveners.

[PATANJALI SAsrn1 C.J., MuKHERJEA, DAs,

VIVIAN BosE and Gnm.AM HASAN JJ.]

Constitution of India, Article 286( I) ( b )-Sales tax-Exemp. tion of sales in the course of export or import-Meant"ng of "in the course of"-..'iolcs tvhel'e property passes and sale is co1nplete before

' \

HANUMANT

THE STATE OF MADHYA PRADESH

STATE OF MADHYA PRADESH

MEHR CHAND MAHAJAN

BHAGWATI JJ.

C. R. Hemeon

State of Madhya Pradesh

N. C. Chatterjee

B. Bannerjee

A. K. Datt

Bakshi Tek Chand

K. V. Tambay

T. L. Shiv de

T. P. Naik

MAHAJAN

H.

Nargundkar

R. S. Patel

B. K.

Chaudhri

R. S.

Patel

Nargundkar

section

120

section 465

I.P.C

article 136

Constitution of India

24th March, 1950

R. S. Patel

Madras

11th September, 1946

Nargundkar

Seoni

1st April, 1947

31st March, 1951

31st October, 1946

K. B. Habibur Rahman

Zakirur Rahman

Edulji P.

Doongaji

S. W. Gadgil

Gadgil

Hanumant

State of

Madhya Pradesh

Mahajan

E. J. Doongaji

R. S. Patel

11th November, 1946

Amarnath

Dilbagrai

20th November, 1946

Doongaji

30th December, 1946

National Industrial Alcohol Co., Nagpur

21st November, 1946

2nd October, 1947

S. Sanyal

9th November, 1946

Exrubit

Gadgil

Ramaswami

State of

Madhya Pradesh.

Mahajan

Stat.e of

Madhya Pradesh

State

Mahaian

Alderson

R. S. Patel

Habibur Rahman

Zakirur Rahman

Munshi

Betul

Seoni

MahaJan

Ratanshah

Laxminarain

Haji Ismail

State of

Madhya

Pradesh.

Mahaian

State of ' Madhya

Pradesh.

Mahajan

Habbibur Rahman

Habibur

Mahajan

Stai. of Madhya Pradesh

Amarnath

Seoni Distillery

Edulji

Mehta

Seoni Electric Co.

Edulji Doongaji

section 342

Amarnatt

State of Madhya Prades

of Madhya Pradesh

Mahajan

Nagpur

A. M. Naidu

A. M. Naidu

section 45

section 342

Ganpat Rai

Rajinder Narain

P. A. Mehta

STATE OF TRAVANCORE-COCHIN

STAGBROOK RUBBER

STATE OF UTIAR PRADESH

PATANJALI SAsrn1

MuKHERJEA

VIVIAN BosE

AM HASAN

Constitution of India

Article 286( I)


Hanumant v. T lie State of Madhya Pradesh.

Mahaian /.

Oct. 16.

SUPREME COURT REPORTS (1952]

The result is that the consolidated appeal is allowed, the judgments of all the three courts below are set aside and the appellants are acquitted.

Appellants acquitted.

Agent for the appellant in Criminal Appeal No. 56 of 1951 : Ganpat Rai.

Agent for the appellant in Criminal Appeal No. 57 of 1951 : Rajinder Narain.

Agent for the respondent: P. A. Mehta.

STATE OF TRAVANCORE-COCHIN AND

OTHERS

THE BOMBAY CO. LTD.

STATE OF TRAVANCORE-COCHIN AND

ANOTHER

MICHAEL FREDERICK AND BROS.

STATE OF TRAVANCORE-COCHIN AND

ANOTHER

STAGBROOK RUBBER AND TEA

ESTATES LTD.

UNION OF

INDIA,

STATE OF

BOMBAY, STATil OF

MADRAS, STATil OF

HYDERABAD,

STATE OF

PUNJAB, STATil OF

MYSORE,

STATE

OF 0RISSA

AND

STATE OF UTIAR PRADESH-Interveners.

[PATANJALI SAsrn1 C.J., MuKHERJEA, DAs,

VIVIAN BosE and Gnm.AM HASAN JJ.]

Constitution of India, Article 286( I) ( b )-Sales tax-Exemp. tion of sales in the course of export or import-Meant"ng of "in the course of"-..'iolcs tvhel'e property passes and sale is co1nplete before

' \

goods move out of State, whether exempt-Interpretation of article 286 (!) (b)-Decisions on Commerce and Import-Export clauses of American Constitution-Speeches of Members of Constituent Assembly-Relevancy.

Whatever else may or may not fall within art. 286( 1) (b) of the Constitution, sales and purchases which themselves occasion the export or the import of the goods as the case may be, out of or into, the territory of India come within the exemption.

The view that no sale or purchase can be said to take place in the course of export or import unless tho property in the goods is transferred to the buyer during their actual movement, as for instance, where the shipping documents are indorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped or where such documents are cleared on payment, or on acceptance, by the Indian buyer before the arrival of the goods within the State, puts too narrow a construction upon art. 286(1)(b) and is not correct.

A sale by export involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.

Such a sale cannot be dissociated from the export without which it cannot be dtectuated an<l the sale and the resultant export form parts of a single transaction. Of these two integrated activities which to gether constitute an export sale. whichever first occurs can well he rer1rded as taking place in the course of the other.

Even in cases where the property in the goods passed to the foreign buyers and the sales were thm completed, within the State before the goods commence<l their journey from the State, the sales must be regarded as having taken place in the course of the

cport and therefore ,.,; empt under art. 286(1)(h).

