.JAICHAND LALL SETHIA

STATE OF WEST BENGAL & ORS.

July 27, 1966

[K. N. WANCHOO, M. HIDAYATULLAH, S. M. SllCRI, V. ilAMASWAMI

AND J. M. SHELAT, JJ.]

Defence of India Rules, 1962. r. 30-Detention under-Plea of mala fide wliether can be raised-Detenue whether entitled to insvect file containi141 order of detention-No mala fides alleged against Chief Minister who passed order-His affidavit not necessary.

The appellant was detained under r. 30 of the Defence of India C Rules, 1962. He challenged the ocdcr of detention by a petition under Art. 226 of the Constitution which was ctsmissed. In appeal before this Court by special leave it was urged on behalf of the appellant that: (i) the order of detention was mala fi_M; (ii) the High Court in not calling for the file of the case and permitting the appellant to inspect the matcr; al on the basis of which the order of detention was made. committed an error of law; (iii) the High Court should have asked for an affidavit from the Chief Minister of the State who D passed the order of detention.

HELD: (i) Although in view of the decisions of this Court the appellant was entitled to raise the plea of mala Mes despite the Proclamation of Emergency and the President's Order which followed, the facts of the present case did not justify the plea. [468Hr Makhan Singh Tarsikka v. State of Punjab, [19641 4 S.C.R. 932 and Duraadas Shirali v. Union of India. (1966] 2 S.C.R. 573 referred B

(ii) The satisfaction of the G<>vernment which justifies the order of detention under r. 30 is a subjective satisfaction. A court can not normally enquire whether grounds existed which would have ~- created that satisfaction on which alone the order could have been made, in the mind of a reasonable person. If therefore an authenti cated order of detention is on its face regular and in conformit, y with the language of r. 30, it is not ordinarily open to a court to enter into an investigation about the suffic:cncy of the material on r which the order of detention is based. f 469 C-D]

King Emperor v. S'iibnath Banerjee, 72 I.A. 241, Liversidae v.

Sir Jolin Anderson (19421 A.C. 206 and Greene v. Secretary of State for Ilome Affairs [19421 A.C. 284, referred to.

Even though the order as drawn up recites that the State Government was satisfied the accuracy of that recital can be challenged in court to a lim:.ted extent. The accuracy can be challenged in two ways, either by proving that the State G<>vernment nC"Ver ap- G plied its mind to the matter or that the authorities of the State Government acted mala fide, In a normal case the existence of such a recital in a duly authenticated order will. in the absence of any evidence as to its inaecuracy, be accepted by the court as establishing that the necessary condition was fulfilled. However, if the order of detention itself suffers from any lacuna it is open to a court to call for an affidavit from the Chief Minister or other Minister con- H cerned or to call for the relevant file from the State Government in order to satisfy itself as to the accuracy of the recital made In the order af detention. [470 F-Hl

JAICHAND LAL 11. w. BENGAL (Ramaswami, J.) 465

Biren Dutta etc. v. Chief Commissioner. of Trir:ura, [19641 8 S.C.R. 295 and Jagannath Misra v. State of Orissa. [1966]' 3 S.C.R. 134, referred to.

In the circumstances of the present case summi:>ning of th~ file by the High Court was not necessary, and the High Court nghtly rejected the appellant's prayer for inspection of the file. [471 E-F]

(iii) As there was no allegation of mala fides or lack of bona fies with regard to the Chief Minister, it was not necessary for the High Court to call for his affidavit. The affidavit of the Deputy Secretary to the State Government was in the circumstances of the case, sufficient. r471G-472A]

1966.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 110 of 1966.

Appeal by special , reave from the judgment and order dated February 8, 1966 of the Calcutta High Court in Criminal Misc.

Case No. 266 of 1965.

N. C. Chatterjee, S. K. Dutta and D. N. Mukherjee, for the appellant.

C. K. Daphtary, Attorney-General, B. Sen, P. K. Chatterjee and P. K. Bose, for the respondents.

The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, against the judgment of the Calcutta High Court dated February 8, 1966 in Criminal Misc. Case No. 266 of 1965 refusing to grant a writ in the nature of habeas corpus ordering the release of the appellant, Jaichand Lal Sethia from detention under an order passed by the Government of West Bengal under r. 30 of the Defence of India Rules.

After the conclusion of arguments in this case on May 3, 1966 we expressed the view that this appeal should be dismissed and the reasons will be sta, ted later. We now proceed to express those reasons.

The case of the appellant is that he was carrying on business of purchasing and selling goods like cloves, cinnamon, dye-stuff etc. in the city of Calcutta. In the month of January, 1963 the appellant had some trouble with the police of Burrabazar, P.S. in Calcutta, particularly with the Sub-Inspector Ka!yan Dutt, Officer-in-charge of that Police Station .. The appellant also said that he incurred the displeasure of the officers of the Customs De partment who had illegally seized the goods of the appellant and also prevented him from participating at the auction-sales of Customs Department. The appellant had made a complaint to the higher authorities of the Customs Department in this respect. On September 27, 1965 the order of detention of the appellant was made by the Government of West Bengal under r. 30 of the Defence of India Rules and in pursuance al' that order the appel1 !ant was detained in the Presidency jail at Calcutta. The order of

466 StPHEME C..'OURT REPORTS i.llfi6j SUPP.

~.C.R.

detention being No. 7~22 H.S. of the Government of West Bengal .l Home Department Special Section reads as follows:

"Whereas the Governor is satisfied that with a view to preventing Sri Ja ichand Lal Sethia, son of Sri Dipchand Sethia of 9 Decres Lane, Calcutta from acting in any manner prejudicia.! to the maintenance of Public Order, it is neces 8 sary to make an order directing that he be detained.

Now, therefore, the Governor in exercise of the power conferred by Rule 30 of the Defence of India Rules, 1 %2, is pleased hereby to direct that the said person be detained and be kept in custody in the Presidency Jail during the period of such detention." The appellant obtained a rule from the Calcutta High Court asking the respondents to show cause why a writ in the nature of habeas corpus should not be granted directing the release of the appellant from detention. The case of the appellant was that the order of detention was made ma/a fide because the appellant had incurred the personal hostility of some officers in the police and Customs Departments. It was contended that the order of detention was procured ma/a fide upon false reports made vindictively under the Defence of India Rules by the officers in the police and Customs Departments. It was said that the order was made by the Chief Minister, West Bengal not because he was satisfied about the necessity of detaining him in the interest of public order but for ulterior considerations. In response to the notice an affidavit was filed on behalf of the State of West Bengal denying the allegations of the appellant. Affidavits were also filed by Kalyan Dutt and Debranjan Dutta controverting the allegations of the appellant so far as they were concerned. After hearing the parties, the Calcutta High Court hei!d that the order of detention was lawfully made by the Chief Minister of West Bengal and the allegation of ma/a fide had not been established by tbe appellant. The High Court accordingly dismissed the application of the appellant for grant of a writ of hab, a~ corpus.

On behalf of the appellant it was submitted by Mr.

N. C.

Chatterji that the order of detention was made on the basis of reports submitted by the police and Customs authorities whose enmity had been incurred by the appellant. It was pointed out that on August 16, 1964 the appellant had sent a representation to the Chief Minister of West Bengal and other higher authorities saying that the police had been creating fictitious records for putting the appellant under detention under the Defence of India Rules. In July, 1965 three defamation cases were started against the appellant at the instance of the Customs Officers. In August and September, 1965 the appellant had sent representations against the police and Customs officers to the Chief Minister, West Bengal and other higher authorities. The contention of the appellant is

.. ,,

•.1

-- ,.

