Orisso CtmmJ Lttl.

Uni0tt of lrutia

AfyarJ.

19&t

Mo1d114

t ' r 848 SUl'l\E.ME COlJRT l{EPORTS [Hlli2J SUPP.

be said to be reasonable and must be struck down as not falling within the protection afforded by Art. HJ (6).

In the result we hold that the notifiuat.iuns dated January I 5, 1958, and Dcocmbf)J' 2, 1960, are unconstitutional and void.

The petitioners are entitled to their costs.

PetitWri allowed .

MOHAN SINGH v.

STATE OF PUNJAB

( B. P. Sr XHA, C. J., P. B. GAJE!WRAGADKAR, K. N.

WANCHoo, N. RAJAGOl'ALA AYYANOAR and

1'. L. V}; l\KATARAMA An:AR, JJ.)

Cri1nit1al Liability-Members of u11/auful assembly- M aintainahility of conviclion-Cou11nou obejct and common i?ltention-Di•tinction-A/teration of w1.viction-lndian l!enal Code 1860 (Act 46 of 1860). ss. 302, 149, 34.

The two appellants, who were tried with three others, were convicted under s. 302 read withs. 149 ands. 147 of the h1dian Penal Code. Two of these five persons tried together were acquitted.

In the charge these five accused persons and none others wc:rc mentioned as forn1ing the unlawful assembly and the evidence led in the case was confined to them alone.

The facts proved in the case unmistakably showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by the common intention of fatally assulling the deceased. It was contended in this Court that the conviction of the appellants under s. 302 read with s. 149 of the Indian Penal Code was not sustainable in law in view of the acquittal of two of the five accused persons who were alleged to have formed the unlawful assembly.

Held, that the contention must prevail and the conviction altered to one under ' 302 read with s. 34 of the Indian Penal Code.

Section 149 of Indian Penal Code prescribes vicarious or constructive criminal liability for members ofan unlawful

3 S.C.R.

SUPREME COURT REPORTS 84'.!i

assembly which under s. 141 must consist of five or more persons. Consequently, as so.on as, in the present case, two of accused persons were acqmtted, s. 141 ceased to apply and s. 149 became inoperative.

Jn dealing with the applicability of s. 149 of the Indian Penal Code, one has to remember the several categories of cases that come up before the courts for decision thereunder.

Dalip Singh v. State f Pun.iab, [1954] S.C.R. 145 and Bl, iarwadMepa Dana v. Stale of Bombay, [1960] 2 S.C.R. 172, referred to.

Likes. 149 of the Indian Penal Code, s, 34 of that Code also deals with cases of constructive liability.

But the essen .. tial constituent of the vicarious crhnin.al liability under s. 34 is the existence of common intention.

Being similar in so1ne ways, the two sections may in some cases overlap.

Neverthe-· less, common intention on which s. 34 has its basis is different from the common object of unlawful assembly. Common intention denotes action in concert and necessarily pestuiatcs a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character but they must be actuated by the same common intention, common inteqtion is different from the same intention or similar intention.

Mahabub Shah v. King Emperor, ( 1945) L.R. 72 I.A. 148, referred to.

CRIMINAL APPELLATE JuRISDIOTION: Criminal Appeal No. 186 of 1960.

Appeal by special leave from the . judgment and order dated March 18, 1960, of the Punjab High Court in Crimin'11 Appeal No. 1040of1959.

Raghubir Singh and R. S. Gheba, for the appe llants.

N. S. Bindra and P. D. Menon, for the respondent.

1962. March 15. The Judgment of the Court was delivered by

GAJENDRAGADKAR, J.-This appeal by special leave arises out of a criminal case in which the

JY6~

M t1hon Singh v.

Stale of Punjab

1 d1a1adkarJ.

J06Z

J\foluzn Singh

•• State of Punjab

Uojtntlrr1.r; adkar J.

850 SUPREME COURT REi>ORTs [1962] SuPP.

appellants Mohan Singh and Jagir Singh a.long with three others wen charged with h11.ving oommitted~

offences under s.J.:18 and s.302 read with s.149, as 1 well as s.32a, read with s.14!l of the Indian Penal Code. The three olher pernnns who w1rc thus charged along with the two appellants werr. De.lip Singh and two Piam Singhs who were the sons of

Cjagar Singh and Bahadur Singh respectively. Of the five accusecl persons, JJalip Singh was also charged under H.:l02.

The case agai11Ht t.hese persons was tried by the II Additional Scssio11s Judge at Ferozepon" He held that the charges framed against the two Piara Singhs had not been proved beyond reasonable cl'oubt. 80, giving them the benefit of tlon ht, he acquitted them.

Dalip Singh was convicted under sections ;{02 and 147 and

the two appellants were t:onvieted under s.302 read

with sections 149 and J.Ji.

For the major offence of murder, all of them were sentenced to imprisonmont for life and for the minor offeneti under s.147, each one of them was sentenced to sii.: months' rigorous imprisonment.

These sentences were orderod to run concurrently.

This order of conviction and sentence was challenged by the said three acoused persons by preferring an appeal before the Punjab High Court.

The High Court has accepted tho findings of the trial Judge and has confirmed the orders of conviction and sentence passed against them.

Thcrcaft~!r, the said three accused moved this Court for spcial leave.

The application for special leave filed by Da.lip Singh Wa8 dismissed, but that of the two appellants was grimted.. That is how the two appellants have come to this Court by special leave, and on their behalf, ~{r. Raghubir Singh has urged that the conviction of the appellants under s.302/149 iB unsustainable in l:iw, because as a result of thP acquitt; al of th<: two

Piam Singhs, the provisions of s. l 4!l were inapplicable. '

3 s.a.tt. SUPREME cotiRT REPoitrs 851

Before dealing with the merits of the contention thus raised by the appellants, it is necessary to state briefly the material facts leading to the prosecution of the appellants. The incident giving rise to the present case took place on the 9th May, 1959, at a village called Malsian. The prosecution case is that on the said day, the five accused persons named in the charge were members of an unlawful assembly and that in prosecution of the common object of the said assembly, they committed rioting and at that time were armed with deadly weapons. It has also alleged that in pursuance of the said common object, Gurdip Singh, was murdered and injuries were caused to Harnam Singh. That is the bases of the charge under s.148 I.P.C. The second charge was that since Dalip Singh, one of the accused, had inflicted a fatal injury on Gurdip Singh on his head in prosecution of the common object of the unlawful assembly, all the members of the assembly were guilty under s.302/149 of the Indian Penal Code for the murder of Gurdip Singh.

