RAJ NARAIN

v •.

SMT. INDIRA NEHRU GANDHI AND ANR •.

March 15, 1972

(K. S. HEGDE, P. JAGANMOHAN REDDY AND K. K. MATHEW; JJ.J

Representation of the People Act, 1951-Section

86(5)-SCOP<- Pleadings relming to corru.'1t .Dractice-Better particulars of charges ma\' he introduced by amendment of pladings. ·

Election Petition-Interrogatories-Code of Civil Procedure 1908- 0rder XI r, 1-lnterroga:pries 1nust have reasonable close connecti'on with "any n1atters in question."

While 3 corrupt practice has got to be strictly proved it does not follow that a pleading in an election petition should receive a strict construction. The object of section 86(5) of the Representation of the People Act, 1951, is to see that a person acused of a corrupt practice must know p!'OCisely what he is accused of so that hemay have the opportunity to meet the allegations JM.de against him. If the accusation made is nebulous and is capable of being made use of for establishin~ more than one charge or if it does not make out a corrupt plractice at all then the charge fails at the threshold.

So Jong as the charge levelled is beyond doubt, s. 86(5) is satisfied; rest is mere refinement; they either pertain to the region of particulars or evidence.

Under s. 86(5), if corrupt practice is alleged in the p~Otion, the particulars of such corrupt practice may b~ amended or amplified for ensui'ing a fair and effec

tive trial that is, more and better particulars of the charge may be given later, even after the period ef limitation; but if a corrupt practice is not previously "lleged in the petition, an am!ndment which will have the effect of introducing particulars of such. a corrupt practi<', o will not be permitted, after the period of Jimimtion. because, it would tantamount to making a fresh petition. [847 GJ ·

The appellant, in his election petition, challenging the validity of tbe election of respondent No. I, alleged that the respondent obtained the assistance of K when he was still a Gazetted Officer in the Go""ruwmt

of India for tbe furtherance <if the prospects of her election. and that K organised the electioneering work for her during the entire period even before the filing of the nomination paper. The petition did not

sct out specifically that when the respondent obtained tlr> a5si0 tancie of K, she was a "candidate", nor did it state the date on which X was entrusted with the electioneering work.

The respondent filed an application under 0. XI, Code of Civil Procedure, for sitting aside the interrogatories served on her by th! appellant. The trial court set aside some of the interrogatories and struck out the isaue& relating to cor\"uot oractice on the basis that the facts stated in the petition did not discli>oe the corrupt practice which were the subject matter of the issues. Thi! Court also dismissed the "poellant's application for amending the election petition, on the ground that the appellant was seeking to add material facts and hence they could not be accepted after the period of limitation for filing the election. petition. ·

HELD : ( i) that the trial court was not juslified in strikin~ out the issues relating to corrupt practice. The allegations in the petition bring

out al! th.: ingredients ot the corrupt practic; e alleged though they are A lacking in better particulars such as the date on which the respondent hc.:-can1e a candidate and the date on which K w:is entrusted with the

r<?ponsibility of organising the clcction:!cring 'W'Ork of the respondent.

Theabsence of these particulars does not per se invalidate the charge.

IS49 Gj

Harish Chandra Bajpui v. Triluki Singh, ~1957] S.C.R. 370; Sa111ar1t .\J. Balakrishna etc. v. George Fernaridcz and ors. etc. [11969] 3 S.C.R.

D 60.l and Hardwari Lal v. Kanwal Singh. [1972] S.C.C. 214, referred to.

l ii) that the question as to when K's resign"J.tion bcca.nc effective

h1.1~ to be examined \Vith rr.:ferencc to his c'onditions of service <ind this

h~1\ing not been done the conclusion of the trial judge in this regard had to he ignored. 1852 D-E]

R11j K111ne1r v. Union of India, [19681 3 S.C.R. 857. referred 1o.

Quaere : \Vhcth.::!r a government servant's resignation can he acceptd \'1.-ith effect from '3.n earlier date and whether such an acceptance has an,· 1alidity in con•idering a corrupt practice under s. 123(7).

(iii) that the amendments asked for should have been allowed. ek:ccion petition is not liahlc to be disn1isscd in limine because full partic

ClJiafs of c'orrupt practice alleged arc not set out.

If an objection wa~ D taken and the tribunal was of the view that the full particulars have nol hecn set out, the petitioner has to be given an opportunity to amend or ;.1mplify the purticulars. f,853 Bl ,

Shri Balwan Singh v. Shri Lalo:h111i Narain and or:.· .. [19601 3 S.C.R. 91, referred to.

(iv) that the, trial courl was right in striking out the interrogatorie!I..

Th~ intcrrog:itorics ~.crvd must have reasonable close connection with --any nlattcrs in question." Questions that n1ay be f'levant during Cros:-. cx:1mination are not necessarily relevant as interrogatories. [853 H]

Civ1L APPELLATE JURISDICTION : Civil Appeals Nos. 108 a.nd I 09 o.f 1972.

Appeals biY special leave from the. orders dated November 27. 1971 and December 22, 1971 of the Allahabad High Court in Applications Nos. A-112 and A-141 in Election Petition No. 5 of l 971 respectively.

S. V. Gupte, J. P. Goyal, K. N. Tripathi, R. C. Srivastava, S. S. Khanduja and R. A. Gupta, for the appellant (in both the appeals).

C. K. Daphtary, S. C. Khare, Yageshwar Prasad, S. K. Bagga nod S. Bagga, for respondent No. 1 (in both the appeals).

The Judgment of the Court was delivered by

Hegde, J.

Theso appeals by special leave arise from the eleciion petiti.on filed by .he appellant challenging the validity of the election of respondent No. I (who will hereinafr be referred to

as the respondell1) to the Lok Sabha, from Rae Bareilly coastituency, in the General Election to the Lok Sabha held in March,

I 971.

Aftr the pleadings of the parties were completed and the issues framed, 'the appellant applied to" the court under Order XI of the Civil Procedure <; ode for leave to deliver interrogatories, in writing for th.e examination of the respondent.

The respondnt objected to the same on the ground that the provisions of 0. XI,

C.P.C. cannot be applied to electi9n petitions. In her objectionstatement, the respondell't reserved her right to ob_ject to tire interrogatories sought to be s.erved at a later stage.

The application filed by the appellant for !·ave to serve interrogatories on the respondenl was heard by Broome J.

The_ learned Judge by his order dated September 14, 1971 overruled the objections of the respondent and directed as follows :

"Accordmgly i allow the application A-29 and grant leave to the petitioner to deliver !he accompanying interrogatoris for the examination of respondent No. 1.

The affidavit in reply shall be filed by 4-10-1971."

The resoondent appealed against that order to this Court after obtaiiiing special leave.

That appeal was withdrawn during the cours.c of the bearing.

During the pendency of that appeal, the respondent filed an app!ic3'lion before the High Coun undr rule 7, Order XI.

C.P.C. praying that the interrogatories served on her may be se.t

aside as thy were "unreasonable, vexatious, oppressive, unneo.:ssary and irrelevant".

As many as 31 interrngatories had been served on the respondent.

All these interrogatories related to f lssues 1 to 3. The appellant objected to each one of them. At the hearing of that petition, it appears it was contended on behalf of the respondent that the allega'tions in the election petition did not afford any basis for Issues 1 to 3.

Consequently th~ interrogatories served were irrelevant as well as unnecessary.

Th~ entire argument before 'the trial judge proceeded on th~ basis

G that the facts stated in. the petition did no! disclose the corrupt praC'tices which were th~ subject-matter of fasues I to 3. The Ieamect. judge accepted that contention and set aside some of the

interrog; itories srved on 1he respondent. Proceeding further, h~ struck out Issues 1 'to 3. Thereafter the appellant applied to that court for amendment of paragraphs 2 and 5 of the election Jl'ti

tion by giving better particulars.

The learned judge rejected H that application on the sole ground that by the a.mendmenl in queition, the appellant was seeking to add to material facts and hence they cannot be accepted after the period of limitation for

fili!J~ the electicm petition.

Civil Appeal No. 1 08 of 1972 is

directed against the order setting aside the interrogatories served A and the striking out of Issues 1 to 3 and Civil Appeal No. 109 of 1972 ar!§es from the order rejecting the application seeking permission to amend the e~ction petition.

Issue No. 2 had not been pressed before <the trial court nor was it pressed before us. Therefore we nerd not consider whether B that issue should be restored.

Issue No. 3 is largely consequential to Issue No. 2 though a portion of that issue bears on Issue No. 1. Hence at present we are only concerned with Issue No.· 1 and that portion of ili~ third issue which has a bearing on Issue No. 1. Both those aspects will be covered if issue No. 1 is recast thus : c

"Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in furtherance of the prospec'ts of her election while he was still a Gazetted Officer in the service of Government of India. If so, from what date ?"

We can now leaw out of consideration Issue No.· 3.

The main question to be decided in these appeals is whether the allegtions made in the election petition can be said to disclose the corrupt practice which is the subject matter of Issue No. 1.

Section 123 of the Representation of the People Act, 1951 (to be hereinafor referred to as the 'Act') begins by saying that '"The followin~ shall be deemed to be corrupt practices for the purposes of this Act". ·

Sub-s. (7) of s. 123 to the extent material for our present F purpose reads :

"The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, _any assistance (other than the giving of vote) for 'tire furtherance of the prospects of that G candidate's election, from any person in the service of the Government and belonging to any of the following class_es, namely :

(a) gazetted officers; ..

The appellant's contention is that the respondent after she be- . came a candidate in lhe election in question obtained the services.