The Commerce clause (article l, section 8(3)) and the Import-Export clauses [article I, sections 9 (5) anJ 10 (2)] of the American Constitution are widely different in language, scope and purpose, .rnd a varying body of doctrines and tests have grown around them interpreting, extending or restricting from time to time, their operation and application in the context of

I he expanding American commerce and industry and much help qnnot be derived from them in the solution of the problems arising under article 286 of the Indian Constitution.

Speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution cannot be used as aids for interpreting the Constitution.

Administrator General of Bengal v. Prem Nath Mullick [22 LA. 107 at 1181, A. K. Gopalan v. The State [(1950) S.C.R. 881, United States v. Trans-Missouri Freight Association

[ 169 U.S. 290 at 318) referred to. 143

State of Travancore-

Cochin and Others

The Bombay

Co. Ltd.

State of Travancore

Cochin 11nd Others v.

TAc Bombay

Co. Ltd.

CIVIL

APPELLATE JuR1snicTioN : Civil Appeal No. 25 of 1952.

Appeals from the Judgment and Order dated the 10th day of January, 1952, of the High Court of Judicature of Travancore-Cochin at Ernakulam (Kunhiraman C.J. and Subramania Iyer J.) in Original Petitions Nos. 4, 23 and 24 of 1951 respectively.

T. N. Subramania Iyer, Advocate-Genet', a/ of Travancore-Cochin, (T. R. Balakrishna Iyer and M. R. Krishna Pillai, with him) for the State of Travancore-Cochin.

N. C. Chatterjee (C.R. Pattabhirainan, with him) for the respondent in Civil Appeal No. 25 of 1952.

C. R. Pattabhi112man for the respondent m Civil Appeal No. 28 of 1952.

N. C. Chatterjee (Thomas Vellappally, with him) for the respondent in Civil Appeal No. 29 of 1952.

M. C.

Setalvad, Attorney-General for India, and C. K. Daplitary, Solicitor-General of India ( G. N. foshi, with them) for the Union of India.

1952. October 16. The Judgment of the Court was delivered by

PATANJALI SAsmI C.J.-These arc connected appeals from the judgment and order of the High Court of Travancore-Cochin quashing the assessments under the United State of Travancore and Cochin Sales Tax Act (No. 11 of 1125 M.E.) (hereinafter referred to

as "the Act"') on the respondents on the turnover of the sales of the commodities ( coir products in C.A. 25, lemon grass oil in C.A. 28 and tea in C.A. 29) in which they respectively deal.

The dealings followed more or less the same pattern in all the cases and consisted of export sales of the respective commodities to foreign buyers on c.i.f. or f.o.b. terms as the case may be.

The respondents in each case claimed exemption from assessm<; nt in respect of the sales effected by them on the ground, inter alia, that such sales . took place "in the course of the export of the goods out of the territory of India" within the meaning of article

....

286(1) (b) of the Constitution. The Sales Tax Authorities rejected the contention as, in their view, the sales. were completed before the goo<ls were shipped and could not, therefore, be considered to have taken place in the course of the export.

Thereupon the respondents by separate petitions applied t'O the High Court of the United States of Travancore and Cochin (hereinafter referred to as the State) under article 226 of the Constitution for issue of writs of certiorari and prohibition quashing the assessments made on them and prohibiting such assessment in future.

The applications were heard, along with nine 9ther applications for similar reliefs by dealers iri cashew nuts, by a Division Bench (Khunhiraman C.J. and Subramania Iyer J.) who upheld the claim of exemption and quashed the assessment orders in respect of the transactions subsequent to the commencement of the Constitution. From that decision the State has preferred appeals in all the cases on a certificate granted by the High Court under article 132 ( 1) of the Constitution.

As the appeals involved important questions of law which may have a bearing on the sales tax legislation Qf the various States in India, this Court directed notice of these proceedings to the Attorney-General for India and the Advocates-General of those States, and they have intervened and participated m the debate at the hearing of these appeals.

When the argument had proceeded for some time, it was discovered that the material facts relating to the course of dealings in cashew nuts, which were more complex in character, had not been clearly ascertained and consequently the relative appeals were remitted to the High Court for findings on certain points agreed upon by the parties.

These three appeals were, 'however, fully heard as they were found to admit of disposal on the materials on record.

Article 286(1), on which the respondents found their claim to exemption, runs thus :

State of Travancore-

Cochin and Others

The Bombay Co. Ltd.

Patanjali Sastri C. /.

State of Travancorc

Cochin and Others

The Bombay

Co. Ltd.

Patanjali Sastri C. /.

No law of a State shall impose, or authorise the imposition of, a t!lx on the sale or purchase of goods where such sale or purchase takes place- ( a) outside the State; or

(b) in the course of the inwort of the goods into, or export of the goods out of, the territory of India.

Explan11tion.-For the purposes of sub-clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been deliYered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goo<ls the property in the goods has by reason of such sale or purchase passed m another State.

On the scope and meaning of clause (b ), the learned Judges expressed their view as follows :-

"The words 'in the course of' make the scope of thi.s clause very wide. It is not restricted to the point of time at which goods are imported into or exported from India. The series of transactions which necessarily precede export or import of goods will come within the purview of this clause.

Therefore, while in the course of that: senes of transactions, the sale has taken place, such a sale 1s exempted from the levy of sales tax.

The sale may have taken place within the boundaries of the State.

Even then sales tax cannot be levied if the sale had taken place while the goods were m the conrse of import into lndia or Ill the conrse of export out of India.

We arc stressing this point because both parties 111 what we may describe as the cashew nut cases entered into a lengthy discussion as to the exact point of time when the sale became completed and as to the exact place where the goods were when the sale became a completed transaction."

On this interpretation, local purchases "made for the purpose of export" were held by the learned Judges to be "integral parts of the process of exporting".

