GURDIAL SINGH FIJJI v.

STATE OF PUNJAB & OTHERS

March 9, 1979

[Y. V. CHANDRACHUD, C.J., AND V. D. TULZAPURKAR, J.J

I11dia11 Administrative Service (Appointment by Promotion) Regulation 1955 -Rcquiren1ent of Integrity Certificate-Resolutions I.1 and 1.2 lVhether ultra vires tlu' Regulations. ~

Adverse report in confidential roll-Not communicated to the person concerned-Whether can be acted upon to deny promotional opportunities.

C The Indian Administrative Service (Appointment by Promotion) Regulations, 1955 formulates the procedure for selecting persons from the Sta>te Civil Service Cadre for the purpose of bringing them on the select list of the Indian Administrative service. Regulation 5 which deals with the preparation of the list of suitable officers provides by cl. (2) that the selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority, \vhile cl. (5) provides that if it is proposed to supersede D any member of the State Civil Service~ the Selection Committee stall record its reasons for the proposed supersession.

The "Government of lndia'_s Decisions" under the regulations have been •published by the Govt. in the All India Services Manual, Part II.

Resolution 1.1 requires the Chief Secretary to the State Government \vho is the sponsoring authority to record a .certificate in respect of every eligible officer whose case is placed before the Selection Committee, that the State Government certifies the integrity of the officer with reference to the entries in his annual confiden.tial reports.

Resolution 1.2 provides that the Selection Committee should specifically record in its proceedings that it is satisfied from the remarks in the confidential reports of the officers selected by it for inclusion in the. Select List that there was nothing against their integrity.

The appellant and respondents 8 to 15 were members of the Punjab Ovil Service (Executive Branch), the respondentS being junior to the 2ppellant.

Th 1966-67, an adverse entry W36 recorded in the confidential report of the appellant by the District and Sessions Judge.

No decision was taken by the Government as to whether the adverse entry was justified and whether the contentions G raised by the appellant in his representation to te same were well founded.

After 1966-67, the appellant worked in various capocities, earned good reports and was allowed to cross the first and second efficiency bars. However, reipondents 8 to 15 were promoted to the selection grade of the <Jervice prior to the appellant.

His representation in this regard was rejected ty the Government.

N.espondents 2 to 7 who constituted the committee for selecting persons from the Punjab Civil Service cadre for the purpose of bringing them on the select list of the Indian Administrative Service, selected respondent no. 9. 1lle

G. S, FlJJI V. PUNJAB 519

4.ppellant.'s name was not put on the select list, since respondent no. 2, the A :Chief Secretary to the State Govt. had refused to give an 'integrity certificate' to hin1.

His representation against the non-inclusion having been rejected, he .approached the High Court.

The High Court rejected the appellant's contention that resolution 1.1 was ultra vires of regulations 4 and 5; but quashed the order of the State Government granting seniority to. two junior officers over the appellant in the selection B .grade.

In appeal by the appellant, the High Court held that it is no\vherre laid _.down that integrity certificate is the requirement for eligibility for promqtion. lntegrity certificate is the requirement of resolution 1.1 which is only an execu .tive instruction. No criteria is mentioned. nor guidelines provided lliS to how the integrity certificate is to be issued.

The' executive instruction, tberefore, went beyond the scope of the statutory regulation, the provision requiring the production of the integrity certificate, was unguided and was likely to lead to arbitrariness and unreasonableness and that therefore resolution 1.1 was ultra 'Vires of regulations 4 and 5.

The High Court held further that the records Of the Selection Committee reveal that the decision not to include the appellant's name in the select list was not based solely on the ground of non-availability "Of the integrity certificate and that the Committee had given another. cogent -reason, that the appellant was noi suitable otherwise also.

Allowing the further appeal to this Court,

HELD : 1. (i) The Letters Patent Bench of the High Court was in error in striking down, resolution 1.1 as being ultra vircs of regulation 5.

Both resolutions 1.1 and 1.2 are within the regulations and are valid. [527 C]

(ii) Under cl. (2) of Regulation 5 selection for inclusion in the select list 'has to be based on merit ood suitability in all respects with due regard to seniority. Neither the 1954 Rules nor the 1951 Act furnish any guideliries for -.as.sessing merit and suitability. The Government would therefore, have, the power to prescribe the criteria for determining whether the requirements of merit and suitability are fulfille.d by any particular candidate. The Executive decision which is contained in resolution 1.1 and 1.2 effectuates the purpose of that prescription. [526 C, F, G]

(iii) The Government in the exercise of its executive authority cannot supersede a statutory rule or regulation but it can certainly effectuate the purpose Of a rule or regulation by supplementing it. These resolutions of the Government of India do not transgress the requirement of the Regulations but are in furthe1:ance thereof. It, therefore, cannot be stated that the Chief Secretary had been conferred with an unguided or unfettered discretion to nssess the integrity of the officers by granting er refusing the integrity certificate at bis sweet will. [526 H, 527 BJ

(iv) Every Executive Authority is charged with the obligation of organising its services so as to ensure maximum efficiency. The idea of maximum efficiency cannot be achieved unless persons who are selected for public offices possess integrity in as high a measure as ability. Integrity is, therefore, the sine qua non of merit MJd suitability. No person can be considered as possessing merit and suitability if he lacks in character and integrity. [526 E]

2. One of the reasons which evidently weighed with the Selection Committeein not putting the appellant's name on the select list was that tht C'hief Secretary had not issued the integrity certificate in his favour.

The non-inclusion of appellant's name in the select list aru1 the nonissuance of the integrity certificate are thus closely linked, whether or not there' was another reason also for which the Selection Committee kept him out from the select list. [527 G~ HJ

3. An adverse report in a confidential roll cannot be acted upon to deny promotional opportunitie~ unless it is communicated to the person concerned so that he has an Opportunity to improve his work a.nd conduct 0r to explain the circumstances leading to the report. Such an opportunity is not an en1pty formality, its object, partially, being to enable the superior authorities to deidc on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. [528 H-529 BJ

In the instant case for one reason or another not arising out of any fault on the part of the appellant though the adverse report was communicated to him the Government has not been able to consider his explanation and de<..ide

whether the report was justified.

In such circumstances it is difficult to support the non-issuance of the integrity certificate to him. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. [529 C]

4. In the absence of a prope:r pleading it cannot be speculated that the appel1ant \Vas not found suitable for reasons other than those c'1nnected Vlith the non-issuance of an integrity certificate to him. [529 D]

5. The High Court saw the file a•nd discovered that the appellant \Va.-; not brought on the select list because he was 'not found suitable otherwise'.

Regulation 5(7) provides t:bat the Committee shall record its reasons if it is proposed to supersede any member of the State Civil Service. That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him.

In the absence of any rea6on, this Court cannot agree with the High Court that the Selection Committee had another "reason'" for not bringing the appellant on the select list. [529 E, G, 530 AJ

to.

[Directed that the case of the appellant be considered afresh by the Selection Committee indicating the broad frame-work \Yithin which the Committee should act and the preliminary steps the Govnment should take in order to facilit.ate the Committee's task.J

Union of India v.

Mahal Lal Capoor & Ors., [19741 1 SCR 797; referred

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 503 of 1978.

Appeal by Special Leave from the Judgment and Order dated 19-11-1976 of the Punjab and Haryana High Court at Chandigarh in LP.A. No. 484/74.

S. K. Mehta, J. S. Chawla, P. N. Puri and P. Balakri3hnan for the Appellant.

Bishamber Lal (for State) and Hardev Singh for the RR-1-4 and 6.

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P. N. Lekhi and Girish Chandra for Respondent No. 17.

The Judgment of the Court was delivered by

CHANDRACHUD, C.J.-The appellant, Gurdial Singh Fijji, was selected for the Punjab Civil Service (Executive Branch) in 1953

and was appointed as an Executive Magistrate on June 8, 1954. Res- B pondents 8 to 15 are also members of the same Service, namely, the P.C.S., but they were selected and appointed to that Service after the appellant.

They are all governed, in the matter of conditions of their service, by the Punjab Civil Service (Executive Branch) Rules

1930, as amended from time to time by the competent authority.

The appellant was confirmed in the cadre on May 8, 1958 while C respondents 8 to 15 were confirmed on diverse dates thereafter. In the gradation list irculated by the Government from time to time, respondents 8 to 15 were shown as junior to the appellant.

In the year 1966, as a result of the reorganisation of the erstwhile State of Punjab, the appellant and respondents 8 to 16 were allocated to the State of Punjab. In 1966-67 an adverse entry was made in the confidential record of the appellant while he was working under one Shri Sewa Singh, District and Sessions Judge, Amritsar.

That entry was communicated to the appellant whereupon, he made a representation against it but that has still not been disposed of, for one reason or another.

The State Government forwarded the representation to Shri Sci"a Singh, who declined to express his views upon it unless asked by the High Court to do so.

Nothing further has been done in. the matter and no decision has yet been taken on the question whether the adverse entry was justified and whether the various contentions raised by the appellant in his representation are well-founded.

The appellant worked in various capacities after 1966-67, earning good reports all along.

He was permitted to cross the first efficiency bar under an order of the State Government dated June 14, 1966 and the second efficiency bar on July 20, 1971.

