STATE OF PUNJAB

M/S. ASSOCIATED HOTELS OF INDIA LTD.

January 4, 1972

[S . .M. S!KRI, C.J., J. M. SHELAT, I. D. DuA, H. R. KHANNA

AND G. K. MITTER, JJ.]

 S11les-rt1.t-Sale and contract of H'ork and serl'ice-Distinction nnd fC'SIS,

The respondent-company was running the business of a hotelier and was registered as a dealer under the Punjab General Sales Tax Act 1948. lt applied for a declaration that it was not liable to sales-tax in 'respect

of meals served to the guests staying in the hotel on the grounds that :

(1) the hotel receives guests primarily for the purpose of lodging;. (2) when so receil"zd the management provides him with a number of amenities including meals at fixed hours, incidental to such lodging and with a view to render his stay comfortable; (3) the transaction between the respondent and the guests is one for the latter to stay and not one of sale of food stuffs supplied; ( 4) the bill given by the respondent and paid by the guest is one and indivisible, being a fixed amount per day during his stay in the hotel and does not consist of separate items in respect of the several amenities furnished to him, and (5) the transaction does not envisage any sale of food since the guest cannot demand a rebate or deduction if he were to miss a meal or meals nor is he entitled to carry a\vay or deal with. in any n1anner, the food sen1ed on his table if a part of it is not consumed.

The dcpartmi.:nt rejected the companys npplication but the High Court allowed its writ petition.

Disn1issing the appeal to this Court,

HELD : The transaction is one essentially of sorvice in the performance of which and as part of the amenities incidental to that service, the h~1teli'i!r se1ves n1eals at stated hours.

The Revenue, the'refore, was not entitled to split up the transaction into two parts one of service and the other of sale of food stuffs and to split up the bill charged as consisting of charges for lodging and charges for food stuffs sel'\"Od with a view to bring the latter uml•" the Act.[947 F-G]

The distinction between a 'Contract of sale and a contract of work and service is fine especially when the contract is a composite one iiivoTving both.

In considering whether a transaction is a sale falling within the purview of sales-tax 1t is necessary to determine the nature of the contract involved on the facts of each case.

A coniract of sale is one whose main object is the transfer of property and delivery of possesi; ion of a chattel to the buyer: but the mere passing of property in an arti- (:}c or con1moditY during the course of .tlrperfonnance of a tf'3nsaction does not render It a transaction of sale when there is no intention to sdl and purchase.· When the principal object of work undertaken bv the payee of the p'rk,. is not the transfer of a chattel qua chattel tlie contract is one of work and labour. The test is whether or not the work or labour bestowed ends in anything that can properly become the subject ,, f sak: neither the ownership of the matcriah nor the value of the skill

938 stlilltfii:E Ci'.l'UltT REPO!l TS

(1972] 2 S.C.R.

and labour as "; o_Jllpared with the value of materials is conclusive, although such matters may be taken into consideration.

In every case the court would M\re to find out what is the primary object of the transactibtl and the intention of the parties while cnbzring into it. L942 D-G:

944 F-G. HJ

The fransaction in the present case is one and indivisible, namely, one of receiving .a customer in. the. hotel to stay. The bill is not capable of being split up into one for residence and another for sale of meals.

Jl.ll!enities ittduding m<!al&, are µart and parcel of the ser\>ice which, iri reality; is the transaction between the parties.

Even if it was. to be disintegfatect the Stipplv of meals during such stav does not constitute

~ sepat'iite coiifr'_act of sale, since no intention on the part of the parties ti> sell nl!d J)utchase the foild stuffs supplied durin.g meal time can be spelt out. ~945 G-H; 946 A-CJ

. Mar/ras v. Gannon Dunkerley & Co. Ltd., i 1959] S.C.R. 379, Mohan/al J'.D1iflil1 Rice & Atill Mills. v. Assdm [1953] 4 S:f.C. 129, Masanda & Co. v.

IJ6tfllltf~Ofl~ of Saler-lax, f,1957] 8 S.T.C. 370, United Bleachers .Ltd. v.

Milifl"~. (1960) 9 S.'I'.C. 278, Krishna & Co. Ltd. v. Andhra Pradesh.

[1956] 7 S.T.C. 26, Palllaik & Co. v.

Orisa. [19651 16 S.T.C. 364, Andhra Pradesh v. Grmtur Tobaccos Ltd. [1%5] 2 S.C.R. 167 and English

Law atld United States Law, referrea to.

CIVIL APPELLATE JURISOICTION : Civil Appeal No. 1207 of 1968.

Appeal by special leave from the judgment and order dated May I 0, 1967 of the PunjaQ and Haryana High Court in Letters Patent Appeal No. 159 of 1966.

V. C. Mahajan and R. N. Sachthey., for the appellants.

M. C. Setalvad, M. C. Bha11dare, Rameshwar Nath, T. R.

Bhasin and Lalit Bhasin, for the respondent.

The Judgment of the Court was delivered by

Slf'el:tt; J, The respondent-company carries on . business as

ff()tl!lirs and conducts several hotels including lhe 'Cecil Hotel' dt Simla. mSides cohducting hotels, it also carries on restaurant 6ttsiness. Ag part of its business as hoteliers, the company receives guests in its several hotels to whom, besides furnishing fodging, it also serves seeral other amenities, such as public and f}rivate room, brtth with liot and cold running water, linen, meals during stated hours etc.

The bill tendered to the guest is an all inclusive olte, that is to say, a fixed amount for the stay in the hotel for each day and does not contain different items of each of the aforesaid amenities.

That is, however, not the case in its i'estnill'i!nt. busilte~ where a cusfolner takes his meal consisting either of it'errts or fobd of liis clioice or a fixed menu. The primary functfoh of such a restautiltlt is to etve meals desifed 6~ a

cllstonl.et, alllltiu!lft rtlbttg witH ttle foot!, tile cuktbmer gl'its ceffllih othet amenities also, such as seNil:e, litten ek, tlie bill \icli

the customer pays is for the various food items which he consumes or at a definite rate for the fixed menu, as the case may be, which presumably takes into account service and other related amenities.

The respondent-company, as such hoteliers, has been registered as a dealer under the Punjab General Sales Tax Act, XL VI of 1948 and has been filing quarterly returns and paying sales tax under that Act.

On September 2, 1958 the company applied for a declaration that it was not liable to pay sales tax in respect of meals served in the said Cecil Hotel to the guests coming there for stay.

In support of its plea, the company raised the following contentions : ( 1) that the hotel receives guests primarily for the purpose of lodging, ( 2) that when so received, the management provides him with a number of amenities incidental to such lodging and with a view to render his stay in the hotel comfortable in

.uding meals at fixed hours, ( 3) that the transaction between the c<Jmpany and such a guest is one for the latter to stay and not one of sale of food stuffs supplied as one of the incidental amenities, ( 4) that the bill given by the company and paid by the guest is one and indivisible, that is, a fixed amount per day during his stay in the hotel and does not consist of separate items in respect of the several amenities furnished to him including meals served to him, and ( 5) that the transaction so entered into does not envisage any sale of food since the guest cannot demand a rebate or deduction if he were to miss a meal or meals, nor is he entitled to carry away or deal with in any manner the food served at his table, if a part of it remains unconsumed.

It is, on the other hand, the management which has the right to deal with such unconsumed remainder as it likes.

Such a position, therefore, is inconsistent with a sale under which the property in the whole must pass to the purchaser, and who can deal with the remainder in any manner he likes.

The Sales Tax Officer rejected the company's application on the ground that the transaction which takes place between the

manasement and a resident guest takes in both lodging and boarding and the hotel charges include consideration for both.

A revision under s. 21 of the Act by the company to the Commissioner met the same fate.

The company then filed a writ petition for an order quas'.\ing the said decision as also the notices issued by the Sale.s Tax authorities under the Act.

The grounds put forward in the writ petition were almost the same which the company had previously urged in its application for declaration.

There was no dispute regarding the facts stated in the writ petition and particularly with regard to the fact that the transaction whic~ a. ".iiting reident e.nters into with the management is one !111~ !nd1v1S1ble, that the bill charged ori him is likewise one and m~1v1s1ble, that .the chages are for each day of stay, and that that bemg so, the bill was mcapable of being split up into separate chai:g~~ for ech of the amnities furnished and availed of by such a VISltmg resident.

The dispute was as to the nature of the transaction and whether such transaction included sale of food stuff supplied at various meals supplied to such a customer.

