BHAIYALAL v.

HAROOSHAN SINGH AND OTHERS

Febnllhy 5, 1965

[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,

M. HIDAYATULLAH, J.C. SHAH AND s. M. SIKRI, JI.]

Constitution of India, Art. 341-Presldtnt of lnd/4-Spocifimtion of Scheduled caste in relation Jo parts of State-Validity o/-Chamar, If inc/wled In Dohtu caste.

The appellant's election was challenged inter a/la, on the ground that bo belonged to the Dohar caste which was not recognised as a Scheduled

Caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Schedule Caste was improperly and illeplly accepted by the Returning Olli=. The Election Tribunal declared

the election invalid.

The finding was confirmed on appeal by the High Court. In appeal to the Supreme Court.

HELD: (i) The plea that though the appellant ia not a Chamar u auch, he can claim the same status by reason of the fa& that he belonged to Dohar Caste which is a sulxaste of the Chamar caste cannot be

acx:epled. An enquiry of thia kind would not be permissible having rep.rd to the provisions contained in Art. 341 of the Constitution. [881 F-0]

Ba.ravalingappa v. D. Munlcliinnappa, [1965] 1 S.C.R. 316, refened E to.

(ii) In specifying castes, races or tribes under Art. 341 of the Conatitution, the President bas been expressly authorised to limit the notiftcation to parts of or groups within the castes, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to the parts of the State where be ia F wisfied that the examination of the social and educational backwardneos of the race, caste or tribe justifies such specification. [882 H-883 CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 765 of 1964.

Appeal by special leave from the judgment and order, dated G April 23, 1963, of the Madhya Pradesh High Court in First Appeal No. 24 of 1963.

N. C. Chatterjee, V. S. Sawhney, S. S. Kanjuja and Ganpat Rai, for the appellant.

G. S. Pathak and Dipak Datta Chaudhry, for respondent No. 1.

H The Judgment of the Court was delivered by Gajendragadkar, C.J. This appeal by special leave arises out of an Election petition filed by respondent No. 1, Harikishan

SUPIU!MB COURT REPORTS

[1965] 2 S. C.R.

Singh, challenging the validity of the election of the appellant, A '" Bhaiyalal, in a reserved seat in the Berasia Constituency in the district of Sehore in Madhya Pradesh. The election in question was held in February, 1962; at this election the appellant, respondent No. 1, and three others offered themselves as candidates. The awellant was declared duly elected on the 26th February, 1962 since he had polled the highest number of votes. His next rival B was respondent No. 1. By this petition, respondent No. 1 challenged the validity of the appellant's election on the ground that the appellant belonged. to the Dohar caste and was not a Chamar.

The appellant had filed his nomination.paper on the 19th January, l 962 before the Returning Officer at Sehore and had declared that C he was a member of the Chamar scheduled caste of the State of Madhya Pradesh in relation to Sehore district. This declaration was accepted by the Returning Officer. Respondent No. 1 contended that Dohar caste was not recognised as the scheduled caste for the district of Sehore and Raisen, and so, the Returning Officer had improperly and illegally. accepted the declaration of the appel- D !ant as one belonging to tile Chamar scheduled caste. Since the appellant did not belong to the scheduled caste in question, he was not entitled to stand for election for the reserved seat in respect of the said Constituency. This is the basis on which the validity of the appellant's election was challenged by respondent No. 1. On the other hand, the appellant urged that the election E petition filed by respondent No. 1 was not maintainable inasmuch as he had not deposited the security of Rs. 2,000 in the manner preecribed by the statutory rules.

On these pleadings, the Election Tribunal framed appropriate issues. The first four issues covered the principal contention raised 1 by respondent No. 1 against the validity of the appellant's nomination as a member belonging to the Chamar scheduled caste, whereas the fifth issue related to the appellant's contention about

the incompetence of the election petition filed by respondent No, 1.

Both parties led evidence in support of their pleas oi; i the principal point of dispute between them. The Election Tribunal con- G sidered the oral evidence adduced by the parties, examined the documents on which they respectively relied, and found in favour of respondent No. 1. In regard to the plea raised by the aopel\ant against the competence of the election petition, the Tribunal found against him. In the result. the election petition was allowed and the appellant's election declared invalid.

Against this decision of the Election Tribunal, the appellant preferred an appeal to the Madhya Pradesh High Court. Before

A the High Court, the same two points were urged. The High Court has confirmed the finding of the Election Tribunal on both the points. It has held that the election petition filed by respondent No. 1 was valid and the security deposit was made by him in accordance with the statutory requirements. On the merits of the

controversy as to whether the appellant was a Chamar by caste and as such was entitled to be elected for the reserved seat in the Constituency in question, 'the High Court, in substance, has agreed with the conclusion of the Election Tribunal. In consequence, the appeal preferred by the appellant was dismissed on the 23rd April, 1963. It is .against this decision that the appellant has come to this Court by special leave.

, On behalf of the appellant Mr. Chatterjee has contended that the High Court was in error in cQnfirming tho finding of the Election Tribunal in regard to the caste to which the appellant belonged. It appears that the appellant's case was that he was a Dohar Chamar which according to him is a sub-caste of the Qiamar scheduled caste. He urged that the said sub-caste was also called 'Mochi'. In support of this plea, the appellant examined witnesses and produced documen!S, and as we have just indicated, respondent No. 1 also produced witnesses and examined documents to show that the Dohar caste was distinct from and independent of the Chamar caste and Dohars could not, therefore, claim E to be Chamars within the meaning of the Presidential Order.

Thus, the question which arose between the parties for decision in the present proceedings is a question of fact and on this question . both the Tribunal and the High Court have made concurrent findings against the appellant. It is true that in reaching their conclusion on this point, the Tribunal as well as the High Court had to F consider oral as well as documentary evidence; but in cases of this

kind where the Tribunal and the High Court make concurrent findings on questions of fact, this Court does not usually interfere; and after hearing Mr. Chatterjee we see no reason to depart from our usual practice in this matter.

Respondent No. 1 examined 13 witnesses belonging to the G caste of the appellant. All of them asserted that they did not belong to the Chamar caste.

According to their evidence, the Dohar caste was different from the Chamar caste.

There was no intercaste marriage nor even inter-caste dinners between the members of the said two castes. This evidence shows that Chamars and Mochis of Schore district lived in mohallas different from the H mohallas in which the Dohars lived.

Amongst the witnesses examined by respondent No. l, the High Court has attched considerable significance to the evidence of Kishanlal, P. W. 4.

SUPREME COUAT

R~PORTS

He was the Secretary of the Dohar Samaj started by the appellant A himself.

The appellant was then the Sirpanch of that Samaj.

It is true that the Samaj did not function for long; but the documents produced by respondent No. 1 to show the constitution of the Smaj clearly indicate that the appellant had taken a prominent pai::t .m that matter. Kishanlal's evidence is absolutely clear and unambiguous.

He has stated on oath that the Dohar and the B Chamar castes are entirely different. The Chamars, according to him, take off skins from dead animals, prepare shoes and do leather work; the Dohar, said the witness, is not the sub-caste of Chamar caste; there is no relationship of inter-dining and intermarriage between the two. He denied that the Dohars are called Mochis.

Mr. Chatterjee has not been able to show any reason C why the evidence of this witness should not have been believed by the High Court.

The witness belongs to the same caste as the appellant and there is no motive shown why he should take a false oath in respect of a matter which to persons of his statua has great significance. It is not likely that a person like Kishanlal D would make false statement about his own caste.

In support of his oral evidence, respondent No. 1 produced certain documents, Exts. P. 2, P. 3, P. 4 and P. 5. These are all signed by the appellant and they relate to the year 1956. In these documents, the appellant has described himself as Dohar; in none of them has he mentioned his caste as.Chamar. Similar is the effect E of other documents on which respondent No. 1 relied; they are P. 8, P. 10, P. 11, P. 6, P. 7, P. 9, P. 14, P. 15, P. 17, P. 19, to

P. 27.

In rebuttal the appellant examined himself and his witnesses.

