SAMIR CHA1TERJEE v.

STATE OF WEST BENGAL March 21, 1975

[A. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

Maintenance of Internal Security Act, 1971-Disclwrge of petitioner in cri1ninal ca.e at the request of police for want of evidence-If could be detained under the Act-Periodic review of cases of detention-If a legal cbligation-- S. 15-Scope of,

The petitioner and two of his associates were charged with offcnes under ss. 451, 324 etc. I.P.C. in one case. In another, the petitioner and three of his associates were charged with offences under ss. 148, 149, 307 etc. l.P.C.

In respect of both the cases, however, the police applied before the Magistrate requesting that the petitioner be discharged for his detention under the !\1aint.enance of Internal Security Act, 1971.

An order of detention under the Maintenance of Internal Security Act was then passed against the petitioner and his associates on two grounds name1y

(1) that he and his associates reinforced by 25 others formed a violent mob near a workshop manufacturing defence materials and hurled brickbats creating fear, frightfulness and insecurity among the \\'Orkers and the authorities, and

(2) fhat he and his associates armed with pistol and hlgh explosive bombs created a great disturbance of public order which resulted in panic and confusion on a public road.

The detention orders against the associates were revoked because the Advisory Board reported that there was no sufficient cause for their detention.

The petitioner, however, did not appear before the Board and his representation was considered by the State and forwarded to the Advisory Board.

His second representation was not forwarded to the Advisory Board.

In a petition under A11. 32 of the Constitution the petitioner contended (1) that the provisions of the Mainteflance o.f Internal Security Act had been used as a convenient substitute for the provisions of ordinary law for detaining th!.! petitioner because his discharge was asked for on the ground that he was going to be detained under the Maintena<.:e of Internal Security Act; (2) that the grounds furnished relate to maintenance of law and order and therefore it could not be made the basis of the order of detention; (3) that the detaining authority had not applied his mind to the petitioner's case as shown by the fact that the grounds of detention show that the petitioner had to be discharged from the criminal cases due to v.•ant of sufficient evidence for the successful prosecution whereas the order of discharge showed that he was discharged because he was going to be detained under the Maintenance of Internal Security Act, 1971; (4) that the grounds of detention \Vere vague; (5) that the Government had failed to periodically review the case of the petitioner and that had rendered his continued detention illegal and that this was a case where s. 15 of the Ac~ should have been applied <nd the petitioner released.

Dismissing the petition,

HELD: (1) (a) It is not always possible for a Court dealing \vith an habeas corpus petition in the case of a person detainedi under the Maintenance of Internal Security Act to say whether in a case where a criminal case had .been registered against a person and then withdrawn, and he \Vas detained under the provisions of the Act, that was proper or not.

The Court is not in possessioO of ;:ill th~ evidence to be able to decide for itself whether the

osecution \Vould have been successful or not and without those m.'Lterials being available it is not possible for the Court to say that the punitive action should have been taken and not detention.

It is the authority conducting the prosecution that would be in a position to decide whether evidence was available which could establish the guilt of the accused beyond reasonable doubt before the criminal court.

Where the authority was not sure that S1:1ch inaterial was available it may not like to face the prospect of the prosecutton

failing and being charged with vindictiveness or mala fides if thereafter the accused was detained preventively.

The Court should be slow towards the conclusion that the detenu_ could have been succes.5fully prosecuted in the absence of all the material before it and then going on to criticise the detaining authority for not continuing the prosecution but detaining him. [25D-F1

In the instant cast the fact that an application for discharge was made by the police would not in any way 'vitiate the grounds of detention or show that the Police Comi:nissioner had no sufficient material before him to be satisfied that the petitioner ought to be detained in order to prevent him from acting in a manner prejudicial to pubJic order.

Want of evidence for successful prosecution is a matter which can be legitimately taken into account by an authority competent to pass an order of detention under the Maintenance of Internal Security Act for deciding whether he should pass an order of detention against a partiCuiar person. [25H]

Haradhan Saha v. State of West Bengal, A.LR. 1974 S.C. 2154; Sri/a/ Shaw

v. State of W.B., [1975] I S.C.C. 336; and Sad/11! Roy v. Thr State of Bengal, !1975] 3 S.C.R. 291 referred to.

(b) The fact that sufficient evidence to establish the guilt of the accused beyond reasonable doubt was not available to the police and for that reason t!J.ey had asked for the discharge of the petitioner did not mean that the detaining authority had not before him evidence on which he could be satisfied.

The detaining authority, when he came to know that the petitioner was going to be discharged from the criminal cases for want of sufficient evidence could very we1l take the view that it was necessary for 'the purpose of preventing the petitioner from acting in a manner, prejudicial to the 1naintenance of public ordet that he J<hould be detained and if he was satisfied on the evidence available. his subjective satisfaction could not be questioned by this Court.

Merely because the two companions of the petitioner were released because there was not sufficient cause for their continued detention. it could not be assumed that there was no sufficient cause for the detention of the petiti0ner.

[26 B-D J

(2) The petitioner, along with his associates and 25 others formed a violent mob outside theworkshop and pelted brickbats for over two hours causing fear and alarm .not only to persons working in the factory bu1 to people passing along the road.

Again in the second incident the petitioner and his associates armed with pistols and bombs terrorised/ the local people and the workers causing widespread panic and confusion in the nre!3. Both the incidents clearly F relo.te to public order. [26 G-H] ,

(3) (a) Whereas criminal prosecution is punitive preventive detention is resorted to in order to prevent a person from -acting in a manner prejudicial to public order in future.

If the detaining authority was satisfied that on the groun.ds mentiond i~ was necessary to detain the petitioner in ortler to prevent him from acting 1n a manner prejudicial to the public order that satisfaction cannot be questioned by the Court. [27GJ

_(b) In the instant case it cannot be said that. when the Commissioner of Pohce stated that the _petitioer bad to be discharged from the criminal cases due to want of sufficient evidence for a successful prosecution that was one of te . grounds f'!r the. petitioner's detention.

The grounds for detention are . the 1nc1dents mentioned 1n the order of detention.

[27E]

. ( 4) ¥erely because the name of the petitioner did not figure in the first 1nfon:ryat!on report an~ he was detained for nearly a year after he was arrested on cnm1nal cargesz 1t. cannot be a_id that the grounds were vae. During H te course of 1nvestigat1on the deta1n1ng authority came to kno"W that the petit!oner. was on~ of the persons who took part in the incidents and the petitionr s detent10!1 for a year after he was -arrested on criminal charges, had i>otbmg to do with the grounds being vague. [27H] .

. (5) (a) Periodicl rev!ew. of a petitioner's detention was not considered by this Court as a legal obligation on the part of the Government nor the failure to do so as making the detention illegal. [28A]

oUPREME COURT REPORTS [1975] SUPf, S.C.R.

Sailesh Dutta v. State of W.B., Al.R. 1974 S.C. 1816 referred to.

(b) Section 15 merely confers a power on the Government. The power and duty of this Court is to decide cases coming before it according to law.

Jn so doing it may take various considerations into account.

But to advise the Government as to how they should exercise their' functions or powers conferred on them by statute i~ not one of this Court's functions.

Where the Court is able to give effect to its views in the form of a valid and binding order that is a different matter. Furthermore, s. 15 deals with release on parole and there is nothing to show that the petitioner applied for to be released on parole for any specific purpose.

Release on parole is made only on the request of th~ party and for a specific purpose.

[29B-C]

Babu/al Das v. State of W.B. [1975] 1 S.C.C. 311 held inapplicable.

ORIGINAL JURISDICTION: Writ Petition No. 4 of 1975.

Petition under Article 32 of the Constitution of India.

M. K. Ramamurthi, G. Mukhoty and Rathin Das for the petitioner.

D. N. Mukherjee, S. Basu and G. S. Chatterjee for the respondent.

D The Judgment of the Court was delivered by

ALAGIRISWAMI, J .-The petitioner has been detained under the provisions of the Maintenance of Internal Security Act in pursuance of an order passed by the Commissioner of Police of Calcutta on 24-4-1974. The grounds for detention order are :

"l. That at about 05.40 hours on 9-5-73, you along with your associates about 10 in number forcibly scaled over the boundary wall of Garden Reach Workshop, manufacturing defence materials, at 61, Garden Reach Road, Calcutta and when resisted by the Security Staff of the said workshop, you along with your said associates, being reinforced by about 25 others assembled and formed a violent mob on an open plot of land beyond the western boundary wall of the said workshop and incessantly hurled brickbats, which continued till 08.00 hours, aiming at the Security Staff of the said workshop creating serious disturbances there. As a result 3 Security Personnel viz. Gurdit Singh, Ratan Singh and Hasib Khan of the said workshop sustained injuries on their person. at the aforesaid date, time. and place.

In consequence, fear, frightfulness and insecurity prevailed amongst the workmen and authorities of the above workshop leading t9 the suspension of defence production for some time in the said workshop in general and in the Drum Plant ( o_f the workshop) in particular which was prejudicial to the maintenance of Public Order.