Dalip Singh was a)so charged under s.302 without reference to s.149. That is the substance of the charge based on the allegation that Gurdip Singh had been murdered in prosecution of the common object of the unlawful assembly. For the injury caused to Harnam Singh, an additional charge was framed under s.323/149.

As we have already pointed out, in the present appeal we are concerned with the conviction of the appellants under s.302 /l 49.

It appears that the appellants Mohan Singh and Jagir Singh are .1; mcle and nephew respectively, the latter being the son of Mohan Singh's brother Dalip Singh who was one of the accused in the present case. There was a third brother named Tara Singh who was married to Tej Kaur, the daughter of Gurdip Singh, the victim of the assault.

Tara Singh was murdered by some Muslims during

' 1962

Mohan Singh

State,,/ PunJab

196~

Mchan Sir.1h

v. .c-1't •f Punjb

852 SUPREME OOlmT .REPoRTs (i962] SUPP.

the communal disturbances that raged in tho Punjab in the wako of the partition of the country in 1947.

As a result of the said commwia.l disturbances, the parties migrated from their homes in West Pakistan to the East Punjab aud in due course, wero allotted land in villago llfalsiau.

After her husband's death, Tcj Kaur began..lil!. reside with her father Gurdip Singh in.village •Gmrndyala. Since Tej Kaur had left the ,;.village of her husband; Dalip Singh and Mohan)3ingh managed to get into possession of hor share of the Land. After the holdings in village Malsian had been consolidated, Toj Kaur obtained a separate holding of land as representing tho intorest of her deceased husband, Tara Singh.

Thereupon, llfohan Singh aud Dalip Si.ugh entered into posses8ion of the said land after oxecuting a 'patW.nama' in her favour. Haviug entered into possession of her land in this manner, they did not care to pay the share of the producu to Ttij Kaur regularly and in consequence, the amow1ts duo from them fell into arrears. Tej Kaur was thus compelled to appoint her father Gurdip t:iingh as an attorney in order to realise the arrear8 of rent and to take steps for evicting :\lohan Si.ugh and Dalip Singh from her land.

When the attorney instituted eviction proceedings, .'11ohan Singh and De.lip Singh paid up thll arrears, but even so, Tej Kaur succeeded in obtaining an order of eviction.

The said order was challenged by :llohan Singh and Dalip 8ingh by preferring an appeal, but the appeal failed and the order of eviction was confirmed. That naturally led to an application L>y Gurdip Singh for obtaining the execution of the said order. On this application, warrant8 for possession were issued. It is because Gurdip Singh

was thu6 effectively protecting the interest of his <laughter that he ultimately Ulet his death on tho 10th l\Iay, HJ59, at the hands of tho appellants and their companions.

3 S.C.R. SUPREME COURT REPORTS 853

Armed with the warrants of possession, Gurdip Singh went to village Behak Gujran to meet his cousin Harnam Singh and asked for hie assistance. Accordingly, Harnam Singh agreed to accompany Gurdip Singh. On May 9, 1959, both of them went to Zira and requested the Patwari and Girdawar to proceed to the spot and deliver to them the possession of Tej Kaur's land. The Patwari, however, told them that since the Qanungo was not in station, they might see him in the en ing. While they were in the Court compound, fl"ara Singh, the brother of Gurdip Singh's wife met them.

He was also requested to join them and he agreed.

As suggested by the Patwari, the three of them went to see him in the evening.

Then they all started towards the land in order to deliver possession to Gurdip Singh. The fields in question were at a distance about a mile from the village abadi. As they approached the fields, ' they saw the appellant Mohan Singh grazing cattle nearby. Mohan Singh was accordingly informed by the Chowkidar who had joined the party that they had arrived to deliver possession of the land to Gurdip Singh. Mohan Singh thereupon left the spot on the pretext that he was hungry and could not wait. The Qanungo and the Patwari then delivered possession of the land in dispute to Gurdip Singh and the delivery was duly proclaimed in the village. Since a formal report about the delivery of possession had yet to be made)J; he party went back to the village. While they Wllre

at a distance of abol1t two squareR, the appellants and their companions were noticed coming out of a grove of 'khajoor' trees armed with a lathi each.

As soon as the appellants were seen by Gurdip Singh and Harnam Singh, they tried to run away but the assailants chased them and surrounded them.

Dalip Singh opened the attack on Gurdip Singh by giving him a blow with a 'dang' on the head.

~ ag ir Singh followed and useq llis 'dang' on Gurdip

Mohan Singh

•• Stat1 of PunjtAb

Gajtndrag•dkar J.

.\ft1han Singh

S14t1 of Pu!liab

tlqj<ndra1adi; ar .T.

854 SUPRE,\IE COURT REPORTS [1962] SUPP.

Singh's right arm.

As a result, Gurdip Singh fell down unconscious. Tho appellants then assaulted Harnam Singh and gave him several blows on all parts of his body. An alarm was raised by tho other members of the party and so, the assailants were afraid that villagers might arrive at the scene.

That is why they ran away. Gurdip Singh was then put in a bus and taken tu the hospital at Zira.

Medical help was gi>en to him, but that proved ineffective and he ultimatelv succumbed to hiR injuries in tho early hours uf tho next morning.

Hnrnam Singh received treatment and has recovered.

It is on these facts that the appollants and their companions were tried beforo the learned Additional Sessions Judge at Ferozeporc for having committed the offences as charged.

All the accused denied the said charges.