This oriil evidence was intended to show that the Dohar caste is F the same as Mochi caste and it is a sub-caste of the Chamar caste.

In addition to the oral evidence, the appellant produced 22 documents.

It is true that some of these documents which had been discarded by the Election Tribunal as unworthy of credence -0r as irrelevant, have been accepted by the High Court as relevant and genuine. Even so, the High Court has come to the conclusion G that these documents do not show satisfactorily that the Dohar caste is a sub-caste of the Chamar caste. In that connection, the High Court has pointed out that the documents relied upon by the appellant do not support his case that the Dohar caste is a sub-caste of the Chamar caste, and in that sense, they are not consistent with the plea made by the appellant in the present pro- H ceedings.

We allowed Mr. Chatterjee to take us through the material evidence;' and on conSidering the said evidence in the

BHAIYALAL v. HARJKISHAN (Gajendragadkar, C.J.) 881

A light of the criticism made by Mr. Chatterjee, we are satisfied that

there is no reason to interfere with the concurrent finding recorded by the Tribunal and the High Court on the main question of fact.

W c must, accordingly, hold that the appellant does not belong to the Chamar caste and as such was not qualified to contest the reserved scat for the scheduled caste of Chamars in the Con- B stituency in question.

Incidentally, we may point out that the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in view of the Constitution (Scheduled Castes) Order, 1950. This Order has been issued by the President c under Article 341 of the Constitution. Article 341 (1) provides that the President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races, or tribes which shall for the purposes of this Constitution be deemed to be Scheduled D Castes in relation to that State or Union territory, as the case may be. Sub-Article (2) lays down that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as afore5aid a notification issued under the said clause shall not be E varied by any subsequent notification.

It is thus clear that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Art. 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, F the enquiry which the Election Tribunal can hold fa whether or not tb-: appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted.

It appears to us that an enquiry of this kind would G not be permissible having regard to the provisions contained in Art. 341. In the case of B. Basavalingappa v. D. Munichinnappa

&: Others,(') this Court had occasion to consider a similar question. The question which arose for decision in that case was whether respondent No. 1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order, and while H holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual

(I) [196Sj I S.C.R. 316.

882 SUPRBMB COURT RBPOllTS

circumstances which justified the High Court in holding that A V oddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be : "it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A." That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted.

Whilst we are referring to this aspect of the matter, we may point out that the Order has taken good care to specify different C castes under the same heading where enquiry showed that the same caste bore different names, or it had sub-castes which were entitled to be treated as scheduled castes for the purposes of the Order. In the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas. Similarly, in respect of Maharashtra, Item 1, entries 3 and 4 refer to the D same castes by different names which shows either that the said castes are known differently or consist of different sub-castes.

- Likewise, item 2, entry 4 in the said list refers to Cha mar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami.

It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list E separately. Therefore, we do not think that Mr. Chatterjee can seriously quarrel with the conclusion of the High Court that the appellant has not shown that he belongs to the Chamar caste which has been shown in the Order as a scheduled caste in respect of the Constituency in question.

F Mr. Chatterjee attempted to argue that it was not competent to the President to specify the lists of Scheduled Castes by reference to different districts or sub-areas of the States.

His argument was that what the President can do under Art. 341 (1) is to specify the castes, races or tribes or parts thereof, but tbt must be done in relation to the entire State or the Union territory, G as the case may be.

In other words, says Mr. Chatterjee, the President cannot divide the State into different districts or subareas and specify the castes, races or tribes for the purpose of Art. 341 (1). In our opinion, there is no substance in this argument. The object of Art. 341 (1) plainly is to provide additional protection to the members of the Scheduled Castes having regard H to the economic and educational backwardness from which they suffer.

It is obvious that in specifying castes, races or tribes,

A the President has been expressly authorised to limit the notification tO parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social back- of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified.

Similarly, the B President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and education are backwardness of the race, caste or tribe justifies such specification. In fact, it is well-known that before a notification is issued under Art. 341 (1 ), an elaborate enquiry is made and it C is as a result of this enquiry that social justice is sought to be done to the. castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State.

Educational and social backwardness in regard to these castes, D race& or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in di11erent

areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in quastion.

Therefor~ Mr. Chatterjee is in error when he E contends that the notification issued by the President by reference to the different areas is outside his authority under Art. 341 (1).

The result is, the appeal fails and is dismissed with costs.

Appeal dismised.

BHAIYALAL

v.

HAROOSHAN SINGH AND OTHERS

Febnllhy 5, 1965

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

M. HIDAYATULLAH, J

C. SHAH

s. M. SIKRI

Constitution of India

Art. 341

Schedule C

Supreme Court

Art. 341

[1965] 1 S.C.R. 316

Art. 341

CIVIL APPELLATE JURISDICTION

N. C. Chatterjee

V. S. Sawhney

S. S. Kanjuja

Ganpat Rai

G. S. Pathak

Dipak Datta Chaudhry

Gajendragadkar

Sehore

Madhya Pradesh

State of Madhya Pradesh

Sehore district

Raisen

Madhya Pradesh High Court

23rd April, 1963

Chatterjee

Schore district

Kishanlal

Kishanlal

Kishanlal D

Article 341

Article 341

Parliament

Art. 341

Chamar

Jatav

Mochi

Art. 341

Bhovi

SUPRBMB COURT RBPOllTS

Datia

Chamar Mangan

Maharashtra

Cha mar

Chamari

Mochi

Nona

Rohidas

Ramnami

Satnami

Surjyabanshi

Surjyaramnami

Chambhar

Dhor

Art. 341

Art. 341

Art. 341

Art. 341

Art. 341


&,84

MOHD. AYUB KHAN v.

COl\'1MISSIONER OF POLICE, MADRAS AND_ ANOTIIER

February 5, 1965

[K. SUBBA RAo, K. N. WANCHOO, M. HIDAYATULLAH, B,

J. C. SHAH AND S. M. SIKRI, JJ.)

Indian Citizenship Act, 1955-Determination of. disputed citizenship by Central Government under s. 9(2)-Enquiry for that _ purpose urrder Rule 30 of the Citizenship Rules, 1956, whether quasi-judicial proceedinz -Reasonable opportunity to affected person whether necesSary-V alidity o/ s. 9 and paragraph 3 of Schedule Ill to the Rule('.

The appellant was ordered by the Commissioner of Police Madras to - C leave India because he had obtained a Pakistan passport and had thereby become the citizen of a foreign country. He made an application to tho Central Governr.ient under s. 9(2) of the Indian Citizenship Act, 1955 for , the determination of his citizenship. The Central Goveinment rejected his claim to Indian Citizenship without giving him a bearing. The appellant thereupon filed a writ petition before the High Court in which he challenged the validity of s, 9 of the Citizenship Act and also-that of Paragraph 3 D of Sch. III to the Citizenship Rules, 1956. The High Court rejected these contentions and also his further contention that the enquiry prescribed by R. 30 of the Citizenship rules conducted by the Central Government for the purpose of a decision under s. 9(2) is a quasi-judicial process in which a reasonable opportunity to the affected citizen to prove bis case is necessary.

With certificate of fitness granted by the High Court the appellant came to this Court.

, HELD(i) If voluntary acquisition of citizenship of another country determines Indian Citizenship within the meaning of s. 9(1) and by virtue of paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it wowd be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme of s. 9(2) read with Rule 30 which contemplates an enquiry by an authority prescribed under sub-s. (2) for determination of the question whether citizenship of another country bas been acquired by an Indian Citizen. [892

D-E]

(ii) Determination of the ').Uestion as to whether, when, and how foreign citiz_enship bas been acqwred postulates an approach as in a quasijudicial enquiry : the citizen cancemed must be given duo notice of the nature of the action which in the view of the authority involves termination of Indian Citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. [891 B-DJ

(iii) Obtaining of a passport of a foreign country cannot in all cases mean merely receiving the passport.