By an order dated July 3, 1971 published in the Punjab Government Gazette on July 23, the Government promoted respondents 8 to 12 to the selection grade of the Punjab Civil Service cadre. Respondent 15 was similarly promoted on December 19, 1970, respondent 16 on January 1, 1971 and respondents 13 and 14 on July 27,

1971. On March 14, 1972, the appellant was also promoted to the selection grade with effect from January 15, 1972. He made a representation to the Government against the orders promoting res-

S!TPREME COURT REPORTS [1979] 3 s.c.R.

pondents to the selection grade prior to him but it was rejected by an order dated June 20, 1973.

A Committee consisting of respondents 2 to 7 was constituted under Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations 1955, for selecting persons from the Punjab Civil Service cadre for _the purpose of bringing them on the select list of the Indian Administrative Service. The Committee held its meeting at Chandigarh on May 11, 1973 after which it prepared a list under Regulation 5 selecting respondent 9 for being brought on the select list for the purpose of promotion to the Indian Administrative Service.

It would appear that the appellant's name was not put on the select list since respondent 2, the Chief Secretary to the Government of Punjab, had refused to give an 'integrity certificate' to him.

Appellant made a representation against his non-inclusion in the select list and that representation having been rejected, he filed a Writ Petition (No. 3315 of 1973) in the High Court of Punjab and Haryana, challenging the promotion of respondent to the selection grade, the refusal of the Chief Secretary to issue an 'integrity certificate' to him and his non-inclusion in the Select Lisi of the Indian Administrative Service.

The appellant's Writ Petition was allowed partly by a learned single Judge of the High Court by his jud!jffient dated August 19, 1974 whereby the order dated July 27, 1971 of the State Government granting seniority to two junior officers over the appellant in the selection grade was quashed.

The learned Judge directed the State Government to reconsider the case of the appellant along with that of three other officers regarding the grant of selection grade with effect from June 25, 1971.

The appellant filed a Letters Patent Appeal (No. 484 of 1974) against the decision of the learned Single Judge which was disposed of by the High Court on November 19, 1976. It was held in appeal that the requirement of Resolution No. 1.1 as regards the production of the 'integrity certificate' was in the nature of a mere executive instruction, that it went beyond the scope of the statutory regulations, that the provision requiring the production of the 'integrity certificate' was unguided and was likely to lead to arbitrariness and unreasonableness and that therefore, Resolution No. 1.1 was ultra vires of Regulations 4 and 5. The entire record of the Selection Committee was placed by the State Government before the High Court in the Letters Patent Appeal, from a perusal of which the High Court came to the conclusion that the decision of the

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G. s. FJJJI V PUNJAB (Chandrachud, C.J.) 523

Commtitee not to include the appellant's name in the Select List was not based solely on the ground that he was unable to produce the integrity certificate and that the Committee had given another cogent reason for its decision viz., that the appellant was not suitable for being placed on the Select List otherwise also .

Since inclusion in the select list for the purposes of promotion to the Indian Administrative Service was to be made on the basis of merit-cum-seniority, the Committee, according to the High Court, was justified in not including the name of the appellant in that list if, in its opinion, he was not otherwise suitable.

The Letters Patent Appeal was accordingly dismissed by the High Court, against which the appellant has filed this appeal by special leave.

Wt will first deal with the question whether resolution No. 1.1. is ultra vires regulations 4 and 5 of the Indian Administrative Service

(Appointment by Promotion) Regulations, 1955. These regulations are framed by the Central Government in pursuance of sub-rule 1 of rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 in consultation with the State Governments and the Union Public Service Commission. Regulations 3 to 7 provide for bringing members of the State Civil Service on the select list for promotion to the Indian Administrative Service. Regulation 3 deals with the constitution of the committe~ for making selections.

Regulation 4 which deals with conditions of eligibility for promotion provides that each committee shall meet at intervals, ordinarily not exceeding one year, and consider the cases of all substantive members of State Civil Service who on the first day of January of that year had completed not Jess than eight years of continuous service, whether officiating or substantive, in a post of Deputy Collector or any other - post or posts declared equivalent thereto by the Government.

By 'f Clause (2) of regulation 4, the committee shall not ordinarily consider the cases of members of the State CTvil Service who have attained the age of 52 years on the first day of January of the year in which

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the meeting of the committee is held, provided that a member of the State Civil Service whose name appears in the select list in force immediately before the date of the meeting of the committee shall be considered for inclusion in the fresh list to be prepared by the committee, even if in the meanwhile he has attained the age of 52 years.

Regulation 5 reads thus :

"5. Preparation of a list of suitable officers -

(1) The committee shall prepare a list of such members

of the State Civil Service as satisfy the condition

specified in regulation 4 and as are held by the committee to be suitable for promotion to the service.

The number of members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of the preparation of the list, in the posts available for them under rule 9 of the recruitment rules or 10 per cent of the senior duty posts borne on the cadre of the State or group of States whichever is greater :

Povided that in the year ending on the 31st December, 1969, the maximum limit, imposed by this sub-regulation, may be exceeded to such extent as may be determined by the Central Government in consultation with the State Government concerned.

(2) The selection for inclusion in such list shall be based on merit and suitablity in all respects with due regard to seniority. ' ( 3) The names of the officers included in the list shall be arranged in order of seniority in the State Civil Service :

Provided that any junior officer who in the opinion of the committee is of exceptional merit and suitability may be assigned a place in the list higher than that of officers senior to him.

( 4) The list so prepared shall be reviewed and revised every year.

(5) If in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession."

The All India Services Manual, Part II, which is issued under the authority of the Government of India, Cabinet Secretariat, (Dep, art- H ment of Personnel and Administrative Refomts), sets out under

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appropriate regulations the "Government of India's Decisions" which are, for convenience, referred to by the High Court as "resolutions".

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; Resolution 1.1. which incorporates a decision taken by the Govern- •ment of India reads thus :

"1.1. On the basis of the recommendations of the Committee on the Prevention of Corruption, it has been decided that the following certificate should be recorded by the Chief Secretary to the State Government who is the sponsoring authority in respect of all eligible officers whose cases are placed before the Selection Committee for consideration :

"The State Government certify the integrity of Shri--

with reference to the entries in his annual confidential reports".

Resolution 1.2. which is on the same subject says :

"1.2. The Selection Committee should also consider the question of , suitability of the officers for selection with reference to their integrity and should specifically record in their proceedings that they were satisfied from the remarks in the confidential reports of the officers, selected by them for inclusion in the' Select List, that there was nothing against their integrity."

The learned Single Judge of the High Court rejected the appellant's contention that resolution 1.1 is ultra vires of regulations 4 E and 5.

The Letters Patent Bench of the High Court differed from him and quashed the resolution, observing :

"Regulations 3 to 7 are self-contained regulations prescribing the whole procedure for the constitution of the selection committee, qualifications for the eligibility, preparation of list of suitable candidates etc. It is evident from the plain reading of .these regulations that integrity certificate is not the requirement for eligibility for promotion.

Integrity certificate is the requirement of resolution 1.1 which is only an executive instruction. The regulations are quite detailed and the whole mode of selection is given and merit-cum-seniority is the main basis for bringing the persons on the select list. It is nowhere laid down in the regulations that integrity certificate is also required for eligibility for promotion.

Hence this requirement under the executive iustmctiou goes counter to the statutory regulations. It has put restrictions and limitations on the. committee in its discretion. Moreover, it is nowhere laid down iis to how the integrity certificate is to be issued.

5:?6 qJP, ZEME COURT REPORTS [I Y79 J 3 s.c.R.

criteria is mentioned in resolution 1.1.

No guideline is provided.

Hence it can lead to arbitrariness and unreasonableness in certain cases . . . . . . . . . . . . . . . . . .

I have, therefore, no hesitation in holding that resolution 1.1 contravenes the regulations, which cannot legally be sustained and is struck down as ultra vires of regulations 4 and 5 ."

We find it impossible to sustain this conclusion and are of the opinion that the learned Single Judge of the High Court was r ght in upholding the validity of resolution 1.1. on the ground that it is not inconsistent with any of the regulations.

Clause (2) of Regula tion 5 provides that selection for inclusion in the Select List shall be based on merit and suitability in all respects, with due regard to semonty.

In other words, the test for inclusion in the Select Lis: is merit-cum-seniority.

Neither the Indian Administrative Service (Recruitment) Rules, 1954 under which the Regulations are framed nor indeed the provisions of the All India Services Act, 61 of 1951, under which the Rules are made, furnish any guidelines for assessing mirit or suitability of a candidate for inclusion in the Select List or provide for the consideration of any particular data before a candidate can be brought on the Select List.

Every executive authority is charged with the obligation of organising its services so as to ensure maximum efficiency.

The ideal of maximum efficiency cannot qe achieved unless persons who are selected for public offices possess integrity in as high a measure as ability.

Integrity is indeed the sine qua non of merit and suitability : no person can be considered as possessing merit and suitability if he lacks in character and integrity. If, as provided by Regulation 5, selection for inclusion in the Select List has to be based on merit . and suitability in all respects, and the Rules and Regulafons do not furnish guidelines for a proper assessment of these requ; rements, the

goernment would have the power to prescribe the criteria for determining whether the requirements are fulfilled by 'ny particular candidate.