In support of this construction the learned Judges referred

• f

...

~ to the debates in the Constituent Assembly on clause 264-A of the draft Constitution which corresponded to article 286 and quoted from the speech of one of t the members who unsuccessfully moved an amendment defining export as meaning the last transaction and import as meaning the first transaction.

~ In view of the wide construction thus placed upon clause (b) of article 286 ( 1), the arguments before us ranged over a large field, and as many as four different ':) views as to its scope and meaning were pressed upon us for our acceptance :- ( 1) The exemption is limited to sales by export and purchases by import, that is to say, those sales and purchases which occasion the export or import as the case mav be. and extends to no other transactions -• however diiectlyor immediately connected, in intention or purpose, with such sales or purchases, and wheresoever the property in the goods may pass to the buyer.

Thi~ is the view put forward on behalf of the ' State of Madras.

The Advocate-General thought that a State_ could not impose sales tax though title passed within State limits while the goods were still under • transport on the high seas and no question of exemption could •herefore arise. He said. however, that no such case had actually arisen.

(2) In addition to the sales and purchases of the kind described above, the exemption covers the last purchase by the exporter and the first sale by the importer, if any, so directly and proximately connected with the export sale or import purchase as to form _) part of the same transaction.

This view was sponsored by the Attorney-General who was also inclined to think, as advised at the moment, that sales or purtchases made while the goods were on the high seas would be exempt, but he would prefer not to go into the wider question, because, whatever view was '\ taken, sales such as those involved m lhe present -• cases must, in any event, be exempt.

(3) The exemption covers only those sales and purchases under which the property m the goods

State of Travancore- Cochin and Others v.

The Bombay Co. Ltd.

Pataniali Sastri C. /.

State of T ravancore-

Cochin and Others

The Bombay

Co. Ltd.

Patanjali Sastri C. /.

concerned is transferred from the seller to the buyer (' during the course of the transit, that is, after the goods begin to move and before they reach their foreign destination. This view is supported by the State of • Bombay and certain other States. ( 4) The view which found favour with the learned Judges of the High Court in the passage already ex- tracted.

It will be seen that the construction first mentioned 1s the narrowest and the last mentioned the widest.

We arc clearly of op11110n that the sales here in question, which occasioned the export in each case, fall within the scope of the exemption under article 286(1)(b). Such sales must of necessity be put through by transporting the goods by rail or ship or both out • of the territory of India, that is to say, by employing the machinery of export. A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea.

Such a sale cannot be dissociated from the export with- • out which it cannot be effectuated, and the sale and resultant export form parts of a single transaction.

Of these two integrated activities, which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other. Assuming without deciding that the property in the goods in the present cases passed to the foreign buyers and the sales were thus completed within the / State before the goods commence<! their journey a~ \.c.. founcl by the Sales Tax Authorities, the sales must, nevertheless, be regarded as having taken place in the course of the export and are, therefore, exempt under 1 article 286(1) (b ).

That clause, indeed, assumes that the sale had taken place within the limits of the State and exempts it if it took place in the course of the ( export of the goods concerned. In the foregoing discussion we have assumed that the word "sale" used in the Constitution has the same

'"'\meaning as in the law relating to the sale of goods, but it has been suggested in the course of the argument that it imports a wider concept than the passing • of title from the seller to the buyer which under that law is determined by highly technical rules based upon the presumed intention of the parties and liable to be displaced by their expressed intention.

We ' leave the point open as it is unnecessary for the purpose of these appeals to pronounce any opinion upon it.

It was said that, on the construction we have indicated above, a "sale in the course of export" would become practically synonymous with "export'', and would reduce clause (b) to a mere redundancy, because article 246 (1), read with entry 83 of List I of the Seventh Schedule, vests legislative power with respect .. to "duties of customs including export duties" exclusively in Parliament, and that would be sufficient to preclude State taxation of such transactions.

We sec no force in this suggestibn. It might well be argued,

), in the absence of a provision like clause (b) prohibiting in terms the levy of tax on the sale or purchase of • goods where such sales and purchases are effected through the machinery of export and import, that both the powers of taxation, though exclusively vested in the Union and the States respectively, could be exercised in respect of the same sale by export or purchase by import, the sales tax and . the export duty being regarded as essentially of a different character.

A similar argument induced the Federal Court to hold in Province of Madras v. Boddu Paidanna and Sons(') J that both central excise duty and provincial sales tax could be validly imposed on the first sale of groundnut oil and cake by the manufacturer or producer as "the

_. two taxes are economically two separate and distinct imposts".

Lest similar reasoning should lead to the imposition of such cumulative burden on the export- "'-import trade of this country which is of great impor-

_w:ance to the nation's economy, the Constituent ft\ssembly may well have thought' ; t necessary to exempt

(J) [1942] F.C.R. 90.

State of Travancore- Cochin and Others

The Bombay

Co. Ltd.

Pataniali Sastri C. /.

State of

"Travancore~

Cochin .and Others

The Bombay

Co. Ltd.

Patan1ali .Sastri C. f.

in terms sales from sales tax Constitution.

by export and purchases by import r by inserting article 286 (1) (b) in the

We are not much impressed with the contention t that no sale or purchase can be said to take place "in the course of" export or import unless the property in the goods is transferred to the buyer during their 4 actual movement, as for instance, where the shipping t documents are indorsed and delivered within the State . by the seller to a local agent of the foreign buyer after the goods haYc been actually shipped, or where such ff documents are cleared on payment, or on acceptance, by the Indian buyer before the arrival of the goods within the State.