The High Court, on a consideration of the arguments urged before it and relying mainly upon the decision of this Court in Madras v. Gannon Dunkerley and Ccr. Ltd.('), to the effect that where a transaction is one and indivisible it cannot be split up so as to attract the Sales Tax Act to a part of it, allowed the writ petition.

It held that a transaction between a hotelier and his resident visitor did not involve a sale of food when the fonner supplied meals to the latter as one .of the. amenities during his residence, and that if there was one inclusive bill, it was incapable of being split up in the absence of any rates for the meals agreed to between the parties as part of the transaction between the two.

The High Comt also held that the transaction was primarily one for lodging, that the board supplied by the management amounted to an amenity considered essential in these days in all properly conducted hotels, and that when so supplied, it could not be said to constitute a sale every time a meal was served to such a resident visitor.

This appeal, by special leave, is filed against this view of the High Court.

The question in this appeal, it would appear, arises in the present form for the first time.

There are, therefore, no previous decisions to guide its detennination.

It would, however, be helpful to consider certain decisions both of this Court as also of the High Courts, in which different types of transactions which came up before them for consideration in sales tax cases have been dealt with and which might throw some light upon the problem before us. ·

, In a case arising under the Assam Sales Tax Act, 194 7 though there was no express sale in respect of gunny bags in which rice, an exempted commodity, was supplied to Government, they were held to form assessable turnover.

There was, however, in that case evidence that the assessees had charged the Government for those bags (Mohan/al Jogani Rice & Atta Mills

v. Assam)(").

In D. Masanda and Co. v.

Commissioner of Sales Tax( 8 ), the question was whether photographic materials imported and

(l) [1959] S.C.R. 379.

(2) [1953J 4 S.T.C. 129.

(3) [195 -.11 s S.T.C. 370. !

\ A

PUNJAB v. ASSOCIATED HOTELS (She/al, J.) 941

used in the process of manufacturing photographic work, copies of which were supplied by the assessee to a customer, was a transaction involving sale of those materials.

The High Court held that such a transaction did not cease to be a sale merely because the materials were not sold directly in their original form but in another fom1, forming the components of the finished product, namely, the copies of the photograph, and that the transaction was not merely the performance of skilled services but the supply of finished goods.

This was, however, a border line case.

The transaction might well be coosidered as one of service, during performance of which, a transfer of certain materials, in respect of which there was no contract for sale, either express or implied, may be said to have taken place.

An illustration of such a kind is furnished by the case of United Bleachers Ltd. v. Madras(').

In that case the assessee bleached and dyed, calendered, pressed and folded unbleached yarn and cloth manufactured by his customer textile mills.

The bills issued by the assessee contained, (a) bleaching charges, and (b) charges for stitching, folding, stamping, baling etc., but did not contain separately charges for the materials used for those purposes.

The Revenue contended that there was transfer of those materials and separately assessed the charges of those materials holding that though the assessee did not specifically deal in those materials, a portion of the profit earned in the business of bleaching and calendering could legitimately be attributed to the packing materials and the transaction involved a sale of them for consideration.

On a reference, the High Court held that the case was one of contract of service as distinguished from a sale of a principal commodity, such as rice in Assam case (supra) and salt in Varasuki and Co. v. Madras(').

On the other hand, where a contract is to supply such commodity in a packed condition, it coufd be inferred, though the contract might not be express that the intention of the parties was to give and accept delivery of the goods in a packed condition and not to take the principal commodity alone so that in the contract of sale of such a commodity there was implicit the sale of packing material as well.

Even in a contract of service such as bleaching and calendering where the goods after such processing are delivered packed a sale of packing materials is possible, quite apart from the contract of service.

The question in such cases would be one of evidence, whether there is such a contract besides the one of service.

Where however there are no such distinct contracts and the contract is one and indivisible, the essential part of which is one of service, packing would be part of or incidental to the service, and unless an intention to charge for the materials used in the packing can be spelt out, the Revenue would not be

(I) [1960] 9 S.T.C. 278. (2)

[1950] 2 S.T.C. 1.

entitled to split up the contract, estimate approximately the charges for such materials and treat them as chargeable on the mere ground that the transaction involved transfer of packing materials, whose value must have been taken into consideration while fixing charges for the service.

Such an implied contract of supply of packing materials was inferred in a contract of service, namely. drying raw tobacco in Krishna and Co. Ltd. v. A ndhra Pradesh ('1). But the decision in that case did not rest on there being a transfer of packing materials in favour of the customer.

There was evidence that such a transfer was for consideration, inasmuch as the amounts charged as remuneration for service also contained charges for the packing materials though such charges were not separately shown in the assessee's accounts.

In such a state of evidence it would be possible for the Court to infer a separate implied contract of sale of packing materials and not as part of the service of drying raw tobacco and delivering it in packed condition.

The difficulty which the Courts have often to meet with in construing a contract of work and labour, on the one hand, and a contract for sale, on the other, arises because the distinction between the two is very often a fine one.

This is particularly so when the contract is a composite one involving both a contract of work and labour and a contr<ict of sale.

Nevertheless, the distinction between the two rests on a clear principle.

A contract of sale is one whose main object is the transfer of property in, and the delivery of the possession of, , i chattel as a chattel to the buyer.

Where the principal object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one of work and labour.

The test is whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership of materials, nor the value of the skill and labour as compared with the value of the rnhterials, is conclusive, although such matters may be taken into consideration ir. determining. in the circumstances of a particular case, whether the contractis in substance one for work and labour or one for. the sale o.f a chattel( 2 ).

In Pa!naik and Co. v.

Orissa('). a difference of opi:nion arose because of the fine distinction between the two types of contract.

The contract there was for constructing and fixing bus bodies on the chassis supplied by the Orissa Govermnent.

The contract, inter alia, provided that the appellants were to constr11ct the bus bodies in the most substantial and workmanlike manner

(1) [1956) 7 S.T.C. 26.

(1) • Halsbury's Lah's of E11g/1111d. 3rd Ed. Vol. 34, 6-7.

(J) [1965] 16 S.T.C. 364.

both as regards materials and otherwise in every respect in strict compliance with the specifications and should deliver them to the Governor on or before the dates specified therin.

The majority rejected the contention that that was a contract of work and labour and held that the transaction was one of sale.

The question primarily was one of construction of the contract, and the majority held that both the agreement and the .sale related to one kind of property, namely, the bus bodies.

The reason for so holding was stated to be that it was clear from the contract that the property in the bus bodies did not pass on their being constructed on the chassis, but only when the vehicles including the bus bodies were delivered.

Such a contract was unlike a building contract or a contract under which a movable is to be fixed on to another chattel or on the land, where the intention plaioly

is not to sell that article but to improve the land or the other chattel and the consideration is not for the transfer of the chattel but for the work and labour done and the materials furnished.

The contract in question was to manufacture a bus body and fix it on the chassis supplied and transfer the bus body so constructed for consideration.

In Madras v. Gannon Dunkerley and Co. Ltd.(') the main question was as regards the vires of the Madras General Sales Tax Act, 1939. as amended by Madras Act XXV of 1947 which widened the definition of 'sale' by including, inter alia, in it a transfer of property in the goods involved in the execution of a works contract.

Under this definition, the Sales Tax authority bniught into chargeable turnover the materials used in the construction works carried out by the company.

This Court held that a power to enact a law with respect to tax on sale of goods under entry 48 of List II in the 1935 Constitution Act must, to be inJra vires, be one relating in fact to a sale of goods and that a Provmcial Legislature could not, in the purported exercise of its power, tax transaciions which were not sale;, by enacting that they should be deemed to sales, that to construe a transaction as sale there should be an agreement relating to goods to be supplied by passing title in those goods, and that it was of the essence of such a concept that both the agreement and the sale should relate to one and the same subject matter.

The conclusion arrived at was that in a building contract, even if it were to be disintegrated. there was no passing of title in the materials as movables in favour of the other party of the contract.

The contract was one and indivisible, there was no sale of materials, and consequently, there was no question ot title to the materials used by the builders passing to the other party to the contract.

Even where the thing produced under a contract is movable property, the materials in-

(ll !1959]1.S.C.R. 379.

.corporated into it might pass as a movable.

But there would be no taxable sale if there was no agreement to sell the materials as such.

In arriving at this conclus10n, the Court relied upon Appleby v. Myres( 11 ), and the. observations of Blackbum, J., at 659-660 of the report to show that thread stitchetl into a coat which is under repair becomes part of the coat, but in a contract for repairing the coat the P'!rties surely did not enter into an agreement of sale of that thread. In Andhra Pradesh v. Guntur Tobaccos Ltd. (2). the transaction was for redrying tobacco entrusted to the respondent-company by its customers.