A of Yashpal Kapur when he was still a gazetted officer in the Government of. India for the furtherance of the propects of her election. In order to establish that plea, he must plead and prove :

(1) That the respondent obtained the assistance of Yashpal Kapur when he was a gazetted officer;

(2) That the assistance obtained by her was for the furtherance of the prospects of her election and

' ( 3) Jhat she obtained that assistance after she became a candidate. c A candidate is defined ins. 79(b) of the Act. That section

says :

" 'candidate' means, a person who has been or claims to have been duly nominated as a candidate at

any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself' out as a prospective candidate."

The respondent became a candidate within the first part of s. 79 (b) when she was nominated on February 1, 1971. But if she had held herself out as a prospective candidate with the election in prospect before her nomination, she must be deemed to have become a candidate from the date she so held out.

In order to estabijsh his plea, the appellant has ito establish that the assistance of Yashpal Kapur was obtained when he still was a government servant and at the itime such an assistance was

obtained, the respondent had become a "candidate."

Now let us turn to the averments in the' election. petition which alone is relevant for finding out whether the corrupt practice referred to in Issue No. 1 is made out. Relevant averments are said to be in pa_ragraphs 2, 5 and 6. They read as follows :

"2 .. That the respondent No. 1 Shrimati Indira Nehru Gandhi and the respondent No. 2 Swami Advaifa Nand we1e also candidates in the said election from the 22-Rae Bareili Parliamentary constituency for the Lok Sabha.

5, That the said Shri Yashpal Kapur was Gazetted Officer in the Government of India, holding the post of an officer on Special Duty.

The respondent No. i..,.

Shrimati Indira Nehru Gandhi obtained and procured

tflc assistance of the said Shri Yashpal Kapur for the furtherance of the prospects of her election from the 8-Lt06!Sup.Cl/73

crnstituency aforesaid inasmuch as the said Shri Yahpal i<apur was a gazetted officer in the service of the Government of India when his assistance was obtained and procured (a corrupt practice under section 123 ( 7) of the R.P. Act, 195 l was committed by the respondent No. I Shrimati Indira Nehru Gandhi.

The said Shri Yashpal Kapur on the directions of Shrim<rd Indira Nehru Gandhi organised the electione.ring work for her in 1he constituency as her elction agent during the entire period from even before the filing of the nomination paper 1he filing ('I) the counting and the declaration of the result of the election. The eleciion of •the

respondent No. I is liable to be declared void on the 1?round of the commission of this corrupt practice under section l 00 ( I ) ( b) of lhe Representation of Peoples

Act, J 951.

6. That as the petitioll!r's candidature was being supported not only by Samyukta Socialist Party to which !he pelitioner belonged but also by the Jan Sangh, the Indian National Congress (Organization), Bhartiya Kranti Dal and the Swatantra Parties and since the candidature of respondent No.

I. Shrimati Indira Nehru Gandhi was being supported by the Muslim Majlis, Muslim !Jague and the Communist Party of India (it was apprehended by Shrimati Indira Nehru Gandhi and her election agent Shri Yashpal Kapur •that an overwhelming majority of Hindu voters miht cast 1fieir votes for the petitioner against ShdrMtl Indira Nehru Gandhi.

It was accordingly de¢lded by them to induce the respondent No. 2 Swami

Advaita Nand to also stand as a candidate in the elec- 1ion. The said Shri Yashpal Kapur, the election agent of Shrimati Indira Nehru Gandhi offered and paid a sum of Rs. 50,000Ito the respondent No. 2 Swami Advaitanand as a gift with the object of directly including him to stand as a candidate at •the said dection. The offer and payment of the amount of Rs. 50,000Iwas made

by the said Shri Yashpal Kapur to Swami Advaita Nrtnd on the 28th January 1971 in the town of Rae Bareili.

A corrupt practice of 'bribery under section 123(1) (A) (a) was thus committed by Shri Yashpal Kapur, election agent of Sm. Indira Nehru Gadhi and her election is therefore liable to be declared void under <ection 100(1) of thi R.P. Act." ...

It is true tha'. 'the election petition nowhere specifically say; .as to when the appellant became a "candidate".

But it is clear

...

RAJ NARAIN v. IND!Jl.A. GANDHI (Hegde, J.) 847

:rwr; a readinil of paragraphs 5 and 6 that according to the appell11nt, the respondent became a "candidate" even before she was nominated on February 1, 1971. The petition proceeds on thJt basis.

It is not clear from the petition that how long before her nomination 'the respondent held herself out as a prospective candidate.

But all the sam~, it is obvious from those avermcnts that the respondent is alleged to hav.~ obtained the assistance ot Y ashpal Kapur when he con•tinued to be a gazetted officer for crganizing her electioneering work. The expression "electionc.r in.e" is explained in Universal English Dictionary as "aci of canvassing for votes, speaking in public and otherwise promoting the election of a particular candidate for Parliament".

Reference. to Yashpal Kapur as an election agent on a date prior to rthe date when he was appointed as such-his nomination as an eleetion agent could not have been done before February 1.

1971-is clearly a misnomer but that is irrelevant. The men; ion in paragraph 5 of the election pdtion that Y ashpal Kapur ur- _ganised th~ electioneering work in the constituency at the direction of the respondent even before her nomination and again the reference to her candidature in January in paragraph 6 shows that according •to the petitioner •the rspondent was a ''candidate" even before her nomination and further that she obtained the assistance of Yashpal Kapur when he was still a gazeHed officer.

There is no gainsaying the fact •that the election petition was not ar<istically drawn up.

That unfortunately is the case with most of our pleadings. But if the petition is read reasonably, as it should b~. it is clear that the allegation of the petitioner is that the servic.~ of Yashpal Kapur were obtained by the respondent when she had already become a candidate and when she so obtaine:t his assistance, Yashpal Kapur was still a gazetted officer.'

It is true chat one of the ingredients of tho~ corrupt practice alleged i.e. that when •the respondent obtained the assistance of Kapur, she was a candidate is not specifically set out in the petition but from 'lhe allegations made; it flows as a necessary implication.

While a corrupt practice has got to b~ strictly proved but from that it does not follow that a pleading in an election proceeding should receive a s'lrict construction.

This Court has held that even a defetive charge does not vitiate a criminal trial unle5' it is proved that the same has prejudiced the accused. If a plading Ol'l a reasonable construction could sustain the action, the court should accept that cons'truction.

The courts are reluctant to t frustrate an action on technical grounds. The charge of corrupt oractice in an elction is a very serious charge. Purity of election is the very essence of real democracy.

The charge in question .J has heen denied by the respondent. It has yet to be proved.

It ·-' may or may not be proved. The alle_galions made by the appellant may ultimately be proved to be wholly devoid of truth. But . . '

the question is whether the appellant should be refused an opportunity to prove his allegations ? Should the court refnse to enquire into those allegations merely because 1the appellant or someone who prepared his brief did not know the language of the law.

We have no hesitation in answering those questions in the negative. The implications of the rule of law are manifold.

' It was contended on behalf of the respondent that the relevant proYisions of the Act precluded the appellant from proving his allegations.

Therefore let us look at those provisions in the Act i.e. Clauses (a) and (b) of s. 83(1) and cl. (5) of s. 86 for finding out whether the charge has to be rejected in limine.

Section 83 (1 )(a) and (b) read :

"(1 ) An election petition-

( a) shall contain a concise statement of the materia 1

facts on which the petitioner relies;

( b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as fnll a statement as possible of the names of 'the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.

Sub-s. ( 5) of s. 86 prescribes :

"The High Court may upon such terms as to costs and otllerwise as it may deem fit. allow the particulars of ny corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of •the petition but shall not allow any amendment of the petition which will have the effect of introducing 'particulars of a corrupt practice not previously alleged in the petition."

From thse two provisions, it follows that if the allegations made regardin~ a corrupt practice do not disclose the constituent pans of the corrupt practioe alleged, the same will not bo allowed to be proved and further th9se allegations cannot be amended after the period of limitation for filing an election petition: but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified.

The 1 scope of these provisions has been considered in several deci- \\ sions of this Court. The leading decision on this point is Barish Chandra Bajpai v. Tri/ok Singh( 1).

It is not necessary to go to that decision as the ratio of •that decisions has been elaborately

ill [1957] S.C.R. 370,

RAJ NARAIN V, JNDIRA GANDHI (Hegde, !.) 849

explained by this Court in Samant N. Balakrishna etc. v. George Fernandez and ors. etc.( 1). Dealing with !be scope of ss. 83 and 86(5), 'this Court observed thiit s. 83 requires that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars of the corrupt practice alleged. 'Material facts' and 'particulars' may overlap but the word 'material' shows that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be s•tated.

The function of !be particulars is to present as full a picture of the cause of action as to make the opposite party understand the case he will have to meet Under s. 86(5), if cqrrupt practice is alleged in the petition, !be particulars of such corrupt practice may be amended or amplified for ensuring a fair and effective trial, that is, more and better pani culars of the charg>~ may be given later, even after the period 01 limitation; but if a corrupt practice is not previously alleged in the petition, an amendment which will have the effect of intro ducinJ? particulars of such a corrupt practice will not be permit ed, after the period of limitation, because, it would tantamount to making a fresh petition. The same view was iaken by this Court in Hardwari Lal v. Kanwal Singh('). From these dci sions. ir follows that facts stated in rthe petition relating to a1ly corrupt practice must be sufficient to constitute a cause of action.

Jn other words the facts must bring out all the ingredients of th~ corrupt practice allged. If the facts stated fail to satisfy foat requirement then they do not give rise to a triable issue. Such a defect cannot be cured by anv amendment after the period of limitation for filinJ? the election petition.

But even if all the material facts are stated in the election petiition.