2. That at about 12,05 hours on 24-5-73 you along with your associates being armed with pistol and bombs formed an unlawful assembly on Transport Depot Road, Calcutta and created a great disturbance of public order by exploding high explosive bombs on Transport Depot Road, Calcutta near the workers' gate of M/s. Lipton Tea Co.

at the aforesaid date and time with a view to terrorising A the local people as well as the workers of the said company.

As a result of your action, as aforesaid, widespread panic and confusion were created in the above area and thereby affected the maintenance of public order."

It appears that in respect of the two incidents mentioned in the two B grounds there were two FIRs filed before the Police. In respect of the first incident it is GR 1036/73 and in respect of the second incident it is GR 1246/73. In .respect of the 1st incident case No. 102 under sections 451, 148, 149 and 324 I.P.C. and section 9 of the West Bengal M.P.O. Act was filed before the Police Magistrate, Alipore against the petitioner, Bibhnti Dutta and Sakti Pada Dutta. In respect of the 2nd C incident case No. 118 under sections 148, 149 and 307 I.P.C., sections 3 and 5 of the Essential Supplies Act and sections 25 and 27 of the Arms Act was filed before the Police Magistrate, Alipore against the petitioner and three others, Bibhuti Dutta, Sakti Pada Dutta and Raghu Nath Show.

On 24-4-1974 in both these cases the Police applied before the Magistrate requesting thaUhe petitioner may be discharged for his detention under the Maintenance of Internal Security Act. The D same action was taken against Bibhuti Dutta and Sakti Pada Dutta also. It, however, appears that detention orders in respect of both Bibhuti Dutta and Sakti Pada Dutta were revoked because the Advisory Board reported that there was no sufficient cause for their detention. It would appear that both of them had appeared before the Advisory Board whereas the petitioner did not.

We do not know E whether the non-appearance of the petitioner before the Advisory Board had anything to do with the different result in this case. It should, however, be mentioned that the petitioner did make a representation on 22-5-74 and this representation after it was considered by the State Government was also forwarded to the Advisory Board .which submitted its report on 26-6-74. The detenu made another representation on F 1-7-74 asking for personal hearing but that was not forwarded to the Advisory Board.

The validity of the order has been attacked on the following grounds:

1. That the grounds furnished to the petitioner indicate that G they relate to maintenance of law and order and not the public order and therefore it could not be made the basis of the order of detention .

2. T?at. the ordr of detention is vitiated as it is based on mcrdents which are not proximate.

3. That the provisions of the Maintenance of Internal Security ii

Act _hve been used. as a convenient substitute for the

.prvrsrons of th~ ordmary lawfor detaining the petitioner.

Thrs argument rs based on the following circumstances :

(a) that hi~ discharge wa~ asked for _on the. ground that he was gomg to be detamed under M.I.S.A.;

(b) that the grounds of detention state that the petitioner had to be discharged in the criminal cases due to want of evidence for successful prosecution, while the order of discharge passed by the Magistrate states that it was made as prayed for in the application of the Police ; ( c) that the cases mentioned in the two FIRs are such that the petitioner could have been easily prosecuted nnder the laws of the land ; and ( d) that the petitioner is continued in detention even though Bibhuti Dutta and Saktipada Dutta, who had been

rrestcd in connection with the same cases as the petitioner and who had been served with identical grounds of detention, had been released on the advice of the Advisory Board.

4. That the detaining authority had not applied its mind to the petitioner's case is shown by the fact that the grounds of detention show that the petitioner had to be discharged from the cases due to want of sufficient evidence for successful prosecution, whereas he was discharged because he was going to be detained, and that the grounds of detention refer to allegations which do not find a place in the FIRs.

5. That the grounds of detention are vague.

6. That the Government had failed to periodically review the case of the petitioner and that has rendered his continued detention illegal.

7. That this is a case where section 15 of the Act should have been applied and the petitioner released, and

8. That in any event the petitioner is entitled to a direction for consideration of his second representation dated 1-7-1974.

Before we proceed to deal with these points it may be useful _;, and necessary to refer to the decision of the Constitution Bench in Hpradhan Saha v. State of West Bengal('). It was observed :

"The power of preventive detention. is qualitatively. different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. , It may or may not relate to an offence.

It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched.

An order of preventive detent.ion may .be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal.

The pendency of proecuiion is no bar. to an order of preventive

------~-

{l) AIR 1974 SC 2154.

...

detention. An order of preventive detention is also not A a bar to prosecution.

Article 14 is inapplicable because preventive detention and prosecution are not synonymous.

The purposes are different.

The authorities are different.

The nature of proceedings is different.

In a prosecution an accused B is sought to be punished for a past act.

In preventive detention, the past act is merely the material for foference about the future course of probable conduct on the part of the detenu .

. . . . . . The principles which can be broadly stated are these. .First mere\y .. because a detenu . is liable to be tried 1 iii a trim'inai Cburi for the co\Jmilssion of a criminal offence or to be proceeded against for preventing him from. committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information _report may be no bar against the District Magistrate iSsuing an order tinder the preventive detention.

Third, where the concerned person is actually in jail custody at the time when an _order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to content! that. there could be no satisfaction on the part of the det_aining authority as to the likelihood

of such a person indulging . in , activities which would jeopardise the security of the State Q_r the public order.

F\mrth, the mere circumstance . that a detention order is passed during the pendency of the prosecution will not violate the order.

Fiftb, the Qrdcr of detention is a precautionary measure. It is based on a reasonable prognosis of the future liehaviour cif a persbn based' pn" bis. past conduct in the light of the surrounding circumstances. •

• • • • G In the case of Madan Lal Agarwala, it is submitted that the . detention order was for a collatei:_al purpose because he was released on_ 26th March, f973, and the detention order wasof the same day. I_t was _also said that onr., incident was said to be the ground in the order of detention

and one incident should not suffice for an order of de- . H tention.

The ground given in Madan Lal Agarwal's <:ase is that he in collusion with his father bad hoarded 8 quintals 84 kg. of rice, 2 quintals 88 kg. of flour, and 1 -quintal 96 kg. of suji and further that be had no licence as

10 SC/75-3 . · ·

• '

require~ by Sec. 4 of the West Bengal Essential Foodstuffs Anti-Hoarding Oi'der, 1966. The detaining authority said in the grounds : '.'It is apparent in the aforesaid facts thai you in collusion with your father are likely to withhold or impede supply of foodstuffs or , rationed article : essential to the community".

The future behaviour of Madan Lal Agarwal based on his past conduct in the light of surrounding circumstances is the real - ground of detention. It is needless to stress the obvious that Madan Lal Agarwal'sacts are gravely prejudicial to the maintenance of supplies essential to the community.

It was staid In the case of Haradhan Saha that he was released on 25th July, 1973 and he was arrested on 7th August, 1973, pursuant to a detention order dated 31st Jtily, 1973. It is, therefore, said that the detention order was passed for collateral purposes.

The grounds in the detention order are that on 19th June, 1973, Haradhan Saha with his associates was smuggling 115 bags of rice weighing 93 -quintals 80 kgs. to Calcutta covered by coal by engaging lorry without any valid permit or authority. Haradhan Saha violated the provisions of West Bengal. Rice and Paddy (Restriction on Movement. by Night) Order, 1969, and West Bengal Rice and Paddy_ (Licensing and Control) Orger, 1967, and tried to frustrate the food and procurement policy of the Gov ernment. These grounds concluded by stating that Haradhan Saha acted in a manner prejudicial to the maintenance of supplies and services essential to the community. This again illustrates as to how these detention orders came to be passed to prevent the likelihood of such acts prejudicial to the maintenance of supplies essential to the community."

It appears to us that many of the decisions relied upon by the petitioner have not appreciated the implications of this decision.

For instance decisions which hold that where there is a possibility of prosecutfog a person he should be prosecuted rather thau dealt with under the provisions of the Preventive Detention Act fall under that. category (Sri/al SHaw v. State of W.B.( 1) In the case before the Constitution Bench Madan Lal had no licence as reauired by section 4 of the West Bengal Essential Foodstuffs Anti-Hoarding Order, 1966.

So it would have been easy to prosecute him.

In the case of H aradhan Saha ( 2 ) he also violated the provisions of West Bengal Rice and Paddy (Restriction on Movement by Night) Order, 1969 and West Bengal Rice and Paddy (Licensing and Control) Order, 1967 because he was smuggling rice without any valid permit or autliority. '

(1) !1975J sec 336.

,(2) A.I-R 1974 SC 2154.

'>-

In Sadhu Roy v. The State of Bengal('), it was observed: A

"There are two social implications of dropping prosecutions and resorting to substitutive detentions which deserve to be remembered.

Where a grievous crime against the. community has been committed, the culprit must be subjected to condign punishment so that the penal law may B strike a stern blow where it should. Detention is a softer treatment than stringent sentence and there is no reason why a dangerous criminal should get away with it by enjoying an unfree but unpaid holiday. Secondly, if the man is innocent, the process of the law should give him a fair chance and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise time.

That is a negation of the correctional humanism of our system and breeds bitterness, alienation and hostility within the case."

lt is not always possible for a Court dealing .with an habeas corpus petition in the case of a person detained under the Maintenance of Internal Security Act to say whether in a case where a criminal case has been registered against a person and then it is withdrawn and he is detained under the provisions of the Act, that is proper or not. The Court is not in possession of all the evidence tci be able to decide for itself whether the prosecution would have been successful or not and without those materials being available it is not possible for the Court to say that the Pl)nitive action hould have been taken and not detention. It is the authority conducting the prosecution that would be in a position to decide whether evidence is available which could establish the guilt of the accused beyond reasonable doubt before the criminal court.