The process involved the keeping of the moisture content of tobacco leaf at a .particular level and for that purpose the leaf had to be packed in bales, in water-proof packing material, as it emerged from the reconditioning plant.

The tobacco was then returned to the customer packed in costly packing material.

In the company's charges for redrying there was no separate charge for the value of such packing material.

It was held that the redrying process could not be completed without the use of the packing material, that packing formed an integral part of that process, .and that although the redried tobacco wa! returned together with the packing materials there was no sale of those materials as there was no intention on the part of the parties to enter into any transaction of sale as regards those materials.

The mere fact that in such a contract of work or service property in goods which belonged to the party performing service or executing the work stands transferred to the other party is not enough.

To constitute a taxable sale, the Revenue has to establish that there was a sale, distinct from the contract of work or service, of the property so passing to the other party.

Thus, in considering whethr a transaction falls within the purview of sales tax, it becomes necessary at the threshold to determine the nature of the contract involved in such a transac- tion for the purpose of ascertaining whether it constitutes a contract of sale or a contract of work or service. If it is of the latter kind it obviously would not attract the tax.

From the decisions earlier cited it clearly emerges that such determination depends in each case upon its facts and circumstances.

Mere passing of property in an article or commodity during the course of the performance of the transaction in question does not render it a transaction of sale.

For, even in a contract purely of .work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materials may pass to the other party.

That would not necessarily convert the contract into one of sale of these materials.

Jn every case the Court would have to find out what was the prima.ry

(!) (1867) L.R. 2 C.P. ~<1

(2) [1965] 2 S.C.R. 167.

object of the transaction and the intention of the parties while entering into it. It may in some cases be that even while entering into a contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service.

But, then in such cases the transaction would not be one and indivisible, but would fall into two separate agreements, one of work or service and the other of sale.

What precisely then is the nature of the transaction and the intention of the parties wheQ a hotelier receives a guest in his hotel ? Is there in that transaction an intention to sell him food contained in the meals served to him during his stay in the hotel ?

It stands to reason that during such stay a well equipped hotel would have to furnish a number of amenities to render the customer's stay comfortable.

In the supply of such amenities do the hotelier and his customer enter into several contracts every time an amenity is furnished ? When a traveller, by plane or by steam-ship, purchases his passage-ticket, the transaction is one for his passage from one place to another.

If, in the course of carrying out that transaction, the traveller is supplied with drinks or meals or cigarettes, no one would think that the transaction involyes separate sales each time any of those things is supplied.

The transaction is essentially one of carrying the passenger to his destination and if in performance of the contract of carriage something is supplied to him, such supply is only incidental to that services, not changing either the pattern or the nature of the contract.

Similarly, when clothes are given for washing to a Iaundery, there is a transaction which essentially involves work or service, and if the launderyman stitches a button to a garment which has fallen off, there is no sale of the button or the thread.

A number of such cases involving incidental uses of materials can be cited, none of which can be said to involve a sale as part of the main transaction ..

The transaction in question is es_sentially one and indivisible. namely, one of receiving a customer in the hotel to stay.

Even if the transaction is to be disintegrated, there is no question of the supply of meals durirrg such stay constituting a separate contract of sale, since no intention on the part of the parties to sell and purchase food stuff supplied during meal times can be realistically

spelt out.

No doubt, the customer, during his stay, consumes a number of food stuffs. It may be possible to say that the pro perty in those food stuffs passes from the hotelier to the customer

at least to the extent of the food stuffs consumed by him.

Even if that be so, mere transfer of property," as aforesaid, is not conclusive and does not render the event of snch supply and con-

946 SUt'REME COURT REPORTS

sumption a sale, since there is no intention to sell and purhase. The transaction essentially is one of service by the hotelier in the performance of which meals are served as part of and incidental to that service, such amenities being regarded as essential in all well conducted modern hotels.

The bill prepared by the hotelier is one and indivisible, not being capable by approximation of being split up into one for residence and the other for meals.

No doubt, such a bill would be prepaed after consideration of the costs of meals, but that would be so for all the other amenities given to the customer.

For example, when the customer uses a fan in the room allotted to him, there is surely no sale of electricity, nor a hire of the fan.

Such amenities, including that of meals, are part and parcel of service which is in reality the transaction between the parties.

Even in the case of restaurants and other such places where customers go to be served with food. and drink for immediate consumption at the premises, two conflicting views appear to prevail in the American courts.

According to one view, an implied warranty of wholesomeness and fitness for human consumption arises in the case of food served by a public eating place.

The transaction, in this view, constitutes a sale within the rules giving rise to such a warranty.

The nature of the contract in the sale of food by a restaurant to customers implies a reliance, it is said, on the skill and judgment of the restaurant-keeper to furnish food fit for human consumption.

The other view is that such an implied warranty does not arise in such transactions.

This view is based on the theory that the transaction does not constitute a sale inasmuch as the proprietor of an eating place does not sell but "utters" provisions, and that it is the service that is predomill!lnt, the passing of title being merely incidental (11). The two conflicting views present a choice between liability arising from a contract of implied warranty and for negligence in tort, a choice ihdicative of a conflict, in the words of Dean Pound, between social interest in the safety of an individual and the individul interest of the supplier of food.

The principle accepted in cases where warranty has been spelt out was that even though the transaction is not a sale, the basis for an implied warranty is the justifiable reliance on the judgment or skill of the warrantor and that a sale is not the only transaction in which such a warranty can be implied.

The relationship between the dispenser of food and one who consumes it on the premises is one of contractual relationship, a relationship of such a nature that an implied warranty of wholesomeness reflects the reality of the transaction involved and an express obligation understood by the parties in the sense that the customer does, in fact, rel~' upon such dispenser

(I) Corpus Juri~ Sccundu111, VoJ. 77, 1215~1216.

PUNJAB v. A&sOCIATED HOTELS (She[at, J.) 947

of food for more than the use of due care. (see Cushing v Rodman('). A representative case propoundin~ the opposite view is the case of F. W. Woolworth Co. v. Wilson( ), citing Nisley v.

Childs Co.('), wherein the principle accepted was that such cases involved no sales but only service and that the dispenser of food, such as a restaurant or a drug store keeper serving food for consumption at the premises did not sell and warrant food but uttered and served it and was liable in negligence, the rule in such cases being caveat emptor.

In England, a hotel under the Hotel Proprietors Act, 1956 is an establishment held out by the proprietor as offering food, drink, and if so required, sleeping accommodation, without special contract, to any traveller presenting himself and who appears able and willing to pay a reasonable sum for the services and facilities provided. This definition, which is also the definition of an inn, still excludes, as formerly, boarding houses, lodging houses and public houses which are merely alehouses and in none of which there is the obligation to receive and entertain guests.

An innkeeper, that is to say, in the present days a hotel proprietor, m his capacity as an inkeeper is, on the other hand, bound by the common law or the custom of the realm to receive and lodge in his inn all comers who are travellers and to entertain them at reasonable prices without any special or previous contract unless he has some reasonable ground of refusal ( •). The rights and obligations of hotel proprietors are governed by statute which has more or less incorporated the common Jaw.

The contract between such a hotel proprietor and a traveller presenting himself to him for lodging is one which is essentially a contract of srvice and facilities provided at reasonable price.

The transaction between a hotelier and a visitor to his hotel is thus one essentially of service in the performance of which and

as part of the amenities incidental to that service, the hotelier serves meals at stated hours.

The Revenue, therefore, was not entitled to split up the transaction into two parts, one of service and the other of sale of food stuffs and to split up also the bill charged by the hotelier as consisting of charges for lodging and charges for food stuffs served to him with a view to bring the latter under the Act.

The conclusion arrived at by the High Court is one with

wich we agree.

Consequently, the appeal fails and is dismissed mth costs.

V.P.S.

H Appeal dismissed.

ill 104 American LR. 1023; 82 T.R. 2nd Srs. 864, 868. (2) 74 F.R. 2nd Srs. 439.

Ol 103 N.J. Law 464. i_4) Hals/Jury's Law.1<0/ England, 3rd EJ., Vol. 11. 445-446.

STATE OF PUNJAB

M/S. ASSOCIATED HOTELS OF INDIA LTD

January 4, 1972

M. SHELAT

I. D. DuA

H. R. KHANNA

G. K. MITTER, JJ.

V. C. Mahajan

R. N. Sachthey

M. C. Setalvad

M. C. Bha11dare

Rameshwar Nath

T. R.

Bhasin

Lalit Bhasin

September 2, 1958

s. 21

Assam

Madras General Sales Tax Act, 1939

Madras Act XXV of 1947

Blackbum

[1965] 2 S.C.R. 167

Dean Pound

England

Hotel Proprietors Act, 1956


S. L. GOSWAMI v.

STATE OF MADHYA PRADESH January 4, 1972

[P. JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.J

Evidence-Burrfen of Proof in crin1inal cc.:se-ProJ'ecution must establish ingredients of offence before burden shifts ti accused-Accused's burden discharged if reasonable doubt created against prosecution cau.