The loamed trial Judge considered the cvidencr given by the principal eye-witnesses Harnam Singh Phula, the Chuwkidar and Sandbura Singh, the Qanungo; he alRo examined the medical evidence and camo to tho conolusion that thn said evidence considered as a whole, proved the charge a11; ainst

the appellants under R. 302, read with 'I 14!l and 147 beyond a reasonablo doubt. Hn likewise held that the charge ag1dnst D.tlip Singh under s. :!02

and 14 7 was satisfactorily provnd. Tn regard to the two Piara Singhs, howevor, h" came tu the conclusion that the motive fur the commission of the offence on whi0h tho prosecution relied, was not available against them; that th,, ir names mentioned in the First Information Report did nut satisfactorily prove thoir identity and that on the probabilities, it looked vnry unlikely that the two l'iara Singhs by reason of their alleged remote role.ti on ship with the threo other accused or th<'ir friend ship with them, could have joined in making the assault on Gnrdip Singh and Harnam Singh. Ho qojd that t)je reasons given by the prosecution fur

3 S.C.R.

SUPitEME COURT REPORTS 855

their joining in the assault appeared to him to be weak as so, he entertained a reasonable doubt as to whether they had really taken part in the assault at all. That is how he gave them the benefit of doubt and acquitted them. It appears from his judgment, however, that the learned Judge was satisfied that the large number of injuries inflicted on Harnam Singh and Gurclip Singh and the complete absence of injuries on the persons of the assailants would show that the odds were very uneven and that emphasised that tho assault must have been the work of more than 3 or 4 members. He also held that the direct evidence of disinterested witnesses indicated that there were five assailants and so, he had no doubt that the charges of unlawful assembly and rioting were brought home even though he was acquitting two of the accused persons.

In other words, accor- . dingto ths learned Judge, though two ofthefive persons, charged were acquitted, that still left five or more persons who were concerned with the assault and so, the charge under s. 147 was established. It is in the light of this finding that he convicted the appellants under s. 302/149.

When the appeal was argued before the High Court on behalf of the appellants, the findings of the learned Judge un the merits were challenged and the High Court considered the said challenge by e:x:amining the evidence for itself. Ultimately, it was satisfied that the viBW taken by the trial Court was right. It appears that in respect 0f the charge under s. 149, the only contention raised before the High Court was that the said section did not apply because the incident which resulted in the death of Gurdip Singh was no more than a chance encounter. The High Court e:x:amin~ this argument and held that the assailants wore lying in wait for Gurdip Singh and so, the assault on Gurdip Singh was tile work of th.e membes "of tqe

• • •

1962 -+- Mohan Singh

State of Punjab

GaJen, agadka1 J

Jlf ohczn Singh

St'1lt of Pruijab

Gojtndrgadkar J.

856 SUPREME COURT REPORTS [I 962] SUPP.

unlawful assembly as alleged by the prosecution.

No argument wall urged before the High Court

tht the acquittal of the two Piara Singhs in Jaw renderer! sect.ion 14!l inapplicable to the case.

Mr. Raghubir Singh, however, contended that tho finding of tho trial Court about the presence of five asRailants even after ignoring the alleged presence of the. two Piara Singhs is not justified. Indeed. his case is that like the charge which specifies five named persons as the assailants, the whole of the evidence refors to the said five persons as the assailants nnd no one else.

This position is not disputed by Mr. Bindra who

appears for the Stat-0 and so, we must pror, eed to deal with the merits of tho appeal on the assumption that both in tho chargo and in the' evidence, the prosecution calle in that five named persons wore the members of an unlawful assembly two of whom have been acquitted; and that mises the question all to whether. the acquittal of the two Piara Singhs leaves it open to the prosecution to rely upon section 149 ag:iinst the appellants.

The true legal poRition in regard to the essential ingredients of nn offence specified by s. 149

ae not in doubt.

Section 149 prescribes for vicarious or ronstructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assrmbly in prosecution oft.ho common object of that 1188emhlv or such as the members of that nsscm bly knew to he likely to bn committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of section 149 is that the offence must havo been committed by any member of an nnlawful assembly, nnd s. 141 makes it clear that it is only where five or more persons constituted an aseern hly that an unlawful a.ssemhly is born, provided, of

cmrso; the othP-r requirements of the sairl sectjoq

3 S.C.R.

. SUPREME COURT REPORTS 857

as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful asRembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made s. 141 inapplicable which inevitably leads to the result that s. 149 cannot be invoked against the appellants. In our opinio'n, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assumption that only five persons were named in thf' charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are ac:quitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.

In dealing with the question as to the applicability of s. 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against alt of them, that is a very clear case where s. 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under s. 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under s. 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful

11sembl!; tlje other fersons so named wa; Y not he

Mohan Singh

Slate of Punjab

Gajendragadkar .1.

Mohori Singh

Stall of P1mj•b

Gajtndrogadkar J.

858 SUPREME COURT REPORTS [1962] SUPP.

available for trial aloug with their companions for the reason, for instance, that tlwv have absconded.

In such a case, the fact that Jess" than fivo persons are before the Court cloes not make section 14() inapplicable fur the simple reason that both the

cht\rge and the evidence seek to prove that the persons before the court and others number more than five in all and as such, they together constitute an unlawful assembly.

Thcrfurn, in order to bring home a chaq!e undor s. 14fl it is not necesary that five or more persons must necessarily be brought before tho court and

convicted. Similarly, Jess than five persons may he charged under R. 14fl if the prosecution cuse is that the persons before thn Court and others numbering in all more than five composed rin unlawful assnmbly, these others being persons not identified and sn not named.

In Ruch a case, if evidence shows that the persons befom the Court along with unidentifiect and un-named assailants or members composed an unlawful assembly, those before the Court can be con v ictccl under section I 49 t.hough tho unnamed and 1111-irlent.ified pcrsonH an• not t.rar.-d :\Ilfl charged. CasPs may also arise where in the ch:irgc, the prosecution names fivA or more persons and alleges that they constituted nn unlawful asRembly.

In such cases, if both the charge and the e, idenec

are confined to t.ht' persons named in the charge and out of the persons so uamcd two or inore are aoquit.tcd leaving before the court less than five

persons to be tried, thens. 149 cannot be invoked.

Even in such caseH, it is poHsiblo that though the charge names five or more persons n.s composing an unlawful assembly, evidence mav nevertheless show that t.Jic un]awfui assembly consisted of SOlllf' other persons as well who were not identified and sn not nam<'d.

In Ruch crises, either tho trial c:ourt or even the High Court in appeal may be able to come to t, ho conclusion that the acquittal of so111e of tho

3 S.C.R.

SUPREME COURT REPORTS 859

persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 14fl because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last cate6ory of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly un-named and unidentified may conceivably raise the point as to whether prejudice would be caused to tbe persons before the Court by reason of the fact that the charge did not indicate that un-named persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal ba.r preventing the court of facts fom 'holding that though the charge specified only five or more persons, the unlawful assembly in fact consisted of other persons who were not named and identified.