Where the authority is not sure that such material is available it mav not like to face the prospect of the prosecution failing and being charged with vindictiveness or ma/a fides if thereafter the accused is detained preventively. The Court should be slow towards the conclusion that the detenu could have been snccessfully prosecuted in the absence of all the material before it and then going on to criticise the detaining authority for not contintiing the prosecution but detaining him.

At this point we may conveniently consider point 3 because it logically comes in here.

Point 3

There is no substance in any one of the contentions in this point.

The applicati.on for discharge was made by the Police and it is the Commissioner of Police thaf bad to be satisfied that there were sufficient grounds for the d.e!entiori of the petitioner.

That H would not in any way vitiate the grounds of detention or show that the Commissioner had no sufficient material before him to be satisfied that the petitioner ought to be detained in order to prevent him from acting in a manner prejudicial to public order.

Want of evidence

(1) W.P. No. 429 /74 decided on 22 January; 1975.

• --0"'--

~ 26

~).

•·. .. $DPREME .CPURT REPORTS [1975] SUPP. s.c.R.

for successful prosecution is a matter which can be legitimately taken into account by an authority competent to pass an order of detention under the Maintenance of Internal Security Act for deciding whether he should pass an order of detention against a particular person. lh the grounds it is said that the petitioner had to be discharged from the criminal cases due to want of evidence for successful prosecution.

A criminal case needs evidence to establish the guilt of the accused beyond reasonable doubt.

The fact that such evidence was not available does not mean that the detaining authority had not before him evidence on which he can be satisfied.

This would not show that in asking for discharge of the petitioner from the criminal cases the authorities were taking !he easier course of preventive detention rather than prosecuting him under t!)e ordinary law of the land.

It is the Police who were prosecuting the petitioner that had to decide whether there was sufficient evidence for a successful prosecution.

The detaining authority when he comes to know \hat the petitioner was going to be discharged from the criminal cases for want of sufficient evidence for successful prosecution can very well take the view that it was necessary for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public o.rder that he should be detained and if he is satisfied on the evidence available his subjective satisfaction cannot be questioned by this Court. There is. no material to show on what grounds the Advisory Board held that in the case of Bibhuti Dutta and Saktipada Dutta there was not snflicient cause for their continued detention.

Merely on the ground that in their case there was not suflic.ient cause it could not be assumed that there is no sufficient cause for detention of the petitioner.

Point 1

We think that this contention is without substance-. The incident mentioned in the 1st ground took place at 61 Garden Reach Road, Calcutta. The factory where this incident tookplace has 5000 workers working in it. The petitioner and his associates as weU as 25 others ass\l!jllblcd and formed a violent mob outside the walls of the workshop an.d continued to pelt brickbats for over two hours. 'Apart from the lrge nqmber of workers working in that factory the inci, dent very clearly took place in a public place.

The factory has a. door. number in Garden Reach Road. So it must be a public place wilh members of the public passing to and fro and this incident would have cansed fear and alarm not merely to the persons working in the fa:ctory but also to people passing along the road. In the second ir.cident the petitioner and others were armed with pistol and bombs, exploded the bombs with a view to terrorising the local people as well as the workers and widespread panic and confusion was created in the above area.

Both these incidents, therefore, clearly relate to public order. In respect of (he 1st inddcnt it could not be said. that it related to only a single factory and therefore it does not relate to public . order because, as we have . shown' above, it would. have created panic and co11fusion an; ong the _passers-by in. the road in wh~h

the factory wa< situate; nor can we agree that alarm caused to 5000 . . A workers in which three members of the security staff were also injured docs not relate td public order. It is not necessary to refer to the decisions which distinguish between incidents which relate to. law . and order and incidents which relate to public order; These incidents clearly relate to public order. ·

B Point 2

The appellant was arrested and produced before the Magistrate on 23-7-1973 and was in confinement till he was released on 24-4-1974, the date on which the order of detention was passedagainst

'.Q him. He was therefore incapable of any activity . during that . perio(I. • ., There is therefore no substance in the argument' that 'as the.inCidents

relied upon relate to 9-5~ 73 and 24-5-73 th.ere .coul, d)iave;: been no apprehension on 24-4-74• that. he was' likely'-to, att -.fu :it' manrier prejiidicial to public ord; r; •• . , . ' " : ~: • , • , . . . .,_. ,. • > ... ..,. .~ .• - ..... , .

Point 4 ,; ti

•• . . , . . . . . , - - . It is contended that tlie. deta.ining authifty 'had not applied liis mind to the petitioner's case as shown by the fact that the petitioner had. to be discharged frOil\ the criminal cases due to want <if sufficient :evidence for successful prosecution . .whereas. the order~ of discharge shows 1hat he was discharged because he was going to be detained, E iihd 1he ~, rounds of detention' refer to allegations which do not fi.nd a place in. the FIR. It cannot be said that when the Commissioner of Police stated that the petitioner had to be disc'harged from the criminal cases_ due to want of sufficient evidence fora succs; Jful prosecution that was one of the grounds for petitioner's detent10n. The grounds fo~ detention are the two incidents mentioned., The lack of F evidence for successful prosecution is not the. :,!; fOund for detention.

As has been held by this Court again and again, wliereas criminal prosecution is punitive preventive detention is r.esorted tc:>:jn order to prevent a person from acting in a manner pejuaicjal to public . order in future. If the detaining authority is satisfi?<J (hat on the two grounds, mentioned it is" necessary to detain the petitioner in order to prevent him from acting in. a manner prejudicial to public order that G satisfaction cannot be questioned by the Court. ·

Poin1 ,5 -- •... _ ~

'\V~ '.ar~ noi able to see hw 'ihe :grounds ian ii~ al~ 'to be vague because the name of. the petitioner doe~•not figure iu. tM Fl.R. and he .was-detaitl.ed for nearly a year after he was arrested on criiniriai' charges. :II

It is statep in the counter-affidavit filed by .the Commissioner of Police that' it'was during the Course of the in\'estigation of:thecases that it .came to be _kl)o.Wn that the petitioner "'..a~ .01'.e of the persims who took part in bath the incidents, and the petitioner's . .Jl1'1e.11.t_ion_ for. a_year after he was arrested on criminal charges has nbthi11g i!J do 1with 'the grounds being vagu~--- f ·-~·-~:' ·- :' ·· ·.: ''

Points 6, 7 and 8

The decision in Sai/esh Dutta v. State of W.B.(') was relied upon in support of point 6 to urge that the petitioner's case should have been reviewed periodically. Such a review was not considered by the Court as a legal obligation on the part of the Government nor the failure tc do so as making the detention illegal. We also agree that it would be better if the Government periodically reviews the cases of the detenus.

In support of point 7 the following observations of a Bench of this Court in Bab1ilal Das v. Sta'e of W.B.( 2 ) arc relied upon:

"While discharging the rule issued and dismissing the petition, we wish to emphasize that Section 15 is often lost sight of by the Government in such situations, as long term preventive detention can be scH-defeating or criminally counter-productive. Section 15 reads :

15. TEMPORARY RELEASE OF PERSONS DETAINED

(1) The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.

(2) In directing the release of any person under sub-section ( 1), the appropriate Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction.

(3) Any person released under sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his --< release as the case may be.

( 4) If any person fails without sufficient cause to surrender himself in the manner specified in sub-section ( 3), be shall be punishable witb imprisonment for a term which may extend to two years, or with fine, or with both.

(5) If any person released under sub-section (!) fails to H fulfil any of the conditions imposed upon him m1der the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.

(I) A.l.R. 1974 S.C. 1816 (') [1975] 1 s.c.c. 311.

SAMIR CHATTERJEE v. WEST BENGAL (A/agiriswami, J.)

We consider that it is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the parole power under section 15. Calculated risks, by release for short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised."

We fail to see that these observations lay down any principle of law.

Section 15 mereiy confers a power on the Government. The power and duty of this Court is to decide cases coming before it according to law. In so doing. it may take various considerations into account.

But to advise the Government as to how they should exercise tJieir . C functions or powers conferred on them by statute is not one of this Court's functions.

Where the Court is able to give affect to its views in the form of a valid and binding order that is a different matter.

Fmthermorc, section 15 deals with release ort parole and l)lere is nothing to show that the petitioner applied for to be released on parole for any specific purpose. As far as we are able to sec, release D on parole is made only on the request of the party and for a specific purpose.

We also hope that• in the case of the petitioner his representation made on l-7-1974 would be considered by the Government. It has been pointed out by this Court in its decision in Ram Bali Rajbhar v.

State of West Bengal(') that the Government has got the power to . place the representation before the Advisory Board and therefore we direct the Government of West Bengal to consider and take an early decision on the pending fresh representation of the petitioner in accord- "!nce with the requirements of law and justice even as was done in tha\ case. Subject to this direction the petition is dismissed.

P.B.R.

Petition dismissed.

(1) W.P. No.332 of 1974 decided o~ 20th Docember 1974.