This view, which lays undue stress on the etymology of the word "course" and formulates a mechanical test for the application of clause (b ), places, in our opinion, too narrow a construction upon that clause, in so far as it seeks to limit its operation only to sales and purchases effected during the transit of the goods, and would, if accepted, rob the exemption of much of its usefulness. j V'fe accordingly hold that whatever else may or may not fall within article 286 (l)(b), sales and purchases which themselves occasion the export or the import of the goods, as the case may be, out of or into the territory of India come within the exemption and that is enough to dispose of these appeals.

Our attention was called, in the course of the debate,

to various American decisions which hold that the power "to regulate" inter-State commerce vested exclusively in the Congress by article 1 section 8(3) of; the American Constitution (the Commerce clause) ex- \L eludes by implication the States' power of taxation only when the goods enter "the export stream", and until then such goods form part of "the general mass .,

of property in the State" subject, as such, to its jurisdiction to tax, and that this principle was also applicable to cases arising under article 1 section 9(5) and/ section 10(2) (the Import-Export clause), [see e.g., Empresa Sidernrgica v. Merced Co.(1)]. These clauses{

(1) 337 U.S. 154.

are widely different in language, scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, extending or restricting, from time to time, their operation and application in the context of the expanding American commerce and industry, and we are of opinion that not much help can be derived from them in the solution of the problems ansmg under article 286 of the Indian Constitution.

It remains only o point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally .iccepted in England, and the same rule has 1been observed in the construction of Indian statutes-see Administrator-Genet<al of Bengal v.

Prem Nath Mallick(1). The reason behind the rule was explained by one of us in Gopalan's case(2) thus :-

"A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill.

Nor is it reasonable to assume that the minds of all those legislators were in accord,"

or, as it is more tersely put in an American case-

"Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other-United States v. Trans-Missouri Freight Association (3)."

This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning.

It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Ed., p. 122.

(!) (1895) 22 I.A. 107, 118.

(3) 169 U.S. 290, 318.

(2) [ 1950] S.C.R. 88.

State of Travancore-

Cochin and Others v.

The Bombay Co. Ltd.

Patanjali Sastri C. ].

State of

Travancore~

Cochin and Others

The Bombay Co. Ltd.

Patanjali Sastri C. /.

Oct. 20.

In the result, agreeing with the conclusion of the High Court, though on different grounds, we dismiss the appeals with costs.

Appeals dismissed.

Agent for the appellants : P. A. Mehta.

Agent for the respondent in C. A. No. 25 of 52 : M. S. K. Sastri.

Agent for the respondent in C. A. No. 28 of 52 : Sardar Bahadur.

Agent for the respondent in C. A. No. 29 of 52 : V. P. K. Nambiyar.

Agent for the Interveners (Union of India, State of Bombay, State of Madras, State of Hyderabad, State of Punjab, State of Mysore, and State of Orissa) : P. A. Mehta. • ~

Agent for the State of Uttar Pradesh : C. P. Lal.

SHRIMA TI HIRA DEVI AND OTHERS

DISTRICT BOARD, SHAHJAHANPUR

[MEHR CHAND MAHAJAN, CHANDRASEKHARA

ArYAR and BHAGWATI JJ.)

District Boards Act (X of 1922), ss. 71, 90-District Board-Dismissal of secretary-Resolutions far dismissal, and suspension pending decision of appeal to Government-Validity of suspension.

Section 71 of the U. P. District Boards Act, 1922, as amend~ cd in 1933 provided that a resolution of the Board for the dis~ missal of its secretary shall not take effect until the period of one month has expired or until the State Government have passed orders on any appeal preferred by him.

A District Board passed a resolution for dismissal of its secretary and also for his suspension till the matter oi his dismissai was deci<led unde:r section 71 of the Act on an appeal if any preferred by the secretary : H'lld, that under section 90 of the Act a secretary could be suspended only as a punishment or pending inquiry or

Ganpat Rai

Rajinder Narain

P. A. Mehta

STATE OF TRAVANCORE-COCHIN AND

OTHERS

THE BOMBAY CO. LTD

MuKHERJEA

DAs

VIVIAN BosE

Gnm.AM HASAN JJ.

Constitution of India

Article 286( I)

article 286

art. 286( 1)

India

art. 286(1)(b)

art. 286(1)(h)

section 8(3)

sections 9

article 286

S. 290

State of Travancore-

Kunhiraman C.J.

Subramania Iyer

T. N. Subramania Iyer

T. R. Balakrishna Iyer

M. R. Krishna Pillai

N. C. Chatterjee

C.R. Pattabhirainan

C. R. Pattabhi112man

Thomas Vellappally

M. C.

Setalvad

C. K. Daplitary

G. N. foshi

PATANJALI SAsmI

article 226

Khunhiraman

article 132

Article 286(1)

Bombay Co. Ltd.

Patanjali Sastri C.

State of Travancorc

Bombay

Co. Ltd.

clause 264

article 286

article 286

Madras

Patanjali Sastri

State of • Bombay

article 286(1)(b)

article 286(1)

article 246

Seventh Schedule

Parliament

[1942] F.C.R. 90

State of Travancore- Cochin

State of

"Travancore~

Cochin

article 286

article 286

article 1

section 8(3)

article 1

section 9(5)

section 10(2)

S. 154

article 286

England

Gopalan

America

Canada

Australia

S. 290, 318

State of Travancore-

Cochin

State of

Travancore~

M. S. K. Sastri

Sardar Bahadur

V. P. K. Nambiyar

State of Mysore

C. P. Lal

SHRIMA TI HIRA DEVI

MEHR CHAND MAHAJAN

CHANDRASEKHARA

ArYAR

BHAGWATI

District Boards Act

ss. 71, 90

Section 71

District Boards Act, 1922

section 71

section 90


State of

Travancore~

Cochin and Others

The Bombay Co. Ltd.