.JAif'HA~D LAL r. \\', HBNf}AL (Raill't~/, Cffifl.i, J.) 467

that the order of detention was made on September 27, 1965 by the Chief Minister, West Bengal not because of any material suggesting that the appellant was acting, in any manner, prejudicial to the maintenance of public order but because of the false reports made by the police and Customs officers. The next contention of the appellant is that there is no affidavit filed on behalf of the Chief Minister, West Bengal showing that he applied his mind to the case of the appellant and that he had the requisite satisfaction as required by the statutory rule. It was also submitted that the High Court did not permit the appellant to inspect the material on the basis of which the order of detention was made and the High Court committed an error of law in not permitting the appellant to go beyond the authenticated order of detention and to find out whether the sa.tisfaction of the Chief Minister, West Bengal was based upon sufficient material.

Before proceeding to deal with these points raised on behalf of the appellant it is necessary to state that in Makhan Singh Tarsikka v. The State of Punjab(') and in Durgadas Shirali v. The

Union of India and Anr.(') this Court had occasion to consider the legal effect of the proclamation of Emergency issued by the President on October 26, 1962 and two orders of the Presidentone dated November 3, 1962 and the other dated November 11, I 962 issued in exercise of the powers conferred by cl. (I) of Art. 359 of the Constitution. It was held by this Court that the scope of Art. 359(1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Arts. 14, 19, 21 and 22. It was pointed out that during the pendency of the Presidential Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravene~ Arts. 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of the Ordinance or any rule or order made thereunder on any other ground. If the appellant seeks to cha1lenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to the appellant to challenge the Order on the ground of contravention of Art. 19, because as soon as a Proclamation of Emergency is issued by the President under Art. 358 the provisions of Art. 19 are automatically suspended.

But the appellant can challenge the validity of the order on a ground other than those covered by Art. 358, or the Presidential Order issued under Art. 359(1). Such a challenge is outside the

I') (1964] 4 S.C.R. 932. (')

(1966] 2 S.C.R. 573.

(68

81.JPREM& COURT REPORTS [l!m) 81.JPP f.C'.ll.

purview of the Presidential Order. For instance, a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered ma/a fide. Similarly, it will be open to tbe citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real

11 and proximate connection between the ground given and the object which the legislature has in view. It may be stated in this context that a ma/a fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the sta.tutory power is exercised for purposes foreign to those for which it is in Jaw intended. In other words, the power conferred by tbe statute has been utilised for some indirect purpose not 0 connected with the object of the statute or the mischief it seeks to remedy. !t is contended, in the first place, on behalf of the appellant that the order of detention is bad because the Chief Minister had taken into account the reports from the police and Customs offi. cers falsely made against the appellant. It is argued by Mr. N. C

Chatterji that the order of detention is bad because the statutory D power has been exercised ma/a fide that is to say, it has been utilised for some indirect purpose not connected with the object of the statute or the mischief which it seeks to remedy. The allegation of the appellant has been denied by Mr. Sen Gupta, Deputy Secretary to the West Bengal Government, Home Department in his affidavit made on behalf of the Government of West Bengal It is stated by Mr. Sen Gupta that in making the order of deten- • tion dated September 27, 1965 the Chief Minister, West Bengal did not take into consideration the criminal proceedings pending against the appellant before the Police and Customs authorities.

Mr. Sen Gupta further said that all papers available to State

Government as to the activities of the appellant Jaichand Lal Sethia were placed before the Chief Minister who was personally satisfied that the appellant was engaged in illegal activities preju- 1 dicial to the maintenance of public order and as such an order of detention of the appellant was necessary. It was also stated by Mr.

Sen Gupta in his affidavit that the appellant was engaged not only as a dealer in spices but was engaged in procuring and selling goods il!egally and clandestinely.

The allegation of the appellant has also been denied by G Kalyan Dutt in his affidavit. Mr. Kalyan Dutt states that he never created fictitious records against the appel.lant and never prepar ed or forwarded any history-!iheet or any note to any authority recommending the detention of the appellant under the Defence of India Rules. There is also an affidavit by Mr. Debaranjan Dutta denying the allegations made by the appellant. On perusal of the H various affidavits filed in the case the High Court reached the conclusion that the allegation of ma/a fide made by the appellant

0 ,

I -J

JAICHAND LAL v. w. BENGAI, (Ramaswami, J.) 4.69

had not been substantiated and the order of detention ma.de by the Government of West Bengal could not be held to be legally invalid on this account. We see no reason to take a view different from that of the High Court on this point. We are accordingly of the opinion that Mr. N. C. Chatterji on behalf of the appellant is unable to make good his submission on this aspect of the case.

It was next contended on behalf of the appellant that the High Court should have called upon the State Government to produce the ft.le concerning detention of the appellant in order to determine for itself whether the Chief Minister had sufficient material before him for satisfying himself as to the necessity for the detention of the appellant. We are unable to accept this argument as correct. The satisfaction of the Government which justifies the order of detention under r. 30 is a subjective satisfaction. A court cannot normally enquire whether grounds existed which would ha.ve created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If therefore an authenticated order of detention is on its face regular and in conformity with the language of r. 30 it is not ordinarily' open to a court to enter into an investigation about the sufficiency of the material on which the order of detention is based. The legal position has been explained by the Judicial Committee in King Emperor v. Shibnath Banerjee(') as follows:

"It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as

estblishing that the necessary condition was fulfil11ed. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima faciea case that the recital is not accurate".

Reference may be made, in this connection, to Liversidge v. Sir John Anderson(') and Greene v. Secretary of State for Home Affairs ('). The question in those cases was whether the Home Secretary had reasonable cause to believe that certain persons were of hostile associations and that by reason thereof it was necessary to exercise control over them. It was held that the matter was one for the executive discretion of the Secretary of State, and that the Court was not entitled to investigate the grounds on which the Secretary of State came to believe the persons concerned to be of

(') 72 LA. 241 at p. 261.

(') [1942] A.C. 206.

(') [1942] A.O. 284.

!70 ~' PRF'.\IE l'Ol'RT nr:f>u~ I'!'! ( J 966] 8UPP. 8.l'.R.

hostile associations. or to believe that by reason of such associations it was necessary to exercise control over them.

In Liversiclge0s(') case Viscount Maugham observed as follow~:

"In my opinion. the well-known presumption omnia esse rite acta applies to this order. and, accordingly. assuming the order to be proved or admitted, it must be taken prtma facie, that is until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State was complied with."

In Greene's('! case Vi-count Maughan again quoted with approval the following passage from the judgment of Goddard L.J. in the Court of Appeal :

"I am of opinion that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts necessary to controvert it, and in the present case this has not been done. I do not say that in no case is it necessary for the Secretary of State to file an affidavit. It must depend on the ground on which the return is controverted, but where all that the prisoner says in effect is 'I do not know why I am interned. I deny that I have done anything wrong', that does not require an answer because it in no way shows that the Secretary of State had not reasonable cause to believe. or did not believe. otherwise ...

It is manifest that an order of detention under r. 30 of the Defence of India Rules can only be passed if the State Govern ment is satisfied that the detention of a particular person is necessary on any ground referred to in that Rule. Even though the order as drawn up recites that the State Government was satisfied,

the accuracy of that recital can be challenged in court to a limited extent. The accuracy can be challenged in two ways either by ., proving that the State Government never applied its mind to the matter or that the authorities of the State Government acted ma/a fide. In a normal case the existence of such a recital in a duly authenticated order will. in the absence of any evidence as to ii! inaccuracy, be accepted by the court as establishing that the necessary condition was fulfilled. In other words. in a normal case the existence of such a recital in a duly authenticated order that the G State Government was satisfied will, in the absence of any evidence to the contrary, be accepted by the court as establishing that fhe State Government was so satisfied. If the order of detention itself suffers from any lacuna it is open to a court to call for an affidavit from the Chief Minister or other Minister concerned or to call for the relevant file from the State Government in order to H

(') [1942) A.C. 201;, l'l I I!J.12) A.O. 281.

- \...

G •

1AJCHAND LAL v. w. BENGAL (Ramaswanii, l.) 471

satisfy itself as to the accuracy of the recital made in the order of detention.