SAMIR CHA1TERJEE

STATE OF WEST BENGAL

A. ALAGIRISWAMI

N. L. UNTWALIA, JJ.

S. 15

ss. 451, 324

I.P.C

ss. 148, 149, 307

Internal Security Act, 1971

Internal Security Act

Internal Security Act

s. 15

1975] 3 S.C.R. 291

Section 15

s. 15

Article 32

Constitution of India

sections 451, 148, 149 and 324

I.P.C

section 9

sections 148, 149 and 307

I.P.C

sections 3 and 5

sections 25 and 27

Arms Act

section 15

AIR 1974 SC 2154

Article 14

Code of Criminal Procedure

Code of Criminal Procedure

Sec. 4

section 4

sec 336

Section 15

Section 15

section 15

Section 15

section 15


UNION OF INDIA & ANR.

M/S. RAJDHANI GRAINS & JAGGERY EXCHANGE LTD.

AND OTHERS

March 19, 1975 B

(A. N. RAY, C. J., K. K. MATHEW AND V. R. KRISHNA IYER, JJ.)

Forward Contracts (Regulation) Act (74 of 1952) as amended by Amending Act 62 of 1960, ss. 4(/), 6, 14A, 14B, 15 to 18 and 7A of the Forward Contracts (Regulation) Rules. 1954--Scope of.

The object of the Forward Contracts (Regulation) Act, 1952, is to provide for the regulation of certain matters relating to forward Contracts, the prohibi tion of cptions in goods and for matters connected therewith. Section 6 of the Act provides that the Central Government may, if it is satisfied that it \\'Ou1d be in the interest of trade and also in public interest to grant recognition to an association, grant tecognication in such form and \Vith such condition as mav be specified and shall specify the goods D \\'ith respect to which forward contracts may be entered into. between the members of such assqciation or through or with any such member. Section

14A(I), inserted by Amending Act 62 Of 1960, provides that no association concerned \\jth the regulation and control of business relating to forward contracts shall, after the commencement of the 1960 Act, carry on such business except under, and in accordance with, the conditions of a certificate of registration granted by the Commission, and s. 14B provides that on receipt of an application under s. l,4A, the Commission rnay, after making such enquiry as it consi- E ders' necessary" grant or refuse the certificate.

Sections 15 to 18 of the Act. authorise the Central Government to impose restrictions as to commodities with respect to which bu.siness in. forward contracts can be carded on. , Rule 7 A ot the Forward Contracts (Regulation) Rules, 1954, framed under the Act, provides that the certificate of registration granted to an association shall be in Form F, which states that the registration is granted subject to the conditions

(i) that the association shall comply with such directions as may from time to time be given by the Forward Markets Commission, and (ii) that the asso- F elation shall not conduct forward trading in any commodity other than those si>ecified hereunder except with the previous approval of the Forward Markets Commission.

The respondent was granted a certificate of registration under s. 14B with the second condition that it shaJl not commence tradingin non-transferable specific delivery contracts in any comm9(1ity without obtaining the prior approval of the Commission.

A direction to the same effect was also given by the G Commission to the respondent in a letter.

The respondent filed a \\Tit petition in the High Court for quashing the condition and direction, and the High Court quashed them on the grounds : ( 1) While s. 6 gives power to the Central Government to specify goods in respect of which forward contracts may be entered into by the members of the recognised association, s. 14A is silent in regard to this matter implying that the Commissiolt has no such power; (2) the conditions which the Commission could attach to the certificate Of registration are only those which H relate to the manner and method of carrying on the business of forward con tracts, and the second condition imposed in the instant case did not relate 10

the manner or method of carrying on the business; and (3) no power to ini.pose such a condition could be implied as that would be repugnant to the power of Government to control, regulate or prohibit forward trade in respect of nny commodities, vested irt the Central Government under ss. 1.S to 18.

A Allowing the appeal. to tqis , Courh

!/ELD.: .Rule ~A is intra vires the ule-making pov, rcr and it v.as open to the Comn11ss1on to impose the second co1\dition in tho certificate of registration.

The condition and direction are tberefore:valid. '[8-Dl

' ( 1 )(a) The areas covered by s. 6 and s. 14A are different.

The fact that an associatjon is recognised by the Government \Vould not enable it to carry 9n the .business in forward contracts. For that purpose, a certificate under s. 14A 1s a suie qua non.

The fact that Central Government has power to attach conditions as regards commodlties iO. respect of which the business of forward contracts cn be carried on is not in any way incompatible v.•ith the power , of the- Commission to impose conditions as: respects the comn1odities in whiCh the business can be conducted. The conditions in the market dealing with forward contracts. Jo. '.not' remain.stati<;,' and unless the Commission .is inVested with powe~ .. o i!Jlpose further conditJons the object of constiiuting the Con1mission \vould be frustrate.cl.

The assumption by the. H, iglc. Court that when once conditions as to comn1odities have been laid down by the Government at the time ·.of recognition, the power of the Commission .. to attach further con.ditions as to commodities in which transactions in for.\vard contracts can carrie~L:on wqi1ld .Pe.· repngll(!I1t to .tPe power o{ the GovernJTient, fails; td: take note of changing conditions in .the. market. [6E-HJ . ' . :

(b) UI1de<"& i4(0 ol. the Act,:Jbe Commission has to perfo<m •uch other duties and exercise such other pOwers ~-may be assigned to the Commission. by or under the Ac(, or as n1ay be prescribed.

In interpreting the expression 'by .or.-11nder the Actor as may be prescribed,' that is, where the court is can cemed With. the question whether it is legally 'CQmpetent for the Government to vest. a particular power in a statutory body like thd Commission, the proper rulf.. of interpretation would be that unless the nature of the power is such .as

is, jncompatible with the pue fot: , which the: body. jc; created, or. unlessJ the particular power is contrai.odicated by 'any specific provjsion ef the en.act ment bringing the. body into extstence, any. power- which wo.uld furthe1 the; provisions of . the Act could be legally conferred on it. Jn the' instant csc, r. 7 A ptescribes the conditions under which a certificate of registration can be issued and that authorises the incorporation of the second condition in the cert(ficate. [7A-CJ ',,. ' . I. 'P. Gupta v. W. R. Natu; ; t\.-LR. 1963 S.c. 274, followed.

(2) The, power of the Commissin under ss. 14A and J4B is plenar\< as reg8rds .the nature. of the conditions which it can .attach for. regulating and

con.tr~Hin& the. business. of Jorward .con.tracts , . of a particular Association.

limitatio~ thit s. 14A Only authorises c_onditionS as to n1an11er_ in .. which., .!~, business 1n forward contracts c:an be earned on, cannot be read tnto the .cttoi.1 or from other P.rovisions of the. Act The specification of commodities in res

1'iect of .. which business can be erfied ol} is a conditiori. concened \Vith the regtilatia:n and control of the business relating }O for\\-'ard contrftcts.

[7DF]

 (3)(a) rhe restrictions or prohibitions in·~· 1'5 t~ ~8 are gener.at. _and apply to all persons. They are not concerned with restncttons or proh1b1t1ons as regards commodities in. respec_t of which business in forward contracts an be' .. carried on b)r particu.rar al!sociation or. _its members._ . The C'?mmiss1on atone is Invested wtth power to impose cond1ttons or proh1bttions with r.gard tO sUch commodities.

Therefore, .S..'>" .. l5 .. to .18 do not clash with pi~. power, Of the' commiSsion~ and recognition ·.of the power .of thP. mnnss1on,,.. wil~ nOt dero£:ate 'from the gerieral pov:er of.the GoverQment. Of course, the Cdn1 mtsSlon, being a snbotdinate body, should act in conformity with ss. 15 to 1~. . .' ' !7G-Hl

(by~Th~·, comffiodi:ies . .i~ which'., th~ as_sc;>citi?n can caffY, o~ the OllsiOss; of forward contracts is an i{ltegral. p, art of tts bus1n~.ss. The .';'t.::TY. idea. <?f sett?ng up 'the Commission Wf,1$ .to" supenrise and r~.gu!~.tesuch. bus1nss: by 1mp~SJng.

Conditions subjet:; t to 'which ,; alone;.-_the -a§soc_1a!10-?1 cart. a.~~ .o_tt the b.u.s1~~-.' Conditiotts .are tioth.ing but , qt;1alific,'}tions,,. res.tn.Clt<?ns or .l.1.~1.tattons mod,1fytg,:

UNION v. RA.TDHANI GRAINS (Mathew, J.) ~3

-oi even destroying, to a certaiµ eXteht, the right tO carry on buSineSs,. ':T_her~- ·-·.A

'fo~:the_ specificat_ion of comµioditi¢s. i.n whih_ busine,~'i cao- .be.: cm; ne, d on is : a nditloµ Tela ting to regu13.tion and C?.ntrol <;>f that bus1:11ess .. [8B.~J ".:' ...

CIVIL ArPELLATE JURISDI~TION : Civil Appeal No. 603(N) of '.1973_ . .

From .the J uMment and Order dated 4-8-1972 of-the Delhi 'High 'Jl. b . ' . 'Court in L.P.A. No. 7 of 1968. -

_ L. N. Sinha, Solicitor General of brtdia, P. P. Rao and Girish , Chandra, for the appellants ..