Cases may be visualised in which on account of force or fraud a pe=n may be compelled or induced to .

obtain a passport from a foreign country. It would be difficult to say that in such a case the passport has been 'obtained' within the meaning of paragraph 3, of_ Sch. III. [891 G-H]

(iv) The question whether the passport was voluntarily obtained cannot be decided by the foreign country, representative of which issue!

A a passport; and mere issue of a passport may not always be regarded decisive of the 'l, Uestion that the passport was voluntarily obtained. Section (2) read with r. 30 confers the power to determine whether Indian Citizenship is terminated upon the specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to bold that termination of Indian Citiiensbip depends

upon the acuon of a foreign country in iS>Uing tbe passport.

[89~ F-G]

(v) The appellant was not given opportunity by the Central Government to prove his case that the Pakistan passport had not been voluntar!Jy obtained by him. The C-i!ntral Government had therefore to re-detemune the qustion of his cittznship after giving him an opportunity to prove his c., c, [893 A-Bl

Ov1L APPELLATE JURISDICTION : Civil Appeal No. 250 of 1964.

Apceal from the judgment and order dated November 1959, of the lvladras High Court in Writ Appeal No. 46 of 1959.

P. Ram Reddy and A. V. V. Nair, for the appellants.

A. Ranganadham Chetty and A. V. Rangam, for the respon- D dents.

S. V. Gupte, Solicitor-Genera/, and R. H. Dhebar, for the intervener.

The Judgment of the Court was delivered by

E Shah J.

The appellant Mohd. Ayub Khan petitioned the High Court of Madras for a writ of mandamus restraining the Commissioner of Police, Madras, from taking action pursuant to

th, e order of the Government of Madras, Home Department, No. 83546, dated May 28, 1958 and from interfering with the appellant's rights as a citizen of India. The petition was dismissed F by Balakrishna Ayyar, J., and the order was confirmed in appeal by a Division Bench of the High Court. With certificate granted by the High Court, the appellant has appealed to this Court.

The appellant, who claims that he had acquired the status of an Indian citizen on the commencement of the Constitution as a person who had been ordinarily resident in the territory of India G for not less than five years immediately preceding that date, was served with a notice dated July 17, 1957 informing him that as he had obtained Pakistan Passport No. 071377, dated April I, 1953 he should leave India within one month from the date of service of the notice, and in default of compliance he would be H prosecuted and deported from India under the Foreigners Act, 1946 as amended by the Foreigners Law (Amendment) Act,

1957. On August 19, 1957, the appellant applied to the Collector of Madras for registration as a citizen of India. Later he applied

886 SUPREME COUllT REPORTS [1965] 2 S.C.ll.

to the Central Government under s. 9 ( 2) of the Citizenship Act, A 1955 to determine the question whether he continued to remain a citizen of India, and prayed that he may be given an opporturiity to produce all ''necessary evidence in support of his claim as regards Indian citizenship".

Without affording him that opportunity, however, the Government of India by order, dated May 7, 1958 rejected the application of the appellant under s. 9 of the B Citizenship Act.

In support of his petition before the High Court for issue of a writ of mandamus, the appellant urged that s. 9 of the Citizenship Act, 1955 was ultra vires the Parliament and cl. 3 of Sch. ill to the Citizenship Rules was also ultra vires the Central Govern- C ment, and that in any event Rule 30 of the Citizenship Rules contemplated a quasi-judicial inquiry in which an opportunity must be given to the party sought to be affected, to make a representation and to adduce evidence to show that the acquisition of a passport from the High Commissioner for Pakistan was not voluntazy. Balakrishna Ayyar, J., rejected these contentions.

D In dealing with the question whether the order of the Central Government was Ul:lenforceable because opportunity to prove the appellant's case that he had not voluntarily renounced Indian citizenship, the learned Judge observed that the appellant "had not indicated on what points he intended to lead evidence and what kind of evidence he intended to adduce".

In appeal the High Court held that the appellant ''had in fact made a declaration on the basis of which the passport was obtained and the allegations made by him did not even imply that he was forced to make a false declaration". In the view of the High Court s. 9 lays "down an objective test and when the individual had F brought himself within it, the law determines the legal consequences of the situatron, independently of his intent or understanding", and therefore there was no scope for an enquiry of the nature claimed by the appellant.

Before dealing with the arguments raised by counsel for the G appellant in this appeal, certain constitutional and legislative provisions which have a bearing thereon may be set out. Part Il Of the Constitution deals with the topic of citizenship. By Art. 5 a person who at the commencement of the Constitution had hia domicile in the territory of India and who was born in the territory of India, or either of whose parents was born in the territory H of dia, or who had been ordinarily resident in the territory of India for not less than five years immediately preceding such

A commencement was deemed a citizen of India. By virtue of

cl. (3) of Art. 1 the territory of India is comprised of the States, the Union territories and such other territories as may be acquired. Article 6 deals with the acquisition of rights of citizenship of persons who have migrated to India from Pakistan, and Art; 7 deals with the rights of citizenship of migrants to Pakistan.

B Article 8 deals with the rights o( citizenship of certain persons of Indian origin residing outside India. Article 9 provides :

"No person shall be a citizen of India by virtu~ of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily c acquired the citizenship of any foreign State."

Article 10 provides that every person who is or is deemed to be a citizen of India under any of the foregoing provisions shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

By Art. 11 Parliament is D authorised to make provision with respect to the acquisition and termination of citizenship and all other matters relating to citizen ship. Article 367 cl. (3) defined a "foreign State" as any State other than India, but the President was by the proviso thereto authorised, subject to the provisions of any law made by Parliament, to declare by order any State not to be a foreign State for E such purposes as may be specified in the order. By a declnration made under the Constitution (Declaration as to foreign States) Order, 1950, it was declared that, subject to the provisions of any law made by Parliament, every country within the Commonwealth was not to be a foreign State for the purpose of Art. 9 of the Constitution. Pakistan could not therefore be regarded as a F foreign State, until legislation was enacted by Parliament to the contrary. In 1955 the Parliament enacted the Citizenship Act 57 of 1955 to provide for the acquisition and termination of Indian citizenship. The Act made detailed provisions for acquisition of citizenship by birth, by descent, by registration, by naturalisation and by incorporation of territory in ss. 3 to 7 of the Act. In G ss. 8, 9 & 10 provision was made for renunciation, termination and deprivation of citizenship. By s. 9 it was enacted that :

"(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India : USup./6S-11

SUPREME COUB.T REPORTS

[1965] 2 S.C.R.

"Provided that nothing in this sub-section shall A apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.

(2) H any question arises as to whether, when or B how any person has acquii; ed the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf."

By s. 18 ( 1) the Central Government was authorised to make C rules, inter alia, for setting up the authority to determine the question of acquisition of citizenship of another country, and the procedure to be followed by such authority and rules of evidence relating to such cases. In exercise of the authority under s. 18(1) the Citizenship Rules, 1956 were framed by the Central Government and they came into force on July 7, 1956. By Rule 30, D it was provided :

" ( 1) H any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purposes of section 9 ( 2) , be the Central Government.

( 2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule ID."

Schedule ill set out the rules referred to in Rule 30(2). Causes 1, 2 and 3 are material :

"l. Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship; of that country and the burden of proving that he has not so acquired such citizenship shall be on him.

"2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of

that country and act on any report or information received in pursuance of such reference.

"3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that dato."

Acquisition of citizenship at the commencement of the Constitution was governed by Arts. 5, 6 and 7. If, however, a person bad voluntarily acquired citizenship of a foreign State he could not claim the status of a citizen under Art. 5, and he could not C be deemed to be a citizen by virtue of Art. 6 or Art. 8. Article 10 continues, subject to the provisions of any law to be made by Parliament, the right of citizenship acquired or deemed to be a<:quired under the foregoing Articles.