For instance, in Biren Dutta etc. v. Chief Commissioner of Tripura,(') this Court made an order directing the Chief Secretary to the Tripura Administration to transmit to this Court the original files in respect of the detenus and also directed the Minister concerned or the Secretary or the Administrator to file an affi- Javit in this Court stating all the material facts indicating whether the decision arrived at was duly communicated to tlite detenus concerned. But the order for production of the file and for affi-· davit from the Minister or the Secretary concerned was made in that case because the appellant alleged that the order of review had not been reduced to writing under r. 30A(8) and the relevant conditions prescribed by the rule had not been complied with and that it had not been commnnicated to him. Reference was made by Mr. N. C. Chatterji to another case-Jagannath Misra v. The State of Orissa(')-in which this Court ordered the Home Minister to file an affidavit. In that case the order of detention was defective because the authenticated copy of the order mentioned six grounds with the disjunctive "or" mentioned in the affidavit of the Chief Secretary. Some of these grounds were followed by "etc.". In view of the ambiguity of the order this Court made a direction asking the State Government to produce the original order which was in the form of a document and al:so called for an affidavit from the Home Minister who was in-charge of matters of detention. In the present case, the material facts are different from those in the Jagannath Misra(') case, in the Biren Dutta(') case. It follows therefore that the High Court was justified in not making an order for discovery or production of the origiinal Jepartmental file containing the activities of the appellant by the Government of West Bengal.

Lastly it was contended for the appellant that the High Court should have asked the Chief Minister to file an affidavit and rejected the affidavit filed by the Deputy Secretary Mr. Sen Gupta as insufficient to controvert the allegations of the appellant. We do not think there is any substance in this point. There is no allegation made by the appellant that the Chief Minister himself was acting ma/a fide. The allegation of the appellant was that Mr.

Kalyn Dutt and the Customs Officers had acted mala fide against the appellant. The a1Jegation of the appellant on this point has been denied by Mr. Kalyan Dutt in his affidavit. As there is no allegation of ma/a {hies or lack of bona /ides with regard to the Chief Minister of West Bengal who is the authority for deciding as to the necessity for detention of the appel!lant it

(') [196~] 8 S.Q, R. 296.

(') [1966] 3 S.C.R. 134.

J,/SSSCJ

8Ul'!!F.lllC COl:RT P.EPORT~

(!966) SOPP. B.C.R.

was not necessary for the High Court to call for an affidavit from A the Chief Minister and the affidavit filed by Mr. Sen Gupta on behalf of the Government of West Bengal was rightly considered by the High Cou1t as sufficient in the circumstances of the case.

For these reasons we hold that there is no merit in this B

appeal and that it should be dismissed. , -·

Appeal dismissed.

' '

JAICHAND LALL SETHIA

STATE OF WEST BENGAL & ORS

K. N. WANCHOO

M. HIDAYATULLAH

M. SHELAT, JJ.

Defence of India Rules, 1962

Defence of India C Rules, 1962

Art. 226

(1966] 2 S.C.R. 573

Art. 359

Art. 359(1)

Arts. 14, 19, 21 and 22

Arts. 14, 21 and 22

Arts. 14, 21 and 22

Art. 19

Art. 358

Art. 19

Art. 358

Art. 359(1)

(1964] 4 S.C.R. 932

(1966] 2 S.C.R. 573

[1966] 3 S.C.R. 134


ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR.

MIS. BEST & CO.

March 25, 1966

fK. SUBBA RAO, V. RAMASWAMI AND J. M. SHELAT, JJ.]

Limitation Act (9 of 1908), s. 12(2) and (3)-Application for leave !<' appeal-Rules of High Court permitting filing without copies of 1udgment or order-Time taken for obtaining copies-If could be excluded in computing limitation.

The respondent's petition under Art. 226 challenging an orJer of the appellants (customs authorities) was ordered by the High Court.

The appellants immediately applied for cert:fied copies of the judg ment and order. Th<y filed an application for leave, to appeal to this Court against the order of the High Court, along with a certified copy of the judgment which alone was furnished to them by then; but the application was beyond the period of limitation even after excluding the time taken for obtaining the certified copy of the judgment. The certified copy of the order was furnished to the appellants thereafter, but it was not annexed to the application for leave to appeal. The High Court dismissed the application on the ground !hat it was barred by time.

In appeal to this Court. the appellants contended that they were entitled under s. 12(2) of the Limitation Act to exclude the time taken in obtaining the certified copy of the order, while the respondent sought to support t.he dismissal on the grounds that: (!) the application for leave to appeal was competent without annexing either the certified copy of the judgment or order under the Rules of the High Court, and therefore, it cannot be said that the time taken for

obtaining the copy of the judgment or order was requisite, and hence. could not be excluded under s. 12(2) or (3), and (ii) the prescribed F'l'.>rm for an application for leave prohibited the annexing of a copy of the judgment or order.

HELD: (i) Under s. 12(2) and (3) of the Limitation Act, the time for obtaining the crrtifif'd copif's of the judgent nnd the decree or the order must bo excluded while computing the peri<ld of limitation.

The Legislature allO\\.t'd lhe exclusion to enable a party who intends to file an appeal to examine the decree or the judgment before he launches a further proceeding. The provision does not depend upon whether the Civil Procedure Code or Rules of a Court permit a petitioner to file an application for leave to appeal with or without " copy of the judment or order or decree, and where the Rules so permit. whether he has annexed such a copy to his application or not. f52 H-53 Bl

Surty v. Chettyar, L.R. 55 I.A. 161, applied. Gangaram v. Beharilal A.LR. 1952 Bhopal 39 and Abdul Aziz v. Jai Ram. A.I.R. 1951 H.P. fn, overruled.

(ii) The rule ond the Form prescribed do not lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. f51 B-Cl

A •

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COLLECTOR OF CUSTOMS V. BEST & CO. (Shcfr•t, J.) 47

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 275 of 1966.

Appeal by special leave from the order dated August 17, 1965 of the Calcutta High Court in an application for leave to appeal to this court in Appeal No. 254 bf 1963.

WITH

Civil Miscellaneous Petition No. 2195 of 1965 (Petition for Condonation of delay).

B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.

A. K. Sen and D. N. Mukherjee, for the respondent.

The Judgment of the Court was delivered by

Shelat, J. On March 31, 1959 the respondents obtained a licence to import certain machinery from West Germany.

The import licence contained particulars of the machinery to be imported and inter alia stated that its value would be "C.I.F. value of Rs. 45,000". One of the conditions upon which the licence was issued was that:

"the above application is accepted and import licence is granted having quantity and value as the limiting factor and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than five per cent."

The machinery arrived at the port of Calcutta sometime in July 1960 and was allowed to be cleared on the bill of entry submitted on behalf of the respondents. The bill of entry showed the C.I.F. value of the machinery at Rs. 44,843.61 nP. The cus- 'F toms authorities thereafter assessed the duty payable on the said machinery and the duty so assessed was paid by the respondents.

On May 6, 1961, in consequence of certain information received by the authorities a search was made of the business premises of the respondents and also of Stahlumon & Co .. Ltd., the agents of the exporters.

As a result of the search certain documents and papers were seized by the customs authorities. On June 19120, G 1961 a notice was served upon the respondents calling upon them to show cause why action should not be taken against them under s. 167(8) of the Sea Customs Act, 1878. The notice alleged that the respondents were guilty of illegal import of goods worth Rs. 6,730.74 nP, that being the excess value of the goods permitted to be imported under the said licence. The respondents in due course gave their explanation. Thereafter an amended show H cause notice dated September 21, 1961 was served upon the respondents charging them under s. 167(8) of the Sea Customs Act read with s. 3(2) of the Imports and Exports Control Act, 1947

48 t; J'RF.MF COPRT RF, P0RT8 [1966) Sl'PP.