Patanjali Sastri C. /.

Oct. 20.

SUPREME COURT REPORTS [19521

In the result, agreeing with the conclusion of the High Court, though on different grounds, we dismiss the appeals with costs.

Appeals dismissed.

Agent for the appellants : P. A. Mehta.

Agent for the respondent in C. A. No. 25 of 52 : M. S. K. Sastri.

Agent for the respondent in C. A. No. 28 of 52 : Sardar Bahadur.

Agent for the respondent in C. A. No. 29 of 52 : V. P. K. Nambiyar.

Agent for the Interveners (Union of India, State of Bombay, State of Madras, State of Hyderabad, State of Punjab, State of Mysore, and State of Orissa) : P. A. Mehta. • ~

Agent for the State of Uttar Pradesh : C. P. Lal.

SHRIMA TI HIRA DEVI AND OTHERS

DISTRICT BOARD, SHAHJAHANPUR

[MEHR CHAND MAHAJAN, CHANDRASEKHARA

ArYAR and BHAGWATI JJ.)

District Boards Act (X of 1922), ss. 71, 90-District Board-Dismissal of secretary-Resolutions far dismissal, and suspension pending decision of appeal to Government-Validity of suspension.

Section 71 of the U. P. District Boards Act, 1922, as amend~ cd in 1933 provided that a resolution of the Board for the dis~ missal of its secretary shall not take effect until the period of one month has expired or until the State Government have passed orders on any appeal preferred by him.

A District Board passed a resolution for dismissal of its secretary and also for his suspension till the matter oi his dismissai was deci<led unde:r section 71 of the Act on an appeal if any preferred by the secretary : H'lld, that under section 90 of the Act a secretary could be suspended only as a punishment or pending inquiry or

pending the orders of any . authority whose sanction is necessary for his dismissal.

The words "pending the orders of any authonty whose sanction is necessary for his dismissal" could not appropriately cover the_ case of a suspension like the present one and the resolution for suspension was therefore ultra vircs. ·

Heid furtlier, that since the Board was created by statute, and its powers of dismissal and suspension are defined and circumscribed by sections 71 and 90 of the Act it would not be legitimate to have resort to general or impliQC] powers under the law of master and servant or under section 16 of the U.P.

C.eneral Clauses Act ; and even under section 16 of that Act powers which are vested in an authority to suspend or dismiss any person appointed, are to be operative only "unless a differ. oo.t intention appears" and such a different int.ention is to be found in sections 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board.

CIVIL

APPELLATE JuRISDICTION : Civil Appeal No. 114 of 1951.

Appeal from the Judgment and Decree dated the 5th September, 1947, of the High Court of Judicature at Allahabad (Waliullah and Sapru JJ.) in First Appeal No. 516 of 1942 arising out of Judgment and Decree dated the 3rd October, 1942, of the Court of the Civil Judge of Shahjahanpur in Original Suit No. 1() of 1941.

Achhru Ram (N. C. Sen, with him) for the appel~ Ian ts.

C. K. Daphtary (K. B. Asthana, with him) for the respondents.

1952. October 20. The Judgment of the Court was delivered by

BHAGWATI J.-This is an appeal by the heirs and legal representatives of the deceased plaintiff against the decree of the High Court qf Judicature at Allaha bad allowing the appeal of the defendants against the decree passed by the Court of the Civil Judge of Shah-

~ jahanpur in favour of the plaintiff allowing the plain tiff's claim in part.

One Kailashi Nath Kapoor, the plaintiff, was employed by the District Board of Shahjahanpur, the defendants, as their Secretary in the year 1924.

He 17-10 S. C. India 71

•1952

Shrimati Hira Devi and Others

District Board, Shahjahanpur.

Bhogwati /.

SArimati Hira Deui ttnd Others

District Board, Shahiahanpur.

Bhagwati /,

was also entrusted in 1929 with the additional duties

of doing assessment work for the defendants.

The work done by the plaintiff did not find favour with some members of the Board and on the 9th November. 1939, six members of the Board tabled a resolution asking the Chairman to convene a special meeting of the Board to consider a resolution for the dismissal of the plaintiff.

A special meeting of the Board was convened on the 17th December, 1939. Twelve charges were framed against the plaintiff and he was required to furnish his answers to them.

A special meeting .of the Board was thereafter convened on the 20th January, 1940.

The resolution for the dismissal of the plaintiff was on the agenda but the meeting had to be adjourned for want of quorum to the 29th January, 1940.

At the adjourned meeting of the 29th January, 1940, twenty-five out of the twentyseven members of the Board were present.

The .. charges against the plaintiff were gone into and eleven . out of the twelve charges were held proved.

Two 'resolutions were consequently passed by the Board at this meeting, one being a resolution for his dismissal, and the other being a resolution for his suspension till the matter of his dismissal was decided under Section 71 :of the U. P. District Boards Act, X of 1922, on an appeal if any preferred by the plaintiff to the Government.

The plaintiff preferred an appeal to the '"Government against the resolution for his dismissal and thi~ ppcal was dismissed by the Government on the 19th Dcember, 1940.

The plaintiff thereafter commenced in the Court of ( the Civil Judge at Shahjahanpur the suit out of which this appeal arises against the defendants for a declaration that the two resolutions passed by the Board on the 29th January, 1940, were illegal and ultra vire! of of the Board and that he continued to be the Secretary and Assessing Officer of the Board, for an miunction restraining the Board from preventing him from dis-

~.A charging his duties as such Secretary and Asses.sing \ Officer, for arrears of his salary with interest and contribution to his provident Fund and in the alternative

for damages and compensation for illegal dismissal and suspension and for costs. The defendents contended that the sai<l resolutions were valid and binding on the plaintiff and that the plaintiff was not entitled to any relief as claimed.