The prescription of the Regulation for inclusion in the Select List is merit-cum-seniority.

The executive decision which is contained in resolutions 1.1 and 1.2 effectuates the purpose of that prescripiton.

Undoubtedly the government in t, he exercise of its executive authority cannot supersede a statutory rule or regulation but it can certainly effectuate the purpose of a rule or regualtion by supplementing it.

Resolution 1.2 provides that the Selection Committee should consider the question of suitability of officers with reference to their integrity and should specifically record in its proceedings, that it is satisfied from the remarks in the confidential reports of the officers selected by it for inclusion in the Select List,

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that there was nothing against their integrity.

Resolution 1.1 requires the Chief Secretary of the concerned State Government, who is the sponsoring authority, to. record a certificate in respect of all eligible officers, whose cases are placed before the Selection Committee for consideration, that the State Government certifies the integrity of the officers with reference to the entries in their annual confidential reports. These resolutions of the Government of India do not transgress the requirement of the Regulations but are in furtherance thereof.

The circumstance that the Chief Secretary has to record a certificate does not confer upon him unguided or unfettered discretion to assess the integrity of the officers by granting or refusing the integrity certificate at his sweet will.

The State Government has to certify the integrity of the eligible candidate "with reference to the entries in his annual confidential reports''.

Weare, therefore, quite clear that the Letters Patent Bench of the High Court was in error in striking down resolution 1.1 as being ultra vires of Regulation 5.

Both the resolutions 1.1 and 1.2, are in our opinion within the scope of the Regulations and are valid.

Though the High Court was of the opinion that Resolution 1.1

is ultra vires of Regulation 5, it did not quash the decision of the

Selection Committee because, having perused the record and proceedings of the Selection Committee (which were made available to E it during the hearing of the Letters Patent Appeal), it found that the non-selection of the appellant was not based solely on the ground that the Chief Secretary had not issued an integrity certificate in his favour.

The proceedings of the Selection Committee, according to the High Court, disclosed that the appellant was not selected for the reason also that he was "not found suitable otherwise".

The course adopted by the High Court has cause to the appellant an amount of injustice which has to be rectified.

It is clear that the Chief Secretary, Punjab, did not grant integrity certificate in favour of the appellant because of the adverse report in his confidential roll for the year 1966-67.

One of the reasons which evidently weighed with the Selection Committee in not putting the appellant's name on the Select List was that the Chief Secretary had not issued the integrity certificate in his favour.

Thus, the non-inclusion of appellant's name in the Select List and the non-issuance of the integrity certificate are closely linked, whether or not there was another reason also for which the Selection Committee kept him out from the Select List. l4-253SCI/79

In so far as the non-issuance of the integrity certificate is concern - ed, it is undisputed that its only justification is the adverse report in the confidentia~ roll of the appellant for the year 1966-67. The circumstances surrounding the adverse entry may therefore bear examination for seeing whether such preponderating importance could, on the facts to which we will immediately advert, be given to the particular entry.

The counter affidavit filed on behalf of the Government of Punjab by Shri Phuman Singh, Under Secretary in the services department, shows that after the adverse remarks were communicated to the appellant, he submitted a representation requesting that the remarks be expunged.

That representation was referred by the Government to Shri Sewa Singh, retired District and Sessions Judge, who had made the particular remarks.

Shri Sewa Singh desired that the reference which was made to him by the Government should be routed through the High Court. The Government then made a reference to the High Court of Punjab and Haryana requesting it to obtain the comments of Shri Sewa Singh. The High Court replied that it was not its practice to cal! for comments of District and Sessions Judges on the representation of an officer against whom adverse remarh were made.

The High Court was once again requested by the Government that the Chief Justice and the Judges may communicate their views to the Government on the representation made by the appellant As the High Court did not express its view, the Government asked the appellant to submit a detailed representation alongwith documentary evidence in order to show that the adverse entry was made ma/a fide as alleged by him.

The appellant submitted his representation again on December 19, 1971, as desired by the Government.

After a detailed examination of that representation, it was decided by the Government that since the comments of the Reporting Officer of the High Court on the representation made by the appellant were not available, which was necessary for the proper disposal of the representation, a suitable note may be placed on the appellant's character roll alongwith the confidential report for the year 1966-67.

An attested copy of that note is annexed to Shri Phurnan Singh's affidavit as annexure 1.

After setting out the facts and circumstances narrated above, that note says that in the absence of necessary comments of the authority concerned, it was not possible for the Government to take any decision on the merits of the representation made by the appellant.

The principle is well-settled that in accordance with the r11les of natural justice, an adverse report in a confidential roll cannot be

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acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstauces leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the pJ:rson concerned, whether the.adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified.

In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant.

The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified.

We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.

We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by clause 7 that "if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession".

While dealing with an identical provision in clause 5 of regulation 5 of the same Regulations as they stood then, this Court observed in Union of India v. Mohan Lal Capoor & Others(') that "rubber. stamp" reasons given for the supersession of each officer to the effect that the record of the officer concerned was not such as to justify his appointment "at this stage in preference to those selected", do not amount to "reasons for the proposed supersession" within the meaning of clause 5. "Reas.ms'', according to Beg J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions".

The Court accordingly held that the mandatory provisions of regulation 5(5) were not complied with by the Selection Committee. That an officer was "not found suitable" is the conclusion and not a

reason in support of the decision to supersede him.

True, that it ig not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as

(I) [1974] 1 SCR 797

A briefly as it may, why it came to the conclusion that the officer concerned was found \o be not suitable for inclusion in the Select List.

In the absence of any such reason, we are unable to agree with the High Court that the Sefoction Committee had another "reason" for not bringing the appellant on the Select List.

In matters of this nature, particularly when the Select Lists have to be , prpared and reviewed from year to year, it becomes difficult to work out the logical consequences of holding that the cae of any particular officer ought to be reconsidered.

But, inevitably, for reasons mentioned above, the case of the appellant shall have to be C considered afresh by the Selection Committee.

How best to do it has to be left to its wise discretion in the matter of details, but in order to eliminate, in so far as one may, chance of yet another litigation we ought to indicate the broad frame-work within which the Committee should act and the preliminary steps which the Government must take in order to facilitate the Committee's task.

. In the first place, the State Government shall consider and dispose of within two months from to-day the representations made by the appellant ou January 23, 1969 and December 19, 1971 in regard to the adverse report in his confidential roll, for the year 1966-67.

We are hopeful that the High Court will co-operate with the Government in the disposal of the representations. The Selection Committee will, within three months thereafter, decide whether the appellant should be included in the Select List as of May 11, 1973. That question ha~ to be decided in accordance with the relevant regulations by applying the test of merit and suitability-cum-seniority.

For deciding the question of appellant's merit and suitability, the Selection Committee will take into consideration the Government's decision on his representations and his service record up-to-date. If the Committee decides that he is not suitable for inclusion in the Select List and should therefore be superseded, it shall record its reasons for the proposed supersession. If, on the other hand, the Committee G decides to include his name in the Select List, he will be entitled to rank in that list in accordance with his seniority as of May 11, 1973 unless, in the opinion of the Committee, there is a junior officeI of exceptional merit and suitability who may be assigned a higher plaee.

The Selection Committee will review the list for 1973 in accordance with these directions.

The Union Public Service Commission will B thereafter be consulted in accordance with the regulations.

The Select List as finally approved by the Commission will form the Select List. of the members of the State Civil Service.

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We may indicate that the Writ Petition filed by the appellant and his appeal to !his Court cannot be considered to he ber.ome infructuous on the ground that the Union Public Service Commission has already approved of the Select List.

The learned Single Judge of the High Court had stayed the final publication of the list by his order dated September 24, 1973 and had directed by his order dated February 11, 1974 in C.M. 994 of 1974 that the publication of the Select List will be subject to the result of the Writ Petition.

With these modificaticns, the appeal is allowed but there will be no order as to costs .

N.V.K, Appeal allowed.

GURDIAL SINGH FIJJI

STATE OF PUNJAB & OTHERS

March 9, 1979

Y. V. CHANDRACHUD, C.J.

V. D. TULZAPURKAR, J.J

Punjab Ovil Service

S. K. Mehta

J. S. Chawla

P. N. Puri

P. Balakri3hnan

Bishamber Lal

Hardev Singh

P. N. Lekhi

Girish Chandra

CHANDRACHUD

Gurdial Singh Fijji

June 8, 1954

P.C.S.

May 8, 1958

State of Punjab

Sewa Singh

Sci"a Singh

June 14, 1966

July 20, 1971

July 3, 1971

December 19, 1970

January 1, 1971

July 27,

1971

March 14, 1972

S!TPREME COURT REPORTS [1979]

June 20, 1973

Chandigarh

May 11, 1973

Government of Punjab

High Court of Punjab and Haryana

August 19, 1974

July 27, 1971

June 25, 1971

November 19, 1976

Chandrachud

Central Government

Union Public Service Commission

31st December, 1969

All India Services Manual

Punjab

Phuman Singh

Sewa Singh

December 19, 1971

Phurnan Singh

clause 7

clause 5

clause 5

Mathew

[1974] 1 SCR 797

January 23, 1969

September 24, 1973

February 11, 1974


HUSSAINARA KHATOON & ORS.