'llishamber Lal, for respondent No. 1.

'the Judgment of the Court was delivered by

MATHEW, J.-Respondent No. l, a company registered under the Companies Act, together with respondents No. 2 and 3, members CJ) of the company, filed a writ petition before the High Court of Delhi praying for quashing condition No. (ii) specified in the certificateof registration granted to respondent No. 1 under s. 14D of the Forward Contracts (Regulation) Act, J 952 (hereinafter referred to as 'the Act') to the effect that !he company shall not commence trading in non'transferable specific delivery contracts in any commodity l: withonl obtaining the prior approval of the Forward Markets Commission (hereina'fter referred to as the 'Commission') in writing as also a direction contained in a letter dated June 2, 1964 from the Commission to the company not to commence trading in nontransferable specific delivery contracts in any commodity without' obtaining the prior approval of the Commission in writing.

A learned Single Judge of the High Court allowed the writ petition and quashed the condition in the certificate and the direction in the Jetter.

The appellants preferred an appeal against the order before a Division Bench.

That was dismissed.

This appeal, by certi- , ficaie, is against the order of the Division Dench.

To appreciate the controversy in this case it is necessary to have _ G an idea as to the object of the Act gatherable from the vreamble and its provisions.

The preamble to the Act states that the object of the Act is to provide for regulation of certain matters relating to forward contracts, the prohibition of options in goods and for matters connected therewith.

The Central Government is oiven . power under the Act to extend its provisions by notification to vaiou3

classes of goods and to . different areas as and when necessary.

H The general scheme of the Act is that forward contracts

sould be allowed to be entered into only in accordance 'Y1th the rules and bye-laws of recognized associations. Secuon 2(a) defines an 'association' as meaning a body of individuals, whether mcorporated or not, consti\uted for the purpose of regulating 1and controlling the business of the sale or purchase -of any goods. A

A 'registered association' is defined in s. 2(jj) as meaning an association to which for the time being a certificate of registration has been granted by the Commission under s, 14B.

Section 2(c) of the Act defines 'forward contract' and sections 2(0, 2(i), 2(m) and 2(n) respectively define "non-transferable specific delivery contract", "ready delivery contract", "specific delivery contract", and "transferable specific deli- B very contract". It is clear from these definitions that specific delivery contract, transferable specific delivery contract and non-transferable specific delivery contract are all different forms of forward contract.

Chapter II of the Act concrns the establ_ishment and constitution of the Commission and s. 4 occurring in that chapter enumerates the functions of the Commission.

Chapter III provides for recognition C Of associations concerned with regulation and control of forward contracts and deals with the rights, duties and obligations of recognized associations as also the powers of the Central Government in relation to them. Chapter IIIA was inserted in the Act by Act 62 of 1960 as Parliament found after watching the working of the Act for six years that the provisions of the Act as it stood were not adequate to cope D with the evil of excessive speculation and other malpractices prevalent in forward markets .. Section 14A in thatchapter provides for the certificate of registration being obtained by all associations concerned with the regulation and control of business relating to forward cont- _racts and the power of the Commission to grant or refuse such certificate of registration. Chapter IV which contains sections 15 to 19 of the Act deals with regulation, control and prohibition of forward E contracts in any goods, class o:f goods by the Central Government and also makes special provisions in respect of non-transferable specific delivery contracts and transferable specific delivery contracts and for prohibition of option in goods. Chapter V of the Act deals with penalties and procedure.

The controversy in this case centres round the correct construcl!on to be put on s. l 4A of the Act. The material portion of the section reads :

"14A (l) No association concerned with the regulation and control of business relating to forward contracts shall, after the commencement of the Forward-Contracts (Regulation) Amendment Act, 1960 (hereinafter referred to as such commencement) carry on such business except under, and in accordance with, the conditions of a certificate of registration granted under this Act by the Commission."

Section 14B says that on receipt of an application under s. 14A, the Commission may, after maki9g such enquiry as it consi_ders neces- H sary, by order in writing grant or refuse to grant the certificate.

Section 15 says that the Central Government may, by notification in the official gazette, declare that section to a]Jply o such g?ods. or class of goods and in such areas as a_y be specified the notification and thereupon, subject to the provmons contamed m s. 18, eve~ forward contract for the sale or purchase of any goods specified m

l/NION v. RAJDHANI GRAINS (Mathew, J.) 5

the notification which is entered into in the area specified therein other- A wise than between members of a recognised association or through or with any such member shall be illegal. Section 16 provides that where a notification .has been issued under s .. 15, then notwithstanding anything contained in any other law for the time being in force or In any custom, usage or practice of the trade or the terms of any CO!ltract or the. bye-laws of any association concerned relating to any B contraC(-(a) every contract for sale or purchase of any goods specified in the notification shall be deemed to be closed out at such rate as the Central Government may fix in this behalf and (b) all differences arising out of any contract so deemed to be closed out shall be payable on the basis of the rate fixed under clause (a). Section 17 provides that the Central Government may by notification in C the official gazette declare that no person shall, save with the pennission of the Central Government, enter into any forward contract for sale or purchase of any goods or class of goods specified in the notification and to which the provisions of s. 15.· have not been made applicable, except to the extent and in the manner, if any, as may be specified in the notification and all forward contracts in contravention of the above provision entered into after the publication of the notifica- D tion shall be illegal. Section 18 provides that provisions in Chapter III and Chapter IV shall apply to non-transferable specific delivery oontracts for the sale or purchase of any goods.

Section 26 confers power upon Government to make rules for carrying out the object of the Act. The material rule fo~ our purpose is rule 7A of the Forward Contracts (Regulation) Rules, 1954, framed E by the Government. It states that the_ certificate of registration granted to an association under sub-clause (b) of clause ( 3) of s. 14A of the Act shall be in form E and the certificate of registration granted to an association under s. l 4B of the Act shall be in form F; and in each case, the certificate shall incorporate the conditions, if any, subject to which it i~ granted. The material portion of Form F states : F "The registration her.eby granted is subject to the conditions (i) that the said association shall comply with such directions as may from time to .time be given by the Forward Markets Commission and (ii) that the said association shall not conduct forward trading in any commodity other than those specified hereunder except with the previous approval G of the Forward Markets Commission." Conditions No. {i) and (ii) of the Certificate of Registration granted • to respondent No. 1 are the same as those specified in} Form F.

The High Court was o( the view that the conditions which the Com.- mission could attach to the certificate of registration were thos~ whic.h relate to the manner and the method of earrying on the business of forward contract, that condition No.(ii) in the-certificate did not relate H to the manner or method o! carrying on the business and that no power to impose such a condition cduld be implied as that would be repugnant to the power of government to control, regulate or prohibit forward trade in respect of any commodities vested in the Central Government under section 15 to 18 of the Act.

I . ... 'SUPREME COURT Rl!l>ORTS . (1975] SUPP. S.C.R.

.A. • section 6 provides that the Central Government may, ifitis-satisfied

:that it would. be in the interest of trade and also in public interel!t ti> .grant recognition to an association, grant recognition to the association .fa such form and with such condition as may be specified or prescribed ·:and shall specify in such. recognition the goods or cla!; Ses of go9ds with respect to which forward contracts may be eniercd into between: the .B -members of such association or through or with any such member. .

. According to. the High Court, while section 6 which give8 power to the Central Government to accord recognition to an assci\:ialion provides for specifying the goods in respect of which forward contrat may b_e entered into by the memb_, rs of the recognized association, ; s. 14A is silent in regard to this matter implying ihereby that the :c . Commission has no power under this section to specify the goOds in

.respect of which forward trading can be carried on. · , • .··

 Recot,'Ilition of an association under s. 6 carries with it <Cettalil duties and confers certain rights on the association. Section 8 states that -every recognized association shall furnish to the Central Goverrtc men( such periodical returns as may be prescribed. Section 9A pro- D vides that a recognised association may make rules with respect to matters specified therein.

The fact that an association is recognized by the Central Government would not enable it to carry on thbusi- 11ess in forward contract. For carrying on business in forward' contract, a certificate of registration under s. 14A is a sine qua non. The area. covered by section 6 and l 4A is different. The fact that Central Gov-

. E crnment has power to attach conditions as regards the commodities in respect of which the business of forward contract _can be carried on is not in any way incompatible with the power of the Commission to impose conditions as respects the commodities in which the busine§S can be conducted. The conditions in the market dealing with forwar, i -contract do not remain static. They change. And unless the F Commission is invested with power to impose further conditions with respect to the commodities in which the business of forward contract can be carried on, the object of constituting the Commission would be frustrated. The assumption by the High Court that. when once conditions as to commodities in respect of which busi-• ness can be carried on have been laid down at the time recognition was granted by Government, the power of the Commission to attach G further conditions as to the commodities in which transactions in forward contract can) be carried on, would be repugnant to the power of the Government, fails to take note of the changing conditions in the market. When s. 14A says that no association shall carry on business jn forward contracts except in accordance with' the conditions specified in the Certificate, there can .be no doubt as to the nature of conditions which might be attached, to a certificate of registration. Under clause H

(f) of s. 4, the Commission has "to perform such other duties and exercise such other powers as may be assigned to the Commission by or under this Act, or as may be prescribed." Dealing with the expression "by or under this Act or may be prescribed" in s. 4 ( f), this Court has said in I. P. Gupta v. W. R. Natu(') that there was

(!)A.LR. 1963 S.C. 274.