Power of Parliament to enact legislation to make provision with respect to the acquisition and termination of citizenship is as a matter of abundant caution D affirmed by Art. 11. The Parliament by s. 9 of the Citizenship Act, 1955 legislated in regard to determination of citizenship and provided, inter alia, that a person who has voluntarily acquired since January 26, 1950 or acquires lifter the commencement of the Act citizenship of another country, shall cease to be a citizen of India, and that if any question arises as to whether citizenship E of another country has been acquired by a person, the question must be determined by the authority, in such manner and having regard to such rules of evidence. as may be prescribed in that behalf.

This Court has pronounced upon the legislative competence F of the Parliament to enact s. 9 of the Citizenship Act, 1955 in lzhar Ahmad Khan v. Union of India(').

In the same case challenge to the validity of Rule 3 of Sch. ill to the Rules framed under the Citizenship Act, 1955 was also negatived. Mr. Ram Reddy for the appellant contended that as certain important aspects of the plea of invalidity were not presented before the G C'-0urt at the hearing of !Viar Ahmad Khan's case('), we shoulcl again proceed to consider the challenge to the validity of Rule 3 of Sch. ill and s. 9 of the Citizenship Act limited to those arguments. We are unable, however, to countenance the submission.

This Court has held on the arguments presented before the Court in lzhar Ahmad Khan's case(') that s. 9 of the Act was validly H enacted by the Parliament. and that Rule 3 of Sch. ill was competently made by the Central Government in exercise of the

(1) [1962] Supp. 3 S.C.R. 235.

890 SUPllEMB COURT REPORTS

(1965) 2 S.C.R.

powers conferred by s. 18 of the Citizenship Act.

Assuming A that certain aspects of the question were not brought to the notice of the Court, we see no grounds for entering upon re-examination of the question. It may be pointed out that the judgment of the Court in Izhar Ahmad Khan's case(') was followed by this Court in the Government of Andhra Pradesh v. Syed Mohd. Khan(').

B The question which survives for determination is whether the appellant can challenge the validity of the order of the Commissioner of Police pursuant to the order made by the Central Government under s. 9(2) of the Act on the plea t.1-iat he had not "voluntarily obtained" a passport from the High Commissioner for Pakistan in India. In the petition as originally filed, the Union c of India was not impleaded as a party-respondent and on the state of authorities then in force the appellant could not implead the Union of India as a party-respondent to the petition filed by him in the High Court of Madras. When this appeal was heard on December 7, 1964. notice was issued calling upon the Union to produce the orders and proceedings under s. 9 (2) . of the D Citizenship Act relating to the case of the appellant. Pursuant to the direction the relevant proceedings and order have been produced and an affidavit has been filed by the Under Secretary in the Ministry of Home Affairs. It is now common ground that in the inquiry contemplated by Rule 30 of the Citizenship Rules, no opportunity was afforded to the appellant to prove his case that E he had not obtained the passport voluntarily from the High Commissioner for Pakistan

Section 9 ( I ) of the Citizenship Act provides for termination of citizenship of an Indian citizen if he has (subject to the proviso which is not material) by naturalisation, registration or otherwise, F voluntarily acquired citizenship of another country.

Subject to the exception in the proviso therefore naturalisation, registration or acquisition of citizenship of another country operates to tenninate the citizenship of India. Acquisition of citizenship of another country to determine Indian citizenshin must however be voluntary. By sub-s. (2) provision is made for setting up an authority G to determine the question where, when and how citizenshiu of another country has been acquired, and by Rule 30 tl)e Central Government is designated as the authority, which is invested with power to determine the question in such manner. and having regard to such rules of evidence as may be prescribed. ProvisiO!I for prescribing rules of evidence, having re!\ard to which the H question of acquisition of citizenship of another country has to In

(I} [1962] Supp. 3 S.C.R. 235.

(2) [1962] Supp. 3 S.C.R. 288.

AYUB KHAN V. ~SSI<>Ni!ll (Shah, /.) 891

A determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citi7.cn concerned ha8 obtained a passpon of another country.

The question as to whether when and how foreign citizenship hes been acquired has to be determined having regard to the rules of evidence prribed, and termination of Indian citizen- B ahip being the consequence of voluntary acquisition of foreign

citiun•hip, the authority has also to determine that such latter cirivmahip has been voluntarily acquired. Determination of the question postulates an approach as in a quasi:, judicial enquiry : the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination C of Indian citizenship, . and reasonable opportunity must be

afforded to the citizen to convince the authority that what is alloged against him is not true. What the scope and extent of ille enquiry to be made by the authority on a plea raised by the citizen concerned should be, depends upon the circumstances of

0 each case.

Paragraph 1 of Sch. m which raises a rebuttable presumption, when it appears to the Central Government that a citir.en has voluntarily acquired foreign citizenship, casts the burden of proof upon the citizen to disprove such acquisition, and Paragraph 2 which authorises the Central Government to make enquiries for E the purpose of determining the question raised, strongly support the view that the Central Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenshin, before action can be taken against him on the footing that his citizenship is terminated. Paragraph 3 raises a conclusive presumption that a citizen of India who has obtained a passoort F {rem a foreign country on any date, has before that date voluntarily acquired citizenship of that other country. J'ly the application of the rule in Paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of 8llOtller country before that date. But obtaining of a passport of G a foreign country cannot in all cases merely mean receiving the

passport. H a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualized in which on account of force a person may be compelled or on account of

fraud or mis-representation he may be induced, without any H mtention of renunciation of his Indian citizenship, to obtain a

piSS'pOrt from 11 foreign country. It would be difficult to say that IUCh a passport is one which has been. "obtained" within the

892 SUPlU!ME COURT llBPORTS

meaning of Paragraph 3 of Sch. ill and that a conclusive pre- A sumption must arise that he has acquired voluntarily citizenship of that country.

We are not concerned in this case with the truth or otherwise of the plea raised by the appellant in his petition before the High Court that he was compelled to obtain the passport from ilie B High Commissioner for Pakistan. Balakrishna Ayyar, J., observed that the plea of the appellant was not bona fide.

But it is not the function of the courts to determine the question whether the

plea raised is true or not : it is for the authority invested with power under s. 9 (2) to determine that question if it is raised.

The High Court in appeal was of the view that s. 9 laid down an C objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his "intent or understanding arose".' We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of D s. 9 ( 1 ) , and by virtue of Paragraph 3 of Sch. ill of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from tho Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme E of s. 9(2) read with Rule 30 which contemplates an enquiry by an authority prescribed under sub-s. ( 2) for determination of the question whether citizenship of another country has been acquired by an Indian citizen.

Counsel for the State of . Madras submitted that the question whether the passport was voluntarily obtained must be decided by the foreign country, representative of which issues the pa~ port, and mere issue of a foreign passport must always be regarded as decisive of the question that the passport was voluntarily obtained. Buts. 9(2) read with Rule 30 confers the power to detern)ine whether Indian citizenship is terminated upon the G specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to hold that termination of Indian citizenship depends upon action of a foreign country in issuing the passport.

We are therefore of the view that the High Court was in error in holding that the decision of the Government of India without H giving an opportunity to the appellant to prove his case that he had been compelled by the police to obtain a pasrt from the

A High Commissioner for Pakistan will sustain the order of deportation against the appellant. It will of course be open to the Central Government to determine whether the appellant has lost the citizenship of India by voluntarily acquiring the citizenship .of Pakistan by obtaining a passport from the High Commissioner for

Pakistan, or in any other manner. But the determination must B be made in accordance with law.

The appeal is allowed, and it is ordered that the order of deportation passed by the Commissioner of Police, Madras shall not be enforced until the Central Government determines the status of the appellant according to law. No order as to costs.

Appeal allowed.