S.C.R.

for illeally importing the said consignment. The respondents were given a personal hearing and thereafter the first petitioner passed an order dated March 17, 1962 directing confiscation of the said machinery an<l imposing a tine of Rs. 20.000 in lieu of confiscation and further impos; ng a personal penalty of Rs. 25.000.'-.

Aggrieved by this order the respondents filed a petition in the High Court under Art. 226 of the Constitution praying for mandamus directing the petitioners to rescind the order <lated March 17. 1962 and for certiorari quashing the said order.

The learned single Judge who heard the petition passed an order dated September 2, 1963 dismissing the petition holding that the said import was illegal. Thereupon the respondents tiled an appeal against the said order and the Appellate Bench of the High Court by its orders dated December 18, 1964 allowed the respondents' appeal directing the petitioners to forbear from giving effect to the said order of the first petitioner. The petitioners filed an application for a certificate under Art. 133 but the Appellate Bench of the High Court by its arder dated August 17, 1964 dismissed the said application on the ground that it was barred by limitation, though holding that

(i) the valuation tests laid down in sub-cl. (a) and (b) of Art. 133( I) were satisfied. and

(ii) that the order being one of reversal the petitioners were otherwise entitled to a certificate.

The present appeal is against the said order dated December 18, 1964 by which the High Court issued the writ of mandamus against the petitioners.

As aforesaid, the High Court delivered its judgment and passed the abovementioned order allowing the respondent's appeal on December 18, 1964.

On December 19, 1964 the petitioners applied for certified copies of the said judgment and the said order. The certified copy of the judgment was furnished to the petitioners on January 18, 1965.

The petitioners however waited for the certified copy of the said order which was yet not fumisl!ed to them.

As the certified copy of the said order was not finalised and was not ready the petitioners filed the said application for leave on May JO, 1965 annexing thereto the certified copy of the judgment only.

On July 17, 1965, a certified copy of the said order was furnished to the petitioners but they did not annex it to their application for leave as it was already filed. As stated earlier the High Court dismissed the application by its order dated August 17, 1965, on the ground that it was barred by limits ti on.

The High Court however observed that if the petitioners had annexed the certified copy of the said order furnished to them on July 17, 1965 they would have been entitled to eclude the time taken in obtaining it from the period of limitation under

COLLECTOR OF CUSTOMS i•. BEST & CO. (S/ielat. J.)

4\J

A s. 12(2) of the Limitation Act. The result according to that view would be that:-

(i) if the petitioners had waited till July 17, 1965 and filed

~ their application annexing also the certified copy of the said order their application would have been within time as they would have -.

B been entitled to exclude the time for obtaining it;

(ii) if they had amended their application and annexed the certified copy of the order on receiving the same they would still have been entitled to exclude the aforesaid period and their application then would have been within time; and

(iii) if they had withdrawn the application and filed a fresh application annexing thereto the certified copy of the said order such fresh application would have been within time as they would have been entitled to exclude the time taken in obtaining the certified copy of the order. According to the High Court the petitioners however were not entitled to exclude the time for obtaining the certified copy of the order as they had filed the said application without annexing thereto the copy of the said order and their application filed on May 10, 1965 was already time barred.

According to the respondents, since under Art. 132 of the Limitation Act the application for leave had to be made within 60 days. the petitioners' application lodged on May IO, 1965 was clearly beyond 60 days even after the certified copy of the judgment was furnished to them on January 18, 1965.

Consequently, the petitioners' application was time barred and was rightly rejected by the High Court.

The question for determination is whether the application for leave to appeal was barred by limitation and the petitioners were not entitled under s. 12(2) of the Limitation Act to exclude the time taken in obtaining the certified copy of the said order.

Section 12(2) provides that in computing the period of limitation for an appeal or application for leave to appeal, the time requisite for obtaining a copy of the decree. sentence or order appealed from or sought to be revised shall be excluded. Similarly, under sub-section 3 where an application is made for leave to appeal, from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or an order is founded shall also be excluded. On a plain reading of these sub-sections, it is clear that the time for obtaining the certified copy of both the judgment and the decree or order as the case may be must be excluded while computing the period of limitation. The object of the exclusion is to enable the person desiring to appeal to consider the terms of the decree, judgment and order before he decides to launch a further proceeding in respect of it.

Two views were, however, canvassed before us on the construction of s. 12. One was that the right of exclusion of time is

OU SUPREME (,'{Jt"RT

R.~; P<>RTS

[1966) SUPP. B.C.R.

qualified by the words "Lime requisite for obtaining a copy of the decree, sentence or order" in sub-section 2.

Therefore, if an application for leave to appeal does not require a certified copy of the order in question to be annexed to the application, it is not possible to say that the time required for obtaining such a copy was requisite.

In such cases the time in obtaining the copy would not be requisite time and consequently the applicant would not be entitled to exclude the time taken in obtaining the certified copy of the order.

Certain decisions of some of the High Courts have also taken the view that such an applicant would not be entitled to the benefit of the sub-section where a copy of the decree. judgment or order is not actually annexed to the application or the memorandum of appeal.

The other view is that sub-ss. 2 and 3 of s. 12 enact the rule of exclusion as a positive direction. The object of the sub-section being to afford a party opportunity to consider his position e'en where a certified copy of the judgment gives all the necessary infonnat!on enabling the party to decide to proceed further or not. he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or order. It has been held in some decisions that even in cases where it is not neces, ary to prepare a formal order, if sllch an order is prepared, the party would be entitled to the benefit of exclusion of time taken in preparing and furnishing a copy thereof where it is applied for.

Counsel for the respondents relied on the first view and E argued that though the petitioners applied for certified copies of both the judgment and the order. they were at best entitled to exclude the time for obtaining the copy of the judgment as they had annexed such a copy but not to the exclusion of time in obtaining the latter.

He contended that though the petitioners applied also for the copy of the said order it was not necessary for them to annex it to their application and in fact though it was F applied for and obtained it was not actually annexed. That being the position and the application for leave to appeal being competent without annexing either the certified copy of the judgment or of the order under the rules of the High Court of Calcutta it would not be possible to say that the time for obtaining the copy was time for something that was requisite and therefore that time could nol be excluded.

He also argued that the rules of the High G Court of Calcutta not only did not require such a party to annex a copy of the order but the prescribed form for such an application was mandatory in language and was a provision to the contrary. He therefore argued that there was a double reason for the petitioners not being entitled lo the benefit of the exclusion.

We shall deal with the second contention first as it is capable H :if an easy disposal Rule 4. in Chapter XXXlllA of the Rules of the High Court requires that an application for leave to appeal

' •

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I ,

-'---

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.t '

• ~

li1

COLLECTO]{ Oi' CUSTO'!S t\ llES'r & uo. (8lte1at, J.) 51

shall be made by a notice of motion before the appellate court and shall be presented in the prescribed form, viz., Form No. 3, That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application.

The rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order.

But that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents.

In regard to his first contention the learned counsel for the respondents urged that sub-ss. 2 and 3 of s. 12 would not apply where it is not necessary to annex a copy of the judgment or order.

For, in such a case it is not possible to say that the time taken in obtaining such a copy is time "requisite" within the meaning of that expression in sub-s. 2 of s. 12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed if and only if, such a copy is either required to be annexed or in any event is in fact annexed to the petition for leave to appeal. The question is: is the provision for exclusion of time in s. 12(2) dependent upon whether the rules of a court permit a petitioner to file an application for leave with or without a copy of the judgment or order or decree and also where the rules so permit whether he has annexed such a copy to his application? In Surty v.

Chettyar(') the Privy Council after considering various decisions of different High Courts held that (!) the preponderance of practice in India was that time for obtaining a copy of the judgment or decree or order should be excluded even though under the rules of the Court it was not necessary to obtain a copy of the judgment or decree to be filed with the memorandum of appeal, and (2) that on a grammatical construction of s. 12(2), the subsection plainly lays down a positive direction for exclusion of time without any reference to the Code of Civil Procedure or any other Act.