UNION v. RAJDHANI GRAINS (Marhew, J.)

no limitation upon the nature of the power that might be conferred except that which might flow from its Mving to be one in relation to the regulation of forward trading in goods which the Act is designed to effectuate.

The Court observed that where the Court is concerned with the question whether it is legally competent to vest a particular pvwer in a statutory body, the.proper rule of interpretation would be that unless the nature of the power is such as is incompatible with

the purpose for which the body is created, or unless the particular power is contra-indicated by any specific provision of the enactnrent bringing the body into existence, any power which would further the provisions of the Act could be legally conferred on it.

And, as we already said, rule 7 A prescribes the conditions under which a certificate of registration can be issued and that authorises the incorporation of condition No. (ii} in the , certificate of registration.

We think thatf the reasoning of the High Court that s. 14A authorises only the imposition of conditions as to the manner in which the business in forward contracts can be carried on and that the section has nothing to, do with the commodities with respect to which forward contracts can be carried on is fallacious.

We cannot read any such limitation in the language of s. 14A nor can we find any indication in the other provisions of the Act to the contrary. , In other words, the power of the Commission is plenary as regards the nature of tht conditions which it can attach for regnlating and controlling the business of forward contracts of a particular Association.

We see no reason to think that specification of the commodities in respect of which business can be carried on is not a condition concerned with tbe regulation and control of the business relating to forward contracts.

Sections 15 to 18 authorise the Central Government to impose restrictions as to the commodities with respect to which business in forward contracts can be carried on.

These restrictions or prohibitions are general in character. and apply to all persons without any exceptions. These sections arc not concerned with restrictions or pro- .-hibitions as regards the commodities in respect of which business in • 'forward contract can be carried on by a particular association or its members.

The Commission alone is invested with the power to impose condition or prohibition with regard to the commodities in respect of which forward contracts can be entered into by a particular association.

These provisions can never clash with the power of the Commission to impose .conditions as respect the commodities in which the business of forward contract can be carried on. Recognition of the pow.e; o'. the . Commission to impose condition as respect the commod1tres m. which the business of forward contract can be carried on will not derogate in any manner from the general power of government to specify the commodities in relation to which the bu.s1css of. forward co.ntract can be carried on generally.

The C?mm1ss10n, e.mg a subordinate body, is expected to act in conformity with the prov1s10ns of sectrons 15 to 18. Co-existence of these powers in the manner indicated is warranted by the rule of harmonious construction.

10 SC/75-2

It is not a relevant consi\]eration that the imposition of condition as to the commodities in respect of which business of forward contract can be carried on would. have the effect; of curtailing the area of business of an association, for the very idea of setting up the Commission was to supervise and regulate the business of forward contract by im- B posing conditions subject to which alone the association can carry on business.

Conditions are nothing but qualification, restriction or limitation modifying or even destroying to a certain extent the right to carry on the business.

The commodities in which the association can carry on the business of forward contract is an integral part of its c business activity.

They are the subject matter or media for carrying on the business and specification of commodities in which business can be carried on is a condition sounding only in the realm of regulation and control of that business.

We therefore hold that Rule 7 A is intra vires the rule making power and that it was open to the Commission to impose condition D No. (ii) in the certificate of registration.

It must follm~ that the condi!ion impugned was valid and that the direction issued by the Commission to the respondent was justified.

We are glad to find that the view which we have expressed has been taken by the High Court of Allahabad in Union of India & E Another v. Bullion and Agricultural Exchange Ltd. (1), after considering the relvant decisions including the one under this appeal.

We set aside the order of the High Court and allow the appeal without any order as to costs.

There was no appearance for the respondents.

The Court acknow-· ledges its indebtedness to Shri Bishamber Lal, Advocate, for the assistance rendered by him as amicus curiae.

Appeal allowed.

V.P.S.

(1) I.LR. [1972] 2 Allahabad 562.

UNION OF INDIA & ANR

A. N. RAY

K. K. MATHEW

V. R. KRISHNA IYER, JJ.

Forward Contracts (Regulation) Act

ss. 4(/), 6, 14A, 14B, 15 to 18 and 7A

Section 6

Section

14A(I)

s. 14B

Sections 15 to 18

s. 14B

s. 6

s. 14A

ss. 1

s. 6

s. 14A

s. 14A

ss. 14A

s. 14A

ss. 15 to 1

Companies Act

s. 14D

Forward Contracts (Regulation) Act

s. 2(jj)

Section 2(c)

sections 2(0, 2(i), 2(m) and 2(n)

Chapter II of the Act

s. 4

Section 14A

sections 15 to 19

Chapter V of the Act

Amendment Act, 1960

Section 14B

s. 14A

Section 15

s. 18

Section 16

Section 17

s. 15

Section 18

Section 26

s. 14A

section 15 to 18

section 6

section 6

s. 14A

s. 6

Section 8

Section 9A

s. 14A

section 6

s. 14A

s. 4

s. 4

s. 14A

s. 14A

Sections 15 to 18


BHABHI

SHEO GOVJND & ORS.

April 21, 1975

[N. L. UNTWALJA ANDS. MURTAZA FA7AL ALI, JJ.J

R epr('sentatio11 of People A ct-Election-!nspecfion of ln1llot papers- Princip!es.

The appellant \Vas elected to the U.P. Legislative Assembly. The appellant defeated respondent No. 1 by a margin of 94 \'Otes.

The respondent No. l in his election petition made an application for. inspection of the ballot papers on the ground that there were improper reception and rejection of votes. That the election staff was suffering from seriou<J physica1 strain as they had to work without any rest.

There \Vere arithmetical mistakes in the counting. That the staff was drowsy and \Vas dozing.

The respondent no. 1 made an application praying for a sample inspection of the ballot papers. He examined some \Vitncsses and counting agents, and fifed some affidavits.

The appellant also produced some evidence.

The respondent did not give serial number of a single ballot paper which is <; aid to have been impfoperly accepted or rejected.

Nor did be file an applica1io11 for recounting of votes.

The High Court without going into the merits of the application ordered a samp-Je 'inspection of the balIDt paper.

The lfigh Court did not give any finding whether the evidence Dr the 01ateriat adduced by the respondent no. 1 was sufficient for the prin1a facic satisfaction of the High Court.

HELD : An order for inspection could not be granted a.;; a matter of routine, but only under special circumstances.

Inspection of bat1ot paper should not be allowed in such a way so as to make a roving or fishin~ inquiry in order to disco, er material for declaring-.the election void. f205F-G, 206Dl

The following conditionss are imperative before. a Court can grant inspection or sample inspection of the ballot pepers :-

(I) That it is important to maint1in the secrecy \vhich is sacrosanct and should not be allowed to be frivolous, vague and indefinite allegations;

of the ballot violated on

{2) That before inspection is a1Jovved, the alJegations made against the elected candidate must be clear and specific and n1ust be supported by adequate statements of matCTial facts;

(3) The Court must be prbna facie sati<; fied on the materials pro~ duced before the Court regarding the truth of the allegations made for a recount;

(4) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry \Vith a view to fish materials for declaring the election to be void; ancl i__

(5) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prinio facie satisfaction of the Court regarding the truth of the allegations made for n r@count, and not for the purpose of.fishing out material~

[230E-H, 231A-B]

, -

.Further held that what appeared to have weighed \vith the High Court \Vas the solitarv circumstance that the appc1lant had succeeded by a narro\V m::i.rgin 0:nd thit was a sufficient ground for ordering sample inspection.

The Court. however was unable to ugrec \\ith this broad staten1ent of the la\v by the High Curt because if a person is duly elected even by a narrow f""

. .

BHABHI v. Sl!EO GOV!ND (Fazil Ali, J.) 203

margin of votes lhere is no presumption that there has been illegality or A irregularity in the election.

This is a fact which has t<>: be proved by .a person who challenges the election of the duly elected candidate.

After all in a large democracy such as our's wheue we have a multip~1ty. system, \Vh~1:e the numbe1 of voters is huge and diverse, where the voting JS free and air and where in quite a few cas.es the contet is. close and nee~ to neck, a marginal victory by a uccessful can<l1d_ate over .hlS nval .can omettmes trted as tren1endous tnumph so as to give a feehng of satJsfactlOn to the v1ctonous candidate.

The Court cannot lightly brush aside the succcs of .the duly .elected B candidate on an election petition b<ised on vague and 1ndefin1te allegations or frivolous and flimsy grounds.

[212B-C DE]

Held further in the instant case, the High Court while passing the order of sample inspetion made no attempt to apply the above principles.

The High Court actually noticed some of the important decisions and yet did not apply them.

The High Court did not record any satisfaction.

Allowing the appeal, the matter was remanded to the Hi&h Cour.t for disposing of . the application _for inspection of the ballot papers rn the light of the observattons made in the judgment.

[205 D-F, 211 C-DJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 63 of 1975.

Appeal by special leave from the Judgment and order dated the 20th September, 1974 of the Allahabad High Coun in Election Petition No. 1 of 1974.