84

MOHD. AYUB KHAN

COMMISSIONER OF POLICE, MADRAS AND ANOTHER

K. SUBBA RAo

K. N. WANCHOO

M. HIDAYATULLAH

C. SHAH

S. M. SIKRI, JJ.

Indian Citizenship Act, 1955

s. 9(2)

Citizenship Rules, 1956

s. 9

Schedule Ill to the Rule

s. 9(2)

Indian Citizenship Act, 1955

Citizenship Act

III to the Citizenship Rules, 1956

Central Government

s. 9(2)

s. 9(1)

III of the Citizenship Rules

s. 9(2)

lvladras High Court

P. Ram Reddy

A. V. V. Nair

A. Ranganadham Chetty

A. V. Rangam

S. V. Gupte

R. H. Dhebar

E Shah

Mohd. Ayub Khan

High Court of Madras

Balakrishna Ayyar

India

July 17, 1957

India under the Foreigners Act, 1946

August 19, 1957

Madras

s. 9

Citizenship Act

Government of India

May 7, 1958

s. 9

Citizenship Act

s. 9

Citizenship Act, 1955

cl. 3

Pakistan

s. 9

Art. 5

Art. 1

Article 6

Article 8

Article 9

article 5

article 6

article 8

Article 10

Parliament

Art. 11

Article 367

Art. 9

Citizenship Act

ss. 3 to 7

ss. 8, 9 & 10

s. 9

26th January, 1950

s. 18

s. 18(1)

Citizenship Rules, 1956

July 7, 1956

section 9

Schedule ID

Arts. 5, 6 and 7

Art. 5

Art. 6

Art. 8

Article 10

Art. 11

s. 9

Citizenship Act, 1955

January 26, 1950

s. 9

Citizenship Act, 1955

Ram Reddy

Viar Ahmad Khan

s. 9

Citizenship Act

lzhar Ahmad Khan

s. 9

s. 18

Citizenship Act

Izhar Ahmad Khan

s. 9(2)

Union c of India

Union of India

December 7, 1964

s. 9

Citizenship Act

Ministry of Home Affairs

Section 9

Citizenship Act

s. 9

s. 9

s. 9

s. 9(2)


MANGALDAS RAGHA vn RUPAREL & ANR.

A v.

THE STATE OF MAHARASHTRA & ANR.

February 8, 1965

[K. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH,

J. R. MUDHOLKAR AND S. M. SIKRI, JI.]

Prevention of Food Adulteration Act (37 of 19S4) a. 2(zUl), 7(11), 10, 11, 13(S), 16(1) (a) and 19(1)-Public Analyst-Report of-If Su/Ii clent for conviction when analyst not ezamined-Mens rea-If prosecution should establish-Compulsory sale of sample to Food Inspector-If "sale" under Act.

The three appellants were a wholesale dealer in spices, a dealer In groceries, and his servant respectively.

The second appellant purchuecl a bag of turmeric powder from the first and the third. appellant took delivery of it on behalf of the second appellant, his master. Immediately after it was taken delivery of, the food inspector purchased from the third appellant some turmeric powder contained in that bag for the purpose of analysis, and after issuing notice to the third appellant as required by s. 11 of the Preven tion of Food Adulteration Act, 1954, sent a portion of the p0wder purchased to the public analyst, who gave a report that it was adulterated food. Tbo three appellants were then prosecuted under ss. 6(1)(a) read withs. 7(v) of the Act and convicted by the Magistrate. The conviction was confirmed

by the High Court. In the appeal to this Court it was contended that, (i) the report of the public analyst, by itself was not sufllcient ID sustain the conviction, and the public analyst should have been called as a witness, (ii) the report of the public analyst could not be uaed as evidence against a person who was not given notice under s. 11 of the Act, (iii) the first appellant could not be convicted without establishing that he had the mens rea, and (iv) the taking of the sample under s. 10 by a food inspector, was not a "sale" within the meaning of s. 2(xiii) and therefore s. 7(v) of the Act was not infringed.

HELD: (i) Section 13(5) of the Act, makes the report of the public analyst admissible in evidence and a Court of fact is free to act on it or not, as it thinks fit. The Court could therefore legally act solely on the l>a&is of the report and the prosecution c0uld not fail on the ground that the public analyst was not called as a witness. If the appellant wanted the analyst to be examined, it was for the appellant to take appropriate atepe.

[900 F; 902 C-D]

(ii) The law requires notice under s. 11 to be given only ID the person from whom the sample was taken and none else. If that formality had been complied with and the report of the analyst is placed on record at the trial, it would be admissible against all the accused persons. [902 H; G

903 CJ

(iii) The word "vendor" in s. 19(1) means the person who had lold the article of food which was alleged to be adulterated. At one stage, the first appellant was the vendor of the turmeric powder. Since the section deprives the vendor of adulterated food of the defence of merely illleging that he was ignorant of the nature, substance or quality of the article of food sold by him, the burden of showing that he had no me111 rea ID H commit the offence would be upon the first appellant. {904 B-D]

State of Maharashtra v. Mayer Hans George, [1965] 1 S.C.R., 123 fol lowed.

(iv) The definition of "sale" in s. 2(xiii) of the Act, apecifically includes within its ambit a sale for analysis. The transaction in the instant case would amount to sale inspite of the fact that where a person is iequired by the food inspector to sell him a sample of a commodity, there

is an element of compulsion under s. 10 of the Act. [906 HJ

Food Inspector v. Parameswaran, [1962] 1 Cr. L.J. 652, overmled.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 113 of 1963.

Appeals by special leave from the judgment and order dated C April 19, 1963, of the Bombay High Court in Criminal Appeal No. 988 of 1962.

V. B. Ganatra and /. N. Shroff, for the appellant (Cr. A. No. 57 of 1963).

D Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the appellant (in Cr. A. No. 113 of 1963 ).

S. G. Patwardhan and B. R. G. K. Achar, for the respondent -State (in both the appeals).

The Judgment of the Court was delivered by :

Mndholkar, J. This appeal and Criminal appeal No. 113/63 arise out of a joint trial of the appellant Mangaldas and the two appellants Daryanomal and Kodumal in Cr!. A. 113 of 1963 for the contravention of s. 7 ( v) of The Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) in which F they were convicted and sentenced under s. 16(1 )(a) of the Act.

The appellants Mangaldas and Daryanomal were each sentenced under s. 16(l)(a)(ii) of the Act to undergo rigorous in1prisonment for six months and to pay a fine of Rs. 500 while the other appellant was sentenced under sub-cl ( i) to undergo imprisonment until the rising of the Court and to pay a fine of Rs. 200. On anneal G they were all acquitted by the Additional Sessions Judge, Nasik.

The State preferred an appeal before the High Court of Bombay which allowed it and restored the sentences passed on 't.fangaldas and Daryanomal by the Judicial Magistrate but imposed only a fine of Rs. 200 on Kodumal. They have come up to this Court by special leave.

The admitted facts are these. Mangaldas is a wholesale dealer, Commission agent, exporter, supplier and manufacturer of various kinds of spices doing business at Bombay. Dayanomal is engaged

896 SUPllBMB COURT REPORTS

[1965) 2 S.C.R.

in grocery business at Nasik while Kodumal is his servant. On A November 7, 1960 Daryanomal purchased from Mangaldas a bag of haldi (turmeric powder) weighing 7 5 kg. which was despatched by the latter through a public carrier. It was received on behalf of Daryanomal at 11.45 A.M. on November 18, 1960 by Kodumal at the octroi post of Nasik Municipality. After he paid the octroi duty to the Nasik Municipality and took delivery of the bag the B Food Inspector Burud purchased from him 12 oz. of turmeric powder contained in that bag for the purpose of analysis. The procedure in this regard which is laid down in s. 11 of the Act was followed by Burud. A portion of the turmeric powder was sent to the Public Analyst at Poona, whose report Ex. 16, shows that the turmeric powder was adulterated food within the meaning of C s. 2 ( i) of the Act. Thereupon Burud, after obtaining the sanction of the Officer of Health of the Municipality, filed •a complaint against the appellants in the court of the Judicial Magistrate for offences under s. 16(1) (a) read withs. 7(v) of the Act. At the trial Kodumal admitted that he had taken delivery of the bag at 0 the octroi post and sold 12 oz. of turmeric powder to the Food Inspector and that he had also received a notice from him under s. 11 of the Act. It was contended at the trial on behalf of Daryanomal that actually no delivery had been taken but that point was not pressed before the High Court.