HOME SECRETARY, STATE OF BIHAR, PATNA

March 9, 1979

(P. N. BHAGWATI & D. A. DESAI, JJ.J

Adn-1inistrc.tion of Justice-Speedy trial-:--Fundamental right of accused- Conslitutional obligation of State.

Constit11tion of India 1950-Arts. 21 and 39A-Free legal services to poor 1 essential efen1ent of 'reasonable fair and just', procedure.

At the resun1ed hearing of the petition for release of under-tria1s in the State o! Bihar.

HELD : ( 1) The procedure under which a person may be deprived of his life or liberty should be 'reasonable fair and just.' Free legal services to the poor and the needy is an essential element of any 'reasonable fair and just' procedure.

A prisoner who is to seek his liberation through the oourt's process should have legal services available to him. [537 C, DJ

Maneka Gandhi v. Union of India, [1978] 1 SCC 248; M. H. Hosko1 v.

S1ate of Maharashtra, (1978] 3 SCC 544; Gideon v. Wainwright, 372 US 335; ' L. ed. at 799; John Richard Argersinger v. Raymond Hamlin, 407 U.S. 25 : 3' L. ed. 2d 530 at 535-36; referred to.

(2) Article 39A also emphasises that free legal service is an inallew.ible element of 'reasonable, fair and just' procedure for without it a person suffer in, g from econL'IDic or other disabilities would be deprived of the opportunity for securing justice, The right to free legal service is therefore, clearly an esscnti'RJ ingredient of 'reasonable, fair and just' procedure for a person accused of, an offence and it must be held in1plicit in the guarantee of Art. 21.

This is a coustitutional right of every accused person who is unable to en{!age a lawyer and secure legal services, on account of reasons such as poverty, indigence or incomn1unicado situation and the State tS under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such Jawyer. [539 F-540 A]

(3) The poor in their contact with the legal system have always been on the wrong side of the law. They have always come across "law for the pCIOr" rother than "law of the poor".

The law is regarded by them as semeU1ing mysterious and forbidding-always taking something away from them and not as a positive and constructive social device for changing the socio ecrinomic order and improving their life conditions by conferring rights and beneftte on them. The result is that the legal system has lost its credibility for the weaker sections of the community.

It is, therefore, necessary to inject ~(Ual ju.-itice into legality and that can be done only by a dynamic and aed\rist scheme of kgol setvices. [541 E-F]

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4. The urgent necessity of introducing a dpnamic and comprehensive legal services programme impressed upon the Government of India as also the State

Go\'ernments.

That is not only a mandate of equal justice implicit in Ait. 14 and right to life and liberty conferred by Art. 21 but also the compulsion of -the constitutional directive embodied in Art. 39A'. {542 DJ

J, The State cannot avoid its constitutional obligation to provide speedf tria1 to tht ttccused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever i~ necessary fer this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental right.1 of the peOp]e, as a sentinel on the qui-vive, to enforce the fundamental right of tJ.e ac::used to speedy trial by issuing the necessary directions to the State which may include taking of positi\'e action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court

houses, appointment of additional judges and other measures calculated to ensure speedy trial. [543 D-E]

(6) The courts in the United States have adopted a dynamic and constructive role in regard to prison reform by utilising the activist magnitude of the Eighth Amendment.

The courts have ordered substantial improvements to bC made in a variety of archaic prisons and jails through its decisions. [543 Fl

Rhem v. Malclm, 377 F. Supp. 995, Jackson v. Bishop, 404 F. Supp. 2d. 571, Holl v. Sarv,,., 309 F. Supp. 362; Jones v. Wittenberg, 330 F. Supp. 707;

Newman' v. ,1labama, 349 F. Supp. 278; Gates v. Collier, 349 F. Suppl. 881; referred to.

(7) The powers of this Court in protection of the Constitutional rights arc of the widest ami}litude and this Court should adopt an activist approach and issue to the State, directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial.

But in order to enable the court to discharge this constitutional obligation, it

is necessary that the court should have the requisite information bearing on th' problem. [543 H-544 Al

Directed that :

(a) On th~ next remand dates when the under-trials are produced before the Magistrates or the Sessions Courts the State Government should provide them a la\l.')'er at its own cost for the purpose of making {l!Il application for bail and opposing remand provided that no objection is raised to such a lawyer en their behalf. [540 Bl

(b) 1'fle .State Government and High Court to fun1ish particulars as to the location of the courts of magistrates and courts of sessions in the State of Bi'1ar togetl1er with the total number of cases pending in each of these courts as on 31st December. 1978 giving year-wise break up of such pending cases

and alllO explaining why it ha~ not been possible to dispose of such of those cot1•• aa hO\e been pending for more than six month•. [544 DJ

ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.

K. Hillgorani for the Petitioners.

U. P. Singh for the Respsndent.

A The Order of the Court was delivered by

BHAGWATI, J.-This writ petition again comes up for hearing before us pursuant to the directions given by us on 26th February, 1979(') and today three additional counter-affidavits have been filed on behaU" of the respondents: one by Mrinmaya Choudhri, Assistant Inspector General of Prisons: the other by Bageshwari Prasad Pande, Superin-· tendent of the Patna Central Jail and the third by Pradip Kumar Ganguly, Superintendent of the Muzafferpur Central Jail.· Mrinmaya Choudhri has in his affidavit given particulars of the under-trial prisoners in 48 jails in the State of Bihar in addition to the particulars of: the undertrial prisoners in 17 jails already submitted on 26th February, 1979.

We directed the State of Bihar by our order dated 26th February, 1979 to file a revised chart showing a year-wise break-u]l of the under-trial prisoners after making a division into two broad categories viz. minor offences and major offences but this direction has not yet been carried out by the State of Bihar. Mrinmaya Choudhri has, however, assured us in his affidavit tllat several steps regarding the different directions given by the Court are being promptly implemented but due to shortage of time it has no! been possible 18 complete the same by 3rd March, 1979.

We direct that the State of Bihar will file within three weeks from to-day a revised chart in regard to the under-trial prisoners in all the 65 jails in a manner which would clearly show year-wise as to what is the date from which each of them is in jail after making a broad division into two categories of minor offences and major offences.

We are glad to note that so far as wo'men under 'protective custody' are concerned, the State has assured us in the affidavit of Mrinmaya Choudhri that necessary steps for transferring women under "protective custody' in jails to the insti- tutions run by the welfare department have been taken and directions to that effect are issued by the Government. We hope and trust that this direction given by us in our earlier order dated 26th February, 1979 will be carried out by Government and compliance report submitted to us within the prescribed time.

Though we directed the State of Bihar by our order dated 26th February, 1979 to intimate .to the court by a proper affidavit to b•~ filed .on or before 3rd March, 1979 whether the under-trial prisoners whose particulars were given in the counter-affidavit filed on 26tl1 February, 1979 were periodically produced before the Magistrates in compliance with the proviso to section 167(2), we find that the only averment made by Bageshwari Prasad Pande in his affidavit in res- ponse to this direction is that petitioners Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 17 confined in the Patna Central Jail prior to their release were

(!) S'e PP. 393-198 of this volume.

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H. KHATOON V. HOME SECRETARY 535

regularly produced before the courts "as aud when required by the 'A courts", This averment does not at all constitute compliance with the direction given by us.

We would like to know frcim the State of Bihar in a proper affidavit to be filed within two weeks from today whether t]!e under-trial prisoners who were directed to be released by us <in their personal bond were periodically produced before the

Magistrateii in compliance with requirement of the proviso to section 167(2). We would suggest that the State should furnish to this Court the dates on which these under-trial prisoners were remanded to jUdicial custody from time to time by the Magistrates, so that we can satisfy ourselves that the requirement of the proviso was complied with .

We also .find an averment in the affidavit of Pradeep Kumar Gariguly that Petitioners Nos. 10, 11, 12, 13. 15, 16 and 18 who were previously confined in the Muzaffarpur Central Jail prior to their release were regularly produced before the Court' "as and when required by the courts".

This avennent, as we have pointed out, is wholly unsatisfactory and it does not inform the Court as to what were the dates on which these under-trial prisoners were remanded from time to time by the Magistrates. It is only if these particulars are furnished to us that we can satisfy ourselves in regard to compliance with the requirement of the proviso to section 167 (2) and we would, therefore, direct the State of Bihar to furnish fhese particulars to us in an affidavif to be filed within two weeks from today.

We should also like to have the particulars in regard to the dates on which remand orders were made from time to time by the Magiiltrates in regard to under-trial prisoners at items Nos. 4, 5, 6, 7, 8, 13, 21, 22, 24, 28, 29, 30, 43, 56, 69, 71, 72, 79, 85, 92, 96, 97,

101, 129, 133, 136 to 142, 165 to 167, 170 to 174, 177, 191, 199, 210, and 236 in the list of under-trial prisoners in Ranchi Central Jail submitted on behalf of the respondents. These under-trial prisoners have been in jail for a period of over six to seven years and we would like to satisfy ourselvie that the requirement of the proviso to section 167 (2) was complied with in their case.