The learned trial judge held that the two resolutions passed by the Board on the 29th January, 1940, were properly passed and that there was no irregularity in the procedure. He held that the resolution for dismissal of the plaintiff was valid and binding on the plaintiff but the resolution for suspension was not legal.

Jn the result he decreed the . plaintiff's claim for arrears of salary, and the contribution towards the provident fund ·· against the defendants for the period of suspension and awarded to the plaintiff a sum of Rs. 6,629-4-0 with proportionate costs, the rest of the . plaintiff's claim was dismissed.

The defendants appealed to the High. Court against this decree and the plaintiff filed cross-objections in regard to , his claim which had been disallowed. The plaintiff died during the pendency of the appeal and his heirs and legal representatives, being his widow and his four sons, were brought on the record. The High Court concurred with the trial court in the finding that there was no irregularity, impropriety or illegality il'l the procedure followed and the steps taken before the meeting or at the meeting of the Board when the two resolutions were considered and passed.

It however disagreed with the conclusion reached by the trial Court that the resolution for suspension was ultra Vires the Board. It held that the resolution for suspension also was valid and binding on the plaintiff and thus dismissed the plaintiff's suit with costs throughout.

The crossobjections of the plaintiff were of course dismissed with costs.

The heirs and legal representatives of the plaintiff obtained leave to appeal to the Federal Court against this decision of the High Court and the appeal was admitted on the 5th November, 1948.

Both the Courts below having found that there was no irregularity, impropriety or illegality in the procedure followed and the . steps taken when the two

 1952

Shrimatt Hira Devi and Othcfs

District Board, Shahjahanpur.

Bhagwati /.

'1952

Shrimati Hira Devi "nd Others

District Board, Shahiahanpur.

Bhagwati /.

resolutions in question were passed by the Board the r only question that survived for consideration by this Court was whether the resolution for suspension of the plaintiff was valid and binding on the plaintiff or in ) other words whether it was competent to the Board to pass the resolution for the suspension of the plaintiff

after it had passed the resolution for his dismissal <". under section 71 of the Act. \ Section 71 of the Act provides for the dismissal and punishment of the secretary :

"A board may by special resolution punish or dis- { . miss its i; ecretary : Provided, firstly, that such resolution is passed by a vote of not less than two-tllirds of the total number of members of the board for the time being : Provided, secondly, that the secretary of a board shall have a right of appeal to the State Government against such resolution within one month from the date of the communication of the resolution to him, and that the resolution shall not take effect until the 1-_ period of one month has expired or until the State

Government have passed orders on any appeal preferred by him."

It will be relevant at this stage to note that this section 71 was amended by U. P. Act I of 1933. Section 71 as it originally stood ran thus :

"A board may by special resolution punish or dismiss its secretary provided,

(a) that such a resolution is passed by a vote of: not less than two-thirds of the total number of members of the board for the time being, or (b) that it is \._ passed by a vote of not less than one-half of the total number of members and is 'sanctioned by the Local Government'."

It may be noted that in the original section 71 provision was made for the sanction of the Local Government in certain cases. No such provision is to i.' be found in the amended section 71 of the Act. The l

resolution according to the amended section 71 is to .be passed by a vote of not less than two-tllirds of the

S.C.R.

SUPREME COURT REPORTS 1127 1 total number of members of the Board and such a resolution is not to take effect until the period of one month has expired within which the secretary can ( exercise his right of appeal or until the Government have passed orders on the appeal if any preferred by him.

There is no question of the sanction of the Local Government to any resolution for dismissal, the only provision being that the resolution is to take effecv after the expiration of the period of one month or after the Government have passed orders on the , appeal if any preferred by the secretary within that period of one month.

Once that period of one month expires without the secretary preferring any appeal against the resolution of the Board or the Government passes final orders on the appeal preferred by him, the resolution takes effect without anything more in the nature of a sanction by the Government.

The power of suspension is conferred and regulated in section 90 of the Act :-

" ( 1) Suspension may be of two kinds:

(a) suspension as a punishment, and

(b) suspension pending inquiry or orders.

(2) Where a general power to punish is conferred by this Act, it shall be deemed to include a power to suspend as a punishment for a period not exceeding three months.

(3) Where a power of dismissal, whether subject to the sanction of any other authority or not, is conferred by this Act, it shall be deemed to include a power to suspend any person against whom the power of dismissal might be exercised, pending en- quiry into his qmduct or pending the orders of any authority whose sanction is necessary for his dismissal. ( 4) Where suspension is ordered pending inquiry or orders, and the officer suspended is ultimately restored,

it shall be at the discretion of the authority ordering , his suspension whether he shall get any, and, if so,

~ what, allowance during the period of suspension; but in the absence of any order to the contrary he shall be

Shrimati Hira Devi and. Othe1s

District Board, Shahjahanpur,

Bhagwati ].

1952'

Shn"mati Hira rJcvi and Oth<rs

~ District B0ard, Shahiahanpur.

Bhagwati /.

entitled to the full remuneration which he would have f received but for such suspension."

The suspension which has been thus provided for is of two categories, ( 1) suspension as a punishment and (2) suspension pending enquiry or orders.

In the case of a suspension falling within the latter, categorv the only power of . suspension which is provided is that of suspending any person against whom the power of dismissal might be exercised pending enquiry into Ills conduct or pending the orders o£ any authority whose sanction is necessary for Ills dismissal.