The appellant was Professor and Head of the Department of Pharmacology and Therapeutics in the Medical College Jabalpur. In connection with a reseai:ch project to be carried out by him in collaboration with the Atomic Energy Commision a Doutle Distillation Apparatus was purchased from Messrs S. K. Biswas and Co. Calcutta for Rs. 450/ - in September 1964.. In 1965 the Indian Council of Medical Research entrusted him with another research project for which be required a Double Distillation apparatus of 10 litres capacity. An order for the supply of the same was placed with Messrs Goverdhandas Desai P..t. Ltd. Bombav.

They were asked to send their acceptance and bills in triplicate immediately.

Messrs Goverdhandas aforesaid sent their acceptance and bills in triplicate for Rs. 969-10. A draft for that sum was issued by the Accounts offirer Indian Council of Medical Research in favour of Messrs Goverdhandas and was received by the appellant on April 12,

1965. The appellant thereafter wrote to Messrs Goverdhandas that he did not wnt the apparatus as shown in the sketch shown by them but wanted it according to the orignal order placed by him.

Messrs Goverdbandas replied expressing their inability to supply the same. In May 1965 the appellant happened to be in Bombay. He asked Messrs Goverdhandas to accept the draft for Rs. 969 in their favopr and to issue a bearer cheque for the same amount to him so that he could purchase the apparatus required by him in Bombay. A receipt for the draf. was given to the appellant bv Messrs Goverdhandas an<l he issued a receipt for the cheque to them. The appellant was subsequently tried for misappropriation of the amount. According to the prosecution he did not purchase any apparatus in Bombay and continued to use the apparatus earlier purchased from Calcutta. According to the appellant however. he contracted one Rasikl al Shah (DW3) a partner of Messrs Scientific Sales

Syndicate who after a telephonic conversation wrote to him a letter introducing one D'Souza who could supply the apparatus to the appellant.

The appellant claimed that he purchased the apparatus from D'Souza. obtained a receipt for the amount paid and brought the apparatus to Jabalpur and used it in , his laboratory. The bill given to the appellant by D'SouZ'3 bore the nam'.:: of M.B. Corporation.

An 'apparatus Art.

A \\'a5 seized by the police fron1 the appellant's laboratory which accordin, q to the prosecution was the apparatus purchased in 1964 but according t(i

the appellant was the one purchased in Bombay. The appellant produced before the investigating officer the letter written by Rasiklal Shah as well as other documents connected, according to him, with the purcha".e.

The trial court convicted the appellant of offences under ss. 409 and 42il I.P.C. ands. 5(2) of the Prevention of corruption Act. The High Cq11n dismissed his appeal. This Court .in appeal by special leave,

HELD The onus of provinr all the ingredients of an offence is always upo~ the prosecution and at no stage does it shift to the accused.

It is no part of the prosecution duty to somehow hook the crook.

E:·· .. in cascs whre the defence of the accused docs not appesr to be c, red1b1c

or is palpably false that burden does not become any the. less. It is only when this burden is discharged that ·; t will be for the accused to explain or controyert the essential elements in the prosecution case \vhich would negative it. It is not however for the accused even at the initial stage to prove something whic!J has to be eliminated bv the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the saine as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence

on his behalf probabilises the plea he will be entitled to the benefit o'

reasonabl~ doubt. [954 C-E]

Jn the present case the High Court itself held th'.lt it was not possible on the evidence of the prosecution witnesses to hold that the apparatus Art.

A could be identiffod as the one purchased in September 1964. The oral evidence produced by the appellant to the. effect that a new apparatus

had been purchased in 1965 was wrongly reiected by the courts below.

The evidenc~ of DW3 regarding the enquiry made by the api:ellant !or a doub!e distillation apparatus and his sending D'Souza with a lant. \Vhch conformed to the specifications given by the appellant and sending it with a covering letter could not be assailed and bad not been reiectecl by the High Court. There was no suggestion that this letter 'va' fabricated er got up sub:equently.

Once the genuineness of the letter ""nt by DW3. to the appellant was believed it corroborated his plea.

Once the probab1l•!\' of the accused's plea is established he must be given the benefit of douht.

The appellant had at the va-y initial stage even before the F.l.R. was issued produ;; ed the original receipt and given a copy of the same to the investigating officer.

Th; s will indicate that the bill and the receipt were genuine.

The appellant was not responsible if no such fi:rm as M.B. Corporation acturi\ly existed and a suurious bill (assuming that it was so) was given to him. [958 G.H; 962 D; 963 B-D]

On the facts and circumstances of tlie case the appellant had established his plea and the courts below were wrong in holdin~ that he had failed to d.isc.harge the burden of proof that lay upon him.

CRIMINAL APPEtLATE JURISDICTION : Criminal Appeal No. 69 l'Jf 1969.

F Appeal by Special Leave from the judgment and order dated

January 24, 1969 of the Madhya Pradesh High Court in Criminal Appeal No. 942 of 1968.

A. S. R. Chari, R. Nagaratnam, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, for the appellant.

l. N. Shroff and M. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

P. Jaganmoban Redrly, J.-The appellant who was Professor

nd Head '?f the Department of Phamrncology and Theapeutics m th.e l\!ed1cal College. Jabalpur, has been convicted by the Special _Jndge. Jabalpr under s. 5(1)(d) read with s. 5(2) of the Prevention of Corruption Act to one year's riaorous imprisonment and a fine of Rs. I 000 and in default to undergo rigorous imprisonment for three months. He was further convicted of ff 13-L7J6Sup CT/7~ 0 encc.,

950 SUPRllME COURT REPORTS

[1972] 2 S.C.R.

under ss. 409 and 420 I.P.C. and was awarded sentences of six months rigorous imprisonment in respect 0f each of them. All the sentences were directed to run concurrently. An appeal against this conviction and sentence to the High Court of Madhya Pradesh was dismissed. This appeal is by special leave.

• Shortly stated the case of the prosecution is that the appellant who waS" employed in the Medical College, Jabalpur, with the permission of the Government of Madhya Pradesh given on December 20; 1962. accepted a grant-in-aid for carrying out a research project entitled "Study of Manganese in Health and Disease by Neutron Activation Analysis". This Research Project was to be carrii; d on in collaboration with the Atomic Energy Commission of the Government of India for three years 1963-64, 1964-65 and 1965-66. The appellant began his research work in July 1963 and sometime thereafter on September 30, 1964, an instrument for distillation of water known as the Stadler Still Double Distillation Apparatus was purchased from Messrs S. K. Biswas & Company of Calcutta-a firm of scientific instruments manufacturers and dealers of Calcutta, for Rs. 450. On April 11, 1964, the Indian Council of Medical Research known as the I.C.M.R. entrusted him with the research project on "Effect of Hypoxia and Decompression on Body Temperature as function of Adaptation to Hypoxia at various altitude".

The terms and conditions of grant-in-aid were mentioned in the circular letter Ext. P-32 dated April 11, 1964, and were current for the years 1965-66 and 1966-67. For this project the appellant wanted to purchase another double distillation apparatus and after inquiry from several firms placed an order with Messrs Goverdhandas Desai Private Ltd. Bombay (hereinafter -<:ailed 'Messrs Goverdhandas') as per Ext. P-5 dated February 20, 1965 for a double distillation appara• tus, horizontal type, Double Stage, capacity 10 litres, pyrex glass for Rs. 890 and asked them to inform him of their acceptance telegraphically and send triplicate l:.ills in advance.