The affidavit giving these particulars should be filed by the State Government within three weeks from today.

There arc quite a large number of under-trial prisoners who are languishing in jail for long periods of time and it is nbt possible for us to examine the individual cases of these undertrial prisoners for the purpose of satisfying ourselve5 in regard to compliance with the proviso to section 167 (2)' but we would request

thee High Court of Patna to pick out a few names from the lists of under:trlal prisoners which have been filed before us by the State of

Bihar on 26th February, 1979 and 5th March, 1979 and satisfy itself

whether these under-trial prisoners have been periodically remillded from time to time by the 1'4.agistrates as required by the pr<i\lillo to section 167(2).

We would direct the State of Bihar to furnish oopies of these lists of under-trial prisoners to the Chief Justice of the Patna

High Court within ten days from today.

We find from the lists of under-trial prisoners filed before us on behalf of the State of Bihar that the under-trial prisoners whose names are set out in the chart filed by Mrs. HinlJ(lrani to-day have been in jail for periods longer than the maximum term for which they could have been sentenced; if convicted. This discloses a shocking state of affairs and betrays complete lack of concern for human yalues. It exposes the callousness of our legal and judical system which can remain unmoved by such enormous misery and suffering resulting from totally unjustified deprivation of personal liberty. It is indeed difficult for us to understand how the S.a'e Government could possibly remain oblivious to the continued incarceration of these under-trial prisoners for years without eve'n their trial having commenced.

The judiciary in the State of Bihar also cannot escape its share of blame because it could not have been unware of the fact that thousands of under-trial prisoners are languishing in jail awaiting trial which never seems to commence.

We fail to see how the continued detention of these under-trial prisoners mentioned in the list of Mrs. Hingorani can be justified when we find that they have already been in jail for a period longer than what they would have been sentenced to suffer, if convicted.

They have in fact some jail term to their credit.

We, therefore, direct that these under-trial prisoners whose names and particulars are given in the list filed by Mrs. Hingorani should be rekased forthwith as continuance of their detention is clearly illegal and in violation of their fundamental right under Article 21 of the Constitution.

' '

Then there are several under-trial prisoners who are charged with • offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or G being too poor they are u1iable to furnish bail. It is not uncommon • to find that under-trial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in Iha!

H behalf.

Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but in- sist on monetary bail with sureties, which by reason of their poverty

the under-trial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pretrial detention.

This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programme, but so far,

lhesc cries do not seem to have evoked any response.

We do not think it is possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation wide legal service programme to provide free legal services to them. It is now well settled, as a result of the decisiion of this Court in Maneka Gandhi

v. Unio1t of India(') that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by Jaw, but the procedure under which a person may be deprived ot his life or liberty should be 'reasonable, fair and just'.

Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer '!nd who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'resonable, fair and just'. It is an essential indegredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process that he should have legal services available to him.

This Court pointed out in M. H. Hoskot v. State of Maharashtra('). '. "Judicial justice, with procedural intricacies, -legal submissions and critical exainination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side.

Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law".

Free legal services to the poor and the needy is an essential element of any 'reasonable,, fair and just' procedure. It is not necessary to quote authorativc pronouncements by judges and jurists in impport of the view that without the service of a lawyer an accused person would be. denied 'reasonable, fair and just' procedure.

Black, J., observed in Gideon v. Wainwright(") :

"Not only those precedents but also reason and reflecdon require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.

This seems to us to be an obvit'11s

(1) [1978] 1 s.c.c. 248

(2) {J978] 3 s.c.c. 544

(3) 372 U.S. 335 : 9 L. ed. 2d at 799

538 WPkbME COURT REPORTS

(1979] 3 S.C.R.

truth.

Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accnsed of crime.

Lawyers to prosecute are every where deemed essential to protect the public's interest in an orderly society.

Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessties, not luxuries.

The right of one charged with crime to counsel may not be deemed fundamentaJ and essential to fair trials in some countries, but is in ours.

From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.

This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him."

The philosophy of free legal service as an essential element of fair procedure is also to be found in the following passage from the judgment of Douglas, J. in Jon Richard Argersinger v.

Raymond Hamlin(')

"The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel Even the intelligent and educated layman has small and sometimes no skill in the science of law, if charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad.

He is unfamiliar with the rules of evidence.

Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence,. or evidence irr~Iec van! to the issue or otherwise inadmissible.

He lacks both the skill .and knowledge adequately to prepare his defence, even though he has a perfect one.

He requires the guiding hand of counsel at every step in the proceedings against him.

Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. lf that be true of men of i11tellige11ce,

(l) 407 U.S. 25~35 L. ed. cd 530 t 535-36.

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how much more true is it of the ignorant and i/li1erate or those of feeble il!!e/lecl.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours. From the very beginning our state and national constitu!ions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the' poor man charged with crime has to face his accusers without a lawyer to assist him.

Both Powell and G; deon involved felonies.

But their rationale has relevancc to any criminal trial, where an accused

is deprived of his liberty. x x x x x x The court should consider the probable sentence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed . . . . . The court should consider the indiv:dual factors peculiar to each case.

These, of course would be the most difficult to anticipate. One relevant factor would be the competency of the individual defendent to pre-

•ent his own case. (emphasis added)" We may also refer to Article 39A the fundamental constitutional directive which reads as follows:

"39A. Equal justice and free legal aid:-The State shall , ecure that the operation of the legal system promotes justice,

on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis added)" This Article also emphasises that free legal service is an inalienable clement of 'reasonable, fair and just' procedure for without it a per.on suffering from economic or other disabilities would be deprived of the opportunity for securing justice.

The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just, procedure for a person accnsed of an offence and it must be held implicit in the guarantee of Article 21.

This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services n account of reasons such as poverty, indigene or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the

540 lli'l<E.ME COURT REPORTS

[1979] 3 S.C.R.

needs of justice so required, provided of course the accused pcrs.)n does not object to the provision of such Ja"1yer.

We would, therefore,. direct that on the next remand dates, when the under-trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objec tion is raised to such lawyer on behalf of such under-trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated 12th February, 1979. The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today.

There are also various unrkr-trial prisoners who have been in jail for periods exceeding one-half of the maximum punishment that could be awarded to them if convicted, for the offences with which they are charged.

To take an example, Budhu Mahli, who is at item No. I in the list of undertrial prisoners in Ranchi Central Jail has been in jail since 21st November, 1972 for offences under Section 395 of the Indian Penal Code and Section 25 of the Indian Arms Act.

The maximum punishment for the offence under Section 395 of the Indian Penal Code is 10 years while that for the offence under Section 25 of the Indian Arms Act is mnch less. Yet Budhu Mahli has been in jail as an under-trial prisoner for over six years. So also Jairam Manjhi, Samra Manjhi, Jugal Munda and Gulam Munda at Item Nos. 2 to 7 in the list of under-trial prisoners confined in Ranchi Central Jail have been in jail as under-trial prisoners from 21st February, 1974 that is, for a period of over five years for the offence under Section 395 of the Indian Penal Code which is punishable with a maximum term of imprisonment of ten years. There are numerous other instances which can easily be gleaned from the lists of under-trial prisoners filed on behalf of the State of Bihar, where the under-trial prisoners have been in jail for more than half the maximum term of imprisonment for which they could be sentenced, if convicted_. There is no reason why these undertrial prisoners should be allowed to continue to langnish in jail, merely because the State is not in a position to try them within a reasonable period of time. It is possible that some of them, on trial may be acquitted of the offences charged against them and in that event, they would have spent several years in jail for offences which they are ultimately found not to have committed. What faith would these people have in our system of administration of justice? Would they not carry a sense of frustration and bitterness against a society whlch keeps them in jail for so many years for offenoes which they did not commit?

It is, therefore, absolutely essential that persons accused of offunces

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should be speedily tried, so that in cases where bail, in proper exercise of discretion, is refused, the accused persons have not to remain in jail longer than is absolutely necessary. Since there are several undertrial prisoners who have been in jail for periods longer than half the maximum term of imprisonment for which they could if convicted, be sentenced, we would direct that on the next remand dates when they are produced before the Magistrates or the Sessions Courts, the State Government should prov:de them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such lawyer on their behalf and if any application for bail is made, the Magistrates or the Sessions Courts, as the case may be should dispose of the same in accordance with the broad guidelines indicated by us in our judgment dated 12th February, 1979.

The State Government will comply with this direction as far as possible within a period of six weeks from today and submit report of compliance to th'-. High Court of Patna.

We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man.

Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them.

The poor in their contact with the legal system have always been on the wrong side of the law.

They have always .come across "law for the poor" rather than "law of the poor".

The Jaw is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and onstruc tive social device for changing the socio economic order and impnving their life conditions by conferring rights and benefits on them.

The result is that the legal system has lost its credibility for the weaker sections of the community. It is, therefore, necessary that we 'hould inject equal justice into legality and that can be done only by dyna, nic and activist scheme of legal services.

We may remind the Government of the famous words of Mr. Justice Brennan

"Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with.