While Mangaldas admitted that he had sold and despatched the bag containing turmeric E powder he contended that what was sent was not turmeric powder used for human consumption but was "Bhandara" which is used for religious purposes or for applying to the forehead. This contention was rejected by the Judicial Magistrate as well as by the High Court but was not considered by the Additional Sessions Judge. It was sought to be challenged before us by Mr. Ganatra on his F behalf but as the finding of the High Court on the point is upon a question of fact we did not permit him to challenge it.

We will take Mangaldas's case first. Mr. Ganatra had made an application on his behalf for raising a number of new pointi, including some alleged to raise constitutional questions.

At the hearing, however, he did not seek to urge any question involving G the interpretation of the Constitution. The new points which he sought to urge were : ( 1) that the appellant was not questioned regarding the report of the Public Analyst;

(2) the joint trial of Mangaldas with the otlter two appel- H !ants was illegal; and ( 3) that the sanction was not valid.

A As regards the first of these points his contention is that he had raised it before the High Court also though it has not referred to in its judgment. The High Court has stated clearly that all the points raised in argument before it were considered by. it. In the face of this statement we cannot allow the point to be urged before us.

B As regards the second point it is sufficient to say that it was not raised before the Magistrate.

Section 537 (b) of the Code of Criminal Procedure provides that no judgment, conviction or sentence can be held to be vitiated by reason of misjoinder of parties unless prejudice has resulted to the accused thereby. For c determining whether failure of justice has resulted the Court is

required by the Explanation to s. 537 to have regard to the fact that the objection had not been raised at the trial. Unless it is so raised it would be legitimate to presume that the accused apprehended no prejudice. The point thus fails.

As regards the alleged invalidity of sanction it is sufficient to D point out that the contention was not raised in the High Court or earlier. We, therefore, decline to consider it.

Mr. Gar.atra urged that the trial court had no jurisdiction to try the appellant as the appellant had not committed any offence within its jurisdiction. With regard to this point the High Court E has held that Mangaldas had distributed the commodity within the jurisdiction of the Magistrate and, therefore, the Magistrate had jurisdiction to try him. Apart from that we may point out that under s. 182 of the Code of Criminal Procedure where it is unoertain in which of the local areas an offence was committed or where the offence is committed partly in one local area and partly F in another or where an offence is a continuing one and continues to be committed in more local areas than one or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Since Mangaldas actually sent the bag from Bombay to Nasik he oould be said to have committed the offence partly-in Bombay G from where it was despatched and partly in Nasik to which place it had been consigned. Apart from that, the mere fact that proceeding<; were taken in a wrong place would not vitiate the trial unless it appears that this has occasioned a failure of justice (see s. 531, Cr. P. C.). Mr. Ganatra, however, says that there was H failure of justice in this case because had Mangaldas been prosecuted at Bombay, one of the samples taken from the bag of turmeric powder would have been sent to the Public Analyst at Bombay and not to the Public Analyst at Poona. We are wholly

SUPREME COURT REPORTS

(1965] 2 S.C.R.

unable to appreciate how this could make any difference what- A soever. Apart from that since the samples were actually taken at

Naslk the one meant for analysis had, according to an administrative order o[ the Government, to be sent to the Public Analyst at Poona. Therefore, even if Mangaldas had been tried at Bombay the report oi the Public Analyst at Poona could be put in evidence.

There is nothing .in the Act which prevents that from being done.

In view of the fact tat the f.nding of the Judicial Magistrate and the High Court th"t the turmeric powder had been adulterated was based soiely on the report of the Public Analyst, Mr. Ganatra r;1ised three contentions before us. One is that such evidence is not by itself sufficient for the conviction of an accused person; the C second is that the Pubiic Analyst was not called as a witness in the case and the third is that unless notice is given to an accused person under s. 11 of the Act after a sample had been taken of the allegedly adulterated commodity the report of the Public Analyst concerning that commodity is not admissible against him.

In support of the contention that the conviction could not be based solely npon the report of the Public Analyst that the turmeric powder was adulterated.

Mr. Ga.TJatra relied upon the decisions in State v. Bhausa lianmatsa Pawar(') and City Corporation Trivandrum v. Antony('). The first of these is a case under

the Bombay Prohibition Act, 1949 (Bombay XXV of 1949). In E that case a large quantity of angurasava, partly contained in two barrels and partly in three boxes containing 109 bottles was recovered from the house of the accused person .. Samples taken from tbe ban-els and boxe3 were sent for analysis to the Chemical Analyser and to the Principal, Podar Medical College, Bombay.

The report of the former showed that three out of the four samples F

contined alcohol in varying degrees. Thereupon the accused was prosecuted for offences under ss. 65, 66(b) and 83(1) of the Bombay Prohib'tion Act. His defence was that he manufactured a medicinal preparation called angurasav,: which contained Ayurvedic ingredients which generated alcohol. According to him, therefore, whe.t was seized from him was outside the orbit of the Bombay G Prohibition Act. Partly relying upon the certificate issued bv the Principal of Podar Medical College, the trying Magistrate acquitted the accused holding that the prosecution failed to discharge the onus of proof that angurasava was prohibited liquor. On appeal . by the State of Maharashtra before the High Court reliance was placed upon the certificates issued by the Chemical Analyser as H well as by the Principal, Podar Medical College. The certificate of

(I) [1962] Born. L.R. 303.

(2) l.L.R. [1962] I Kerala 430.

A thC former showed that three out of the four samples contained

"2.2 and 6 per cent v /v of ethyl alcohol respectively and they

contain yeast No alkoloidal ingredient or metallic poison was detected in them. The certificate of the Principal of the Podar Medical College is as follows :

"Formula supplied is found to be similar to that given in the Ayurvedic Books. There are no easy methods to find out the herbal drugs dissolved in a liquid.

It is not possible for us, to find out the herbal drugs use:! in the above liquids. The colour and smell of the samples supplied is not identical with the colour and smell of fermented Ayurvcdic preparation like, Assav and Arishta. Hence it is very difficult to give any definite opinion in the matter."

On behalf of the accused it was urged that by virtue of sub-s. (ii) of s. 24(a) of the Prohibition Act, the provisions of ss. 12 and D 13 thereof do not apply to any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor. Section 12 of the Act prohibits the manufacture and possession of liquor and s. 16 prohibits the possession of materials for the manufacture of liquor. It was, however, contended on behalf of the State that once it is established that what was seized from the possession of E the accused contains alcohol the burden of proving that what was

seized falls under s. 24 (a) was on the accused person. The High Court, however, held that the burden of establishing that a par" ticular article does not fall under s. 24(a) rests on the prosecution. In so far as the certificate of the Chemical Analysu WBll

concerned the High Court observed as follows :

"It is beyond controversy that, normally, in order that a certificate could be received in evidence, the person who has issued the certificate must be called and examined as a witness before the Court. A certificate is nothing more than a mere opinion of the person who purports to have issued the certificate, and opinion is not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross-examination."