Messrs Goverdhandas sent wire Ext. P-6 and the advance bills Exts. P-8, P-9, and P-10 to the appellant on March 3, 1965. This apparatns was entered in the stock register of the l.C.M.R. Hypoxia Enquiry as per Ext. P-44 in accordance with the details shown in the bills and the triplicate bills for Rs. 969 .10 inclusive of sales-tax and packing and freight charges were presented for payment. It may be mentioned at this stage that the appellant was on leave from February 9, 1965 to March 20, 1965 because of heart trouble and the inquiry and the order were placed during that period. A draft in favour of Messrs Goverdhandas was subsequently issued by the Accounts Officer. I.(.M.R. and was received by the appellant on April 12, 1965. On the same day the appellant wrote a letteir Ext. P-16 to Messrs Goverdhandas saying that he did not want the apparatus as. shown in the skl'tch sent by them but wanted it

according to the original order placed by him. He therefore requested them to expedite the order urgently as he had received the payment against the bills and was withholding the same for want of apparatus. As the firm was not able to supply the apparatus as per the specifications the order was cancelled by letr Ext. P-17 dated April 24, 1965. Thereafter the appellant was in Bombay between May 15, 1965 and May 25, 1965 where he had gone for a medical check-up and was staying in the M.L.As. Rest House. On May 17, 1965, he met Mr. Patel a Director of Messrs Goverdhandas and asked him to receive 'the draft and give him a cheque in order to enable him to purchase the apparatus he wanted from the Bombay market. This was agreed to, and accordingly the draft was handed over to Mr. Patel and a receipt Ext. P-24 was obtained from him on behalf of Messrs Goverdhandas.

At the same time the appellant also passed a receipt for the bearer cheque which he received from Mr. Patel for the same amount. On the same day the appellant telephoned to one Rasiklal Shah a partner of the Scientific Sales Syndicate D. W. 3 and enquired whether he could supply the distillation plaint as per the specifications given by him.

D.W. 3 said he did not have ifi.

Later, however, one D'souza a broker who was sitting with D.W. 3 at the time informed him that he could supply the intrument wanted by the appellant. D.W. 3 says he tried to ring the appellan~ back but could not get any reply so he sent D'souza with the apparatus along with the introductory letter copies of which are Ext. P-70 and D-13. According to the appellant on the same day l!he man sent by Rasiklal Shah is said to have brought the apparatus the cost of which was Rs. 989.35.

The appellant paid the money, obtained a receipt and brought it to Jabalpur.

The crucial question in this case is whether the accused as alleged by the prosecution did not btiy another apparatus for which he had received a draft from the I.C.R. But in fact has been carrying on the work with the distillation apparatus purchased from Messrs S. K. Biswas & Company in Septiember 1964, for the project for which he was receiving a grant-in•aid. from the At<>l!1ic Energy Commission of th~ Government of Ind1~, by pretendmg that it is the apparatus which he had prchased .m Bombay. By this device it is said the appellant has m1sappropnated the amount of the draft sent by the I.C.M.R.

There are in this case certain undisputed facts which are :-

(!) That a double distillation apparatus was purchased for the project of the At0mic Energy Commission from M!'5srs S. K.

Biswas & Company on September 30. 1964. and m respect of which entries were made in the stock register of the Atomic Energy

Commission.

(2) That the order for the purchase of !, he second double stage distillation plant was placed with Messrs Goverdhandas which was accepted by them on March 3, 1965. This firm had along with the acceptance sent a packing note and bills in triplicate on the strength of which a claim was made to the I.C.M.R. which issued a demand draft in favour of Messrs Goverdhandas. The demand draft was received by the appellant on April 12, 1965. Chokasey P.W. 21 ri.iade entries in the stock register of the I.C.M.R. that the apparatus was received as soon as the blills were received and submitted forpayment.

(3) The appeJlant on the same day, i.e. April 12, 1965 as indicated in Ext. P-16 had informed Messrs Goverdhandas that the - sketch sent by them was not in accordance with the original order C and while informing them that he had received payment against the bills asked them urgently to inform whether they could supply the apparatus as per the specifications.

( 4) That inasmuch as Messrs Goverdha, ndas could not supply the apparatus as per the specifications the order was cancelled on April 24, 1965 by letter Ext. P-17.

(5) That the appellant went to Bombay on May 17. 1965 and handed over the demand draft Issued by the I.C.M.R. in favour of Messrs Goverdhandas to Mr. Patel and obtained a receipt from him.

The appellant also obtained from Messrs Goverdhandas a bearer cheque for the same amount for which he gave a receipt to Mr. Patel and cashed the cheque.

It appears from the first information report Ext. P-46 dated August 12, 1966, that during the course of investigation on information received through a source Shri Shyam Biharilal Shrivastava, Deputy Superintendent of the Special Police Establishment, Jabalpur, came to know that the appellant the Head of the Pharmacology Department in charge qf the Research Laboratory had placed an order. on February 20, 1965 for purchasing a distillation apparatus, horizontal type, double stage, capacity IO litres pyrex valued at Rs. 969-10 from Messrs Goverdhandas in connection with research of 'Hypoxia Enquiry' entrusted to him by the I.C.M.R., New Delhi, and he had. written to the said firm to send bill in advance. On receiving three copies of the bill from the firm, it was shown in the stock register that the said distillation apparatus was recieved when in fact no such type of apparatus was at all purchased from the said firm.

He then sent two copies of the said bill to the I.C.M.R., New Delhi and acquired a demand draft for Rs. 969-10 from it. What the prosecution has. not disclosed eithc; r in the F.I.R. or in the chargesheet filed

agaist te appellant . 1s that the appellant during the course of the mvestigation had stated that he had in fact purchased the

double stage distillation plant in Bombay on May 17, 1965, from out of the account of the bearer cheque received from Messrs Goverdhandas in exchange for the demand draft handed over to their Mr. Patel. Nor did the proseeution mention either the fact that the appellant had obtained a receipt from Messrs Goverdhandas for the demand draft handed over to them or that he had given a receipt for the bearer cheque obtained in exchange by him from Messrs Goverdhandas.

There was also no mention in the said document that the appellant had handed over a copy of the receipt for payment of Rs. 989-35 for the purchase of the other apparatus on May 17, 1965, to the investigating officer and had informed him that Rasiklal Shah had sent some one with the apparatus along with the introductory letter dated May 17, 1965. It is not as if the investigating officer had not verified the information given by the appellant that Rasiklal Shah had given such a letter, because a copy of that letter was seized from the Scientific Sales Syndicate even before the F.1.R. was issued and the charge-sheet was filed. It was only after the accused had made an apPlication during the trial on September 16, 1968, for summoning Rasiklal Shah and requesting the Court to call for the copy of the letter seized by R. N, Dube, Deputy Superintendent of Police, from Rasiklal Shah under a seizure memo that the copy was produced by the prosecution. The accused in his statement under s. 342 of the Code of Criminal Procedure produced another copy of this letter as well as the bill with the original receipt a copy of which had been handed over to the investigating officer even before the F.I.R. was issued.

Once these facts had come to the knowledge of the investigating officer, it was his duty to have placed them before the Court.

In the absence of such a disclosure it is contended by the learned advocate for the appellant that for the prosecution to bring home the offence to the appellant beyond a reasonable doubt, it should also establish that the appellant did not in fact purchase the apparatus and that the said documents were spurious and got up for tbe purpose of the defence.

The burden of establishing this, it is averred, is also upon the prosecution and not upon the defence bec:mse unless the probability of the appellant having purchased the apparatus is eliminated, the C!\Se against the appellant cannot be said to be established beyond a reasonable doubt.

It may, however, be pointed out that in determining this question the Special Judge as well as the High Court seem to have laid greater emphasis on the fact that the accused had not proved that he had purchased the apparatus as contended by him. While no doubt the questiQil whether the accused purchased the apparatus in Bombay with the money he got under the draft issued by the I.(:.M.R. in favour of Messrs Goverdhandas may have to be

established by the accused, he can take full advantage of the circumstances appearing in the prosecution case itself to probabi!ise his plea that he did.

The High Court posed the question for detenniination as fo!Iows :

"Thus, the short question that fell for determination by the Special Judge was whether the amount received back by the appellant from Messrs Goverdhandas Desai of Bombay was utilised or not by him in purchasing the apparatus as stated by him and sought to be proved by him, burden of which fact was on him, through his defence witnesses."

This approach both of the Special Judge as well as the High Court is not altogether correct one.

In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook.

Even in case~ where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.

It is only when this burden is discharged that it will be for thy accused to explain or controvert the essential element. in the prosecution case which would negative it.

It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients oi the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as thilt which rests upon the prosecution.

Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt.

In this case the prosecution seeks to establish the case against the appellant by showing-( l) that there is no firm by the name F of M.B. Corporation from which the appellant is saTd to have purchased the apparatus on May 17, 1965; and (2) that the distillation apparatus which was first purchased in September 1964 is the same as Article A which the Spcial Police had seized and not that which the appellant alleges he had purchased and

(3) that the apparatus purchased in September ! 964 which had G been shown as broken on February 1, 1965 and written off has been in fact not broken but has been e.ntered as such in the registers fraudulently.