For a proper trial better particulars may still be required. If !base particulars are not set out in the election petition, Ibey may be incorporaled into the election petition wilb the permission of the court even after the period of limitation. The controversy in 'this case is whether the election petition discloses a cause of action for trying Issue No. 1. We think it does. The allegations made in paragraphs 2, .5 and 6 of the petition, if read together do show that the alle gation against the respondent is that she obtained the assistance of Yashpal Kapur, a gazetted officer, to support her candidature by organising her electioneering work.

These allegations bring out all the igredients of te corrupt practice alleged though they are lacking m better par!lculars such as the date on which the respondent became a candidate and the date on which Yashpal Kapur was entrusted with the responsibility of organizing the electioneering work of the respondent.

The absence of thoje particulars does not per se invalidate the charge. They can be supplied even now wi'th the permission of the Court. In this con-

(I)

[19691 3 S.C.R. 603.

(2) [1972] s.c.c.: 14,

nection ii is necessary to mention that the respondent in her written statement did not say 'that the allegations in questiton did not raise a triable issue. No such objection appears to have been taken at the time of 'the framing of the issues or in any of her pleadings. It seems that the objection was taken up for the first time when the pe:tition to set aside the interrogatories was hard ..

We are sying all these only 1o show as to how the parties umlerstood the allep,,!!tions at the eatlier stages, of the proceedings.

Rules of pleadings are intended as aids for a fair trial and for reaching a just decision.

An action at law should not be equated to a game of chess. Provisions of law are not mere formulas to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle.

It is the duty of the court to ascertain that principle and implement it.

What

tbn is •the principle underlying s. 86(5)? In our opinion the.aim of •that section is to see that a person accused of a corrupt prac.- tice must know precisely what he is accused of so that he may have the opportunity to meet the allegations made against him.

If the, accusation made is nebulous and is capable of ting made use of for e_stablishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the very threshold.

So Jong as the charge levelled is beyo!ld doubt. s. 86(5) is satisfied; rest is mere refinement. They either pertain to the reion of particulars or evidence.

That section is not designed to interdict a mere clumsy pleading like the petition before us.

The purpose of that section is to see that every charge of corrupt practice should be brought before the court before the prescribed period of limitation and none thereafter so tllat the trial of the case may not be converted into a persecution by adding more and more charges or by convertinii, one charge into another as the trial proceeds. The best illustra1ion of the prob !em thats. 86(5) tries to meet is found in Hardwari Lal's case (supra). The allegations made in paragraph 16 Of the .petition therein wer.e as follows :

"That the respondent committed the corrupt practice of obtaining and procuring or attempting to obtain and procure the assistance for the furtherance of the prospects of his election from the following. persons who are in the service of the Government and belongfog to the prohibited classes within the meaning of section 123'

r7) of tho~ Act-

1. Shri Chand Ram Rathi, Lecturer in Political' Science, Government College, Gurgaon.

2. Shri Gulab Singh, B.A., B.Ed., Govt. High Sclioo[

Jharsa ( Gurgaon).

3. Pt. Bltim Singh, Asstt.

Sub-Inspector, Police- Securitv Lines, Lytton Road, w Delll.i.

4. Ch. Chhatar Singh, M.A., B.T., Toaoher, V.& P.O.

Bharai via Bahadurgarh, District Roh.tak.

5. Ch. Mukhtiar Singh, Inspector of Police, Delhi.

6. Ch. Ra11; hbir Singh, M.A., B.T., Bahadurgarh.

The respondent has writ\en letters under his own signatures to the above Government servants soliciting

their help and assistance in furtherance of the prospects of his election."

These were all the material facts s'tated in the pe1ition. From those a.verments, it was net possible to make out from whom among the government servants mentioned, the returned candidate alleged to have obtained or procured assistance for the furtherance of the prospects of his election; and who are thoso from whom he is alleged to have attempted to obtain and procure the assistance for the said purpose. That petition was also silent as re11; ards the type of assistance obtained or procured or attempted to be ob.ained or procured. In that case, it was necessary

to state. the type of assistance obtained or procured or attempled to be obtained or procured because a candidate can take the assistance of 11, overnment servants in certain respects. The allegations made in the petition were so elastic that it could have been used for establishing multitude of charges, leaving it free to the petitioner to pick and choose the charge he is in a position to establish. That was an intolerable position for his opponent.

In substance, 'the petitioner therein had merely quoted the relevant provision of law; he had failed to state the material facts to

bring out the charge sought to be Levelled. He had Clll!t a wide net. This is not so in the case before us. Herein all the ingredients of the corrupt practice viz. ( 1) that the respondent obtained the assistance of Kapur; ( 2) Kapur was a goterDment serva.nt and ( 3) his services were obtained in suppon of the c~1dature of .the reSpondent .by organising her election compa1gn, are mentioned in the petition. The question whn the respondent became a candidate is merely a matter of evidence

For the reasons mentioned above, we think that the learned 1ud11; e was not iostified in striking out Issire No. 1. -On the other hand, he sh.ould .have reframed that issue, as mentioned earlier refore 4e:?icthi$ question, it is necessary to mention one othe;

tct. Iii a~ I . ap~~ appears to have tendered his resignation to ofe 3ie ce tifiw~.boli!m2 on !anuary 13, 1971. The certified copy . . no . ca on produced shows that the President accepted..,..( his res12natK"1 on the 25th of January '71 and the same was

...

gazetted on February 6, 1971. The order of the President shows that he accepted Yashpal Kapur's resignation with effect from January 14, 1971. The learned trial judge without examining the true effect of the President's order has abruptly come to the conclusion that Yashpal Kapur's resignation became effective as from January 14, 1971. This conclusion, in our opinion, requires reexamination.

H is necessary to examine whether a government servant's resignation can be accepted with effect from an earlier date.

At any rate whether such an acceptance has any validity in considering a corrupt practice under s. 123 (7). If such a course is permissible, it might enable the government to defeat 1the mandate of s. 123(7). The question as to wlPn a government servant's resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India(!).

Therein this Court ruled that when a public servant has invited by his letter of resignation the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and, in the absence of any law or statutory rule governing the conditions of his service, to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Hence the question as to when Yashpal Kapur';

resignation became effective will have to be examined with reference to his ci:mditions of service. This examination having not been done. the conclusion of the learned trial judge that it .became effective on January 14, 1971, has to be ignored.

For the foregoing reasons, we set aside the order of the trial judge striking out Issue No. l and the last part of Issue No. 3 and restore Issue No. I as amended by us.

Now coming to the appeal against the order on the amendment application, the foamed trial judge disallowed the amendments sought on t!J.~ sole 1ground that if <those amendments are allowed, it will amount to amending the statement of material facts and 1the same is not permissible in view of s. 86(5). We have already found that that conclusion of the learned trial judge is not correct. The amendment application was moved even before the trial of the case commenced. It is not shown how the amendments sought in respect of paragraphs 2 and 5 of the petition can prejudice the case of the respondent. They are merely clarifica- 1 tory in charater. !his Court uled in Shri B_alwan .ingh v.

Shri Lakshmi Narain and ors.(·) that an electton petition was

. not liable to be dismissed in limine because full particulars of corrupt practice alleged were not set out.

It further observed '- that if an objection was taken and the tribunal was of the view . ~that the full particulars have not been set out, the petitioner had

-Ol-[l96iJ 3 S.ER. 857. ----

(2) [1960] J s.c.R. 91.

to be .R)ven an opportunity 'to amend or amplify the particulars.

It was only in the event of non-compliance with the order to supply the pal'liculars that the charge which remained vague could be struck out. In that case 1he amendment was sought after the evidence was closed in the case.

Ti\is Court allowed the same.

Courts are ordinarily liberal in allowing amendment of pleadings B unless it results in prejudicing the case of the opposite party. Any • inconvenience caused by an amendment can always be compensated by costs..

We think that the amendments asked for, should . have been allowed and we allow the same.

The election peti , tion will be accordingly amended and the respondent will be

afforded an opportunity to file any additional written statement, if c she so desires.

This leaves us with the question of interrogatories. As many as 31 interrogatories have been served on the respondent as mentioned earlier.

Out of them Nos. 24 to 30 have been allowed.

Hence we need not consider them.

Interrogatories Nos. 19 to 23 relate to Issue No. 2.

Therefore they are rightly struck out.

We now come to in~rrogatories Nos. I to 18 and 31. We have carefully ex!!!!).ined those interrogatories.

None of them' 1ouch the core of the allegations relating 'to commission of the corrupt practice which is the subject matter of Issue No. 1. They merely tourh the frin2.e of the matter.

Order XT, r. I, C.P.C. provides :

"In any wit the plaintiff or defendant by leave of '>the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating whicn of

uch interrogtories each of such person. is required to

lnswer; Providd that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose.

Provided, a\so that interrogatories which do not rejate to. any matters in question in the suit shall be

de4)e~ melevant, notwithstanding, 'that they might be admtssible on the oral cross-examination of a witness."

Qu~ion~ that may be :elevant during cross-examination me not neceanly relevant as rn~rrogatories. The only questions that are .relevant. as, injrrogatories are those relating to "any matters m quest10n'.

The interrogatories served must h

reasoab!y close onnection with "matters in question".

Vie~~~ !bus, mterro2atones I to 18 as well as 31 mu51 be held t ,_, 1rrelevarrt. o "'"

In the result Civil Appeal No. I 08 or 1972 is allowed to the A extent mentioned abov.~. In other respects the same is dismissed.

Civil App;:al No. 109 of 1972 is .allowed in full. In the circumstances of 1hese cases, we make no order as to costs.

K:B.N.

Civil A ppea/ No. !08 of 1912 allowed in part.