It will thm be clear that the High Court did not hold that the

certificate was by itself insufficient in Jaw l:o sustain the convic- H tion and indeed it could not well have said so in view of the provisions of s. 510, Cr.P.C. What the High Court seems to have felt was that in circumstances like those present in the case

900 SUPlll!MB COURT REPORTS

[J 965] 2 S.C.R.

before it, a court may be justified in not acting upon a certificate of A the Chemical Analyser unless that person was examined as a witness in the case. Sub-section ( l ) of s. 510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code and sub-s. (2) thereof empowers the court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a wit- B ness upon an application either by the prosecution or the accused in this regard. It would, therefore, not be correct to say that where the provisions of sub-s. (2) of s. 510 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as having no weight. Whatever that may C be, we are concerned in this case not with the report of a Chemical Examiner but With that of a Public Analyst. In so far as the report of the Public Analyst is concerned we have the provisions of s. 13 of the Act. Sub-section ( 5) of that Section provides as follows:

"Any document purporting to be a report signed by a public analyst, unless it has been superswed under sub-section ( 3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code :

Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein."

This provision clearly makes tho report admissible in evidence.

What value is to be attached to such report must necessarily be for the Court of fact which has to consider it. Sub-section ( 2) of s. 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity G taken under s. 11 of the Act to the Director of Central Food Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst.

This certificate is not only made admissible in evidence under subs. ( 5) but is given finality of the facts contained therein by the proviso to that sub-section. It is true that the certificate of the H Public Analyst is not made conclusive but this only means that tho court of fact is free to act on the certificate or not, as it thinks fit.

Sub-section ( 5) of s. 13 of the Act came for consideration in Antorry's case(') upon which the State relied. There the question was whether a sample of buffalo's milk taken by the Food Inspector was adulterated or not. The Public Analyst to whom it was sent submitted the following report :

"I further certify that I have analysed the aforemen tioned sample and declare the result of my analysis to be as follows: Solids-not-fat 9.00 per cent..

Fat 5.4 per cent.. c Pressing point

(Hortvet's method) o.49°c

and am of the opinion that the said sample contains not

less than seven per cent (7%) of added water as calculated from the freezing point (Hortvet's method) and is therefore adulterated."

The Magistrate who tried the accused persons acquitted them on:

the ground that it was not established that the milk was adulterated. Before the High Court it was contended that the certificate was sufficient to prove that water had been added to the milk and reliance was placed upon the provisions of s. 13 ( 5) of the Act.

E The learned Judge who heard the appeal observed that this provision only says that the certificate may be used as evidence but does not say anything as to the weight to be attached to the report. The learned Judge then proceeded to point out what according to him should be the contents of such report and said:

F "In this case the court is not told what the Hortvet's test is, what is the freezing point of pure milk and how the calculation has been made to find out whether water has been added. I cannot, therefore, say that the Magistrate was bound to be satisfied on a certificate of this kind, which contains only a reference to some test G and a finding that water has been added. . The prosecution could have examined the Analyst as a witness on their side. The learned Magistrate also could very well have summoned and examined the Public Analyst, but whatever that might be, I am not prepared to say 'hat the finding of the Magistrate that the case has not been .

H satisfactorily proved is one which could not reasonably have been reached by the learned Magistrate and

(1) I.L.R. (1962] 1 Kcrala 430.

SUPREME COURT .REPORTS

[1965) 2 S.C.R.

that the acquittal is wrong and calls for interference." A (p. 436)

All that we wuuid like to say is that it should not have been diflicult for the learned Judge to satisfy himself by reference to standard books as to what Hortvet's method is and what the freezing point of milk is. We fail to see the necessity of stating B in the report as to how the calculations have been made by the Public Analyst. Apart from that it is clear that this decision does not support the contention of learned counsel that a court of fact could not legally act soleiy on the basis of the re.port oi the Public Analyst.

As regards the failure to examine the Public Analyst as a 'vitness in the . case no blame can be laid on the prosecution. The report of the Public Analyst was there rnd if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely

on the ground that the Public Analyst had not been called in the 0 .case. Mr. Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact that it was not chlenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclmion that the sample of turmeric powder examined by him E showed adulteration. The report sets out the result of the analysis and of the tests performed in the public he.alth laboratory.

Two out of the three tests Rnd the microscopic examination revealed adulteration of the turmeric powder.

The microscopic examination showed the pre-ence of ; iollen talks. This could well be regarded as adequate to s.atisfy the mind of a Judge or F Magistrate dealing with the facts.

Mr. Ganatra then s.1id that the report shows that the analysis was not made by the Public Analyst himself but by someone else. What the report says is "I further certify that I have caused to be analysed the aforementioned sample and declare the result of the analvsis to be 3i follows." This would show that what was done as done under G the supervision of the Public Analvst and that should be reP.arded

as quiie sufficient. - •

Now as to the necessity of notice under s. 11 f the A ct.

Mr. Ganatra said that the report is admissible only against a person to whom notice is given under s. 11 (I)( a) by the Fo'.)d

Jnsaector, that the obiect of taking the samf)le was to have. it H anilysed. The law requir~ notice to be given only to the person from whom the sample is taken and to none else. The ol> ect of

A this provision is clearly to apprise the peraon from whom the sample is taken of the intention of the Food Inspector so that he may know that he will have the right to obtain from the Food Inspector a part of the commodity taken by way of sample by the Food Inspector. This is with a view to prevent a plea from being raised that the sample sent to the analyst was of a commodity B difierent from the one from which the Food Inspector has taken

a sample. What bearing this provision has on the admissibility of the evidence of the Public Analyst is difficult to appreciate.

Once the report of the Analyst is placed on record at the trial it is adulissible against all the accused persons. What it shows in the present case is that the commodity of which Kodumal had C taken possession contained turmeric powder which was adulterated. Therefore, since it is admitted and also established that the bag of turmeric powder from which sample was taken had been despatched by the appellant Mangaldas, the report of the Public Analyst could be properly used against him in regard to the D quality or composition of the commodity.

Mr. Ganatra then said that it was necessary to establish that the appellant had the mens rea to commit the offence. In support of his contention Mr. Ganatra pointed out that s. 19 ( 1) of the Act deprives only the vendor of the right to contend that he was ignorant of the nature, substance or quality of the food sold E by him and not a person in Mangaldas's position. According to him, the word vendor here means the person from whom the sample was actually taken by the Food Inspector. We cannot accept the contention. The word "Vendor", though not defined in the Act, would obviously mean the person who had sold the article of food which is alleged to be adulterated. Mangaldas F having sold the bag to Daryanomal, was the original vendor and, therefore, though the sample was taken from Kodumal he will equally be barred from saying that he was not aware of the nature, substance or quality of the turmeric powder in question.

Moreover, it is curious that a person who sought to get out by saying that what he had actually sent was not an article of food G but something else should now want to say that he did not know that though it was an article of food it was adulterated.

We may now refer to two decisions upon which learned counsel relied in support of his contention. The first is Municipal Board, Bareilly v. Ram Gopal (1). There the question was whether a H shopkeeper who allowed the owner of adulterated ghee to sell on his premises was entitled to say in defence that he was ignorant of

(1) 42 Crr. LJ. 243.

USup./6S-12

!104 SUPl!.BMB COURT REPORTS

(1965} 2 S.C.R.

the quality of ghee which its owner was offering for sale. It was A held by the Allahabad High Court that he was so entitled. We fail to appreciate how this case is of any assistance in the matter before us. For, here, the tunneric powder admittedly once belonged to Mangaldas and was in fact sold by him to Daryanomal. At one stage, therefore, Mangaldas was the vendor of the tunneric powder and, therefore, falls squarely within the provisions of s. 13 B

(1) of the Act. The second case is Ravula Hariprasada Rao v.

The State('). What was held in that case is that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind.

The proposition there stated is well-established. Here s. 19 ( 1) of C the Act clearly deprives the vendor of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him and this places upon him the burden of showing that he had no mens rea to commit an offence under s. 17 ( 1) of the Act. In a recent case-State of Maharashtra v. Mayer Hans George( 2 )-this Court had to consider the D necessity of proving mens rea in regard to an offence under s. 23

(1) (a) of the Foreign Exchange Regulation Act (7 of 1947) read with a notification dated November 8, 1962 of the Reserve Bank of India. The majority of Judges constituting the Bench held that on the language of s. 8 ( 1) read with s. 24 ( 1) of the above E Act, the burden was upon the accused of proving that he had the requisite pennission of the Reserve Bank of India to bring gold into India and that there was no scope for the invocation of the rule that besides the mere act of voluntarily bringing gold into India any further mental condition or mens rea is postulated as necessary to constitute an offence referred to in s. 23(1-A) of the above F Act. We are, therefore, unable to accept the contention of learned counsel.