The evidence on behalf of the prosecution can be classified under three main heads : Firstly, with regard to the entry in the stock register that the double distillation apparatus purchased in September 1964 was broken and written off;

Secondly, that the distillation apparatus purchased in May 1965 was the one which was being used in the Laboratory by the appellant and is the same as Article A which was seized by the Special Police; and

Thirdly, that there was no firm by the name of M.B. Corporation from which the accused is alleged to have purchased the subsequent distillation plant on May 17, 1965, and that he did not in reality purchase it.

The first allegation is sought to be established by Kamlesh Grover P.W. 22, who was working on the post of Research Assistant in the Pathology Department of the Medical College, Jabalpur from October 1, 1964 to September 30, 1965. The witness was posted from October l, 1965 as a Senior Scientific Assistant in the research of the Atomic Energy Commissfon and from December 15, 1965 in the Hypoxia Enquiry and was working under the appellant. According to her, although it was riot part of her duties, she was required to do clerical work as there were no other persons and that as the appellant told her that some articles had been broken and the persons who were working previously had not made entries she should make the same as she was a Research Assistant.

Because of this she made the entry and as far as she could remember it, that entry was made on September 19, 1966. Till this stage she made no assertion that she was asked to do something which to her knowledge was .false.

The learned Advocate for the prosecution however put her a question which we think is in the nature of a cross-examination d'e.5igned to support the allegation that she did not make the entry willingly.

This was:

"Question :-Whether Dr. Goswami asked you fo sign thereon or not?

Answer :-Dr. Goswami asked me to sign thereon, but I refused to sign."

Eveu then she said that the appellant asked her to get a copy made thereon because the b1akage register was to be sent and accordigly she made the entry which was in her handwriting and she sighea hereon. Tt was then that she said that the appellant had asl<ed her to put the same date in her signature, on which he told her

tat the apparatus was broken. She identified the appellant's init.1als and asserts tat se prepared the breakage register on 5eprem• her 19. 1966. This eVJdence does not estab1ish that the distillaf18n apparatus was not in fact broken. However, iri cr()Sg-efamiiiatibW ghe was asked whether she saw the distillation appdtatlis before' !l'1ie was deputed to the Hypoxia Enquiry and her answer was that she

does not remember and then said : "Wait for a minute", and after trying to recollect her memory she answered that she saw the apparatus.

But she does not know whether there was any mono gram on that apparatus and claims that she can identify if two or three apparatuses of the same type are kept because of their being old or new. Again she says if two or three apparatuses are kept, it will be difficult to identify. When asked whether she kt a note of ii anywhere in respect of the breakage or was speakmg from memory, she said that she had not kept a note thereof any where but remembered it because the appellant had returned from foreign tour at that time, and had joined on Monday September 11, 1966.

She said that Shri Dube, Deputy Superintendent of Police made enquiry from her in March 1967, which she stated was on the basis of the note in her diary Ext. D-9 that on Septem ber 19, 1966 the appellant called her in his room and asked her to prepare accounts of t'he articles of the Atomic Energy Commission.

She had told Dube, Deputy Superintendent of Police, about the note-book. This was in direct contradiction of her previous denial that she had kept a note of it.

Her evidence in respect of this note-book was not accepted by both the Trial Court as well as the High Court. It would appear that she having enter ed in the register that the apparatus was broken and written off is really anxious to exculpate herself because she was probably made to believe that it was in fact not broken and she was made to do something which was untrue.

This anxiety dominates her evidence which read as a whole does not inspire confidence and gives the impression that she was trying to put a sinister interpreta

tion of what may appear to have been prolJably true.

For instance. she says that she realised that she had to make an entry of the article as broken and thought over it very much.

After that she started to note down in her note book and told this fact to some other men in the Department in the general talk.

She informed Mr. Rao, Dr. Goswami and Dr. Harshwardhan who were sitting there.

Though she first admits that she did not tell them that the appellant had got an entry made by her in the stock register and got breakage register prepared by her, she later says that she told them that distillation plant was shown as broken. It was then that the appellant called her in the office and said that breakage register was to be prepared and sent to the Atomic Energy Commission and asked her to prepare the register and make entry in the stock register.

None of the witnesses named by her however say anything about her having informed them.

That the distillation apparatus purchased in September 1964 was the same as Article A has been spoken to by several witnesses with which we will presently deal.

But before we do so, it is necessary to notice that according to Nirodh Ranjan Ghosh P.W. 13, Manager of Messrs S. K. Biswas & Company a similar apparatus

A -

- c

as the one supplied by them to the appellant could be purchased also in Bombay, so that the probability of the accused having pur chased a similar apparatus with the markings of Mes.srs .s. K.

Biswas & Company in Bombay cannot be ruled out.

This w1tni; ss, however, does not say that Article A is the same as the one which his firm had supplied.

It may be mentioned that Mr. ube who was investigating the offence against the accused had wntten a letter to Messrs. S. K. Biswas & Company on December 30, 1966, enquiring whether the type of the stadler still supplied by them was available in the Bombay market, whether they were supplied to M/s M. B. Corporation, Nagar Niwas C. P. Tank Road, _Bombay-4 7 for sale and whether some body from their firm could identify the. apparatus suppli.d to the J abalpur Medical College.

In answer to these queries Messrs. Biswas & Company wrote to Dube that they had not supplied the type of stadler still to Messrs. M. B. Corporation which however may be available in

the Bo1ul:>ay market and that it was not possible to identify the apparatus'st!pplied to the Jabalpur Medical College.

Even the High Court, after considering the evidence ot Dr. Rajkumar Gupta, P.W. 15, working as a Demonstrator in the Medical College, under the appellant since the year 1958, Shri A. S. Venkat. Subbarao P.W. 16 working as Assistant Professor . in the Department of Pharmacology Medic_al College during the relevant period, and Dr. Harshwardhan P.W. 19 working aS :Demonstrator in the :Department of Pharmacology during the

relevant time observed that all these witnesses have admitted that they are unable to identify the double distillation apparatus from another apparatus of the same quality and same markings.

There is also the evidence of other witnesses, namely, B. P. Namdeo P, W. 20 a research scholar, M. L. Chokasey, P.W. 21 a Laboratory Assistant in the Research Scheme & a Lower Division Clerk, Jamund Prasad Khare P.W. 23 a Laboratory Assistant, and Rashid Khan P.W. 24 a Laboratory Assistant who said that they were working during the relevant period in the research work entrusted to the appellant by the Atomic Energv Commission of the Government of India and the I.C.M.R.

These witnesses deposed about having seen Article A in the Laboratory, first in the Laboratory opposite to the appellant's room.. though one of them Chokasey P.W. 21 said that he saw it in the verandah, which was later shifted into another room.

Chokasey says he did not disclose to any body and only did so when he re;; eived the summons and gave his evidence. If so how did the policecame to know is difficult to understand.

Though we do not pay much attention to this incongruity, we are referring to it because the High Court while dealing with the evidence of D. W. 2 rejected it merely on the ground as will be seen when we discuss that evidence and at the same time accepted the

eviddence of this witness. That this witness had a grouse against appellant because he had asked for a certificate of <,:haracter which the appellant is said to have given to him, but says tlieteafter it was snatched from him and the appellant called for his explanation. It was suggested to him he was making a false statement that a character certificate was given to him by the appellant. This suggestion appears to be justified is evident from his admission. He also admits that the appellant had writfun a letter to Dr. Relen when he was working with him, which was shown to him by Dr. Relen. That letter is . from the Superintendent, Medical College, asking for Chokasey's explanation.

It. says :

"Yonr former employer in the I.C.M.R. Scheme who is the Professor of Pharmacology as well reports that you had been indulging in derogatory activities against hlm in the sense that you were typing the application on behalf of Shri J.P. Khare while in this office and from the typewriter of this office.

Please let me know why you should not be strictly warned.

Your explanation should reach to this office within 24 hours from the date of receipt of this memo."

Jamuna Prasad Khare P.W. 23 was working in the Department from August 5, 1964 to October 30, 1965, but the work started orllv three or four months thereafter that is from November or December. He says that the distillation apparatus received from Messrs. Biswas & Company was there upto May-June 1965. This witness on his own admission was dismissed by the appellant and was given service by the Dean of the Medical College.. The appa, llant 11ad made a complaint against him to the Director of Medical Services and was unemploye'd when Dube made enquiry of him, about the double distillation apparatus. Even though he WrOfc to the I.C.M.R. about the termination of his services he adinitted that he did not write anything therein regarding this double distillation apparatus.

The onher witnesses also are not in a position to identify the apparatus as the one which was purchased in September 1964.