In that case the appellant had brought a suit on the original side of the High Court of Rangoon. That suit was dismissed on January 8, 1925. On April 28, he filed his memorandum of appeal before the appellate side of the High Court. A question arose whether the appeal was filed in time. The appellant tried to explain the delay and prayed for extension of time but the court refused to condone the delay and dismissed the appeal. The appellant then filed an application for review and it was then that he for the first time invoked sub-ss. 2 and 3 of s. 12 contending that the time taken in obtaining the copy of the order and of the judgment should be excluded. The Court upheld the contention of the respondents that such time could not be excluded as under the rules of that High Court the memorandum of appeal could

02 Kt1l'REME OOt'RT aePORTS [ l 966jBUPP. S.~.R.

be filed without annexing thereto the copy of the judgment or the A order. This view was challenged in appeal before the Privy Council.

The rule on which the respondents in that case relied provided that a memorandum of appeal and an application for revision should be accompanied by certified copies of the judgment and decree unless they were dispensed with by the court. That rule however had a proviso which was in the terms following:- B ,'

"Provided that a memorandum of appeal against a decree or order of the High Court in the exercise of the original jurisdiction may be presented without a certified copy of the decree or formal order accompanying it"

Relying on this rule, it was contended that inasmuch as the proviso enables the appellant to tile his appeal without a copy of the order or judgment the appellant would not be entitled to exclusion of time as such time would not be "requisite" time within the meaning of s. 12(2) and the High Court was therefore right in dismissing the appeal as being beyond time.

The Privy Council disagreed with this contention holding thats. 12 contained a positive direction for exclusion of time and that such direction applied irrespective of whether the rules permitted the filing of an appeal or an application without annexing the copy of the order or judgment. The Privy Council emphasised that the positive direction contained in s. 12 was unconditional inasmuch as there was no reference therein to the Code of Civil Procedure and the section did not say why the time was to be excluded.

At page 170 of the report the Privy Council observed:

"If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal.

As to the judgment, no doubt when the case docs not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it."

These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a court might f!Ot require a copy to be annexed to the memorandum of

.-,.

COLLECTOR OF OUSTOM8 v. BEST & CO. (8helat, J.) 53

appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or order.

In Imperial Bucket Co. v. Smt. Bhagwati Basak(') there are however observations to the effect that an appellant will have the benefit of s. 12 in a case where be has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite.

As the Privy Council observed, a party might like to examine the judgment or the decree or the order before be challenged it in a higher forum.

Though the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time D l where it is not annexed. But in Gangaram v. Beharilal(') a view has been taken that sub-ss. 2 and 3 of s. 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review.

This view is not in consonance with and in fact is contrary to the interpretation of s. 12 by the Privy Council in Surty's Case(') and is therefore unwarranted. The same must also be said of Abdul Aziz v. Jai Ram(').

As observed by the Privy Council in Surty's Case(") the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Haji Hassum v.

Noor Mohammad('), Ka/ipada v. Shakhar(''), and Waji-A/i Shah v. Nawal Kishore(') was that an appellant was eqtitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy.

The view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz., that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application, which in its unamended form was in their view time barred, would have been well within the period of limitation. In our view such a result is not to be contemplated.

As the Privy Council has laid down the provisions of s. 12(2) and (3) are a positive

(1) A.LR. 1954 Cal. 520. (') M I.A. lfil.

(G) I.! .. R. Born, 64!l.

. -- ------------

(7) T.L.R. 17 All. 21!-l.

I') A.LR. 1952 Bhopal ~9.

('I A.l.R. 1951 H P. 67.

(6 ) 24 Cal. 235.

54 ~FPRF.MB C'OlJRT RF.PORT~

(1966) Sl'PP. 8.C.R.

direction excluding the time taken in obtaining a copy of the A judgment and decree or order as the case may be and those provisions ifre irrespective of the Code of Civil Procedure or the rules made by a court under s. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would be appellant but do not govern the positive direction contained in s. 12. The High Court in this view, therefore, was not right in dismissing the petitioners' application for leave to appeal on the ground that it was barred by limitation.

In the result, we allow the appeal and set aside the High Court's order of dismissal and remand the case directing the High Court to decide that application in the light of this judgment and consider whether the petitioners were entitled to leave under Art. 133 of the Constitution. As we are allowing the appeal, n0 order need be passed on the petition for condonation of delay.

The Special Leave Petition l 110 of 1965 is allowed to be withdrawn. There wilt be no order as to costs.

Appeal allowed.

MIS. BEST & CO.

fK. SUBBA RAO

V. RAMASWAMI

M. SHELAT, JJ.

Limitation Act

s. 12(2)

Art. 226

s. 12(2)

Limitation Act

s. 12(2)

s. 12(2)

Limitation Act

L.R. 55 I.A. 161

s. 167(8)

Sea Customs Act, 1878

s. 167(8)

Customs Act

s. 3(2)

Imports and Exports Control Act, 1947

Art. 226

Art. 133

Art. 133( I)

s. 12(2)

Limitation Act

Art. 132

Limitation Act

s. 12(2)

Limitation Act

Section 12(2)

section 3

s. 12

section 2

ss. 2 and 3

s. 12

Chapter XXXlllA of the Rules

ss. 2 and 3

s. 12

s. 2

s. 12

s. 12(2)

s. 12(2)

the Code of Civil Procedure

ss. 2 and 3

s. 12

s. 12(2)

s. 12

the Code of Civil Procedure

s. 12

ss. 2 and 3

s. 12

s. 12

s. 12(2)

the Code of Civil Procedure

s. 122

s. 12

Art. 133


' \->

STATE OF MADHYA PRADESH

AZAD BHARAT FINANCE CO. & ANR.

July 28, 1966

[K. SUBBA RAO, C, J. ANDS. M. SIKRI, J.J

Opium Act (10 of 1878) as modified by the Opium Madhya Bharat Amendment Act 1955-Use of 'shalt' ins. 11 of the Madhya Bhar•P Act-Truck found carrying opium-Confiscation of truck whether obligatory under section.

H took a truck on hire from the respondent company. The truck waa found to contain contraband opium and H was tried for offences under ss. 9A and 9B of the Opium Act (10 of 1878) as modified by the Opium (Madhya Bharat Amendment) Act 1955. The company made an application for the release of the truck but the magistrate while

•uitting H on the ground that he had no knowledge that the truck was carrying opium, confiscated the truck under s. 11 cJf the Madhya Bharat Act. He took the view that the use of the word 'shall' in that

ection gave him no option but to confiscate the truck. The Sessions Judge took the same view but the High Court held that the word

'hall' in the context of the section was not mandatory and in the circwmtances of the case the truck should not have been confiscated.

The State appealed to this Court by special leave.

HELD: The word 'shall' is not always mandatory; it depend• npon the context in which the word occurs and the1 other circumstance•. r475Hl

Three considerations are relevant in construing s. 11.

First it would be unjust to confiscate the truck of a person if he has no k1'owledge whatsoever that the truck was being used for transporting the opium. Secondly it i$ a penal' statute and it should if possible b~ construed in such a way that a person 1vh01 has not committed or •betted any offence should not be visited with a penalty. Thirdly, if confiscation was obligatory under the section, the section may have to be struck down as .imposing an unreasonable restrictions under Art. 19 of the Constitution. f476 A-Dl

Section 11 of the Madhya Bharat Act is not therefore to be construed as obligatory and it is for the court to consider in each case whether the articles in whch the contraband opium is found or is being transported should be confiscated or not having regard to all the circumstances of the case. [476 D-El

Tirath Singh v. Bachittar Singh, f19551 2 S.C.R. 457, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 97 of 1964.

Appeal by special leave from the judgment and order dated January 29, 1964 of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Revision No. 5 of 1963.

I. N. Shroff, for the appellant.

R. L. Anand and S. N. Anand, for the respondents.

(1966] SUPP, S,{.R,

The Judgment of the Court was delivered by

Sikri, J. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court (Gwalior Bench) in a Cr; mina' Revision filed by MI s. Azad Bharat Finance

Company, one of the respondents in this appeal.