Civil Appeal No. 109 of 1972 allowed. : B

/, '

' J

RAJ NARAIN

INDIRA NEHRU GANDHI AND ANR

March 15, 1972

K. S. HEGDE

P. JAGANMOHAN REDDY

K. K. MATHEW

Representation of the People Act, 1951

Section

86(5)

Code of Civil Procedure 1908

section 86(5)

Representation of the People Act, 1951

s. 86(5)

s. 86(5)

Code of Civil Procedure

s. 123(7)

S. V. Gupte

J. P. Goyal

K. N. Tripathi

R. C. Srivastava

S. S. Khanduja

R. A. Gupta

C. K. Daphtary

S. C. Khare

Yageshwar Prasad

S. K. Bagga

S. Bagga

Hegde

C.P.C

Broome

September 14, 1971

C.P.C

Yashpal Kapur

Government of India

Section 123

Representation of the People Act, 1951

s. 123

s. 79

February 1, 1971

Shrimati Indira Nehru Gandhi

Swami Advaifa Nand

Yashpal Kapur

Yashpal Kapur

Yahpal i<apur

section 123

Indira Nehru Gandhi

Act

Samyukta Socialist Party

Jan Sangh

Indian National Congress (Organization)

Bhartiya Kranti Dal

Swatantra Parties

Indira Nehru Gandhi

Communist Party of India

Indira Nehru Gandhi

Swami

Advaita Nand

Swami Advaitanand

Swami Advaita Nrtnd

28th January 1971

Rae Bareili

section 123(1)

Indira Nehru Gadhi

Y ashpal Kapur

Kapur

s. 83(1)

s. 86

Section 83

s. 86

JNDIRA GANDHI

ss. 83 and 86(5)

s. 83

s. 86(5)

s. 86(5)

s. 86(5)

Hardwari Lal

section 123

Chand Ram Rathi

Gulab Singh

Bltim Singh

Ch. Chhatar Singh

February 6, 1971

s. 123

s. 123(7)

January 14, 1971

s. 86(5)

C.P.C


PABITAR SINGH

STATE OF BWAR

March 22, 1972

[A. N. GROVER AND M. H. BEG, JJ.J

Indian Arms Act (UV of 1959), ss. 25 and 35-Premises in joint 0CcU11ation of two ot'rsons-Gun concealrd in one room'-Conviction ,, f One of the perso.'ls-Yalidity.

The appellant and another, Loco employees of the Railway, were in joint occupation of certain quarters consisting of a bed-room and a kitchen.

They were chared with offences under ss. 25 and 26 of the C Indian Arms Act, 1959. The trial court convictejl"both the accused. The first appellate Court coovicted the appellant but acquitted the othi:r accused.

In revision by theappe1lant, the High Court set aside his conviction under s. 26, but upld his coiviction U'lder s. 25, on the bas:s that a J?Un was found i n:Side the kitchen room in which the - appellant concealed himself bolting the room from inside, and that the appellant was the sole occupant of that room at the time when the' police raided the D premises.

Allowing the appeal to this Court,

HELD : (I), Th• Courts below h•d not considered the P.rooecution evidence in the light of the gross exaggeratio, which had been 1ntroduoed

about the door nl tho kitchen-room having been bolted or chai"ed from inside by the appellont. Once that vital'fact is disbelieved !he ent're story .c; f the apoellan havi.1~ concealed himself in that room had to be rejected. t

!953 C.El

(2) On Ibo evidence, the quarters m.u•t be held to be In the join~ possession of both the accused.

U.1der s. 35 of the Act wluch was never considered by the courts below where any arms or ammunition are Or is 1ound in any premises in he joint oxupation or u.1der the joint con .. trol ni: several J)Cfsons, ea.ch oi such persons in respect of whom Jnere is rra., ntJ to believe that he was aware of the txistcnce of the arms and F ammunition in the premises unless the contrary is proved wiJl be liable

for tne offence under s. 25 { l) of bei.1g in possession df an unhce .. sed fite arm.

But, in the preseat; case the prosecUtion had -not established the essentiW ingredients of the offence in the light of the prov15.ons of s. 35.

As the u.1 was concealed in such a manner that it was not visible to the naked eye, it could not be urged that when the appe1Jant was using the kitchen he would be aware of its existence in that rocm. (953 F-Hl G

(3) In cases of this nature involvin.e liberty and carer of a citizen .s:reat care and attention .should be devO'led by the courts to all questions or Jaw and tact. 954 A-BJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 128 of 1969.

Aop~I by Spcial Leave from the judgment and order dated February 6, 1969 of the Patna High Court in Criminal Revisicn No. ,541 of 1968.

PABITAR SINGH v. BIHAR (Grover, J.-) 949

A S. C. Agrawala and V.".J. Francis, for the appellant.

U. P. Singh, for the respondent.

The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment qf the Patna High Court.

Originally two persons B Paoitar Singh (the present appellant) and Ram Ashray Sharma who were both Loco employees of the Railway were tried under 25 and 26 of the Indian Arms Act 1959, hereinafter called the "Act".

The learned Assistant Sessions Judge found each one of them guilty under both the sections.

The sentence imposed was 3 years rigorous imprisonment under s. 26 and one year's rigorous "imprisonment under s. 25 of the Act.

The sentences were to run C concurrently.

The.convicted persons filed an appeal to the court of Seisions.

The Additional Sessions Judge, Gaya, who heard the appeal found the appellant guilty under both the sections of the Act.

He maintained the sentence imposed on him.

Ram khray Sharma was given the benefit of doubt ana acquitted.

Pabitar Singh moved the High Court in revision.

His conviction under D s. 26 of the Act was set aside by the High Court but his conviction and sentence under s. 25 of the Act were upheld.

It is necessary to state a few facts.

The appellant and Ram Ashray Sharma were in joint occupation of quarter No. 490-A of the Loco Colony at Gaya.

Some confidential information was conveyed by Bishrampore police station to the Kotwali police station nt Gaya that stolert properties connected with a dacoit}' were lying concealed in the aforesaid auarter.

Conseauent\y Rama Shankar Upadhyay Station House Officer, Gaya Kotwali pQlice station raided the quarter at 5.45 a.m. on November 5, 1962.

He took with him two .witnesse• P.W. 1 Vijay Kumar Duhev nd PW. 5 Deonndan Ram.

The quarter was found locked from outside.

Ram Ashray Sharma was reported to be on duty.

He was sent for and he opened the outer lock of the quarter with his key.

It was alleged that when the search was made. inside the quarter the apnellant was found in the quarter, c0nce1E"" him, elf in the kitchen room which was b<ilted from in•ide.

That room was got onened.

A countrv made gun was

foun~ l"inq in between tw0 hricli:< on the ton' of which a tin containing flour in a bag covere"d with a brass thali was placed.

The beJ room.ws searched aqd two live 12 bore cartridges were found wrappd m a small cloth.

These had been placed behind a framed picture of Lord Shiva.

Tim lelrne'.! judge of the High Court formed the view that the appellant could not be convicted in respect of the cartridges which were found in the bed room which was in joint occupation of Ram

Ahrav Sharma and the apoellant.

According to the learned judge the inference of conscious possession of the appellant had

been drawn by the couts below from tl!P, fact that the picture A benrnd wn1ch the cartridges were found was just above the cot.

The fact that that cot belonged to Pabitar Singh had been stated by P.W. 1 alone.

No reliance could be placed on that witness as he had to be declared hostile.

In view of the fact that the room was in joil)t possession of two persons .the learned judge held that no inference of the appellant's conscious possession of the cart 8 ridges and their concealment by him could be drawn.

So far as the gun was concerned the learned judge observed that it was found inside the kitchen room in which Pabitar Singh was found having concealed himself.

He was the only occupant of the room at the moment.

He. had bolted the IDC\ffi C from inside.

In spite of certain serious discrepancies and other matters which. will be presently discussed the lea\'lled judge accept ed the pndiqg based mainly on the evidence of the Sub-In5pector that the appellant had .concealed himself in the kitchen room and •the gun was found conceaed there and an infer., nce cou'd, therefore, be drawn that he was in conscious possession of that gun.

D We may at this stage refer to the relevant provisions . of the Act and the changes which appear to have been made in the In, iian Arms A'ct 1878 by the Act with wlrich we are concerned, namely the Anns Act 19 5 9.

Section 14 of the Act or 18 7 8 provided that no person shall have in his possession or . under his control any cannon or firearm or any ammunition or military E stores except under l1 license and in the man11er and to the extent permitted thereby.

Section 15 related to possession of arms of any clesription without license proh!'bited in certain places. Section

19 ( 1 ) ( f) to the extent it is material was in these terms : ,.....

S. 19 (1) "Whoever commits any of the following ojknces (namely) :- F ....................... '\' • .......... .

(f) has in his possession or under his control any arms, ammunition or military stores in contraventidh of the orovisions of section 14. or section

15;" .

shall be punished with imprisonment for a term which may extend to three years or with fine, or with both"

The Act came into force on the_ first dav of October 1962 as it

was OJ\ that date that tbe requisite notification was macle. Under , sub-s. ('3) of s. 1.. ction 3 reads :-

 H . "No ponon shall acquire, have in his possession or carry any . fireann or ammunition unlesa be holds in tbls

D )

. 'I

~.i

PABITAR SINGH v.

0B!HAif (Grover, J.) 951

behalf a license issued in accordance with the provisions of this Act and the rules made thereunder : .

ProviC:.d that . . . . . ." '

Section 7 relates to prohibition of acquisition or possession etc. of prohibited arms or prohibited ammunition.