In our view, when as clearly admitted by the seniar members of the staff working in the Laboratory for quite some time that they could not identifv that Article A was the same as tha't purchased in September 1964, it is difficult to believe that there two witnesses or any other witnesses could have done so, particularly when the High Court itself held that1 it was not possible on the evidence of the three witnesses to which we have referred that the apparatus could be identified as the one purchased in September 1964.

6iftheotherhand there is the evidence of A. S. Venkatsubbarao 'P:w. {6 which clearly indicates that there was another double

F ,

distillation apparatus a.part from Article A the one purchased .i, n September 1964.

In the examination-in-ehief itself, the witness says that from 1964 till the apparatllS was packed during the period one more double distillation apparatus wafl received in the Department to the best of his knowledge for JeSearch.

The apparatus was in use few days till it was packed and taken away. The apparatus was packed when it was seized and that it is Article A. This admission not only negatives the prosecution case that no apparatus was purchesed in May 1965 as alleged by the appellant, but definitely probabilises it.

That apart, there is another circumstance which goes to support the statement of P .W. 16 that there was another double distillation apparatus which is not the same as the one purchased in September 1964 and which could be Article A.

It is seen that the apparatus which was purchased in September 1964 though it was said to be a double distillation apparatus it cost only Rs. 486-62 -but a similar distillation apparatus said to have been purchased in May 1965 by the appellan~ cost Rs. 969-10.

If these two apparatuses are similar, then the cost ot the one said to have been purchased in May 1965 has doubled within one year which, prima facie, raises doubts about the genuineness of the transaction. A closer scrutiny however would show that the apparatus purchased in September 1964 from Messrs.

Biswas & Company may not be of the same cap_acity as the one said to have been purchased in May 1965 whlch is of ten litre capacity. From a comparative statement of quotations from difierent companies, Ext. P-38, it is apparent that the quotation called in 1965 was for a distillation apparatus horizontal type capacity 10 litres for whlch M/s. Unique Trading Corporation, Bombay, quoted Rs. 925/-, Messrs. Goverdhandas Rs. 890/- and M/s. Scientific Instrument Company Ltd., Allahabad Rs. 1229/- duty free price and Rs. 1920/- duty paid, for which an import licence was requested.

From Ext. P-28-Extracts of order register of Messrs Goverdhandas it also appears that the price of a single stage distillation apparatus was Rs. 450 /- which was the one that was cancelled on Apnl.24. 1965. ?".idently Messrs. Goverdhanaas wanted to sell two smgle stage d1stillation apparatuses and it was because of this that the appellant had cancelled the order.

We have already seen that what was purchased from Biswas & Company ws a stdler still, q_uickfit type of double distillation, automatic with special type clamp. But there is nothing to show from Ext. P-49A that it was for a 10 litre capacity. Nor is the, re any other evidence as fairly admitted by the learned advocate for the prosecution from which we can ascertain what was the capacity of that apparatus or that of Article A. This would leave a lacuna in the prosecution case and probablise 'the appellant's

Contention that the apparMus Article A is not the same as that purchased earlier for th(( Atomic Energy Commission, but is the one which he purcb, ased in Bombay in 1965.

It is contended by Mr. Chari for the appellant that the evidence of the prosecution must be read in the light of the intense feeling of dislike and hostility exhibited by the Dean of the Medical College, against the appellant due to enmity and jealousy in his having been given projects of national importance.

He has referred to certain evidence tp show that at every stage the Dean has been concerned with the invetigation. It is not necessary to go into all the minute details of this controversy except to touch on the broad features.

It is in evidence that initially the grant-in-aid was routed through the Dean in 1963-64 and 1964-65, but later from 1965-66 it was given direct to the appellant. The reason for this was explained by Durgacharan Chopra, P.W. 11, Under Secretary to.the Government of India in the Di:.oartment of Atomic Energy with headquarters at Bombay to be due to some trouble between the Dean and the appellant, because of which they had decided to place the grant at the disposal of the appellant for the year 1965-66.

Besides, Dr. Barat D.W. 1 whose evidence will be dealt with latter in his letter to Dr. Subramanian, Ext. D-15, says that the appellant was treated badly. He said that he had learnt that the appellant was physically obstructed by the College Chowkidar when he tried to return the equipment belonging to the witness. in which the appellant sustained minor injuries which he saw when he came to him with the apparatus.

He also says in that letter that Dr.

Chowdhary rang him up in the evening of Monday on February

14. 1967, that Dr. Subramanian did not want t!he removul and return of the articles by the appellant saying that he cannot understand when the articles did not belong to the Government, and were loaned to the appellant through him, and asks why they could not be removed by the appellant when a legal notice was served on him.

We have already noticed how after the appellant dismissed Khare P.W. 23 he was immediately employed by, the Dean. All this would indicate that there has been a great• deal of ill-will and hostility between the appellall't and the Dean.

Apart from viewing the prosecution evidence in the light of this background, there is the defence evidence.

This evidence has been summarily rejected, and, in our view, without any cogent reasons.

Dr. Baral D.W. 1 says that he was the one who had started the research of the I.C.M.R. and Atomic Energy Commission Projects.

He is a member of the executive council of the Jabalpur University and is a consulting pliysician.

He says that a.fter the sudden death of Professor Dr. Wahi from coronery heart

s. L. GOSWAMI v. M.P. STATE(laganmohan Reddy, J.) 961

trouble, the appellmt started getting pain in the chest . and he consulted him. He had taken his E.C.G. and referred him to Dr.

Datey, President of Cardiological Society .of India for a thorough check-up.

As there was some abnormality he was asked to go for another check-up to Bombay from where the appellant returned after his second check-up, some time in the month of May 19?5.

The witness had sent his car to bring the appellant from station and to take him to Me\iical College and the appellant had dropped in at his place to see him on his way to the Medical College. When the appellant came to see him two packages were lying in his car on the black seat by his side and the witness asked him what those were.

The appellant told him that 'he had bought some apparatus'.

It appears that in the High Court some interpolation _was made in this evidence which would indicate that the appellant had showed him "a glass distillation apparatus". We are not now concerned with this interpolation, but as the evidence was recorded it shows that the appellant had told the witness that he had bought some apparatus.

After a week or two when the witness went to the Medical College to see the appellant in his Department he enquired from the appellant as to what he had bought and the appellant showed him a double distillation apparatus with some modification for triple distillation and the apparatus appeared to be new.

The witness also says that the appellant complained to him about the treatment given to him by the Dean oi the Medical College Dr.. B.

H. Choudhary. On hearing this complaint the witness had written to the Director of Health Services, Madhya Pradesh, Ext. D-15, and forwarded a copy of the Jetter to the appellant for his information.

The High Court thought that this evidence is not direct evidence to show that really a double distillation apparatus was purchased by the appellant in Bombay.

With this bare comment his evidence was discarded, and we think. without justification, because it is difficult to understand how and what D.W.1 has said is not direct evidence. What he saw, what he observed, and what he was told by the appellant when that is in issue cannot, biut be direct evidence.

Similarly another witness Hamidullah Khan D.W.2 who was supplying animals for the experiments and who had made a clamp for the double distillation apparatus in October-November 1964

(which is the one obtained from Biswas & Compa'lly) was charactensed as a purely chance witness and there is nothing in his examination to show how the appellant happened to know that he had se, en

the apparatus in a broken condition or that he is likely to be a possible defence witness in this case. This witness had gone to the Medical College during the period when the appellant was laid up with ; t heart aitack which was about the 1st week of February 1965. He says it was then that he saw the double distillation apparatus lying in a broken condition. After the appellant came back from

SUPRE?d.E CoU)lT REPORTS

(1972) 2 S.C.R.

:Bomq\ly in the last week of May 1965 he had again been to the

I; Jyp9, llia Laboratory and saw. the appellant fiing a doue distillat1oh apparatus which was opened from packing.

We have gone through , the cross-ex; imination of this witness and we find that there is , nothi,1,1g n !hat evidence which would make it unacceptable. 'I):lere 1i$ il\O , g4e:>tion of tl:lis witness being a chance witness.

He was nqt , only clirectly connected with the Department, but had also made a .cl; imp for ti\e double distil!ation apparatus and was visiting the appellant's office.

When asked about the broken distination app; iratus he said that he came to know from a part of the apparaws which was still attached to the clamp that it was broken.

From the mere fact that he said that the appellant had told him that day in the morning .that he was cited as a witness though he did not tell him what the case was, his evidence has been disbelieved.

We .do not think that this by itself is such as to destroy the substantive part of his evidence.