The power of suspension pending enquiry into the conduct of the perSl)n can only be exercised if an enquiry against him has been started and before any order is made for Ills dismissal as a result of such enquiry.

The power of suspension pending . the orders of the authority whose sanction is necessary for Ills dismissal can similarly be exercised provided , the order of dismissal is made hilt that dismissal could be effective only after the orders of the authority whose sanction is needed for effectuating the same. The section does not provide for any other case where as on the facts before us the order of dismissal does not require the sanction of any authority but has got to await either the expiry of a particular period after such order of dismissal has been made or the result of an appeal which may be preferred to the Government within the period prescribed in that behalf. A decision of an authority to which an appeal is provided is not the same thing as a sanction by the authority.

A perusal of sub-section ( 4) of section 90 make.< this position quite clear.

The authority ordering the suspension is vested with the discretion to d<>termine whether the officer suspended would get any or if so what allowance during the period of suspension where suspension is ordered pending enquiry or orders and the officer suspended is ultimately restored.

There is no

provision for any allowance where the officer f having been idismissled is also suspended for the , period which has of necessity to expire before his l; appi:al is time-barred or before the Government passes

orders on the appeal if any pref erred by him within the prescribed period. Such a case is not at all pro- Vided for in sub-section 4 of section 90 and the officer so suspended would be without any remedy whatever and would not be able to get any allowance at all from the a'uthority ordering his suspension during such period of suspension.

It is necessary to bear in mind the provisions of these sections 71 and 90 of the Act in order to determine whether it was competent t!O the Board to pass a resolution for suspension of the plaintiff after . it had passed the resolution for his dismissal on the 29th January, 1940.

On a construction of these sections 71 and 90 of the Act the trial Court came to the conclusion that the provisions of section 90 of the Act were exhaustive, that no other category of suspension apart from those specified cold be ordered and that therefore the resolution for suspension of the plaintiff was ultra vires the Board.

The High Court in appeal realised the difficulty of the position. It came to ' the conclusion that section 90 as it stood was in close conformity with . the provisions of the old section 71 of the Act which provided for the resolutipn for dismissal passed by a vote of no:t less than one-half of the total number of members being required to be sanctioned by the Local Government.

The sanction was expressly provided there.

But when that section came to be amended by the U.P. Act I of 1933, the provision for sanction was deleted and it provided for the resolution not taking effect until the period of one month had expired within which the secretary could exercise his. right of appeal or until the Government had passed orders on the appeal if any preferred by him. When this amendment was made in the old sec;.

lion 71 of the Act of the provision made in section 90 in regard to the power of suspension was lost sight of and no corresponding amendment was made in section 90, sub-section (1) (b), sub-section (3) or subsection ( 4) which would bring the provisions of 145

Slirimati Hira Dvi and Othe1s

District Board, .Shahjahanpur.

Bkagwati /. ·

Snrimati Hira Dvi ""d Others

District Board, Shahjahanpur.

Bhagwati /,

sectian 90 in conformity with the amended section 71 of the Act. The High Court was therefore at pains to place what it called a liberal construction on the provisions of section 71 and section 90 of the Act trying to read in the power of suspensionprovided in section 90 also a power of suspension during the period that the secretary preferred an appeal to the Government against the order of his dismissal and the Government passed orders on such appeal.

Apart from placing this so-called liberal construction on the expression "the orders of any authority. whose sanction is necessary" in section 90 subsection 3, the High Court also brought to its aid the provisions of Section 16 of the U. P. General Clauses Act of 1904 which provides that "unless a different intention appears the authority having: power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power". It came to the conclusion. that nothing in the terms of section 71 or section 90 of the Act controlled or negatived an intention to sustain the general power of suspension, i.e., suspension pending orders on an appeal. The High Court thus justified the resolution for the suspenslon of the plaintiff passed by the Board on the 29th January, 1940.

We are afraid we cannot agree with this line of reasoning adopted by the High Court. The defendants were a Board created by statute and were invested with powers which of necessity had to be found within the four corners of the statute itself.

The powers of dismissal and suspension given to the Board are defined and circumscribed by the provisions of sections 71 and 90 of the Act and have to be culled out from the express provisions of those sections.

When express powers have been given to the Board under the terms of these sections it would not be legitimate to have resort to general or implied powers under the law of master and servant or under section 16 of the U.P. General Clauses Act. Even under the terms of section 16 of that Act, the powers which are vested

' i J

I I

in the authority to suspend or dismiss any person appointed are to be operative only "unless a different intention . appears" and such different intention is to be folJ.Ild in the enactment of sections 71 and 90 of the Act which codify the powers of dismissal and suspension vested in the Board. It would be an unwarranted extension of the powers of suspension vested in the Board to read, as the High Court purported to do, the power of suspension of the type 1n question into the words "the orders of any author- :ity whose sanction is necessary".

It was unfortunate that when the Legislature came to amend the old section 71 of the Act it forgot to amend section 90 in conformity with the amendment of section 71.

But this lacuna cannot be supplied by any such liberal <:011struction as the High Court sought to put upon the

apressibn . "orders of any authority whose sanction is

necessary".

No doubt it is the duty of the court to try to 4armonise the various provisions of an Act passed by the Legislature.

But it is certainly not the <iuty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provi- .sions of an Act.

Reading the present section 71 of the Act along with section 90 of the Act we are of the opinion that the power of suspension of the nature purported to be exercised by the Board in the case before us was not. the power of suspension contemplated in section 90 -sub-section ( 3) of the Act. If the plaintiff allowed the period of one month to expire without preferring an appeal against the resolution to the Government or if the Government passed orders dismissing his appeal, if any, the resolution for his dismissal would become •effective without any sanction of the Government.