But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free emocracy is not imaginary but very real, because

• 542 SUPREME COURf REPORTS [ l979] 3 s.c.R .

democracy's very Efe depends upon making the machinery of

justice so effective that every citizen shall believe in and benefit by its impartiality and fairness."

And also recall what was said by Leeman Abbot years ago in relation to affluent America.

"If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the courtroom, the seeds of revolution will be sown, the fire-brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which wilt follow."

We would strongly recommend to the Government of India and the State Governments that it is high time that a comprehensive legal .service programme is introduced in the country.

That is not only a mandate of equal justice implicit in Article 14 and right lO life and liberty conferred by Article 21, but also the compulsion of the onsti tutional directive embodied in Article 39A.

We find from the counter affidavit filed on behalf of the reiipondents that no reasons have been given by the State Government as to why there has been such enormous delay in bringing the under-trial prisoners to trial. Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Article 21 and it is the eoastitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused.

The State cannot be permitted to deny the constitutional right of speedy trial to the accued on he ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial.

The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v. Ma/elm(') : "The law does not permit any Government to deprive its citizens _of constitutional ri1thts on a plea of poverty". It is also interesting to notice wliat Justice, then Judge, Blackmum said in Jackson v. Bishop('):

"Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considera- H tions .... "

(I) 377 F. Supp. 995

(2) 404 F. Supp. 2d. 571.

So also in Holt v. Sarver('), affirmed in 442 F. Supp. 362, the Court, dealing with the obligation of the State to maintain a Penitentiary System which did not violate the Eighth Amendment aptly and eloquently said

"Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed upon what Respondents may actually be able to accomplish. If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States." The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inabi!tiy. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligatio!! of this Court as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, build ing new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial. We find that in fact the courts in the United States have adopted this dynamic and consructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment. The courts have ordered substantial improve- ' • ments to be made in a variety of archaic prisons and jails through -( - decisions such as Hot v. Sarver (supra), Jones v.

Wittenberg('), "- Newman v. Alabama(') and Gates v. Collier('). The Court in the last mentioned case asserted that it "has the duty of fashioning a decree that will require defendants to eliminate the conditions and practices at Parchman here-in-above found to be violative of the United •

State's constitution" and in discharge of this duty gave var\ons directions for improvement of the conditions of those confined in the State Penitentiary.

The powers of this Court in protection of the Constitutional rights are of the widest amplitude and we do not see why this

[(I) 309 F. Supp. 362.

(2) 330 F. Supp. 707,

(3) 349 F. Supp. 278.

(4) 349 F. Supp. 881.

15-253SCU79

Court should not adopt a similar activist approach and issue to the State . directions which may involve taking of positive action woth a view to securing enforcement of the fundamental right to speedy trial.

But in order to enable the Court to discharge this constitutional obligation, it is necessary that the Court should have the requisite infor- !!lation bearing on the problem.

We, therefore, direct the State: of Bihar to furnish to us within three weeks from today particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving yearwise br<eakup of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months.

We would appreciate if the High Court of Patna also furnishes the above particulars to us within three weeks from today since the High Court on its administrative side mus:t be having records from which these particulars can be easily gathered.

We also direct the State of Bihar to furnish to us within three W<eeks from today particulars as to the number of cases where first information report have been lodged and the cases are pending investigntion by the police in each sub-division of the State as on 31st December, 1978 and where such cases have been pending investigation for more than six months, the State of Bihar will furnish broadly the reasons why there has been such delay in the investigative process. The writ petition will now come up for hearing and final disposal on 4th April,

1979. We have already issued notice to the Supreme Court Bar Association to appear and make its submissions on the issue arising in the writ petition since they are of great importance.

We hope and tru!t that the Supreme Court Bar Association will respond to the notice and appear to assist the Court at the hearing of the writ petition.

N.V.K.

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HUSSAINARA KHATOON & ORS

HOME SECRETARY, STATE OF BIHAR, PATNA

March 9, 1979

P. N. BHAGWATI

D. A. DESAI, JJ

Arts. 21 and 39A

S. 25

Article 39A

Art. 21

Government of India

Art. 21

Art. 39A

United States

K. Hillgorani

U. P. Singh

BHAGWATI

Mrinmaya Choudhri

Bageshwari Prasad Pande

Pradip Kumar Ganguly

Muzafferpur Central Jail

Bihar

State of Bihar

3rd March, 1979

26tl1 February, 1979

section 167(2)

H. KHATOON

section 167(2)

Pradeep Kumar Gariguly

Muzaffarpur Central Jail

section 167

Ranchi Central Jail

section 167

section 167

High Court of Patna

section 167(2)

Patna

High Court

HinlJ(lrani

Hingorani

Article 21

Article 21

Black

S. 335

Douglas

S. 25

Powell

Article 39A

Article 21

12th February, 1979

Budhu Mahli

21st November, 1972

Section 395

Indian Penal Code

Section 25

Arms Act

Section 395

Indian Penal Code

Section 25

Arms Act

Jairam Manjhi

Samra Manjhi

Jugal Munda

Gulam Munda

21st February, 1974

Section 395

Indian Penal Code

Brennan

Leeman Abbot

Article 14

Article 21

Article 39A

26th February, 1979

Article 21

Blackmum

Arkansas

Parchman

31st December, 1978

4th April,

1979

Supreme Court Bar Association


COMMISSIONER OF WEALTH TAX, MYSORE

HER HIGHNESS VIJAYABA, DOWGER MAHARANI SAfIEB OF

BHAVNAGAR PALACE, BHAVNAGAR & ORS.

March 9, 1979

[N. L. UNTWALIA AND R. S. PATHAK, JJ.]

Wealth Tax Act, 1957-S. 2(m)-By a family arrangcnu•nt assessce agreed to pay certain szun to her younger son-The sum agreed to pay-If a debt owed under s. 2(m)-Whether the undertaking to pay the sum an agreement without const.leration.

Thi:: respondent's wealth was assessed to Wealth Tax under the Wealth Tax Act, 1957 for three assessment years 1960·61, 1961-62 and 1962-63 the corresponding valuation dates being 31-12-1959, 31-12-1960 and 31-12-1961. On 14th May, 1953 the assessee wrote a letter to her younger son stating that his late father expressed the wish that he (the second son) should be paid Rs. 50 lakhs out of the family properties and that to keep his promise and elso to get peace of mind, if his elder brother did not pay the sum of Ro;;. 50 lakbs, she would pay such balance that remains unpaid. The elder brother

paU Rs. 20 lakhs.

The balance liability of Rs. 19 lakhs remained due and continued to be due on all the three aforesaid valuation dates. It was finally

wiped off in February, 1962. On the question "whether, while assessing the net weaHh of the respondent within section 2(m) of the Wealth Tax Act, the sum of Rs. 19 lakhs was to be deducted" as debt owed by her, the Wealth Tax Tribunal held in favour of the respondent.

The High Court held that the sum of Rs. 19 lakhs constituted a debt owed by the assessee and was deductible under the Wealth Tax Act from the value of the total assets as on 31-12-1959.

-(' ..

On appeal to this Court, the appellant argued (i) that the letter dated 14-5-1953 created no debt as the undertaking given by the respondent to her son on his elder brother's failure to pay any portion , Of the sum was an agreement without consideration and hence it was void and therefore it was not cr.fvrceable at law on any of the valuation dates and could not be deducted; (ii) that the undertaking given by the respondent in her letter dated 14-5-1953 was a contingent contract within the meaning of section 31 of the Contrac: Act. \

Dismissing the appeal,

HELD : ( 1) Taking the totality of facts it was a case of family settlement or family arrangement which was binding on the parties. The respondent a.greed to purchase peace for the family and to pay to her younger son the amount which fell •hart of R•. 50 lakh• if her elder son did not pay any portion thereof. _It is well established that such a consideration is good considerafion which brings an enforceable agreement between the parties and is not hit by •ection 25. Even if it be held that the letter dated 14-5-1953 had not the effect of bringing about the family arrangement or any binding arrange~ men bewteen the parties, their ubsequent conduct upto 12th September 1959 brought a concluded hmily arrangement. The respondent paid R•. 11 lakho and reiterated her obligation to pay the balance in the shape of ornaments.

A That was net honoured by reason of which the younger son had a right tA> enforce the family arrangement againt his mother.

The respondent would. have been bound to pay the balance if a suit had been filed again.st her as he bad refrained from going to the law court against his brother on her bringing about the family arrangement. [548 C--GJ

(2) Assuming that it was a contingent contract within the mOO'lling of B s. 31 of the Contract act, such a contract under section 32 of the Contract Act,. becomes enforceably by law when the future event contemplated in the continf

gent contract had happened.

The contingency in this case 'vas the liability of 't the mother to pay a ceriain sum of n1oney on the failure by the elder son to pay Rs. 50 lakhs or any part thereof. In that view, the liability of the mother became enforceable by law on the latter date, if not earlier.

[548 G-H, 549] c

Kesora1n Industries and Cotton Mills Ltd. v. Con1missioner of Wealth 1'ax (Central), Calcutta, 59 J.T.R. 767; Standard Mills Co. Ltd. v. Commissioner of Wealth Tax, Bombay, 63 J.T.R., 470; and Bombay Dyeing and Manufacturing Co. Lt. v. Commissioner of Wealth Tax, Bombay City-I, 93 J.T.R., 603, distinguished and held inapplicable.