In .any case the evidepce , of Rasiklal Shah D.W. 3 regarding tne enguiry Jl, lflde by !he appellant for a double distillation apparatus ancl his fl\ld.iµg D'souza with a plant which conformed to the specific; ations givc; n py .(he appellant and sending it with a covering

Jeer. cannot .be ; issailed, and in fact has not been rejected by the High .Court. It however observed that his evidence was not direct eY.i.slence on the point that a double distillation apparatus was pur- <; llased by the appellant on May 17, 1965. It is true that D.W. 3 did not know whether in fact the appellant had purchased the dqub!e distillation apparatus.

But that he did send one through D'souza with a covering letter cannot be gainsaid.

The letter which is an important piece of evidence is ; is follows :

"Sub :-Standler Quickfit type Double Distillation extra strong Pyres SKB.

We refer to your telephonic talk and.have to inform you that we are out of stock of the above cited item, but the other party is having, who is coming with this letter-to you, with the Apparatus, if it serves your purpose, you may buy the same directly from him. against cost, for Rs. 989.35 nett. only.

We are really sorry to ]earn from your phone message that you ; ire not keeping well, and hope, you will be a\l i:ight yery soon."

N:ot\ling )has :been urged why this Jetter should i11ot be accepted , in

ey; i\l, e)lc;~. f]Jere is no uggestion or whisper that it was fabricated O)' i!l_Ot yp sub'i; equently. Once the genuineness of the letter sent p.W,: 3 o :t\le appellant is believed, it corroborates ; his ; P!a .th<J, t

e , il, i\, i malce .ugl, liries from Rasiklal 1Shah, and that Rasildal §4ah

had sent a person with the apparatus for which he paid the amount and obtained a receipt.

It was urged that neither D'souza nor J. R. Patel who gave the receipt were examined.

We have had occasion to observe earlier that the standard of proof which the accused may adduce in support of his plea in defence is not the same which the prosecution is required to adduce.

Once the probability of the accused's plea is established, we must give him the 'benefit of doubt.

There is nothing to show that the accused fabricated the receipt. As we have pointed out, the appellant had at the very initial stage, even before the F.l.R. was issued, produced the original receipt and gave a copy of the same to the investigating officer.

This would indicate that the. bill and the receipt were genuine.

The prosecution, however, has sought to establish by evidence that there was no such firm as M.B. Corporation.

But the appellant is not responsibile if a spurious bill (assumj.ng that it was so) was giverr to him or that he knew that it was spurious.

This cannot therefore affect the case of the appellant that he had purchased the double distillation apparatus on May 17, 1965 and paid for it.

In fact he paid for it about Rs. 20/. more than he got from the .demand draft. If he wanted to misappropriate the money by producing a bogus receipt, he could have got the receipt for the exact amount of the draft.

It may be mentioned that Taneja Bansilal P.W. 14 Director-General of the I.C.M.R. also admitted that the appellant had come to De.li in connection with the purchase of the apparatus and told him that the apparatus was purchased from some firm, whose name he did not remember, but jt was not the firm of Messrs Goverdhandas. In the circumstances the plea of the appeliant is substantiated.

No doubt in th_is case .the prosecution has established that the appellant has drawn a bill and obtained a draft for Rs. 969-10 before the apparatus was supplied. But this is an irregularity and does no~ show that he had no intention of purchasing the apparatus or to m1sappn; ipriate. te m?ney. cademician~ are not generally !mown for their admm1stra!Ive sagacity or for bemg conversant with

~II the complicated techD:ical ruls. We do not by this in'tend to unply that the rules and 1nstruct10ns should not bie complied with but when it is apparent from the evidence that the appellant had n~

clerical staff to assist him and was anxious to carry on his research work, any lapse on this account does not make him criminally liable.

The appellant, in our view, has been the victim of suspicion probably due to the unfriendliness, hos'tility and enmity of the Dean of the Medical College, which ultimately resulted in his being. if we my say "SO, subjected to this prosecution which must have

caused him great distress and anguish apart from the Department being deprived of his services in a project of national importance. ·

We have no hesitation in holdhig that the accused is innocent.

The appeal is allowed and the c1; mvic1ions and sentences in respect of the several offences are set aside.. The bail bond will be cancelled.

The fine if paid will be refunded.

G.C.

S. L. GOSWAMI

STATE OF MADHYA PRADESH

P. JAGANMOHAN REDDY

D. G. PALEKAR, JJ

Atomic Energy Commision

S. K. Biswas and Co. Calcutta

Indian Council of Medical Research

Goverdhandas Desai P..t. Ltd. Bombav

April 12,

1965

Bombay

In May 1965 the appellant happened to be in Bombay.

Calcutta

Rasikl al Shah

Messrs Scientific Sales

D'Souza

Jabalpur

The bill given to the appellant by D'SouZ'3 bore the nam'.::

M.B. Corporation

Rasiklal Shah

ss. 409 and 42

I.P.C

Prevention of corruption Act

A. S. R. Chari

R. Nagaratnam

S. K. Mehta

K. L. Mehta

K. R. Nagaraja

l. N. Shroff

l. N. Shroff and M. N. Shroff, for the respondent.

M. N. Shroff

P. Jaganmoban Redrly

s. 5(1)(d)

s. 5(2)

Prevention of Corruption Act

ss. 409 and 420

I.P.C

High Court of Madhya Pradesh

Government of Madhya Pradesh

Study of Manganese in Health and Disease by Neutron Act

Atomic Energy Commission of the Government of India

September 30, 1964

S. K. Biswas & Company of Calcutta

April 11, 1964

I.C.M.R.

Goverdhandas Desai Private Ltd. Bombay

February 20, 1965

March 3, 1965

P-8, P-9, and P-10 to the appellant on March 3, 1965.

February 9, 1965

March 20, 1965

April 12, 1965

I.(.M.R. and was received by the appellant on April 12, 1965.

April 24, 1965

May 15, 1965

May 25, 1965

May 17, 1965

Patel

Scientific Sales Syndicate

D'souza

I.C.R.

K. Biswas & Company

S. K.

Biswas & Company

September 30. 1964

Chokasey

May 17. 1965

(5) That the appellant went to Bombay on May 17.

August 12, 1966

Shyam Biharilal Shrivastava

New Delhi

I.C.M.R., New Delhi

September 16, 1968

R. N, Dube

s. 342

Code of Criminal Procedure

February 1, 1965

Kamlesh Grover

October 1, 1964

September 30, 1965

October l, 1965

Atomic Energy Commissfon

December 15, 1965

September 19, 1966

Goswami

This was:

"Question :-Whether Dr. Goswami asked you fo sign thereon or not?

Eveu

Monday September 11, 1966

Dube

Septem ber 19, 1966

Atomic Energy Commission

Rao

She informed Mr. Rao, Dr. Goswami and Dr. Harshwardhan who were sitting there.

Harshwardhan

Nirodh Ranjan Ghosh

But before we do so, it is necessary to notice that according to Nirodh Ranjan Ghosh P.W. 13, Manager of Messrs S. K. Biswas & Company a similar apparatus

A -
c

as the one supplied by them to the appellant could be purchased also in Bombay, so that the probability of the accused having pur chased a similar apparatus with the markings of Mes.srs .s.

S. K. Biswas & Company

K.

Biswas & Company

K.

Biswas & Company in Bombay cannot be ruled out.

ube

December 30, 1966

M. B. Corporation

J abalpur Medical College

apparatus suppli.d to the J abalpur Medical College.

Biswas & Company

Jabalpur Medical College

Rajkumar Gupta

A. S. Venkat. Subbarao

Harshwardhan

B. P. Namdeo

M. L. Chokasey

Jamund Prasad Khare

Rashid Khan

Atomic Energv Commission of the Government of India

Relen

Chokasey

from the Superintendent, Medical College, asking for Chokasey's explanation.

J.P. Khare

Jamuna Prasad Khare

August 5, 1964

October 30, 1965

A. S. Venkatsubbarao

Unique Trading Corporation, Bombay

Scientific Instrument Company Ltd., Allahabad

890/- and M/s. Scientific Instrument Company Ltd., Allahabad Rs.

Apnl.24. 1965

450 /- which was the one that was cancelled on Apnl.24.

Chari

Durgacharan Chopra

Barat

Subramanian

Chowdhary

February

14. 1967

Khare

Baral

Jabalpur University

Wahi

Datey

B.

H. Choudhary

Hamidullah Khan

Rasiklal Shah

D'souza

But that he did send one through D'souza with a covering letter cannot be gainsaid.

Rasildal

J. R. Patel

Taneja Bansilal

De.li