J. P. Goyal, Pranab Chatterjee and G. S. Chatterjee, for the appellant.

R. K. Garg, S. C. Agarwa/a and V. J. Francis, No.!.

The Judgment of the Court was delivered by

for respondent

FAZAL ALI, J.---..:By virtue of an order dated December 20, 1974 Banerji, J., of the Allahabad High Court who was designated as the Election Judge passed an order granting the application of the respondent No. l for a sample inspection of the ballot papers. The order directed that a sample inspection of 20 bundles of 50 ballot F papers each of the votes counted in favour of the appellant may be taken out and examined along with the 5 bundles of the rejected ballot papers. It is against this order that the appellant has filed the present appeal by special leave and has assailed the order of the karned_ Sin.gle Judg~ on the ground that the !earned Judge has excr-

~ISed his d1scret1on illegally and improperly ill allowing the sample !Ilspection. of the ballot papers without there being sufficient. proof of !] the allegal!ons made by the respondent in his petition for setting aside the election of the appellant.

The facts giving rise to the present appeal may be briefiv summarised as follows : "

The appellant was el_ected to the U. P. Legislative Assembly from 218, Mubarakpur Const1tu.ency in the District of Azamgarh, U. P.

The last date of nommation for election to the said assemblv was January 24, 1974. The date of scrutiny was January 25 1974 and that of withdrawal January 28, 1974.

The poll was hld on February 26, 1964 and the counting of votes done on February 27 1974 The'result of the election was declared on February 28,' 1974. Th~

A respondent filed an election petition before the Election Judge of the Allahabad High Court some time in March 1974. The appellant secured 19,728 votes while respondent No. 1 had secured 19,634 votes and thus the appellant defeated respondent No. 1 by a margin of 94 votes and was duly elected to the U .P. Legislative Assembly. In the petition filed by the respondent before the Allahabad High Court the res- B pondent in paragraph-8 of the said petition made a large number of allegations regarding the improper reception and rejection of votes and regarding wrong arithmetical counting of votes and acceptance of

votes which were void. The material facts with respect to the allegac

tions were set out in paragraph-9 of the petition which broadly are • as follows :

( 1) That the election staff engaged in the work of counting was suffering from serious physical strain as they had to work without any rest on that day as a result of which there were a number of arithmetical mistakes in the counting of votes.

(2) That the staff had become drowsy and was actually

dozing and could not efficiently discharge its function of counting the votes properly.

As regards the facts relating to improper rejection of valid ballot papers it is said that a large number of ballot papers in which valid votes had been marked for the petitioner (respondent No. 1) were declared invalid despite oral protests made by the counting agents of E the respondent. Similarly a large number of ballot papers had distinct marks of stamp in the column of the petitioner near the symbol of cow and calf and yet they were improperly rejected by the counting staff on the ground that there were no distinct marks. The respondent further alleged that there were 70 sllCh ballot papers which were wrongly rejected. It was also pleaded that a number of ballot papers F which had a valid vote for the petitioner were illegally rejected on the ground that there were some accidental mark made in the column of some other candidate which was not a mark of the stamp or a voting mark and the number of such ballot papers rejected was 50.

Finally .it was said that a number of ballot papers which carried . valid votes for the petitioner were illegally rejected on the ground that there was no seal mark or there was no signature of the Returning G Officer on those ballot papers although it was far from the truth.

Such were said to be the obvious mistakes in the rejection of the ballot papers and the counting of votes which formed the sheet-anchor of the case of the respondent in challenging the election of the appellant.

The appellant in his written statement denied all the allegations mack in the petition.

H While the election petition was being heard by the High Court an application was filed by the respondent No. l praying that a sampk inspection of the ballot papers may be allowed.

In suppcrt of this application some witnesses, counting agents of the respondent and other persons were examined and some affidavits were filed.

The appellant also produced some evidence. . The learned Judge has mentioned in his order that this sort of evidence was led before lnm

. - ..

BHABHI v. , SHEO GOVJND (Fazal Ali, !.)

but he has not at all given any finding on the credibility of the evidence.

The learned Judge further noticed very prominently that in respect of the allegations made that the counting of v.Jtes was wrong and the rejection of the ballot papers was improper, > the respondent filed no application for recounting of votes as provided by r. 63 of the Conduct of Election Rules, 1961.

The learred Judge also noticed that the respondent had not given serial numter of a single ballot paper which is said to have been improperly ac :epted or improperly rejected.

The Judge, however, allowed the application because he thought that the ends of justice required it. In this connection the learned Judge observed as follows:

"But before I advert to consider the election oet1t10n, the aftidavit and the oral evidence to decide whether there should be an order for the general inspection of the used ballot papers, I think it will be in the interests of justice to order a sample inspection of ballot papers counted in favour of respcndent No. 1 as also a sample inspection of the rejected ballot papers in this case." .

These observations clearly show that the learned Judge made no attempt at all to give any finding whether he was prima facie satisfied regarding the credibility of the evidence or the materials adduced before him but ordered a sample inspection in order to test the validity of the allegations made by the respondent. It seems to us that in passing this order the learned Judge, while noticing some of the leading cases of this Court on the point which be has cited in his judgment, viz., Ram Sewak Yadav v. Hussain Kami/ Kidwai & Ors.(1 ) Dr. Jagjit Singh v. Ciani Kartar Singh and others;( 2 ) Jitendra Bahadur Singh v.

Krishan Behari & Ors;(') and Sumitra Devi v.

Shri Sheo Sha11kar Prasad Yadav & Ors.(4) bas made no attempt to apply the principles laid down in those cases to the facts of the present case.

Before, however, dealing with the order passed by the ]earned F Judge it may be necessary to refer to a number of authorities of this Court on the circumstances under which an inspection of the ballot papers, or for that matter a sample inspection, can be allowed. l11 the case of Ram Sewak Yadav ( supr11) the matter was considered at great length and this Court pcinted oqt that an order for inspection could not be granted as a matter of routine but only under special circumstances and observed as follows : G

"An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions arc fulfilled :

(i) that the petition for setting aside an election contains H an adequate statement of the material facts on which the petitioner relies in support of his case: and

(l) [19641 6 S.C.R, 238.

(2) A.I.R. !966 S.C. 773.

(3) [ 1970) l S.C.R. 852.

(4) [1973] 2 S.C.R. 920.

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.

The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted.

But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or reiection of votes will not be sufficient to support an order for inspection.''

Two years later in Dr. Jagjit Singh's case (supra) this Court observed on the facts of that q15e that the discretion to allow inspection of ballot papers should not be used in such a way so as to make D a roving or fishing inquiry in order to discover materials for declaring the election void. In this connection, this Court made the following observations :

"The true legal position in this matter is no longer m doubt.

Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a Conrt under the Code of Civil Procedure when trying a suit, inter alia. in respect of discovery and inspection.

Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes ....... . . . . . . . . . . . . . . . . . . . . . . An application made for the inspection o! ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes shonld be inspected or not.

In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting.

It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care musl be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void."

In Jitendra Bahadur Singh's case

(supra) the order of the Election Judge granting inspection of the ballot papers was reversed by this Court because the Court thought that the learned Judge had not followed the essential conditions laid down before granting the

....

BHABHI v. Sl!EO GOVIND (Fazil Ali, J.) 207

prayer for inspection of the ballot papers. In that case the Court A held that the allegations were vague and indefinite, no material fact was pleaded and further that the petitioner was . present at the time -0f counting and yet he did not tal<e any objection regarding the ilkgal

rejection of the votes.

Jn this connection Hegde, J., speaking for .the Court laid down the following principles :

( 1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case; and

(2) the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.

The cases of Ram Sewak Yadav and

.(, supra) were referred to and relied judgment.

Dr. Jagjit Singh mentioned upon by Hegde, J., in bis

Another case which appears to be in point and which was the ;; beet-anchor of the argument of the learned counsel for the respondent is the case of Sashi Bhusan v. Prof. Ba/raj Madhok & Others.( 1 ) It is true that a sample inspection was allowed in that case.

But, in our opinion, it was so done because of the special facts of that case.

The allegation of the respondents in that case was that many ballot papers were chemically treated so that the mechanically stamped n:; a, rks in favour of the successful candidates by using invisible ink emerged and the mark actually put at the time of polling disappeared after a few days.

This was undoubtedly an allegation of a very serious nature, which, if true, would have shaken the entire confi- dence of the people in the electoral process and would have seriously impaired our democratic system.

In these circumstances this Court beld that it was not only necessary but in. public interest that the allegation should be thoroughly examined so as to maintain confi- <lence of the people.

Jn this connection, Hegdc, J., while delivering the judgment of the Court, observed as follows :

"It is true that merely becanse someone makes bold and comes out with a desperate allegation that by itself should not be a ground to attach value to the alleirntion made.

But at the same time serious allegations cannot be dismissed summarily merely because they do not look probable.

Prudence requires a cautious approach in these matters. In all these matters, the court's aim should he to render complete justice between the parties.

Further, if the allegations made raise issues of public importance areater care and circumspection is necessary. ' "

These eases have peculiar features of their own.

No sneh case had come up for decision earlier.