The revision arose out of the following facts. On May 3, 1961. truck No.

B M.P.E. 1548, while it was parked at the bus-station. Guna. was searched by the Excise Sub-Inspector and he found contraband opium weighing about three seers in it.

Five persons were challancd for the alleged illegal possession of contraband opium i.nd for its transport. under "' 9A and 9B of the Opium Act (I of 1878) as modified by the Opium (Madhya Bharat Amendment) Act, 1955. hereinafter referred to as the Madhya ilharat C Act. Harbhajan Singh. one of the accused, is alleged to have absconded. and. therefore. he was tried separately later on. The Additional District Magistrate, Guna. convicted three persons and acquitted one person. Regarding the truck, he ordered th; it the final orders regarding the disposal of the truck would be passed later, on the conclusion of the trial of Harbhajan Singh. It may be mentioned that Harbhajan Singh had taken this truck under a D hire-purchase agreement from MI s. Azad Bharat Finance Co. and he was not present in or near the truck when the contraband opium was taken possession of by the Excise Officer.

On May 28, 1962. M /s. Azad Bharat Finance Co. applied in the Court of Shri M. C. Bohre. in which the trial of Harbhajan Singh was going on. for the release of the truck. On September 7, E 1962, Harbhajan Singh was acquitted by the Magistrate but he ordered that the truck be confiscated to the State. The Magistrnte was of the opinion that s. 11 of the '.vladhya Bharat Act showed clearly that the truck in which the opium was carried had to be forfeited in all circumstances. He observed:

"By the use of the word "shall" this Court was compelled that the truck be seized. may be there was the hand of the owner in it or not and neither there is any provision that the truck owner had the knowledge or not of the opium being carried."

Both Harbhajan Singh and Mis. Azad Bharat Finance Co. filed revisions in the Court of the Sessions Judge. The Sessions Judge also held that the word "shall" in s. 11 (d) was mandatory and not directory. He observed:

"Though it is correct that the truck was not used for carrying opium with the knowledge or connivance of the owner but section 11 (d) as applicable in this state does not give discretion to the Court in not ordering the confiscation of the conveyance used for carrying contraband opium."

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M. P. STATE V. BHARAT FINANCE CO. (Sikri, J.) 475

M/s. Azad Bharat Finance Co. filed a revision in the High Court. The High Court held as follows:

"The word "shall" occurring in Sec. 11 of the M.P.

Opium Act means "may" and that it confers discretion on the court to confiscate the conveyance provided it belongs to the offender. But where it is not so, and, the owner of the truck has neither authorised the offender to transport opium, nor is there any reason to believe that the owner knew that his vehicle was likely to be used for transporting contraband opium, the conveyance should not be confiscated because confiscation in such circumstances would be tantamount to punishing one, who has not committed any offence under the Opium Act."

The learned counsel for the appellant, Mr. Shroff, contends that the Opium (Madhya Bharat Amendment) Act, 1955 (15 of

1955) which amended the Opium Act, 1878, deliberately employed a different phraseology with the intention of making it obligatory on a Court to confiscate a vehicle in which contraband opium had been transported. He points out that in the Opium Act, 1878, in s. 11, the relevant words are as follows:

"S. l 1 Confiscation of opium.-In any case in which an offence under section 9 has been committed,-

The vessels, packages and coverings in which any opium liable to confiscation under this section is found. and the other contents (if any) of the vessel or package in which such opium may be concealed, and the animals and .conveyances used in carrying it, shall likewise be liable to confiscation." He stresses the words "liable to confiscation" which according to him and certain authorities clearly give a discretion to the Court whether to con!iscate the vehicle or not. In the Madhya Bharat Amendment Act the section providing for confiscation is as follows:

"S. 11. In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G has been committed, the property detailed herein below shall be confiscated: -

(d) the receptacles, packages and coverings in which any opium liable to confiscation under this Section is found, and the other contents (if any) of the receptacle or package in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it." H Jn our opinion, the High Court was correct in reading s. 11 of the Madhya Bharat Act as permissive and not obligatory. It is well-settled that the use of the word "shall" does not always

476 SUPRF.Mll COURT RKPOR'!'8 [1966] SUPP. e.c.n.

mean that the enactment is obligatory or mandatory; it depends upon the context in which U1e word "shall" occurs and the other circumstances. Three considerations are relevant in construing s 11. First, it is not denied by Mr. Shroff that it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting opium. Suppose a perron steals a ttuck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to be Qonliscated. It is well recognised that if a statute leads to absurdity. hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words. and even the structure of the sentence. (Vide Timth Singh v. Bachittar Singh)(').

Secondly. it is a penal statute and it should, if possible, be construed in such a way that a person who has not commilled or abetted any offence should not be visited with a penally.

Thirdly. if the meaning suggested by Mr. Shroff is given, s. 11 (d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under Art. 19 of the Constitution. Bearing all these considerations in mind. we consider that s. 11 of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case.

Mr. Shroff then contends that if the matter is discretionary, the High Court should not have interfered in the discretion exercised by the learned Sessions Judge. But apart from the question that this point was not raised before the High Court, both the Magistrate and the Sc, sions Judge ordered confiscation of the truck on the ground that they had no option in the mailer.

Mr. Shroff then raises the point that Mis. Azad Bharat Finance Co. was a third party in the case and was not entitled toapply for setting asicle the order of confiscation or request for the return of the truck. This point was not raised before the High Court and. therefore, cannot be allowed to be rai, cd at this stage.

In the result the appeal fails and is dismissed.

Appeal dismissed.

(') [19M] 2 8.C.R 457 at 464.

A. . '

G •

STATE OF MADHYA PRADESH

AZAD BHARAT FINANCE CO. & ANR

K. SUBBA RAO

ANDS. M. SIKRI, J.J

Opium Madhya Bharat Amendment Act 1955

ss. 9A and 9B

s. 11

Jf the Madhya Bharat Act

s. 11

Art. 19

Section 11

s. 11

s. 11

section 11

Sec. 11

Opium Act, 1878

points out that in the Opium Act, 1878

s. 11

section 9

S. 11

s. 11

s 11

s. 11

Art. 19

s. 11


47i

PAMPAPAIBY

STATE OF MYSORE

July 28, 1966

IM. HmAYATULLAH, V. RAMASWAMI AND J. M. SttELAT, JJ.]

Code of Criminal Procedure (Act 5 of 1898), s. 561A:-Appea! . to High Court against conviction-Accused released on bat! by High Court-If bail can be cancelled by High Court.

The appelkints were released on bail by the High C.ourt under s. 426 Cr. P.C., pending disposal of their appeal in the High .Co~.

On an application by the State that the appellants .were misusing their liberty and committing acts of violence, the bail was cancelled by the High Court in the exercise of its inherent powers. under s. 561-A, Cr. P. Code.

On the question whether the High Court had such power,

HELD: The inherent power of the High Court under s. 561 A, Cr. P.C., can be exercised either for giving effect to any order under the Criminal Procedure Code or to prevent abuse of the process of " court or otherwise to secure the ends of justice; but such power cannot be invoked in respect of any matter covered by a specific provision or inconsistent with any specific provision of the Crimip.al Pro~ cedure Code. Under ss. 497 and 498, Cr. P.C., the Legislature has made express provision for the cancellation of bail in certain cases, but there is no express provision when an appellant is released on bail under s. 426 Cr. P.C. The omission must be due to inadvertence and cannot be regarded as deliberate, otherwise the subsequent conduct of the appellant, however reprehensible it may be, will not justify the High C'-Ourt in cancelling the order of bail. Since the allegations aga'.nst the appellant prima facie indicate abuse of the process of the Court, s. 561 A is attracted to the case and the High Court was entitled to cancel the bail. f481 F-H; 482 D, Fl

Lala Jairam Das v. King Emperor, L.R. 72 I.A. 120, explained.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 121 and 122 of 1966.