CIVIL APPELLATE JURISDICTION : Civil APoeal Nos. 2170-2172 of 1972

Appeals by Special Leave from the Judgment and Order dated' 22-7-1971 of the Mysore High Court in T.R.C. Nos. 3, 4 and 5 of 1967.

B. B. Ahuja and Miss A. Subhashini for the Appellant.

E s. T. Desai, I. N. Shroff and H. S. Parihar for the Respondenl~.

The Judgment of the Court was delivered by

UNTWALIA J.-These are three appeals by special leave filed by the Commissioner of Wealth Tax, Mysore from the Judgment of the, Mysore

(now Karnataka) High Court.

The assessee is the Dowger Malmrani of Gondal.

Her husband, His Highness Bhojjrajji Maharaja Saheb of Gonda!, died intestate on 31. 7 .1952 leaving considerable moveable and immoveable properties.

Certain disputes and differences arose after his death between his two ons namely Maharaja Vikramsinghji and his youner brother Shivaraj Singhji in respect of the assets left by the late Maharaja Saheb.

The younger brother was contemplating legal proceedings against his elder brother. Their mother intervened. The idea of litigation, thereupon, was dropped because the assessee gave a letter dated 14.5.1953 to Shivaraj Singhji stating therein :-

"Your father had exprelised in the presence of many people that he will give you rupees fifty lakbs.

To keep up his H words and promise and also that I should get peace of mind I am writing to you that. if your brother Vikramsinghji Maharaj a of Gondal does not give you the full amount, then you

• • ''r

must get the balance of amount from me.

That is my sincere desire.

I will also press Vikram that he should give you the amount of Rs. fifty lakhs.

Vikram Singhji paid only Rs. 20,00,000/- to Shivaraj Singhji. The latter, therefore, claimed the balance amount of Rs. 30,00,000/- from the assessee on the basis of her Jetter dated 14.5.1953.

On or about 12.9.1959, pnrsnant to her commitment made in the letter aforesaid, the assessee transferred War Stock valued at Rs. 11,00,000/- to Shivaraj Singhji and also agreed to hand over certain ornaments in full settlement of his claim.

The ornaments were however not given.

That led to disputes between the mother and the son but eventually they were also settled on 22.2.1962 which settlement was evidenced by a document setting out all the relevant facts of the history of the dispute.

By virtue of this settlement a sum of Rs. 10,00,000/- was paid by the

assessee to Shivaraj Singhji.

The assessee's wealth was assessed to wealth-tax under the Wealth- Tax Act, 1957 for the three assessment years in question viz. 1960-61,

1961-62 and 1962-63.

The corresponding valuation dates of the 'said assessment years are 31.12.1959, 31.12.1960 and 31.12.1961.

It would be noticed that the assessee, under the arrangement arrived at between the parties, became liable to pay the balance of the amount of Rs. 30,00,000/- to Shivaraj Singhji as Vikramsinghji, out of the sum of Rs. 50,00.,000/- mentioned in the letter dated 14.5.1953, paid only Rs. 20,00,000f-.

The assessee succeeded in wiping off her liability to the extent of. Rs. 11,00,000/- on 12.9.1959 by transfer of War Stock.

The balance of the liability, i.e., Rs. 19,00,000/- remained due and continued to be due on all the three valuation dates aforesaid. It --( / could be wiped off by a further settlement only in February, 1962. In

, respect of the three assessment years in question, however, a question arose as to whether while asessing the net wealth of the assessee within the meaning of clause {m) of section 2 of the Wealth-Tax Act the said sum of Rs. 19,00,000/- was to be deducted.

The Wealth-Tax Tri-

. '

bunal held in favour of the assessee.

At the instance of the Revenue for all the three years a common question of law was referred to the High Court for its opinion.

The questions being in identical terms it would suffice to quote the question with respect to the assessment year 1960-61.

It reads as follows :-

"Whether on the facts and circumstances of the case, the

sum of Rs. 19 lakhs could constitute a debt owed by the asses- B see and deductible under the Wealth-Tax Act from the value of the total assets as on 31.12.1959 ?"

t:I A The High Court has answered the question in the affirmative, in

• B

favour of the assessee and against the department.

Hence this appeal.

Mr. Ahuja appearing in support of the appeal contended that by the letter dated 14.5.1953 no debt was created as the undertaking given by the assessee to her son agreeing to pay the deficit in respect of Rs. 50,00,000/- on his elder brother's failure to pay any portion of the sum was an agreement without consideration and hence under section 25 of the Contract Act it was void and was not saved by any of the exceptions mentioned therein. He, therefore, contended that it was not an enforceable liability on any of the valuation dates and could not be deducted from the valuation of the assessee's wealth.

In our opinion the argument is not sound.

Taking the totality of the facts as found by the Tribunal and mentioned in the impugned judgment of the High Court it was a case of family settlement or family arrangement which iS binding on the parties concerned.

The asse6see agreed to purchase peace for the family, and to pay to her son the amount which fell short of Rs. 50,00,000/- if her elder son did not pay any portion the:reof. It is well established that such a consideration is a good consideration which brings, about an enforceable agreement between the parties.

Section 25 of the Contract Act does not hit this.

It may be further pointed out that even if it be held that the letter dated 14.5.1953 had not the effect of bringing about the family arrangement and any binding agreement between the parties, their subsequent conduct upto 12.9.1959 brought about a concluded family arrangement.

Vikramsinghji paid Rs. 20,00,000/-.

Out of the balance of Rs. 30,00,000/- the assessee. discharged her liabilities to the • • extent of Rs. 11,00,000/- and reiterated her obligation to pay foe bala- '-,.._ nee of Rs. 19,00,000/- in the shape of ornaments.

That was not hon- T oured.

Shivaraj Singhji had a right to enforce the family arrangement ' against his mother, as arrived at partly in writing and partly orally as evidenced by the conduct of the parties.

The assessee would have been bound to pay Rs. 19,00,000/- if a suit had been filed against her by Sivaraj Singhji as he had refrained going to the law court from against his brother on her bringing about the family arrangement.

Mr. Ahuja then submitted that at best the undertaking given by the assessee in her letter dated 14.5.1953 was a contingent contract within the meaning of section 31 of the Contract Act Even so, under section.

H 32 such a contract becomes enforceable by law when future even' contemplated in the contingent contract has happened. In this case the cotingency was the liability of the mother to pay a certain sum of money

on the failure by her elder son to pay Rs. 50,00,000/- or any part thereof.

This did happen sometime between 14.5.1953 and 12.9.1959.

In that view of the matter, if not earlier the liability of the mother became enforceable by law on the latter date.

Learned counsel for the appellant citod three decisions of this Court to support his argument viz.-Kesaram Industries and Cotton Mills Ltd. v. Commissioner of Wealth-Tax (Central) Calcutta;(') Standard Mills Co. Ltd. v. Commissioner of Wealth-Tax, Bombay(') and Bombay Dyeing and Manufacturing Co.

Lt~ v. Commissioner of Wealth-Tax, Bombay City-I('). None of them is quite apposite on the point at issue before us.

In the case of Kesoram Industries it was held that "debt owed" within the• meaning of section 2(m) of the Wealthtax Act, 1957 could be defined as the liability to pay in praesenti or In futuro an ascertainable sum of money. It was held that a liability to pay income-tax was a present liability though the tax became payable after it was quantified in accordance with ascertainable data.

Subba Rao J .; as he then was, delivering the majority opinion said at page 780 :-

"The said decisions also accept the legal position that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency happened. But if there is a debt the fact that the amount is to be a-scertained does not make it any the less a debt if the liability is certain and what remains is only the quantification of the amount.

In short, a debt owed within the meaning of section 2(~) of the Wealth-tax Act can be defined as a liability to pay in praesenti or in futuro an ascertainable sum of money.

The other two decisions of this Court were concemod with th~ question as to whether the liability of the assessee to pay gratuity to itil employees on determination of employment was a mere contingent liability which arose only when the employment of the employee was determined by death, incapacity, retirement or resignation and whether it could be deducted :IB a debt in computing the net wealth of the asscssee.

The answer given was against the assesse'e.

In the present case we have held that the liability of the assessee was created by the family arrangement arrived at between the parties and even if it was a contingent liability the contingency did bawen and the assesee became liable

(1) S9 I.T.R. 767

(2) 63 I.T.R. 470

(3) 93 I.T.R. 603

A to pay the amount as a debt before 12.9.1959, which is anterior to the relevant valuation dates.

The sum of Rs. 19,00,000/- was a subsisting debt on the said valuation dates.

For the reasons stated above, we hold that there is no merit in this appeal.

It is accordingly dismissed with costs.

N.K.A.

Appeal dismissed .