Chapter III contains provisions relating to licenses, Chapter IV to power and procedure and Chapter V to offences and penalties. , Section 25 to the exte.nt it is relevant for this case is as follows :

S. 25 (1) "WhQever-

( a) acquires, has in his possession or carries in any firearm or ammunition in contravention of section 3 ; or•

shall be punishable with imprisonment for a term which may extend to 3 years. or with fine or with both".

Section 35 provides :-

"Where any arms or ammunition in respect of which . any offence under this Act has been or being conrmitted a1 e or is found _in any prtlmises, vehicle or other place .in the joint oc¢u9ation or under the joint control of

several persons, each. of such per8ons in respect of whO)ll there is reason to beliew that be was aware of the existence of the aims or ammunition iI\ the premises, vehicle or other place shall, unless the contrary is -proved, be liable for'that offence in the same manner as if it has beeii or is g poquni\ted b, y hijn alone".

In s. 25( i )(a) only the W<irds "has .in his possession" have been retained and the other worils which appeared disjunctively in s. 19 (I)( f) namely, or under his control" have beeti. omitted.

Section 3 5 l\ppears to have been newly iilsetted to clarify the true position where at\Y 1aims or ammunition are or is found , in any premises etc. in the joint occupation or under the joint control of several persons.

Each of such persons in respect of w)lqm tltere is reason to believe that he was aware of the existence of the armt and ammunition in the preQlises unle!ls .the contrary is proved will be liable for that offence.

It is abundantly clear from a perusal of the judents of the courts belaw including the High Court that the case was neither tried nor examin_ed from the point of view of the provisions contained in s . .35 of the Act.

In the present case the .quarter wu admittedlv in joint occupation Of botll the allant and Ram Ashray Sharinl. It is tiue that at the time of tho raid llam

Ashray Sharma was not present but the mere presence of the A appellant was not sufficient to make him guilty of the offence unless the court could come to the conclusion that thete was reason to believe that be was aware of the existence of the gun in the premises.

If the view of the courts below is accepted that the appellant had concealed himself after having' locked the kitchen

when the raid took place and that be was in exclusive posses, ion B of the kitchen it might have been possible in the light of other tacts and circumstances to come to the conclusion that the conditions laid down in s. 35 were satified. The courts have, however, ignored wme salient facts which were proved and which completely negatived the case of the prosecution that the appellant bad locked himself in the kitchen and was in sole occupation C thereof.

The learned trial Judge pointed out that the story that lhe appellant had locked himself in the. kitchen was not supported by P. W. 1.

In his view that witness had displayed considerable sympathy fo;· the accused person.

He therefore took into consideration the statement made by the witness to the police. P.W: I had been declared hostile. It has not been shown on behalf of the

State how such a course could be followed and any statement made D by him could be relied on particularly, when the aforesaid witness had been , declared hostile and had to be cross-examined by the prosecutor.

The appellant had also moved the trial judge for local inspection an.cl it was pointed out to the judge that there was no device at all in the door of the kitchen by which it could be dosed from inside.

Other inaccuracies in the de, criotion of the E room which were to be found in the statement of P.W. 14 Rama Shankar Upadhaya_:_the Investigating Officer-were also pointed out.

This is what the trial judge stated in his judgment :

'; It cannot, therefore, be denied that the de, criotion of the room as given bv by the I.O. applied to the latrine of the quarter rather than the kitchn excent for its loc•tion i.e. th•t it wa' situate1l adjacent ea•t to the northo'rn end nf the inner varandah.

The. latrb.e, it may be pointed out is at some distance east of the varandah".

After stating a few fact' the trial judge came to the conclusion that the fnve, tieatine Officer had made some confu, ion in the G description of the kitchen.

The learned Sessions Judee acceoted the finding thai the appellant had decided to "close himself in the kitchen".

Now the story that the appellant had concealed him•elf inside the kitchen was ba•'lrl sub•tantiallv on the evirlence of PW. 14, .H the TnvQStigating Pfficer.

A perusal of hi' st!ltement would not satMv any court that imnlicit reliance could be nlAc'ld on his evidence.

He had deposed in catgorical terms that he found the

PABITAR SINGH v. B!HAR (Grover, J.) 953

door of the kitchen closed from inside.

He stated in crossexamination that the. hains were fitted in the door from inside as also from outsi.de.

The hinge for chaining the door was not fitted to the door frame but 1t was fitted to the door plank.

He also gave description of the kitchen which was found to be different when the inspection was made by the trial judge nor were any chains or marks of any chains wa~ found in the door of the kitchen as deposed to by P:W. 14.

P.W. 2 Ram Swarath, officer-incharge, polic; e station Daltonganj who accompanied the raiding party also stated that the door of the kitchen room was closed which was got unfastened. It is implicit in his statement thatthere was some bolting or chaining device in the door of the kitchen room by which it had been secured by the appellant.

This is not at all supported by the inspection note.

The allegation that the kitchen had. been bolted from inside by the appellant who had concealed himself there at the time of the raid finds mention in the first information report as well.

The comts below do not appear to have looked at the prosecution evidence in the light of this gross exaggeration which had been introduced about the door having been bolted or chained from inside by the appellant where he was alleged to have concealed himself.

Once that vital fact is disbelieved the entire story of his having concealed himself in the kitchen becomes doubtful and worthy of rejection.

It has also been suggested in some of the judgments of the courts and this fact has been relied upon on behalf of the State before us that the kitr.hen was used only by the appellant and not by Ram Ashray Sharma, the other occupant.

However, there is absolutely no material on which any such suggestion could be justified or based.

We are wholly at a loss to understand hi1w a quarter which consisted only of a bedroom and a kitchen would not be in the joint possession of both these persons, namely, the appellant and Ram Ashray Sharma.

The next and .the crucial question that arises is whether the prosecution has established the essential inredients of the offence in the light of the provisions of s. 35 of the Act. It has been urged that when the appellant was using the kitchen it was legitimate to expect that he-would be aware of the existence of the gun which was concealed there.

The gun was concealed in such a maMer that it was not visible to the naked eye.

Although there may be 'very grave suspicion that the appellant was aware of the existence of the gun the prosecution is bound to establish facts from which the court could have reason to believe that he was aware of the existence of the unlicensed fire-ann.

We are not satisfied in the present case that any such facts have been established.

Lastly it cannot be ov.er-emphasised that in cases of the pre- A sent nature where not only the. liberty of a citizen is involved but also his whole career on conviction a person in service is bound to be dismissed great care and attention should be devoted by the courts to all questions of law and fact which unfortunately had not been done in the present case.

That has Jed to miscarriage of justice.

The appellant, is en.titled to the 1-enefit of doubt and he B is hereby acquitted.

V.P.S.

Appeal allowed.

SINGH

STATE OF BWAR

March 22, 1972

A. N. GROVER

M. H. BEG, JJ

Indian Arms Act

ss. 25 and 35

ss. 25 and 26

Indian Arms Act, 1959

s. 26

s. 25

s. 35

s. 25

s. 35

Patna High Court

S. C. Agrawala

.J. Francis

U. P. Singh

Grover

B Paoitar Singh

Ram Ashray Sharma

Indian Arms Act 1959

s. 26

s. 25

Additional Sessions Judge, Gaya

Ram khray Sharma

Pabitar Singh

s. 26

s. 25

Ram Ashray Sharma

Gaya

Bishrampore police station

Rama Shankar Upadhyay

Gaya Kotwali pQlice station

November 5, 1962

Vijay Kumar Duhev

Deonndan Ram

Shiva

Tim lelrne

Ahrav Sharma

Pabitar Singh

Section 14

Section 15

Section

19

S. 19

section 14

section

15

s. 1

Section 7

Section 25

S. 25

section 3

Section 35

s. 25( i )(a)

s. 19

Section 3

Ram Ashray Sharinl

Ashray Sharma

s. 35

Rama Shankar Upadhaya

Other inaccuracies in the de, criotion of the E room which were to be found in the statement of P.W. 14 Rama Shankar Upadhaya:the Investigating Officer-were also pointed out.

Ram Swarath

Daltonganj

s. 35


.AGRAWAL TRADING CORPORATION & ORS.

COLLECTOR OF CUSTOMS AND ORS.

January 17, 1972

[K. S. HEGDE, P. JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.J •

Foreign Exchange Regulations Act, 1941-Section 8 and 23A-lt• scope-Sea Customs Act S. 19, 167(3), (8) (37)-Does the word 'goods' i11 the said Sections include Currency Notes.

The appellant, a partnership firm having 2 partners, carried on busi ness of importers and exporters, etc. The Cashier of the firm handed over a wooden case to the Swiss Airways at Dum Dum for being sent to Hong Kon& by air.

According to .the consignment note, the consignment was being sent by one R. of Karnani mansions, Calcutta, who was a fictitious person. The shipping bill showed that the consignment purported to contain food and dried vegetables and was sent to I, of Hong Kong, al!o a fictitious person.. After the consignment was accepted and when customs examined it for clearance, it was found that it contained Rs.

Sl,000 in Indian currency... On investigation, a search warrant was issued by the Presidency Magistrate and the office of the firm and the residence of partners wre searched. In the course of search, accounts books and other documents were seized.

Investigation revealed that the Cashier, had signed the consignment note as Rs, which, as the subsequent writings showed; were in his hand. Even the consignment note appears to have been typed on the type-writer of the appellant firm.

Thereafter, Customs authorities served a notice on the appellant pointing out that exportation of Indian currency out of India was in contravention of S. 8

(2) of the Foreign Exchange Regulations Act, 1947 read with Reserve Bank Notification dated 27-2-1951 as specified therein and it was asked to show cause and to produce within 4 days the permit, if any, of the Reserve Bank of India, failing which, it would be liable for prosecunon under Section 23(1) read with S. 8(2) of the Foreign Excbanae Regula !ions Act. The appellant denied that the firm had anything to do with

the case.