That appears to be the true legal position in respect of the several categories of cases which may fall to be

trid when a charge under section .149 is framed.

In this connection, we may refer to three representative decisions of this Court. In Dalip Singh v. State of Punjab (') this Court has held that before section !49 can be applied, the Conrt must l; e satisfied that there were at least five persons sharing the common object. It has nisei been held that this .does not moan that fivo persoµs mqst

(I) (1954] S.C.R. 145.

19~1

Mohan Singh

•• State of Punjab

GajuJdragadkar J.

Mohan Sinqh

V St.Ii of Punjab

Oo, jt11drayadAar J.

860 SUPREME COURT REPORTS [1962] SUPP.

always be convicted before s. 14!) can be applied.

If the .Judge concludPs that. five persons were unque.qtionably present and sharer! the common object, though the identity of some of them is in doubt, the co; iviction of the rest would be good. In that case, this Court took the view that the evidence adduced by the -prosecution did not satisfactorily prove the fact th11t the unlawful assembly was composed of five or more persons, and so, 8. 14!) was held to be inapplicable. In other words, on facts relevant for the purpose of applying s. 14!) this case is similar to the case with which we are concornerl in t.he present appeal.

In Bltarwarl Mepa Dana v.

State of Bombay (') t.his Court was dealing with a case where twelve named persons were charged with having formed an unlawful assembly with the com. mon object of committing the murder of three persons, At the trial before the Sessions Judge, seven of the named persons were acquitted and five wnm . convicted under s. 3(12/149 and s. 302/34. On appeal, the High Court acquitted one of tho convict€d persons but _maintained the c01niction :md sen. tence passed on the rest. The validity of the said order of conviction and sentence was cballcnged bofore this Court on several grounds, one of which was that. s. 149 became inapplicable as soon as eight ont of the twelve persons named as mom bcrR of the unlawful assembly were acqnitted.

In rejecting t.his argum<mt, this Con rt referred to the finding recorded by the High Court that the unliiwful assembly in question consisted of ten to thirteen persons out of whom only four were identified and not the rest; and held that it was open to the High Court to come to such a finding.

The argumPnt. which was urged against the valicfity of such findinl! was put alternati\ely in two forms.

It was first cont.ended that the prosecution cas<~ must be confined t.o t.hn charge f mmcd against tho accused persons and the charge in tho Sessions Court rcferreq

Pl p96ol 2 s.c.R. 11~.

ii s.c.R.

SUPREME OOUR'r REPORTS s6i

to twelve named persons as composing the unlawful assembly, and so, as so0n as eight of them were acquitted, s. 149 became inapplicable. It was also urged that in coming to the conclusion that the unlawful assembly consisted of ten to thirteen persons, the High Court was making out a case of a new unlawful assembly and that was not permissible in a criminal trial. Both these arguments were repelled by this Court and it was held that there was no legal bar which prevented the High Court from coming tu the conclusion that apart from the persons who were acquitted and excluding them, evidence adduced by tho prosecution showed the presence of more than five person8 who composed the unlawful assembly. 1'he assembly about the existence of which the High Court has made a finding is not a new assembly but the same assembly as alleged by the prosecution. The only difference js that according to the charge, all, the members of the assembly were alleged to be known, whereas on the evidence the High Court has reached the conclusion that the identity of all the members of the assembly has not been established, though the number of the members composing the assembly is definitely found to be five or more. It is on this reasoning that this Court confirmed the conviction of the appellants under s. 302/149. Thus, this decision illustrates how s. 149 cam be applied even if two or more of the person~ actually charged are acqµitted.

The same principle has been enunciated by this, Court in Kartar Singh v. State of Punjab(') .

According to this decision, it is only when the number of alleged assailants is.definite and all of them are named and the number. of persons found to be proved to have taken part in the incident iR less than five, that it cannot be held that the assailants, party must have consisted of five or more persons.

It is true that having stated this position, this Court has also observed that the fact that certain (IJ 1100212 s.c.R 395.

J90B

Mohan Singh

State oj Pnjab

Gojendra adtr J,

.:, fohon Sinth

St.U of Punjab

ajendrogad!ar J.

862 Sl:J'PREME COURT REPORTS [1962) SUPP.

persons arc named in the charge as composing an unlawful assembly, cxcl11rlt>s the possibility of other persous to be in the sai<l asHcmbly especially when there is no occasion to think that the witnesses who named all the accused could have committed mistakes in. recognising the assailants. It is on this observation that Mr. Haghubir Singh reliee. We, however, think that it would ho unreasonable to read this statement as laying <lown an unqualified proposition that whenever persona named in the charge are alleged to constitute au unlawful assembly it is legally not permissible to the proseeution to prove during the trial that persons in addition to those named in the charge also were members of the said assembly. In other worrls, what this observation

inteuds to suggest is that where persons' named in tho charge are alleged to compose an unlawful assc; mbly, the 9ourt of facts would be slow to come to the conclusion that persons other than those named in the cha1ge were members of the said assembly. If however, it appears on evidence that persons not so named in the charge were members of the unlawful assembly, there is no legal bar which prevents the courts from reaching that conclusion. This position can and does arise where some of the persons composing the unlawful asem

bly are not identified by tho witnesses and they are not named.

In fact, the decision in the ease of Kartar Siugh itself shows that this Court rejected the appellants contention that their conviction under AB. 302 and 307, read with s.149 waa invalid.

Therefore, we see no inconsistency between the observations mado in this case and the earlier decisions to which we have just referrnd. Tbe result is that in the circumstances of the present ease, tho appellants are entitled to contend thats. 149 cannot be invoked against them.

That inevitably takes us to the question as to whether the appellants can be convicted under

3 s.c.:R. sb:P:REME cou:Rt irE::PoR.rs saa

s.302/34..

Like s. 149, section 34 also deals with cases of constructive criminal liability.

It provides that where a criminal act is done by sevornl persons in furtherance of the common intention of all, each of such. persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by s. 34 is the existence of common intention. If the common intention in question animates the accused persons and<if thP said common intention leads to the commission of the criminal off'lnce charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of s. 34. In some ways the two sections are similar and in some cases they may overlap.