The 'only other point which falls for consideration is the one raised by Mr. Anthony in the other appeal. Mr. Ganatra did not address any separate argument on this point but he adopted what was said by Mr. Anthony. That point is whether the transaction G in question i.e., taking of a sample by a Food Inspector under s. 11 amounts to a "sale" and, therefore, whether the person connected with the transaction could be said to have infringed s. 7(v) of the Act. Mr. Anthony's contention is that for a transaction to be a sale it must be consensual sale. Where a person is required by the Food Inspector to sell to him a sample of a commodity H there is an element of compulsion and, therefore, it cannot be

(I) (19SI] S.C.R. 322.

(2) [196S] I S.C.R. 123.

M. RAGHAVJl v. &TATE (Mudholkar, J.) 905

A regarded as sale. In support of the contention he has placed

reliance upon the decision in Food Inspector v. Parameswaran(1 ) Raman Nayar J., who decided the case has observed therein:

"As a sale is voluntary .transaction and (sic) a seizure or compulsory acquisition in exercise of statutory power is not a sale within the ordinary sense of that word. Nor does the definition of 'sale' in s. 2(xiii) as including a sale of good for analysis make it one, for, the first requisite even under the definition is that there must be a sale. The definition apparently by way of abundant caution, merely states that the word 'sale' means all manner of sales of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis; and all that the definition means in relation to the question we are considering is that a sale of food is nonetheless a sale, by reason of the fact that it was not for consumption or use, but only for analysis.

In my view when a food inspector obtains a sample under s. 10 of the Act there is no sale. Of course, it is possible for a Food Inspector just like any other human being to effect a purchase in the ordinary course, and the transaction would be a sale notwithstanding that the purchaser is a Food Inspector and that his purpose is to have the article analysed with a view to prosecution.

But, if he obtains the article not by a voluntary exchange for a price but in exercise of his statutory power under s. 10 of the Act the transaction is not a sale notwithstanding that in obedience to sub-s. (3) of s. 10 its cost -and I think the sub-section advisedly uses the long phrase, 'its cost calculated at the rate at which the article is usually sold to the public' instead of the word 'price' is paid to the person from whom the sample is taken."

In Sarjoo Prasad v. The State of Uttar Pradesh('); M. V. Joshi

v. M. U. Shimpi(') and The State of Uttar Pradesh v. Kartar Singh(<) this Court has treated a transaction of the kind we have here as a sale. No doubt, no argument was addressed in any of these cases before this Court similar to the one advanced by Mr.

Anthony in this case and as advanced in Parameswaran's case(1 ).

(1) [1962] 1 Crl. L.J. 1S2.

906 SUPlll!MB COURT lll!PORTS

A view contrary to the one taken in Parameswaran's case(') A was taken in State v. Amritlal Bhogilal(2 ) and Public Prosecutor

v. Dada Raji Ebrahim H elari ( 8). In both these cases the sale was to a sanitary inspector who had purchased the commodity from the vendor for the purpose of analysis. It was contendCl; d in these cases that the transaction was not of a voluntary nature and, therefore, did not amount to a sale. This contention was rejected.

B In Amritlal Bhogilal's case(2 ) the learned Judges held:

"There is also no reason why in such a case the article should not be held to have been sold to the inspector within the meaning of s. 4 ( 1 )(a). He has paid for the article purchased by him like any other customer. c Moreover, s. 11 itself uses the words "purchase' and 'sell' in regard to the inspector's obtaining an article for the purpose of analysis and paying the price for it.

It is, therefore, clear that the Legislature wanted such a transaction to be regarded as a sale for the purposes of the Act." (p. 463) D

The learned Judges in taking this view relied upon several reported decisions of that Court. In Dada Hajj Ebrahim Helari's case(8 ) which was under the Madras Prevention of Adulteration Act, (3 of 1918) Ramaswarni J., dissented from the view taken by Horwill J., in In re Ballamkonda Kankayya(') and following the E decisions in Public Prosecutor v. Narayan Singh(') and Public Prosecutor v.

Ramachandrayya(8 ) held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof. But Mr. Anthony contends that a contract must be F consensual and that this implies that both the parties to it must act voluntarily. No doubt a contract comes into existence by the acceptance of a proposal made by one person to another by that other person. That other person is not bound to accept the proposal but it may not necessarily follow that where that other person had no choice but to accept the proposal the transaction G would never amount to a contract; Apart from this we need not, however, consider this argument because throughout the case was argued on, the footing that the transaction was a 'sale'. That was evidently liCcause here we have a special definition of "sale" in s. 2 (xiii) of the Act which specifically includes within its ambit a

c1> [1962) 1 Cr!. L. J. ua

(3) A.J.R. 1953 Mad. 241. (S) 19-44 M. W.N. Crl. 131.

(2) LLR. 1954 Bom. 4!9.

(4) A.1.R. 1942 Mad 609.

(6) 1948 M.W.N' Crl. 31

A sale for analysis. It is, therefore, difficult to appreciate the reasons which led Raman Nayar J ., to hold that a transaction like the present does not amount to a sale. We arc, therefore, unable to accept that view. In the result we uphold the conviction and ilentence passed on each of the appellants and dismiss these appeals.

B Appeals dismissed.

MANGALDAS RAGHA vn RUPAREL & ANR

THE STATE OF MAHARASHTRA & ANR

February 8, 1965

K. N. WANCHOO

M. HIDAYATULLAH, J

C. SHAH,

J.

R. MUDHOLKAR

S. M. SIKRI

Prevention of Food Adulteration Act

s. 11

ss. 6(1)(a)

s. 11

s. 10

s. 2(xiii)

s. 7(v)

Section 13(5)

s. 11

s. 19(1)

s. 2(xiii)

s. 10

Bombay High Court

N. Shroff

D Frank Anthony

E. C. Agarwala

P. C. Agrawal

S. G. Patwardhan

B. R. G. K. Achar

Mndholkar

Mangaldas

Daryanomal

Kodumal

s. 7

s. 16(1 )(a)

s. 16(l)(a)(ii)

Additional Sessions Judge, Nasik

High Court of Bombay

t.fangaldas

Daryanomal

Kodumal

Mangaldas

Bombay

Dayanomal

Nasik

November 7, 1960

November 18, 1960

Burud

s. 11

Poona

s. 2

s. 16(1)

s. 11

Ganatra

Section 537

Code of Criminal Procedure

s. 537

Gar.atra

s. 182

Code of Criminal Procedure

s. 531

s. 11

Ga.

TJatra

Bombay Prohibition Act, 1949

ss. 65, 66(b) and 83(1)

Podar Medical College

State of Maharashtra

s. 24(a)

ss. 12

Section 12

s. 16

s. 24

s. 24(a)

s. 510

Cr.P.C

s. 510

s. 510

s. 13

sections 272 to 276

Indian Penal Code

s. 13

s. 11

Central Food Laboratory

s. 13

Antorry

s. 13

s. 11

s. 11

s. 19

Mangaldas F

Allahabad High Court

s. 13

s. 19

s. 17

s. 23

November 8, 1962

Reserve Bank of India

s. 8

s. 24

India

s. 23(1-A)

Anthony

s. 11

s. 7(v)

s. 2(xiii)

s. 10

s. 10

s. 10

Parameswaran

Amritlal Bhogilal

s. 4

s. 11

Dada Hajj Ebrahim Helari

Ramaswarni

Horwill

Ballamkonda Kankayya

s. 2

Raman Nayar