Apart from criminal prosecutions against the partners, a fine of Rs. l,000 under section 167(3) of the Sea Customs Act with a further personal liability of Rs. 1,000 u/s. 167(37) of the Act was imposed against the firm. It was further fined Rs. S!,000 u/s. 167(8) of the Act reac! with s. 23 ( 1) of the Foreign Exchange Regulations Act. Apart from these, the currency notes of Rs. 51,000 which were seized, were also con fiscated.

This order was challenged before the single judge of lhe Calcutta High Court who issued a rule but later discharged it. An appeal against that order was also dismissed. In appeal to this Court, three points, raised before the Appellate Court were also reiterated : (I) Currency Notes are not 'goods' and therefore, the provisions of s. 167(3), (8) and

(37) of the Sea Customs Act are not attracted.

(2) A firm is not a legal entity and therefore, it cannot be a 'person' within the meaning of

any of the abQ¥e provisions of law. (3) Even if a 'firm' be a 'perspn', no penalty can .be imposed on the firm or any of its members unless the members have consciously taken any step to violate the provisions of Jaw;

even so, only the partnermember against whom there is evidence of guilt can be held liable.

Dismissing the appeal,

HELD : (i) s. 23A of the Foreign Exchange Regulations Act, incor porates, by reference, the provisions of the Sea Customs Act by deeming the restrictions under section 8 of the Foreign &change Regulations Act, to be prohibiting and restricting under s. 19 of the Sea Customs Act. The legislature ca.n always incorporate by reference, the pro, isions of some other Act, if they are relevant for the purposes of the scheme and object of that Act. Restrictions specified in s. 8 of the Foreign Exchange Regulations Act are deemed to be prohibitiona and restrictions mentioned under s. 19 of the Sea Customs Act. The prohibitions mentioned under s. 8 are not necessarily confined to goods alone but must be deemed, for the purposes of Foreign Exchange Regulations Act, to include therein restrictions in respect of tho articles specified in s. 8 thereof, including currency notes as well. [94 BJ

(ii) Although there is no definition of the word 'person' in either of the Acts, the definition in s. 2(42) of the General Clauses Act, 1897 or Section 2(3) of tho Act of 1863 would be applicable to the present Acts, in both of which, person bas been defined as including any Company or association, or body of individuals whether incorporated or not. Further, tho explanation to s.

23C clearly envisages that a company for the purposes of that Section is defined to mean any body corporate and includes a firm or other association of individuals and a Director in relation to a firm also means a partner of the firm.

Therefore, for the purposes of Foreign Exchange Regulations Act and Sea Customs Act, a ro111sterea partnersn1p flmi is a 'legal entity'. [94 G)

(iii) From the evidence, it was clear that tho appellant attempted to hoodwink the customs officials (currency notes secreted in a cavity), that the consijlllet and consi4nee were not shown as real persons, the charges and expenses Incurred 1n connection with the de1patch wore found ill tho entry in the books of account of tho fir, m that tho amount. sought to be sent was half a lakb of rupees which could ibardly be within the means ;:if tho Cashier and tho Court was riaht in holding that It was the firm which was Interested 1n sending the currency notes out of India in a clandestine manner. f98 Al

Radha Krishna Bhatia v. Union of India & Ors., (1965) .2 S.C.R. 213.

Thorrw Dana v. The State of Punjab, [1959] Supp. 1 S.C.R. 274 and Additional Collector of Customs v. Sita Ram Agarwal, C.A. No. 492 of 1962 decided on 14-9-1962 referred to ancl distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 357 of 1967.

Appeal from the judgment and order dated December 9, 1963 of the Calcutta High Court in Appeal from Original Order No.

110 of 1960. ·

B. Sen, Sadhu Singh, lagmohan Khanna, R. N. Kapoor and H S. K. Dho/akla, for the appellants.

G. L. Sangh/, B. DI tta and S. P. Nayar, for the respondents.

' ..

AGRAWAL TRADING CORP. v. COLLECTOR (Jaganmohan 87 Reddy, 1.) A The Judgment of the Court was delivered by

P •. Jaganmoban Reddy, J. This is an appeal by certificate under Article 133 ( 1) (b) of the Constitu!ion against the judgment of the Calcutta High Court which dismissed an appeal from an order of the single Judge of that Court discharging a rule granted B by it to the appellants calling on !he respondents-tire Collector of Customs and others-to show cause why certain orders under various sections of ithe Sea Customs Act and the Foreign Exchange Regulation Aot should not be quashed and why a writ!en complaint made by the rspondents. under tire Foreign Exchange Regulation Ac.t and the case pending in the Court of the Presidency Magis- C trate, Calcutta, should not be stayed.

The appellant is a registered partnership firm carrying on business of importers, exporters, commission agents, brokers and p; eneral merchants.

It consists of two partners, Girdhari Lal Gupta and Pooran Mal Jain.

On the 25'.h October 1958, tire Cashier of, the appellant-Bhag\Vandeo Tiwari handed over a D consignment of wooden case to the Swiss Airways at Oum Dum Airport for being sent by air freight to Hongkong. According to the consignment note, the consignment was bein)1; sent by one Ramghawan Singh of Kamani Mansions, Park Street, Calcutta, who in fact was a fictitious person.

The Shipping Bill showed !hat the consignment purported to contain Rassogolla, Achar, Papar and dried vegetaes and it was being sent to one Ishwar Lal; E 41, Wyndham St., Hongkonii: who is also alleged to be a fictitious person.

After the consignment was accepted and when the Customs examined it for clearance on 25th October 1958 before i!s onward despatch to Honl!; kong, ithere was found concealed in a specially made secret cavity on the batns nailed to the inner sides of the case, Indian currency notes of Rs. S 1,0001 •.

An F in\'estigation was set on foot and on 22nd January 1959 a search warrant was issued by the Presidency Magistrate, pursuan! to which the Customs Officers caused a search to be made of the office of the firm and the residences of the appellant's partners. In

the course of search account books and other documen!s were seized.

This investigation revealed that the Cashier, Bhagwandeo G Tiwari had signed the consignment note as Ramchandra which, as

the subsequent writings showed, were in his hand.

Even the consignment note appears to have been typed on the typewriter of the appellant firm.

It was further alleged that from a compa• rison of the consignment no~ with a letter admittedly sent out by the appellant firm and signed by one of its partners, Girdhari Lal Gupta, it became evident that the slip seized from the office of H the appellant firm had contained entries, to show that Bhagwandeo Tiwari was tho person who actually transported and booked the oflendinp; consignment in question and that he 111ade an entry

of Rs. l..23.73 being the Air freight paid for its transport to A Hongkong which was the exact amount shown on the consignment the account slip was in his handwriting, and that the expenses note. Bhagwandeo Tiwari, it was said, had in fact admitted that and charl(es shown therein were also found in the books of account of the appellant firm.

In view of this evidence, the customs awthorities served a natice on the appellant firm on April 2, 1959 B by which after setting out in detail the aforesaid facts and after pointing out that the exportation of lindian currency out of India was in contravell'tion of section 8(2) of the Foreign Exchange Regulations Act 194 7 read with the Reserve Bank of India Noti fication dated 27·2-1951 as specified therein, it was asked to show cause and to produce within four days of the receipt (>f the notice, 11he permit, if any, of the Reserve Bank of India, for C export of the Indian currency and if it did not do so, it would be liable for prosecution 1mder section 23 ( 1) read with Eection 8 (2) of the Foreign Exchange Regulations Act.

On 13·4-1959, the appellant firm replied to the notice denying that the firm had anything to do with the despatch of the box containing currency notes; that i.t was not aware of any person by the name of D Ramghawan Singh or Ishwar Lal, or that Bhagwandeo Tiwari had ever despatched the consignment in question or visited any Air office in connection therewith.

It may be mentioned en passant that in the High Court, in the reply affidavit affirmed on

11-1-1960 to the affidavit in opposition, Girdhari Lal Gupta, one of the partners of the firm went even to extent of den}ing E that Bhagwandeo Tiwari was the Cashier of the firm, notwithstanding the fact that in' the earlier reply to the show cause notice as also in the Writ Petition, it was tacitly assumed that he was the Cashier.

Apart from the criminal prosecutions that were launched F against the partners, in the penalty proceedings which were initiated by the aforesaid show cause notice, the firm was held to be knowingly concerned in the offence and accordingly, a fine of Rs. 1,000/· was imposed on it under section 167(3) of the Sea Customs Act with a further personal liability of Rs. 1,000/-

under section 167 ( 37) of the said Act.

It was further fined G Rs. 51,000/- under section 167(8) of the Act read with sei; tion 23 (I ) of the Foreign Exchange Regulations Act.

Apart from these fines, the currency notes of Rs. 51,000/- which were seized wen confiscated.

H This order was challenged before the. single Julge of the Calcutta High Court who, as already stated, had issued a rule but later discharged it.

Against that order an appeal was filed

AGRAWAL TRADING CORP. v. COLLECTOR (Jaganmohan 89 Reddy, I.) A but that also was dismissed.

Of the four points that were urged in that appeal, the first three have been reiterated before us on behalf of the appellant. viz. :-

(1) Currency notes are not 'goods' and ilierefore

the provisions of section 167(3), (8) and (37) of the Sea Ctistoms Act are not attaroted;

(2) A 'firm' is not a legal entity and therefore it cannot be a 'person' within the meaning of any of the above provisions of law;

(3) Even if a firm be a person within the meaning

ot the said provisions no penalty can be imposed on 1te firm or any of its members unless it appears from the evidence that the members of the firm had consciously taken any steps to violate the provisions of law; even so only the particular member a~ whom there is evi dence of guilt can be held liable.