But, nevertheless, the common intention which is the basis of s. 34 is different from the common object . which is the basis of the composition of an unlawful assembly. Common intention denotes action-inconcert and necessarily postulates the existence of a pre-arranged plan and that must mean a prior meeting of minds. It would be noticed , that cases to which s. 34 can be applied disclose an element of participation in action on the part of all .the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled Lhat the common intention required by s. 34 is different from the same intention or. similar intention. As has been observed by the Privy Council in MalWubSlw.h v. King Emperor (I), common intention witliin the meaning of s. 34 implies a pre-arranged plan, and to convict the accused of

(I) (194 5) L, R, 72.f.A.)48.

Mohan Singh v.

State of Punjab

Gajendraiadkar J,

Mohan Singh

•• Sto_I, oj Punjob

UaJemlrtJgtuilctl'f J.

864 sUPREME COURT REPoRTS [1962] SUPP.

an offence applying t.hf' section it hould be proven that the criminal act was done in concert pursuant to the pre-arrnnge<l pla.n and that the inferunce of common intention shoul<l mwer be rcacbd unlesH it is a necet!Bllry inference deducible from the cirnumstanccs of the case.

What then arc the facts and circumstances proved iu tho preent case? It i~ proved that tho appellants shared with Du.lip Singh the motive which imp11llcd Dalip Singh to inflict the fatal blow on Gurdip Singh. Tho close relationship between the appellant~ and D&lip Singh loaves no room for doubt that they ttharcd tho sumc motive with Dalip Singh to the au.me <'Xtent. It is also proved that Dalip Singh and tho two appellants were lying in wait for Gurdip Singh. We have also seen that when the party accompanying Gurdip Singh told the appellant Mohan Singh that the Patwari and the Qanungo had oome on the spot to deliver posae85ion of the land to Gurdip Singh, Mohan Singh pretended that he was hungry and went away. Then he seems to have contacted Dalip Singh and Ja.gir Singh and all the three were lying in wait for Gurdip Singh, who, they knew, would pass that way. Thus, the two appellants and Dalip Singh, deliberately concealed themselves bchiud a. grove of Kha.joor trees and were a.rmed with la.this.

This conduct on the part of the three assailants clearly shows that they ha.d the oommon intention of fa.tally aBSaulting Gurdip Singh. That alone can eplain why they were a.rmt,-d with la.this and why they hid themaelvea behind the Khajoor trees.

Besides, as soon as Gurdip Singh and Harnam Singh ca.me near the plaoe where the appellants lay conocaled, all of them rushed on Gurdip Singh and chatted him when he and Harnam Singh began to run away. This conduc,-t alHo clearly indieates the presence of the common intention. After chasing the victims, three of them awrounded them and Dalip Sin1; h, gave

:.-

a s.c.:R.

SUPREME OOURT REPORTS 865

the fatal blow on Gurdip Singh. In the act of surroundiug Gurdip Singh, the two appellants undoubtedly played their part and thus helped Dalip Singh. After Gurdip Singh was fatally assaulted, the three assailants apprehended that the villagers would rush on the scene becau&e an alarm had then been raised and so, they ran away together. On these facts, the conclusion appears to be inescapable that the appellants and Dalip Singh were actuated by the common intention to kill Gurdip Singh and the attack made by Dalip Singh on Gurdip Singh was in furtherance of the said common intention.

Therefore, in our opinion, there is no difficulty whatever in coming to the conclusion that the appellants are guilty under section 302/34 of the Indian Penal Code. We have no doubt that if the appellants had raised before the High Court the contention that s. 149 was inapplicable to their case, the High Court would have without any hesitation altered their conviction from under s. 302/149 into one under s. 302, read with s. 34.

The result is, the conviction of the. appe!Jants is accordingly altered into one under section 302, read with section 34 of the Indian Penal Code. This modification in the order of the conviction does not require any change in the order of sentence at all.

For the offence under section 302, read with s. 34 of which we are convicting them, they would be sentenced to imprisonment for life. The conviction and sentence for _the offence under section 147 is, however, set aside and they are ordered to be acquitted in respect of that offence. ·

Mohan Singh

State of Puniob

Gajendragotlk1r J.

MOHAN SINGH

STATE OF PUNJAB

WANCHoo

ss. 302, 149, 34

s. 302

Penal Code

s. 302

s. 149

Indian Penal Code

s. 34

Indian Penal Code

Section 149

Indian Penal Code

s. 141

s. 141

s. 149

s. 149

Indian Penal Code

[1960] 2 S.C.R. 172

Indian Penal Code

s. 34

s. 34

L.R. 72 I.A. 148

Indian Penal Code

sections 149

I.P.C

Indian Penal Code

s. 147

s. 302

s. 149

section 149

s. 149

Section 149

section 149

s. 141

s. 141

s. 149

s. 149

s. 149

s. 149

s. 302

section 14()

s. 14

section 149

section 14

s. 14

s. 14

s. 149

section 34

s. 34

s. 34

s. 34

s. 34

s. 34

s. 34

section 302

Indian Penal Code

s. 149

s. 302

s. 302

s. 34

section 302

section 34

Indian Penal Code

section 302

s. 34

section 147


196!

March 16.

866 SUPRE:IIE COURT REPORTS (1962] SuPP.

PUKHRAJ

D.R. KOHLI

(J. L. KAl'UR, P. B.

G,1.JEllJ:AGAllJ\,1H and T. L.

VE>; KATARA)!A AJYA!t, JJ.)

S1nugylr.rl Gold----St-izur(;-/)re.untpfion of icing s1wuyylcil -llea.sonalile l1elicf, tl'/1cn justifie:d-(,'onfi~cation-Lu.Jtlfily oj- If iniporter alone Z,:rz}; ff fn CJ)nfiscation of gold-Sea (Ju., toms Acf, JS7S (VIII of 1878), ss. !!!, /1;7(8), 178, 17SA-Foreiyn

/;'xchange Reg7t/aiion Act, 19-17 ( 7 of J.'147). ss. 8(1), 23A.

l'he appellant, a golds1nith, , vhilc tra\'elling in a train fron1 Calcutta was searched and fou11cl to be in posscs:iiun of gold weighing 290.6 tolas val11ecl at Rs 2~,835. The gold was seized as it was reasonahly believed to be s1nuggled gold.