Appeals by special leave from the judgment and order dated March 14. 1966 of the Mysore High Court in Crimin a 1 Revision Petitions Nos. 120 and 123 of 1966 respectively.

M. K. Ramamurthi, R. K. Garg and S. C. Agwwala. for the appellants (in both the appeals).

R. Gopa/akrishnan and B. R. G. K. Achar, for the respondents (in both the appeals).

The Judgment of the Court was delivered by

H Ramaswami, J. The appellants- Pampapathy and Shekarappa were tried in the Court of Sessions at Chitradurga for offences under ss. 147, 148, 307, 323, 302 read with s. 149 and s. 325 read

478 St:PRF!dE COURT REPORTS [1966] BUPP. s.c.R.

with s. 149 of the Indian Penal Code and convicted of all the A offences other than under s. 307 and s. 302 read with s. 149, Indian Penal Code.

The case of the proseqution was that the appellants. along with others, some of whom were dismissed workers of Devangiri Cotton Mills and Shri Ganeshar Textiles Mills and some of whom were office bearers and members of the Devangiri Cotton Mills Employees' Association and Shri Ganeshar Textiles Mills Workers Union, conspired with the common object of committing murder and other offences with a view to strengthen their Associations

and to weaken the rival Unions which had the sympathy of the Mill Managements. It was alleged that they intended to create fear in the mind of the Management of the Mills in order to gain Cl their object of getting more bonus and get the dismissed workers re-instated. It was stated that they formed themselves into an unlawful assembly, armed themselves with deadly weapons. and attacked the deceased Heggappa and other loyal workers on the night of March 19, 1964 causing the death of Heggappa and injuries to 4 persons. The Sessions Judge, by his judgment dated December 7, 1964 convicted both the appellants for offences under ss. 147, 148, 323, 324 and 325 read with s. 149, Indian Penal Code.

The appellants preferred appeals to the Mysore High Court and on admission of the appeals they were directed to be released on bail. On March 7, 1966, the State made two applications under ss. 498(2) and 561A. Criminal Procedure Code for cancellation of the bail granted to the two appellants. In support of the two petitions an affidavit was filed by the Deputy Superintendent of Police, Devangiri Division-Sri K. Srinivasa Alwa, stating that the two appellants were misusing their liberty ever since they were enlarged on bail by doing acts of violence, creating trouble by instigating the labour unions of Devangiri Cotton Mills and Shankara Textile Mills to paralyse the smooth working of the Mills. It was alleged that they had constituted themselves as ring leaders of the Employees' Association and were engaged in taking part in unlawful assemblies at different times and committed offences against the peaceful workers of the Mill. The appellants filed a counteraffidavit denying that they were acting in a manner likely to cause breach of peace or endanger the lives of the workers. On March 14, 1966 the Mysore High Court allowed the applications of the State and ordered that the bail granted to the appellants should be cancelled and they should be re-arrested and committed to jailcustody.

These appeals are brought, by special leave, from the order of the Mysore High Court dated March 14, 1966 in Criminal Petitions Nos. 120 and 123 o[ 1966.

The question of law arising for determination in these appeals B is whether, in the case of a person convicted of a bailable offence 6 where bail has been granted to him under s. 426 of the Criminal

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I ,,

"\ " \ 1 " /

'"' I ·•

" "'

PAMPAPA1RY v.

STATE (Ramaswami, J.) 479

Procedure Code it can be cancelled in a proper case by the High Court in exercis~ of its inherent power under s. 561A of the Criminal Procedure Code?

It is necessary at the outset to reproduce the relevant provisions of the Criminal Procedure Code. Section 426 relates to the suspension of the sentence or order of the trial court pending appeal and the release of the appellant on bail. The section reads as follows:

"426. (I) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.

(2-A) When any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court, rnd an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (!) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(2-B) Where a High Court is satisfied that convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bail. •

(3) When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."

Section 496 deals with persons accused of bailable offences.

It provides that "when a person charged with the commission of a bailable offence is arrested or detained without warr:mt by an officer in charge of a police station or is brought before a court and is prepared at any time, while in the custody of such officer or at any stage of the proceedings before such court. to give bail,

480 SUPRBNt: COURT REPC>P.T!l [J966j RUPP. s.c.a.

such person shall be released on bail". Section 497 deals with the question of granting bail in the case of non-bailable offences.

It reads as follows :

"497. (I) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail. but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life :

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry, or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3)

<3-Al

(4)

(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."

Section 498(1) confers on the High Court or the Court of Session power to direct admission to bail or reduction of bail in all cases where bail is admissible under ss. 496 and 497 whether in such cases there be an appeal against conviction or not. Sub-section (2) of s. 498 empowers the High Court or the Court of Session to cause any person who has been admitted to bail under sub-s. (I) to be arrested and committed to custody. Section 561 A was added to the Code in 1923 and it reads as follows:

"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to

any order under this Code. or to prevent abuse of the B process of any Court or otherwise to secure the ends of justice."

' _.,

. -

- r

~· ..

1 ,.

PAMPAPAi'f'Y V, STATE (Ramaswami, J ,) !81

It was argued by Mr. Ramamurthy on behalf of the appel !ants that after the High Court had once made an order suspend

ing the sentence and granting bail to the appellants under s. 426.

Criminal Procedure Code it had no power to cancel that order subsequently and recommit the appellants to jail-custody. It was submitted that there was no express power granted to the appellate court to cancel its order regarding the suspension of sentence pending the appeal and the order of release of the appellants on bail. It was pointed out that under s. 497(5) the legislature has specifically conferred power on specified courts to cancel the bail granted to a person accused of a non-bailable offence.

It was also pointed out by learned Counsel that under s. 498(2) the legislature has conferred power on the High Court and the Court of Session to cancel the bail granted to an accused person under s, 498(1) and ordering him to be arrested and committed to jail custody, The argument put forward on behalf of the appellants i• that if the legislature intended to confer such a power on the appellate court under s. 426 it would have been very easy for it lo add an appropriate sub-section and make an express provision for such a power. The omission to make such an express provision is, according to Mr. Ramamurthy, not a result of inadvert ence but it is deliberate. and if that is so it will not be permissible to take recourse to the provisions of s. 561A to clothe the appellate court with power to cancel the bail in a case falling under s. 426, Criminal Procedure Code. It was argued by Mr. Ramamurthy that even if the appellants committed acts of violence during the period they were enlarged on bail and repeakd the very offence for which they had been convicted the bail bond could not be cancelled but the further conduct of the accused may justify another prosecution under the Tndian Penal Code and that it would not justify the re-arrest of the appellants, In our opinion, there is no justification for the argument put forward on behalf of the appellants. It is true that in s. 498 and ss, 497 (5) and 498 the legislature has made express provision for the cancellation of a bail bond in the case of accused persons released on bail during the course of the trial but no such express provision has been made by the legislature in the case of a convicted person whose sentence has been suspended under s .. 426 and there has been an order of release of the appellant on bail.

There is obviously a lacuna but the omission of the Jeaislature to make a specific provision in that behalf is clearly due t~ oversight or inadvertence and cannot be regarded as deliberate. If the contention of the appellants is sound it will lead to fantastic results.

The argument is that once an order of suspension of sentence is made under s. 426 by the appellate court and the appellant is ordered to be released on bail. the subsequent conduct of the appellant. howsoever reprehensible it may be, cannot justify the appellate court in revoking the order of bail and ordering the re-arrest of the appellant. The appellant may commit further acts of violence; he may perpetrate once again the very same offences

t8ll , qt:l'RE'rl:F ("0URT J~RPOR~ 11966] BUPP. s.c.n. •

for which he has been convicted; he may even threaten and criminally intimidate the prosecution counsel who may be incharge of the case in the appellate court; he may attempt to abscond to a foreign country to escape the trial; or he may commit acts of violence in reve11ge against the police and prosecution witnesses who have depO.!ed against him in the trial court, but the appellate court will have no power to cancel the suspension of sentence and the order of bail made under s. 426. Criminal Procedure Code. Such a situation could not have been in the contemplation of the legislature and, in our opinion, the omission

to make an express provision in that behalf is manifestly due to oversight or inadvertence. In a situation of this description the High Court is not helpless and in a proper case it may take recourse to the inherent power conferred upon it under s. 561A of C the Criminal Procedure Code.