Before dealing with the above contentions it will be necessarY to consider the relevant provisions of he Foreign E Exchange Regulations Aot as also those under the Sea Customs

Act, Sections 8(1), 23(a), (b), (IA), 23A, 23B and 23C of

the Foreign Exchange Regulations Act and section 19, 167(3),

(8) and (37) of the Sea Customs Act are relevant for •the purpose of this appeal. These are iven below :-

"8(1). The Central Government may, by notification in he Official Gazette, order that, sub.iect to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed bring or send into India any gold or silver or any currency notes or bank notes or coin whether Indian or forei)!n. ,

Explanation-The bringing or sending into any port or place in India of any such article as aforesaid H inttnded \Q be taken out of India without being removed from the ship or conveyance in which it is being carried shall nonetheless be deemed to be a bringing, 7-864Supcl(72

or as the case may be sending, into India of that article

for the purposes of this sec!ion.

(2) '

23 (I). If any person contravenes the provisions of section 4, section 5, section 9 or sub-section (2) of section 12 or of any rule, direction or order made thereunder, he shall -

(a) be liable to such penalty not exceeding

three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or

(b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

23(1A) Whoever contravenes -

(a) any of the provisions of this Act or of any rule, direction or order made thereunder, other than those referred to in subsection (1) of this section and section 19 shall, upon conviction by a court. be punishable with imprisonment for a lel"m which may extend to tw0 years, or with fine or with both;

(b) any direction or order made under section 19 shall, upon conviction by a court, be punishable with fine which mav extend to two thousand rupees.

23A. Without prejudice to the provisions of section 23 or to any other provision contained in this Act, the restrictions imposed by subsections (1) and (2) of section 8, sub-section

(1) of section 12 and clause (a) of subsection (1) of section 13 shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1878 (8 of 1878), and all the provisions of that Act shall have effect accordingly except that section 183 thereof

AGRAWAL TRADING CORP. v. COLLECTOR (Jaganmohan 91 Rtddy, J.) shall have effect as if for the word 'shall', therein the word 'may' were substituted.

23B. Whoever attempts to contravene any of the provisions of this Act or of any rule, direction or order made thereunder shall be deemed to have contravened that provision, rule, direction or order, as the case may be:

23C(l) If t:he pern committing a contri¥vention: is a company, every person who, at the time the Cl>ntravention was committed, was incharge of, and was responsible, to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to punishment, if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

(2) Notwithstanding anything contained in subsection (1), where a contravention under this Act has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly''.

Sea Customs Act : "19. The Central Government may from tiine to tiine, by notification in the official Gu.etlle, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government.

167. The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the

same with reference to such offences res- A pectively :-

Offences Section of this Act to which offe nee bas reference.

I 2

3. If any person ship or land goods, or General

d in the shipment or landing of goods, or knowiagty keep or conceal, or knowingly permit or procure to be kept or concealed, any goods shipped or landed, or intended to be shipped or Janded, contrary to provisions of this Act; or

if any person be found to have been on board of any vessel liable to cou&<ation on account of the commission of an offence under (No. 4) of , this section, while such vessel is within any bay, river, creek or arm of the sea which is not a portfor the shipment and landing of goods.

8. If any goods, the importation or

exportation of which is for the time being prohibited or restricted by or under Chapter IV of 4bis Act, be im ported into or exported from India contrary to such prohibition or restriction or

if any attem~ be made so to import or export any such goods; or

if any such goods be found in any pacli:- DJO produced to any officer of Customs as containlna no such aooda; or

if any sncb aoods, or any dutiilblo aoods, be found either before or after landing

or shipment to have beeo concealed in any manner on board of any vessel within the linlits of any port in India; or

if any '-oods, tho exportation of which is prohibited or restricted as aforesaid, be brouahl to any wharf in order to be put on 6olrd of any voesel for export&• lion con11'11'y to sUch problbillon or mtriclion.

18 & 19

Penalties.

such pe.rson shall be liable lo a penalty not exceedin& one thousand rupees.

such aoods shall be lia

ble to confitcation; and

any person concerned in

any such offence shall be liable to a penalty

DOI teXCCedina throe limes the value of the aoods, or DOI oceedina one thou sand rupees.

AGRAWAL TRADING CORP. v. COLLECTOR (Jaganmohan 93 Reddy, I.)

I 2

37. If it be found, when any goods are 86 & 137

entered at, or brought to be through, a custom house, either for importation or exportation, that-

(a) th• packages in which they are

contained differ widely from the description given in the bill-of• entry or spplication for passing them; or

(b) the contents thereof have been

wrongly described in such bill or application as regards the denominations, characters, or conditions according to which such goods are chargeable with duty or arc being imported or exported; or

(c) the contents of such packages have been miwtated in rcaard to sort, quality, quantity or value; or

(d) goods not stated in the bill-of.entry

or application have been concealed in1 or mixed with, the articles specined therein, or have apparently been packed so as to deceive the officers of Customs.

and such circ nnstance is not accounted for to the satisfaction of the Customs Collector."

such packagea, together

with the whole of the goods contained therein, shall be liable to confiscation, and every person concerned in any such offence shall be liable to a penally not exceeding one thousand rupees.

A perusal of these provisions would show that no gold or silver or any currency no~ or Bank notes or coin, whether Indian or foreign, can be sent to or brought into India, F nor can any gold, precious stones or Indian currency or foreign-exchange other than foreign exchange obtained from an authorised dealer can be sent out of India without the general or special pennission of the Reserve Bank of India. These restrictions by virtue of section 23A of the Foreign Exchange Regulation Act are deemed to have been imposed under section 19 of the Sea Customs Act and all the provisions of the latter Act shall G have effect accordingly, except seC'tion 183 thereof shall have the effect as if for the word 'shall' !herein the word 'may' were substituted. What section 23A does is to incorporate by reference thn

provisions of the Sea Customs Act by deeming he restrictions under section 8 of the Foreign Exchange Regulation Act to be prohibitions and restrictions under section 19 of the Sea Customs H Act. The contention is 'that since section 19 restricts the bringing or talcing by sea or by land goods of any specified description into or out of India, these restrictions are not applicable to the bringing in or taking out the currency notes which are not goods

within the meaning of that section, and, therefore, the appellant A is not guilty of any contravention of section 19 of ithe Sea Customs Act and cannot be subjected to the penal provisions of the said Act. This ar.gument, in our view, is misconceived, because firstly, it is a well accepted Legislative praotice to incorporate by reference, if the Legislature so chooses, the provisions of some other Act in w far as they are relevant for the purposes of and B in furtherance of the scheme and objecls of that Aot and secondly,

that merely because the restriotions specified in section 8 of the Foreign Exchange Regulation Act are deemed to be prohibitions and restri.ctions under section 19 of the Sea Customs Act, those prohibitions and restrictions are not necessarily confined to goods

alone but must be deemed for the purposes of the Foreign Exchange Regulation Act to include therein rei!rictions in respect C of the articles specified in section 8 thereof, including currency notes as well.

The High Court thought that there is no definition of goods in the General Clauses Act and that contained in the Sale of Goods Act which excludes money is inapplicable inasmuch as that Act was a much later statute than the Sea Customs Aot It is, however, unnecessary to consider this aspect because even D if ·!he currency notes are not goods, the restrictions prescribed in section 8 of the Foreign Exchange Act cannot be nullified by section 23A thereof which incorporates section 19 of the Sea Customs Act. We cannot attribute to the Legislature the intention to obliterate one provision by another provision of the same Act. On the other hand, we construe it as furthering ithe object E of the Act whiCh is to restrict the import into Or export out of India of currency notes and to punish contraventions of such res!rlctions.

The second contention that because the firm is not a legal entity, it cannot be a person within the meaning of Section 8 of f the Foreign Exchange Regulation Act or of section 167 (3), (8}

and (37) of :he Sea Customs Act, is equally wrtenable. There is of course, no definition of 'person' in either of these Acts but the definition in section 2 (42) of the Genera,! Clauses Act 1897, or section 2(3} of the Act of 1868 would be applicable to the said Acts in both of which 'person' has been defined as including G any company or associatioo or body of individuals whether incorporated or not. It is of course contended that this definition does not apply to a firm which is not a na:tural person and has no legal existence, as such clauses ( 3) , ( 8) and ( 3 7) of section 167 of the Sea Customs Act are inapplicable !O the appellant firm.

In our_ view, the explanation to section 23C clearly negatives this H contention, in that a company for the purposes of that section i5: defined to mean any body corporate and includes a firm or otherassociation of individuals and a Director in relation to a firm

AGRAWAL TRADING CORP. v. COLLECTOR (Jaganmohan 95

Reddy, J.) A means a partner in the finn.

The High Court was clearly right in holding that once it is found that there has been a contravention of any of th.e provisions of the ForeiAD Exchange Regulation Act

read with Sea Customs Act by a finn, the partners of it who are in-charge of its business or are responsible for the conduct of the same, cannot escape liability, unless it is proved by them that B ·!he contravention took place without their knowledge or they exercised all due diligence to prevent such contravention.

There is, also no warrant for the third submission that unless it appears from the evidence that members of the finn had consciously taken any steps to viola!e the provisions of law and even C then only the particular members against whom there is evidence Of guilt, can alone be held liable. This contention was said to be based on a decision of this Court in Radha Krishlln Bhatia v.

Union of India and others,(') that as the 'person concerne4' specified in section 167 ( 8) of the Sea Customs A" is the persdb actually involved or engaged or mixed up in conttavelliq tbe D restrictions imposed under the Foreign Exchange Act or IJte S..