After ervice of a ::.ho\Y COluse notice and after due enquiry the Co\lector passed an order for the confiscation of the goltl under s. 167(8) of the Sea Customs Act. The appellant contended that the pre:,111nption undtr s. I 78A of the Act could not be raised a5 on the facts of this case 1here could be no reasonable belief that the gold was smuggled gold, that the gold could not l>c confiscated as the appellant was not the importer thereof and that •- 167 (8) was n<1t applic•ble to the facts of the case.

Held, that the order of confiscation of the gold was validly and properly made.

Section l 78A of the Act imposed the burden of proving that the gold was not smuggled gold on the appellant if it was seized untler the Act in the reaonablc belief that it wa1 smuggled gold. '!'hough the qustion \Vhcther there was a reasonable belief or not v.as juticiable, the Court \vas not sitting in appeal over the dcch.inn of the officer and all it could consider \Va." whether there \vere ground \Vhich prima. facie justified the reasonable belief.

The facts that a large quantity of :; old v.as recovcrccl fro1n the appellant. that the authorities had precise inforn1atio11 ah<>11t the appellant a11cl

that he \\'as travelling \\'ithout a ticket -.vcrc sufficient to justify the reasonable brlief.

Section 167(H) of the S•a Customs Act prodded for the confiscation of any goods th(: in1portation of "hich \vas prohibited or restricted if thrv \vr:rc iiuµortcrl co11trary to the prohibitio1a or restriction.

Fr the collficatio11. of the guod~ it was not required that they sho~1ld he neccs.;; arily found With the person concerned. \Vith their in1portation.

Under s. 8(1) of the Foreign Exchange Regulation Act, 1947, the Government of India issued a notification in 1948 which prohibited the bringing into India of gold from outside except with the general or special permission of the Reserve Bank. Section 23A of this Act provided that the lestrictions

imposed under s.8 thereof shall be deemed to have been imposed uncle~ s.19 of the Sea Cutom~ Act. Thus the 1948 notification had the force of a notificat10n under s. 19 of the Sea Customs Act and gold imported in contravention thereof was liable to be seized under s.178 and rendered the gold liable for proceedings under s. 167(8) .. Since the gold was smuggled gold in view of the statutory presumption under s.178A it was properly confiscated under s. 167(8).

CrvIL APPELLA'l'E JuRISDICUON : Civil Appeal No. 511 of 1960.

Appeal from the judgment and order dated March 20, 1959, of the Bombay High Court at Nagpur in Special Civil Application No. 322 of 1958.

A. S . .f3obde and Ganpat Rai, for the appellant.

G, 0. Mathur and P. D. Menon, for the respondents.

1962. March 15. The Judgment of the Court was delivered by

196S

Pul:hraj

I D, R Kohli

GAJENDRAGADKAR, J.-On the 26th July, 1958, Gojendragadkor J, the Collector of Central Excise, Nagpur, pitssed an order directing absolute confiscation of five bars of gold weighing 290.6 Tolas found in the possession

of the appellant Pukhraj and imposing upon him a personal penalty of Rs. 25,000/- under s. 167 (8) of the Sea Customs Act, 1878 read with s. 19 of the said Act and s. 23-A of the Foreign Exchange Regulation Act, 1947. Aggrieved by the said order, th.e appellant filed a writ petition in the High Court of.

Bombay at Nagpur under Art". 226 and 227 of the Constitution on September 15, 1958. By this petition, the appellant claimed a writ of Certiorari or other appropriate writ or order quashing the impugned order. It was urged by him in support of his petition, inter alia, that s. l 78A of the Sea

19~2

Pukhraj

v. lJ. R. Kol.Ii

Uajet1drag•tlkor J.

8U8

SL'PREME COT, JRT HEPORTS [1962] SUP¥.

Customs Act was unconstitutional in that it infringed the appellant's fundamental right under Art. Ul (I) (r) and (g) of the Constitution. It was also urged that on the merits, the said impugned order waa nut justified by the relevant statutory provisions of the Sea Customs Act read with the .Foreign Exchange ItegulaLion Act.

The High Court rejected the appellant's challenge to the validity of s. l 78A and held that the order directing the confiscation of five bars of gold was valid.

The High Court, however, took the view that the direction issued by the Collector of Central Exciso imposing a personal penalty of P.s. 25,000/- on tho appellant was invalid and so, the said direction was set aside and a writ issued in that behalf.

The appellant then applied for and obt:i.ined a certificato from the said High Court and it is with the said certificate that he has come to this Court for challenging the correctness of the order passed by the High Court by which tho confiscation of gold in . question has been held to be valid.

The main point on which tho certificate was grant..ed by the High Court to the appellant was in regard to the constitutional validity of s. I 78A.

That question has, in the meanwhile, . been decided by this Court on September :!5, Hlfil, in Civil Appeals Nos. 408 tu 410 of 1960 and other companion appeals.

The judgment of the constitutional Bench dealing with those appeals has upheld tho validity of s. I 78A and so, the principal point which the appellant wanted to raise before this Court is now concluded against him.

For the appellant, Mr. Bubde has, however, urged three other contentions before us in support of hie case that the confiscation of gold is not justified.

Beforn dealing with these cont.enLions, it is necessary to mention very briefly the relevant facts which led to the confiscation of gold. The appellant

is a. goldsmith by profession and owns a gold and Rilver shop at Rajnandgaon in Madhya Pradesh.

On October 25, 1956, whilst he was travelling by the passenger train from Calcutta on the Calcuttacum-Nagpur route, he was searched at Raigarh railway station and found to be in possession of five pieces of gold bullion weighing 290.6 tolas valued at Rs. 29,835/- approximately. The said gold was then s•iized by the Officer concerned acting on a reasonable belief that it was smuggled gold, and notice was issued against the appellant on May 20, 1957, calling upon him to show cause why action should not be taken against him for having contravened the notification issued by the Government of India No. 12 ( 11 )-F.I/48 dated August 26, 1948 under the foreign Exchange Regulation Act, 1947 read with s.23A of the said Act and s.19 of the Sea Customs

Act and punishable under item (8) of s.167 of the Sea Customs Act.