Hence decided

0) [1972]2 $.C.R. 177.

cases can give little assistance to us.

In a matter like allowing inspection of ballot papers, no rigid rules have been laid down, nor can be laid down.

Much depends on the facts of each case.

The primary aim of the courts is to render complete justice between the parties.

Subject to that overriding consideration, courts have laid down the circumstances that should weigh in granting or refusing inspection.

.. .. .. .. . . .. .. .. .. .. .. .. The ratio of that decision is that the inspection of ballot papers should be allowed only when the court thinks that it is necessary in the interests of justice to do so. In that case this Court did not lay down any hard and fast rule as to when an inspection of the ballot papers can be allowed."

In the instant case, however, the allegations are of a different kind.

They relate only to the mistakes in counting and improper rejection of votes.

They are not of a sweeping pattern as in the case aforesaid.

In these circumstances, therefore, the ratio laid down in Sashi Bhushan's case (supra) cannot be pressed into service for the purpose of supporting the order of the learned Judge.

In the case of Sumitra Devi (supra), Mathew, J., after reviewing the previous authorities of this Court, held as follows :

"In the case at hand, the allegations in the election petition were _vague and the petition did not contain an adequate statement of the material facts.

The evidence adduced by the appellant to prove the allegations was found unreliable.

No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers.

A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the_ counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection."

In S. Raldev Singh v. Teja Singh Swatantar (dead) & Ors .. ( 1) Krishna Tyer, J., remarked as follows :

"Coming to the facts of this case. we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist.

Although we are free to admit that an imagmative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a fulI recount if serious errors were found, we are inclined to agree with the High Court. there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected."

-------- ·---------------------- (1) Ciil Appeal No. 233 of 1973 deoided on 24-1-1975.

' ' -.

BHABHI v. SHEO GOVJND (Fazal Ali, !.) 209

Jn Be/iram Bhalaik v. Jai Behari Lal Kachi and Anr. (1) Sarkaria A ; ., speaking for the Court, observed as follows :

"Since an order for a recount touches upon the secrecy of the ballot, it should not be made lightly or as a matter c\f course. Although no cast iron rule of universa.l application can be or has been laid down, yet, from a bcadroll of the decisions of this Court, two broad guidelines arc discernible : that the Court would be justified in ordering a re{; ount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of Irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."

In Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.(') while summarising the principles laid down by this Court from time to time in granting prayer for inspection of ballot papers, the Court adumbcrated the circumstances in which a prayer for inspection of ballot papers could be considered and observed as follows :

"Before dealing with these contenticms, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course.

The reason is twofold.

Firstlv such an order affects the secrecy of the ballot which und"er the law is not to be lightly disturbed.

Secondly. the Rules provide an elaborate procedure for counting of ballot papers.

This procedure contains so many statutory checks and effective safeguards against trickery, n1istakcs and fraud in counting, that rt can be called almost fool-proof.

Although no hard and fast rule can be laid down, yet the broad guideli.nes, as discernible from the decisions of this Court, may be indicated thus : ·

The Court would be justified in ordering a recount ot the ballot papers, only where :

" (I) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;

(2) On the basis of evidence adduced such allegations are prima fade established, affording a good ground I

for believing that there has been a mistake in count- ing; and

( 3) The Court trying the petition is prim a fade satisfied that the making of such an order is imperatively

(I) A.l.R. 1975 S.C. 283.

(2) A.l.R. 1975 S.C .. 376 .

necessary to decide the dispute and to do c-0rnplctc

and effectual justice between the parties."

These principles were reiterated in Chanda Singh v. Ch. Shiv Ram Varma and orhers,(1) where speaking for this Court, Krishna Iyer, J., observed thus :

"On all hands, it is now agreed that the importance of the secrecy of the ballot must not be Jost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence.

We would only like to stress that in the whole procoss. the secrecy is sacrosanct and inviolable except where strong prima facie circumsanccs to suspect the purity, propriety and legality in the counting is made out by definite factual averments, credible probative material and good faith in the very prayer.

We may even say that no winning camltdate should be afraid of recount and, conditions a; :hey are, a sceptical attitude expecting the unexpected ma v be correct, informed of course by the broad legal guiddines already set out."

Lastly in Ch. Manphul Singh v. Ch. Surinder Singh(") the Court upheld the order of the High Court allowing inspection of 'ballot papers because the High Court had given a finding that the evidence

of the witnesses was sufficient to prove the allegation of impersonation, in that case.

The Court further held that the High Court did not act arbitrarily in granting the prayer for inspection.

Thus on a close and careful consideration of the varivus authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers :

(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2)

(3)

(4)

(5)

That before inspection is allowed, the allegations made against the elected candidate must be elem and specific and must be supported by adeouate statements of material facts;

The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;

That the discretion conferred on the Court shotJ!d not be exercised in such a way so as to enable the

(1) AIR 1975 SC 403.

(2) AIR 1975 SC 5J1.

;;.. ,.,. - --,

BHABH! V. SHED GOVIND (Fazal Ali, J.) 211

applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be A

void; and

' (6) That on the special facts of a given case sample inspection may be-ordered to lend further assurance to the prima facie satisfaction of the Court regardmg the truth of the allegations made for a recount, and not for the purpose of fishing out materials.

H all these circumstances eriter into the mind of the Judge and he is • satisfied that these conditions are fulfilled in a given case, the exercise ... of the discretion would undoubtedly be proper .

In the instant case we find that the learned Judge while passing c .• • the order of sample inspection made no attempt to apply the principies mentioned above to the facts of the present case. What is more y important is that the Court actually noticed some of the important decisions of this Court which we have discussed and yet it did not try to test the principles laid down on the touchstone of the allega- D tions and the material' facts pleaded by the respondent. Another error into which the learned Judge had fallen was that he did not realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his pica in order to declare the election to be \'oid-a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a E sense of instability and uncertainty amongst the duly elected candidates.

Thirdly, while the learned Judge has observed that. the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary F for the ends of justice.

Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had -

produced some affidavits before him in support of their pleas, the • learned Judge has not at all tried to appreciate or consider the cvidencc in order to find out whether it was worthy of credence.

Jn the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of G ' the. respondent.

• Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all.

Iu the first place although the counting agents of the respondent were present , at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, H 19? 1.

The nature of the allegations made by the respondent in his peht10n as alluded to above was such as could have been easily venfied at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961.

Secondly the learne~ Judge overlooked tl1at the respondent had not given the material particulars of

A the facts on the basis of which he wanted an order for sample inspection of ballot papers.

No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent.

Even the segment in which the irregularity had occurred was not mentioned in the petition.

We, B however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection.

What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a su!Ucient 'ground for ordering sample inspection.

We arc, however, unable C to agree with this broad statement of the Jaw by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election.

This is a fact which has to be proved by a person who challenges the election of the duly elected candidate.

After all in a large democracy such as our's where we have a multi-party

. -

D system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidate.

The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations .E or frivolous and flimsy grounds.

The learned counsel for the respondent submitted, however, that in view of the amended provisions of the Representation of the People Act and the rules made thereunder the question of maintenance of secrecy has now become obsolete, because under the per- F sent system which was in vogue at the time when the election of the appellant was held it is difficult to find out as to which voter voted < for the candidate. It is, however, conceded by the learned counsel

for the respondent that if the counter-foils which are sealed and - kept separately are made to tally with the ballot papers, then it can 1 be ascertained with some amount of precision as to which voter voted for whom.

There are other methods also, which, when adop- G ted would put the secrecy of the voting in jeopardy. In these circumstances, therefore, the question of maintenance of secrecy docs not become obsolete as argued by Mr. Garg appearing for the respondent.

We have adverted to a Jong course of decisions of this • Court where it has been insisted on the maintenance of the secrecy of the ballot and the new methodology adopted by the Act has not made any material change in this concept.

Lastly it was submitted by the counsel for the respondent that the learned Judge had to satisfy himself whether or not a case had been made out for allowing sample inspection and if he had exercised his discretion one way or the other, this Court should not lightly interfere with that discretion. This argument, however, is wholly untenable for the reasons we have given in holding that the order of the

BHABHI v. SHEO GOVIND (Fazal Ali, J.)

learned Judge is not in accordance with the law.

The learned Judge has not at all applied the principles laid down by this Court in the .cases referred to above. It is manifest that the Court has the un- .doubted power to grant prayer for inspection, but this discretion has to be exercised according to the sound and sacrosanct principles laid .down by this Court. In the instant case, the discretion has been exercised by the learned Judge in an arbitrary manner without the

application of the mind to. the material facts and circumstances as .discussed above.

For the reasons given above, we allow this appeal, set aside the .order nf the learned Single Judge of the Allahabad High Court dated December 20, 1974 and remand this case to the learned Election Judge for disposing of the application of the respondent for inspection of the ballot papers in. accordance with the law and in the light Of the observations made above.

The appellant will be entitled to hls costs in this Court.

.P.H.P .

Appeal allowed .

BHABHI

SHEO GOVJND & ORS

Conduct of Election Rules, 1961

[1973] 2 S.C.R. 920

Section 92

the Code of Civil Procedure

AIR 1975 SC 403

AIR 1975 SC 5

Conduct of Election Rules, 1961

Representation of the People Act