The inherent power of the High Court mentioned in s. 561 A.

Criminal Procedure Code can be exercised only for either of the three purposes specifically mentioned in the section. The inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked it its exercise would be inconsistent with any of the specific provisions of the Code.

It is only if the matter in question is not covered by any specific provisions of the Code that s. 561 A can come into operation. No legislative enactment dealing with procedure can provide for all cases that can possibly arise and it is an established principle that the Courts should have inherent powers, apart from the express provision of law, which arc necessary to their existence and for the proper discharge of the duties imposed upon them by law. This doctrine finds expression in s. 561A which does not confer any new powers on the High Court but merely recognises and preserves the inherent powers previously possessed by it. We are, therefore. of the opinion that in a proper case the High Court has inherent power under"s. 561 A.

Criminal Procedure Code to cancel the order of suspension of sentence and grant of bail to the appellant made under s. 426, Criminal Procedure Code and to order that the appellant be rearrested and committed to jail-custody. We should like to add that, even before s. 498(2) was enacted. there was a consensus of judicial opinion in favour of the view that, if the accused person is released on bail under s. 498(!), his bail bond could be cancelled and he could be ordered to be arrested and committed to custody under the provisions of s. 561A of the Code (Mirza Mohammad Ibrahim

v. Emperor('), Seori v. Rex('), Bae/Jehu Lal v. State('), Munshi Singh v. State(')

and The Crnim Prosecutor, Madras v. Krishnan(')). These decisions proceed upon the view that the exercise of inherent power

(I A.LR. 1932 Al1·634.

(2) A.I.R. 1948 All366.

(~\ 1,1.R, 19!1 Alt836

(4) A.LR. 1062 A11·39. :01 l.L.R. [ 19'16] Mod. 62.

PAMPAPATHY v.

STATE (Ram4swami, J.) 483

t<J cancel bail under s. 561A was not regarded as inconsistent with the provisions of s. 498 (]) of the Code. It is true that all !hese decisions referred to cases of persons charged with non-bailable offences; but it. is significant that the provisions of s. 497(5) did not apply to these cases and the appropriate orders were passed under the purported exercise of the inherent power under s. 56 lA.

In the course of argument Mr. Ramamurthy strongly relied upon Ille decision of the Judicial Committee in Lala Jairam Das

v. King-Emperor('). It was contended on behalf of the appellants that the High Court has no power to grant bail to a convicted person under s. 498 of the Criminal Procedure Code and therefore the provisions of s. 498(2) cannot be invoked to the present case. This argument is undoubtedly correct and is supported by the decision of the Judicial Committee. It was further contended by Mr. Ramamurthy on the basis of this decision that Ch. XXXIX of the Code together with s. 426 was intended to contain a complete and exhaustive statement of the powers of a High Court to grant bail, and excludes the existence of any additional inherent power in a High Court relating to the subject of bail.

But the actual decision of the Judicial Committee has no application to the facts of the present case.

The question before the Judicial Committee was whether the Code of Criminal Procedure confers any power on a High Court in India to grant bail to a person who has been convicted and sentenced to imprisonment and to whom the Judicial Committee has given special l'eave to appeal against his conviction or sentence. It was held by the Judicial Committee that the High Courts had no such power under the Criminal Procedure Code and could not grant bail to a person who has been convicted and sentenced to imprisonment and to whom the Judic; al Committee has given special leave to appeal against his conviction and sentence. The question presented for determination in the present case, namely, whether inherent power of the High Court could be exercised for cancellation of bail, was not the subject-matter of consideration before. the Judicial Committee and that question did not obviously arise in the case before them. The ratio decidendi of the decision of the Judicial Committee is therefore different and has no application to the present case. We accordingly reject the argument by Mr. Ramamurthy on this aspect of the case.

We pass on to consider the next contention of the appellants. viz., the case does not fall under s. 561A of the Criminal Procedure Code and that it is not a proper case in which the High Court should cancel bail even though it has power under s. 561 A to do so. We are unable to accept the argument of Mr. Ramamurthy as correct. An affidavit was filed before the High Court on behalf of the State by the Deputy Superintendent of Police.

Devangiri Division in which it was stated that the appellants were

(1) 72 J. '. 120.

Sc PREME COURT REPORTS [1966] Furr. s.0.11.

misusing the liberty granted to them ever since they had been enlarged on bail by committing acts of violence,. creating trouble by instigating the labour unions of Devanagiri Cotton Mills and other mills in Devanagiri with a view to paralyse the smooth working of the Mills. It was also alleged that the appellants had. constituted themselves as ring leaders of the Employees' Associa . tion and were taking part in unlawful assemblies at different times and had committed offences against the peaceful workers of the Mill. On December JI, 1965 Crime No. 360 of I 965 was re gistered against the appellants for comm1ss1on of the offences under ss. 143, 448 and 324, Indian Penal

Code. On February II, 1966 Crime No. 53 of 1966 was re gistered, in which one of the appellants was alleged to have com milted offences under ss. 341 and 323, Indian Penal Code. On February 12. I 966 )let another Crinic No. 54 of 1966 was registered against the appellants for the commission of the offence under ss. 143, 147. 341. 323 and 324. Indian Penal Code. The allegation against the appellants therefore was that they were misusing the liberty granted to them by the appellate court and were indulging in acts of violence. It is true that counter-affidavits were a filed by the appellants denying the allegations made by the State but the High Court apparently took the view that the allegations

aginst the appellants on behalf of the State were well-foundClt and the bail granted to them by the High Court should be cancelled.

In our opinion, the allegations made agaimt the appellants would prima facie indicate abuse of the process of the Court and the provisions of s. 561A are attracted to the case and the High Court was entitled to cancel the bail of the appellants under the provisions of that section. In our opinion, Mr. Ramamurthy has failed to make good his submission on this aspect of the case.

For these reasons we hold that there is no merit in these appeals which are accordingly dismissed.

Appeal dismissed.

li/llllCI-2, ll00-30·6-67--011"'

STATE OF MYSORE

V. RAMASWAMI

Code of Criminal Procedure

s. 561A

s. 426

s. 561

s. 561

ss. 497 and 498

s. 426

s. 561

L.R. 72 I.A. 120

ss. 147, 148, 307, 323, 302

s. 149

s. 325

s. 149

Indian Penal Code

s. 307

s. 302

s. 149

Indian Penal Code

ss. 147, 148, 323, 324 and 325

s. 149

Indian Penal Code

ss. 498(2) and 561A

Criminal Procedure Code

s. 426

s. 561A

Section 426

Section 496

Section 497

Section 498(1)

ss. 496 and 497

s. 498

Section 561

s. 426

Criminal Procedure Code

s. 497(5)

s. 498(2)

s. 426

s. 561A

s. 426

Criminal Procedure Code

Penal Code

s. 498

s. 426

s. 426

Criminal Procedure Code

s. 561A

s. 561

Criminal Procedure Code

s. 561

s. 561A

s. 561

Criminal Procedure Code

s. 426

Criminal Procedure Code

s. 498(2)

s. 498(!)

s. 561A

s. 561A

s. 498

s. 497(5)

s. 56

s. 498

s. 498(2)

s. 426

Code of Criminal Procedure

s. 561A

s. 561

ss. 143, 448 and 324

Code

ss. 341 and 323

Indian Penal Code

ss. 143, 147

Indian Penal Code

s. 561A