The appellant sent a reply and thereupon, the Collector of Central Excise held an enquiry. At the enquiry the appellant appeared by counsel and examined four witnesses in support of his plea that he was in possession of gold which belonged to him and which was not smuggled gold at all. Documentary evidence in the form of accountbooks was also produced by the appellant in sup port of his plea. The Collector of Central Excise disbelieved the evidence adduced by the appellant and came to the conclusion that the presumption arising under s.l 78 of the Sea Customs Act had not been rebutted by the appellant and so,.he proceeded to pass the impugned order confiscating gold and imposing on the appellant a personal penalty of

Rs.25,000-/. It is in the light of these facts that the three contentions raised by Mr.Bahde fall to be con. sidered in the present a ppea, J.

The first argument raised in suprort of the appeal is that the confiscation of g1 old is not justified under s.167(8) because it has be-in found by the

Pukhraj v.

D.R. Kohli

Gajendra1atlkar J.

l9Gf

Pukhraj

D. ll. Kohli

GtJjudragadlra,. J.

870 SGPREME COURT REPORTS (1962] SUPP.

High Court that the appellant is not a person concerned in the offence of importation of the said gold.

It appears that in dealing with the question as to whether}ltho pcr8onal penalty imposed upon the appellant is valid or not, the High Court has relied on two considerations. It has he Id that the jurisdiction of the officer to impose a personal penalty was confined to the imposition of a penalty only up to Rs. I 000/-and no more, and in support of this conclusion, the High Court relied 011 certain observations m1de by this Court in F.N.Roy v. Collector of C11stoms, Calcutta('). '!his question bas been recently consirlered Ly this Court in .M /s.

Ranchlwddas Atnuuain

v. The Union of India(') and it has be<'.n held that the l:inguage in item (8) of s.167 iA clear and it permits the imposition of a penalty in exc<>, ss of Rs.1000/- and that must he given effect to whatever may have been the intention in other provisions. So, it is clear that the High Court was in error in taking the view that . under section lffi(8), it was not within the jurisdiction of the Collector of Central Excise to impose a penalty exceeding Rs.1000/·. The High Court has also held that the appellant Wll.s not shown to have been eonccrnml with the import.ation of tho smuggled gold, though he waM found in poession of it and this finding, according to the High Court, justified the concluAion t.hat a personal penalty could not be imposed on him. We are not callPd upon to consider in the present appeal the correctness or propriety of this conclusion because there is no appeal hy the respondent Collector of Central Excise challenging this part. of the High Court's order.

Basing himself on the finding of tho High Court that the nppellnnt was not concerned in the importation of smuggled gol<I, i\fr. Bohde arg1H'S that oven the goods cannot bi; confisc:tcd unclcr s. 1Ui(8).

In our opinion, this argument is clearly misconceived. 8ection IH7(8) clearly provides, inter alia, that if

( l i [ 19571 S.C.R .115 l lt p.11 Sll,

(2) j 1!161] 3 S.C.R. 718,

any goods, the importation of which is for the time being prohibited or restricted by or uuder Chapter IV of the Act, be imported into India contrary to such prohibition or restriction, such goods shall be liable to confiscation. If s.167(8) applies, then there can be no doubt that as soon aR it is shown that certain goods have been imported contrary to the statutory prohibition or restriction, they are liable to confiscation and the confiscation of the said goods is not based on the fact that they are necessarily found with a person who was concerned with their importation. Therefore, once s.167(8) is held to be applicable, the validity of the order directing the confiscation of the smuggled goods is beyond any challenge.

The next question to consider is whether s.167(8) applies to the facts of this case, and that takes us to tbe relevant notification issued by the Government of India in 1948. This notification imposed restrictions on import of gold and silver and it has been !ssued under s.S(l) of the Foreign Exchange Regulation Act,1947. The effect of this notification, inter alia, is that except with the general or special.permission of the Reserve Bank, no person shall bring or send into India from any place outside India any gold, coin, gold bullion, gold sheets or gold ingot, whe1 her refined or not. Thus, bringing into India gold from outside is prohibited by this notification unless the said gold is brought with tµe genera I or special permission of the Reserve Bank.

Section 23 of the said Act provides for penalty and procedure in respect of contravention of its provisions and of rules, orders or directions issued thereunder. Section 23-A provides that without prejudice to the provisions of s. 23 or to any other provision contained in the said Act, the restrictions imposed by sub-s.( 1) and (2) of s. 8 shall be deemed to have been imposed under s. 19 of the Sea. Customs Act, and all the provisions or t4a.t Aot s4a.ll 4a.ve effect coordingly, except th~~

. Pukhraj

•• D. R. Kohli

GajendrtJgad&ar J.

J9Gt

P111dar.j

D. R. Kohli

Oajtndrogadkar .T.

872 SUPREME COURT REPORTS [1962] SUPP.

s.183 thereof shall have effect as if for the word "shall" therein the word "may" w11s substituted.

It would, thus, be noticed that the combined effect of the aforesaid provisions of the two Acts a.nd the relevant notification is that the notification of 1948 has the force of a notification issued under s.19 of the Sea Customs Act, and in eonsequenco, gold importod in contravention of the said notification is liable to be seized under s. 171> of the said Act and renders the person in possossion of tho sllid gold liable for proceedings under s. !fl7(8) of the said Act; !Lnd since the matter falls to be considered under tlw

relcvnnt provisions of the Sea Customs Act, s. l 78A is also applicable. This position is not disputed.

Now s. I iSA places the burden of proving that the goods aro not smuggled goods on tho porson from whose possession the said goods are seized

where it appears that tho said goods are seized under the provisions of the Sea Customs Act in the

reasonable belief that. they are smuggled goods.

Once it is shown that the goods were seized in the

manner contemplated by the fir.t part of s. l 78A, it would he for the appellant to prove that the goods were not Rmugglcd goods; and since it has been hnld bv thi: Collector of Central Exci*~ that. the appellant had not <liRcharged the onus imposed on him by s. I 78A, thl) stn.tutory prneumption remained unrebutted ancl so, the goods must be dealt with on the basis that they are smuggled goods. As soon as we reach this conclusion, it follows t.hat under s. 167(8) of the Sea Customs Act, the said goods are liable to confiscation. That is the view taken bv the High Court when it rejected the appe!lantrs prayer for a writ q1rnshing the order of confiscation passed by the Collector of Cntral Excise in respuct of the gold in question, and wo see no reason to interfere with it.