The words used therefore in section 90, sub-section (3)

"pending the ordern of any authority whose sanction is necessary for his dismlssal" are inappropriate to the present facts and could not cover the case of a suspension of the nature which was resorted to by the Board on the 29th January, 1940.

We are therefore of the view that the resolution for suspension which was

Shrimatf Hira Devi and Others

District Board, Shahjahanpur.

Bhagwati /.

Shrimati Hira Devi and Others

Districi Board, Shahiahanpur.

Bhagw•ti ].

passed on the 29th January, 1940, was ultra vires the powers of the Board.

We have accordingly come to the conclusion that the decision reached by the High Court that the resolution for suspension which was passed by the Board on the 29th January, 1940, was valid and bindiog on the plaintiff was erroneous and that the conclusion reached by the trial Court was correct. The learned Solicitor- General appearing for the defendants has however informed us that the sum of Rs. 6,629-4.0 and the proportionate costs which were awarded by the trial Court to the plaintiff have already been paid to the plaintiff.

Nothing therefore remains to be recovered by the . heirs and legal representatives of the plaintiff even on the basis that the decree of the trial Court is restored as a result of this judgment of ours ..

The only thing which therefore survives is the question of the costs of this. appeal. The trial Court had already awarded to the plaintiff proportionatecosts.

The High Court in reversing the. judgment of the trial Court disrnis.<ed the plaintiff's suit with costs. throughout including the costs of the cross-objections which were filed by the plaintiff. The heirs and legal' representatives of the plaintiff filed the present appeal in regard to the whole claim of the plaintiff as laid in

the plaint.

That claim could not be sustained beforeus by the heirs and legal representatives of the plaintiff and they only succeeded before us in regard to the claim of the plaintiff which had been allowed by the trial Court. If an order for proportionate costs. of this appeal were made it would certainly work to the prejudice of the heirs and legal representatives of the plaintiff.

We are not disturbiog the order which had been made by t11e High Court in regard to tliecosts of t11e appeal before it.

No time was taken up before us in arguing the appeal on oilier points except the one in regard to the resolution for the suspension of tlie plaintiff being ultra vires and we think that under the circumstances of tlie case tlie proper order to pass in regard to tlie costs of this appeal before us should be tliat each party should bear its own costs.

The only order which we need pass in this appeal before us under the circumstances i"' that the appeal ft; allowed, the decree of the trial court is restored, and each party do bear and pay. its own costs of this appeal.

Appeal allowed.

Agent for the appellants: C. P. Lal.

Agent for the respondent : S. S. Shukla.

MOHD. AMIN AND OTHERS

VAKIL AHMED AND OTHERS.

[MEHER CHAND MAHAJAN, CHANDRASEKHARA

A1YAR and BHAGWATI JJ.]

Mahomedan Law-Guardianshi[>-De facto guardian-Powers of alienation-Benefit to minor, whether material-Whether transaction can be upheld as family arrangement-marriage--Co-habitation -Presumption of valid marriage.

Under Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, i.e., a de facto guardian, has no power to convey to another any right or interest in immoveable property which the transferee can enforce against the minor.

The question whether the transaction has resulted in a benefit to the minor is immaterial in such cases.

Where disputes arose, relating to succession to the estate of a deceased Mahomedan between his 3 sons, one of whom was a minor, and other relations, and a deed of settlement embodying an agreement in regard to the distribution of the properties belonging to the estate was executed by and between the parties the eldest son acting as guardian for and on behalf of the minor son : l-I eld, that the deed was not binding on the minor son as his brother was not his legal guardian; as the deed was void it cannot be held as valid merely because it embodied a family arrangement ; and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris.

lmambandi v. Mutsaddi [1918] 45 I.A. 73 relied on. Mahomed Keramatullah Miah v. Keramatulla

(A.LR. 1919 Cal. 218) and Ameer Hasan v. Md. Ejay Hussain (A.I.R. 1929 Oudh 134) commented upon.

Shrimati Hil'a Devi and Others

District Board, Shahjahanpur •.

Bhagwati /.

Oct. 22.

P. A. Mehta

M. S. K. Sastri

Sardar Bahadur

V. P. K. Nambiyar

C. P. Lal

SHRIMA TI HIRA DEVI AND OTHERS

DISTRICT BOARD, SHAHJAHANPUR

MEHR CHAND MAHAJAN

BHAGWATI JJ.

District Boards Act

ss. 71, 90

Section 71

District Boards Act, 1922

section 71

section 90

sections 71 and 90

section 16

section 16

sections 71 and 90

High Court of Judicature at Allahabad

Waliullah

Sapru

Achhru Ram

N. C. Sen

C. K. Daphtary

K. B. Asthana

High Court qf Judicature at Allaha

Kailashi Nath Kapoor

Shrimati Hira Devi

17th December, 1939

20th January, 1940

29th January, 1940

Section 71

District Boards Act

5th November, 1948

Shrimatt Hira Devi

section 71

Section 71

section 71

Section 71

section 71

section 71

section 71

section 90

section 90

section 4

section 90

sections 71 and 90

sections 71 and 90

section 90

section 90

section 71

section 90

section 90

section 71

section 71

section 90

section 90

section 90

section 3

Section 16

General Clauses Act

section 71

section 90

sections 71 and 90

section 16

General Clauses Act

section 16

sections 71 and 90

section 71

section 90

section 71

section 71

section 90

section 90

section 90

Shrimati Hira Devi

S. S. Shukla

MOHD. AMIN

VAKIL AHMED

AMIN AND OTHERS

VAKIL AHMED AND OTHERS.

MEHER CHAND MAHAJAN

CHANDRASEKHARA

Mahomedan

Shahjahanpur