Customs Act, he must be the person who must be sllown to be actually concerned. That was also a case under section 167 ( 8) of the Sea Customs Act where, in fact, a number d. gold bars held to be smuggled were recovered from the person of the

appellant.

The single Bench of the Punjab , lfigh : Court hid allowed the Writ Petition of the appellant on .ftle l!Qlllif that die E Collector had not recorded a finding that the ajlpdlant was connected with the act of smuggling gold into the country. This finding was set aside on a Let+.ers Patent Appeal and the writ l>Ctition was dismissed. This Court held that the concern of the appellant in the commission of the offence must be at a stage ,

J)rior to the compjeon of the offence of illegal importation of; gold into the country. The mere finding of fact recorded bf; the Collector of Customs about the smuggled ~Id being rec0vere1f

from the person of the appellant was not sufficient to concl~ .. that the appellant was ooncerned in the illegal importation al goJil::: into the country and, therefore, liable for penalty under _.. tion 167 ( 8 ) of the Act.

What the order of the Collecbof Customs must show is that he had considered thcquestion o~ tile G person being concerned in the commission of the offence ol. illeal

importation. of the p.oods.

It should further indicate that the matters he had considered had a bearing on the question a, nd the reasons for his arriving at that conclusion. This has really no bearing on the question before us because under section 23B, even

ail attemp! to contravene any of the provisions of the Act or of H any rule, direction or order made thereunder shall be deemed to have contravened that provision, rule, direction or order as the

(I) (1965! 2 S.C.R. 213,

case may be. In respect of this very incident where the petitioo:iers A were prosecuted i! was held by this Coun in Girdhari Lal Gupta and another v. D. N. Mehta, Assistant Collector of Customs and

another,(') that Girdhari Lal Gupta, one of the itwo partners and Bandeo Tiwari, Cashier, have been rightly convicted under the provisions of !he Foreign Exchange Regulation Act for contravention of the restrictions imposed under section 8 ( 2) read wiih B section 23(1A) of the Foreign Exchange Regulation Acl In that case it was contended that there is no evidence to show that the contravention took place with the knowledge of Girdhari Lal Gupta or that he did not exercise due diligence to prevent such contravention. That contentiOD was negatived because he had not only stated under section 342, that he alone looks-after 1the affairs of the firm but it had been found that there were entries C in his acco11nt books. It is itrue, that tbt relevant provisions of the Sea Customs Act are penal in character and the burden of proof is on the Customs authorities to bring home the guilt to 1he person alleged to have committed a particular offence under the said Act by adducing satisfactory evidence. But that is not to say that the absence of direct evidence to connect a person wilh D tho offence will not attract the penal provisions to establish the guilt in a criminal proceedmg ol the type which the customs authorities have to take. The evidence of the kind which has been adduced in this case would bie sufficient to lead to the conclusion that the partner of the firm was interested in or involved iin attempting to export Indian currency notes out of India.

As observed by this Conn in Thomas Dana v. The State of Punjab('). while dealing with section 167 of the Sea Customs Act, that "All criminal offences 'are offences but all offences in the sense of infringement of law are not criminal offences. Likewise, the other expressions have been: used in their generic sense and not as the)' are understood in the Indian Penal Code or other laws relating to criminal offences. . . . Out of more than 82 entries in the schedule to section 167, it is ooly about a dozen entries which contemplate prosecution in the crirnitial sense, the remaining entries contem.- plate penalties other than punishments for a criminal offence".

In the Additional Collector of Customs v. Sita Ram Agarwal('), to which the High Court has referred, while dis- G missin11: the _appeal from the judgment of the Calcutta High Court, this Court had stated that "the High Conn was right when--!it observed that if any one is interes!ed or consciously takes any step whatever to promote the object of illegally bringing bulljon into the country, then even if no physical connection is established between him and the !hin11: brought, he will be guilty." In thl!t case, the respondent, Sita Ram Agarwal who was seen moving H

(I) [1970) 2 S.C.C. 530.

(2) [1959] Suppl. (I) S.C.R. 274.

(3) Civil Appeal No. 492/62 decided on 14-9-62.

AGRAWAL TRADING CORP. V, COLLECTOR

(Jaganmohan Reddy,/,) 97

in the company of one Bhola Nath Gupta on the western pavement of J atindra Mohan Avenue, Calcutta, had proceeded in the direction of a taxi which had come to the place where they were, and on a sigrial being flashed, a Chinese national alighted

therefrom, shook hands, with the respondent after which all the three boarded the taxi.

A police constable who was on the spot raised an ala_rm and secured the respondent and his companion with the help of the members of the public. All of them were taken to th~ police station for the purpose of interrogation but the Chinese national tried to get away and started to run. He was chased and eventually secured. Before his apprehension, . however, he was seen to drop three packets which were found c to contain ?.3 bars of illicit gold. The respondent was charged as a person concerned in the offnce of attempting to import contraband gold' under sec!ion 167(8) of the Sea Customs Act.

The High Court while holding that there was no evidence to establish that he was in conscious relation with the gold, observed,

"in order ithat a person may be said to be'ro concerned, some facts have to be proved which will es!ablish that he was in cons- D cious relation with the gold in one or other of the several successive steps preceding its actual receipt into the country''.

In order <that he was concerned in the offence, <; he High Court further winted out that there need be no physical connection

between the J!Old and the person charged and "if the offence did

E not relate to his being concerned in '1le importation of the gold, but related to his having something to do with smuggled gold, the l>OSition might have been different''. The facts of •the instant case clearly disclosed, as was observed by the High Court, "a well laid plan". We have earlier stated that the currency notes were secreted in a cavity and were sought to be despatched out of the country in a package which ostensibly looked inocuous, F containing eatables. The manner in which the attempt was made was to hood-wink the Customs officials and escape their detection. Further, the consignor and the consignee were not shown as real persons but were fictitious so that even if the a!tempt to smuggle out of the country the currency nates was detected, the real persons could not be traced. The charges and

expenses incurred in connection with the despatch found in tthe entries in the books of account of the firm were the same as those relating to the offending package which was being despatched to Hongkong. The freight mentioned in ithe account slip is the exact amount which appears on the consignment note in respect of that offending package. The amount sough! ito be sent is half a lakh of rupees which can hardly be within the means of the Cashier, leading to the inescapable Inference that the firm through its partners was concerned in the attempt to transl!Iess ithe restrictions under section 8 of the Foreign Exchange Regulation Act and liable to penal action by virtue of section 23A

under !he provisions of the Sea Customs Act. On these facts as A eatablished, the IDgh Court caine to the conclusion and in our view rlditly, that it was not unreasonable to infer that it was the finn which was interested in sending !he currency notes out of India in a clandestine r.

In this view, the appeal has no merits and it is dismissed with

JI. costs.

S.N.

Appeal dismissed.

AGRAWAL TRADING CORPORATION & ORS

COLLECTOR OF CUSTOMS AND ORS

January 17, 1972

K. S. HEGDE

P. JAGANMOHAN REDDY

D. G. PALEKAR, JJ

Foreign Exchange Regulations Act, 1941

Section 8 and 23A

Sea Customs Act

S. 19, 167(3)

Swiss Airways

Dum Dum

Hong Kon

Calcutta

Hong Kong

India

S. 8

Foreign Exchange Regulations Act, 1947

Reserve Bank of India

Section 23(1)

S. 8(2)

section 167(3)

Customs Act

s. 167(37)

s. 167(8)

s. 23

Calcutta High Court

s. 167(3)

Customs Act

s. 23A

Customs Act

section 8

s. 19

Customs Act

s. 8

s. 19

Customs Act

s. 8

Foreign Exchange Regulations Act

s. 8

s. 2(42)

General Clauses Act, 1897

Section 2(3)

s.

23C

B. Sen

Sadhu Singh

lagmohan Khanna

R. N. Kapoor

H S. K. Dho

G. L. Sangh/

B. DI tta

S. P. Nayar

P •. Jaganmoban Reddy

Article 133

Customs Act

Foreign Exchange Regulation

Girdhari Lal Gupta

Pooran Mal Jain

25'.h October 1958

Bhag\Vandeo Tiwari

Oum Dum Airport

Hongkong

Ramghawan Singh

Ishwar Lal

Hongkonii

25th October 1958

S 1

22nd January 1959

Bhagwandeo G Tiwari

Ramchandra

Bhagwandeo Tiwari

April 2, 1959

section 8(2)

Reserve Bank of India Noti

section 23

D Ramghawan Singh

section 167(3)

Customs Act

section 167

section 167(8)

section 167(3)

Sections 8(1), 23(a)

section 19, 167(3)

Customs Act

Central Government

section 4

section 5

section 9

section 12

section 19

section 19

section 23

section 8

section 12

section 13

section 19

Sea Customs Act, 1878

section 183

Sea Customs Act

Offences Section of this Act

section 23A

section 19

Customs Act

section 23A

Customs Act

section 8

section 19

section 19

section 19

Customs Act

section 8

section 19

Customs Act

section 8

General Clauses Act

Sale of Goods Act

section 8

section 23A

section 19

Customs Act

Section 8

section 167

Sea Customs Act

section 2

Clauses Act 1897

section 167

Customs Act

section 23C

Reddy

Customs Act

section 167

Customs Act

section 167

Customs Act

Punjab

section 23B

Bandeo Tiwari

Foreign Exchange Regulation Act

section 8

section 23(1A)

section 342

Customs Act

section 167

Customs Act

Indian Penal Code

section 167

Sita Ram Agarwal

AGRAWAL TRADING CORP. V

Jaganmohan Reddy,/

Bhola Nath Gupta

Customs Act

section 8

section 23A

Customs Act