'fhe nox.t argument urged by Mr. Bohclo

3 S.C.R.

SUPREME CX>URT REPORTS 873

is that certain witnesses whose evidence was recorded by the Collector of Central Excise in the enqu

iry before him, were not produced for cross-examination by the appellant. In our opinion, there is no substance in this argument.

This complaint relates to the evidence of Anwar, Marotrao and his brother Rambhau. These three persons, it is alleged made their statements in the absence of the appel lant, It was, however, stated before the High Court by Mr. Abhyankar for the department that Anwar was, in fact, examined in the presence ofthll appellant's counsel and the appellant's counsel did not cross-examine him. This statement was accepted by Mr. Sorabji who 8.ppeared for the appellant and so, no valid complaint can be ma.de that Anwar gave evidence in the absence of the appellant and the appellant had no opportunity to cross-examine him. Then, as regards Marotrao and Ram bhau, their statements were intend'ed to show that the appellant's case that he had got the gold melted through them was not true. At the enquiry, the appellant gave up this stand and did not adhere to his earlier Tersion that the gold in question had been melted with the assistance of the said two witnesses. Since it became unnecessary to consider that plea because of the change of attitude adopted by the appellant, it was hardly necessary to allow the appellant to cross-examine the said two witnesses. Their version on the point was no longer inconsistent with the subsequent C'1Se set up by the appellant.

Therefore there is no substance in the argument that the enquiry held by the Collector of Central Excise was oonducted unfairly and the procedure adpott>d at the said enquiry was inconsistent with the requirements of natural justice.

The last contention raised by Mr. Rohde was that there is nothing on record to show that the seizure of gold from the appellant had .been effected

by the officer concerned acting on a reasonable be lief that the said gold was smuggled. It woul4 b11

. I , ' . . ,

Pukh; aj

•• D.R. Kohli

GajenJragadkar J.

Nhraj

D.R. Kohli

Gf#nulragadkar J,

874 SUPREfE COURT REPORTS (1962] SUPP.

recalled thats. l 78A of the Sea. Customs Act requires that before ihe burden can be imposed on the appellant to show that the goods in question wern not smuggled, it has to be shown that the goods had been seized irnder the said Act and in the reasona hie belief that they are smuggled goods. The argument is that the question as to whether there was a reasonable belief or not is just iceablP, and since there is no material on the record to how that tho belief could have been reasonable, the statutory presumption cannot be raised.

Tn our opinion, this argument is not well-founded.

There are two broad features of this seizure whid1 cannot be ignored.

The first feature on which th'l offieer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold 'bullion weighing its much as 290.6 tolas, This lar!?e quantity of gold valued at nearly Rs. 30,000/- itself justified a reasonable belief in the mind of the officer that the gold may be smuggled. In that connection, it may not bo irrelevant to remember that the said oflicer had received positive information in tho month of Sep wmber, 1!)56, r<gar<ling the smuggling of gold by the appellant.. That is why ho was intercepted by tho officer 011 the 25th October, 1!)5(i, at the Raigarh railway st<1tion at lG.:m hours. Then the other faet on which tho reasonable belief can be founder! is the suspicious circumstances of the appellant'~ journey. Tho appellant w:i.s found travelliug with out a Railwa, y ticket and his explanation as to bow he came to be in the said passenger train is obviously untrue. A person ea, rrying a large quantity of gold and found travelling without a ti<"ket. may well have raised n rea.Rona, ble belief in the minrl of tho officer that the gold wa, s smugglccl.

The ol.jeot of travelling without a ticket must have been to con ceal the~ fact that tho appellant !111.Cl tnwtilled all tho way from Calclj.tta at which place tho gold mqst

have been smuggled. The story subsequently men•

tioned by the appellant about his journey to Tata- , nagar which has been disbelieved brings into bold belief the purpose which the appellant had in mind in travelling without a ticket. After-all, when we are dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer.

All that we can consider is whether there is ground which prima facie justifies the said reasonable belief. That being so, we do not think there is any substance in the argument that the seizure was effected without a reasonable belief and so is outside section l 78A.

In the result, the appeal fails and is dismissed' with costs. ·

Appeal di8missed.

MOHAMMADBHAI KHUDABUX CHHIPA

AND ANOTHER

1!.

THE STATE OF. GU, TARAT AND ANOTHER

(And connected. petitions)

(P. B. GA.JENDRAGADKAR, A. K. SARKAR, K. N.

WANCHoo, K. C. DAS GuPI'A and N. RA.TA-

GOPALA AYYANGAR, JJ.)

Agricu.lturaf Produc'! ]Jfarkets-Market committees-Levy of fees-Notijication-Validzt1;-A clas8 and B class traderslicences-Discrimination-Ruz; s. declared invalid-S1tbsequent

amendments to ena_ctment-Validzty of rules-Doctrine of eclipse . -Saurashtra .Agicultural Produce Maikets (Gujarat Amendment and Va~1dating Provisions) Ordinance, 1961 (1of1961)- Bombay Agricultural Produce Market.s Ar; t, 7939 (Bam, 22 of

.793.'J),_ a.~ am, ended, 8s.5A, 11, 2.<J.B, rr. 58, Ct/, 65; G6, fJ7- Constitutwn of India, Art.,.u, (.11)(1), 2G5,

Consequent on the decision in Gula.m Mohammad v, The Jtate ~!Bombay, (1962] 2 S.C.R. 659, by 'l'hich rr. 53, 65, 611

Pukhraj .

y, D. R; Kohli

Qajendtagadkar J

March 15.

PUKHRAJ

D.R. KOHLI

ss. 8(1), 23A

s. 167(8)

Customs Act

Section 167(H)

Customs Act

s. 8(1)

Foreign Exchange Regulation Act, 1947

Section 23A

s. 19

Customs Act

s. 167(8)

s. 167(8)

s. 167

Sea Customs Act, 1878

s. 19

s. 23

Foreign Exchange Regulation Act, 1947

Customs Act

Customs Act

Foreign Exchange ItegulaLion Act

s. 25

Exchange Regulation Act, 1947

Customs Act

Customs Act

s. 1U

Chapter IV of the Act

Foreign Exchange Regulation Act,1947

Section 23

Section 23

s. 23

s. 8

s. 19

Customs Act

Customs Act

s. 171

Customs Act

s. 167(8)

Customs Act

Customs Act

(1962] 2 S.C.R. 659