COMMISSIONER OF WEALTH TAX, MYSORE

HER HIGHNESS VIJAYABA, DOWGER MAHARANI SAHEB OF BHAVNAGAR PALACE, BHAVNAGAR & ORS

March 9, 1979

N. L. UNTWALIA

R. S. PATHAK, JJ.

Wealth Tax Act, 1957

S. 2(m)

s. 2(m)

14th May, 1953

section 2(m)

section 31

12th September 1959

s. 31

section 32

Mysore High Court

B. B. Ahuja

A. Subhashini

E s. T. Desai

I. N. Shroff

H. S. Parihar

UNTWALIA

Maharaja Vikramsinghji

Shivaraj Singhji

Maharaja Saheb

Vikramsinghji Maharaj

Gondal

Vikram

Vikram Singhji

Wealth- Tax Act, 1957

section 2

Wealth-Tax Act

Wealth-Tax Act

Ahuja

section 25

Section 25

Vikramsinghji

Sivaraj Singhji

section 31

Bombay Dyeing and Manufacturing Co.

Kesoram Industries

section 2(m)

Wealthtax Act, 1957

section 2(~)

Wealth-tax Act


BAL KISHAN TIIAPER

l'v!UNICIPAL CORPORATION OF DELHI

March 9, 1979

[S. l\1URTAZA FAZAL ALI AND A. D. KAUSHAL, JJ.]

Prevelllion of Food Adulteration Act, 1954 (37 of 1954)-S. 2(ix)(a) and (g) Scope of-Outer label described the: contents as "as slveet as saccharin"-TV!icther a case of misbranding.

The appellant was a manufacturer of a preparation called Para Excellent and Para Asli.

The outer 1abel of the package Jesribed the contents as "as

sweet as sacc11arin".

Under the directions for use it was mentioned on the C lahel that the preparation was para saccharin.

The appellant was prosecuted under s. 2(ix) (a) and (g) of the Prevention of Fon.-1 l\(1ulteration Act for misbranding the !JOOd:' and for selling it as saccharin.

While the trial court convicted and sentenced the appellant to imprisonment anll a fine on the ground that though a case of misbranding under -;. 2(ix) (a.} and (g) had not been made out, it was 2. case of misbranding contemplated by s. 2(ix) (k), the High Court, in revision, enhanced the sentence and fine under ss_ 7 ::ind 16 read \1.'ith s. 2(ix){a) and {g) of the Act.

On behn-lf of the prosecution it was contended in the appellant's appeal to this Court thtlt the use of the word saccharin gave the impression that the

prepnration v.:as saccharin or something akin to it and it was, therefore, a case of mi'lbranding punishable under the Act.

Allowing the appeal.

HELD : 1. There is nothing on the facts of the case to show that the appe11ant in any way tried to give an impression to the Purchasers that either saccharin or ome preparation of the type of saccharin was being so1d so as to amount to misbranding as contemplated by s. 2(iv) (a) and (g) of the Act.

F Nor was there an attempt to sell the preparation as saccharin or some kind of saccharin. When the Jab el described that the preparation was as sweet as saccharin it merely laid emphasis on the sweetness of the preparation when compared. to the S'\J.'eetness of the saccharin. Similarly when the label described -the preparation was not as bitter as saccharin it was intended to convey that it was neither something like saccharin nor saccharin itself in any form or of any type. [553 C-D] G

2. Nor again was there any evidence of intention on the part of the appellant to sell a preparation which resembles saccharin in any respect. The words "as sweet as saccarin" were merely meant to convey one of the qualitie!: of the preparation itself and not the quality of saccharin. That by itself would not attract the provisions of s. 2(ix)(a) of the Act. [554 BJ

3. The use of the word para saccharin appears to be a mistake. In the Hindi portion of the directions contained in the label the words "para Saccharin" "Were not used.

Secondly the word ''para saccharin" would not indicate that

SUPREME COURT REPORTS

[1979] 3 S.C.R.

the preparation sold was saccharin in any form or of any kind. It was jut a way of describing the contents because the preparation was "as s'.feet u saccharin.' The manufacturer wanted to convey that the preparation 'iWls alsG much sweeter than sugar and could be Uled for preparing soda water. [554 C-D)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 105 of 1975.

Appeal by Special Leave from the Judgment and Order dated 6-8-1974 of the Delhi High Court in Criminal Revision No. 58 of 1973.

Frank Anthony, K. C. Dua and 0. P. Soni for the Appellants.

C Soli. !. Sorabjee, Additiooal Soli. General, B. P. Maheshwari and

Suresh Sethi for the Respondents.

The Judgment of the Conrt was delivered by

FAZAL Au, J.-This appeal by special leave is directed against the Judgment of the Delhi High Court convicting the appellant under section 7/16 of the Prevention of Food Adulteration Act, read with Section 2(ix) clause (a) & (g) of the Act and sentenced to rigorous imprisomnent of six months and a fine of Rs. 1,000/-. This order was passed by the High Court in a revision filed by the Municipal Corporation of Delhi against the Order of the Trial Court which convicted the appellant under section 7 /15 of the Prevention of Food Adulteration Act read with Section 2(ix) (k) of the Act and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 500/-, a revision against this order to the Sessions Jndge was unsuccessful and hence a further revision was taken by the Delhi Administration before the High Court.

The facts of the case are detailed in the Judgment of the High Court and the Magistrate and we need not repeat the same all over again.

The food Inspectors, namely, one Mr. James and Mr. Sinha took samples of a preparation called Para Excellant and Para As!i from the shop of the appellant who according to the Food Inspectors sold these preparations as saccharin, a fact which is not admitted by the appellant.

The Trial Court after considering the evidence and the report of the Chemical Examiner fonnd that the case of mis-branding under section 2(ix) (a) & (g) was not made out by the Prosecution, but it was certainly mis-branding as contemplated by section 2(ix) (k) of the Act. He, accordingly convicted the appellant as indicated above.

Mr. Frank Anthony, Learned Counsel for the appellant has submitted that the High Court was wrong in law in interfering with the Order of the Magistrate, firstly, because the findings of fact by the

., )

• .:

B. K. THAPER v. MUNICIPAL CORPORATION (Fazal Ali, J.) 5 53

Magrntrate was binding on the High Court in revision and secondly, because the High Court took a legally erroneous view of tbe law on the interpretation of Section 2(ix) (a) & (g) of the Prevention of Food Adulteration Act. , We have heard learned counsel for the parties and have perused the judgment of the High Court and we are of the opinion that the contentions raised by the learned counsel for the appellant is well founded and must prevail. We have perused the original label which described the preparation sold to the food inspectors. There is nothing to show that the appellant in any way tried to give an impression to the purchaser that either saccharin or some preparation of the type of saccharin was being sold so as to amount to misbranding as contemplated by Section 2(ix) (a) & (g) of the Act.

All that the appellant purported to convey under the label was that the preparation sold was as sweet as saccharin but not as bitter as saccharin.

This was intended merely to lay emphasis on the sweetness of the preparation when it was compared to the sweetness of saccharin. When the label clearly described the fact that the preparation was not as bitter as saccharin it clearly intended to convey that it was neither something like saccharin nor saccharin itself, in any form or of any type.

Mr. Sorabjee appearing for the respondent submitted that the use of the word saccharin itself amounts to mis-branding and gives the impression that the preparation sold was saccharin or something akin to saccharin.

We are unable to agree with this contention. In the facts and circumstances of the present case and the contents of the label and the description of the preparation, we are satisfied that there was no misbtanding, nor was there any attempt on the part of the appellant to sell his preparation as saccharin or some sort of saccharin.

Section 2(ix) (a) runs as follows :

"Misbranded"-an article of food shall be deemed to be misbranded-

( a) "If it is an imitation of, or is a substitute for, or

re, embles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character."

According to the Additional Solicitor General of India, the sale, by the appellant, of the preparation clearly falls within (iii) clause ff of sub-section (a), that is to say-the preparation resembles saccharin so as to deceive a person who wanted to purchase the article of food

554 SuPREME COURT REPORTS [1979] 3 s.c.R.

known as saccharin. After having examined the label, its description and the contents of the tin and packets, sold to the food inspectors, we are unable to find any evidence of any intention on the part of the appellant to sell a preparation which resembles saccharin in any respect.

The words, as sweet as saccharin were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin at all.

That, by itself, would not attract the provision of Section 2(ix) (a) of the Act. It was, then submitted that in 0ne of the labels under the directions it was mentioned that the preparation was para saccharin which also shows that the appellant intended to pass on the preparation as some sort of saccharin. In the first place, the use of the word para saccharin appears to be a mistake in the facts of the present case because this word is completely absent from the Hindi portion of the directions contained in the same label. Secondly, the word para saccharin would not indicate that the preparation sold was saccharin in any form or of any kind.

It was just a way of describing it because according to the manufacturers the preparation was as sweet as saccharin.

This was mentioned because saccharin being 500 times sweeter than sugar, the manufacturer wanted to convey that the preparation was also much sweeter than sugar and could be used for preparing soda water bottles.

It is obvious that if any person who purchased the preparation was not conversent with the English language, he would not be misled at all.

Having regard to these circumstances we are of the opinion that the case of the appellant does not fall within the clauses (a) & (g) of Section 2(ix) of the Act and the High Court erred in law in convicting the appellant for misbranding under these provisions.

For the reasons given above, the appeal is allowed.

The order of the High Court is set aside and the sentence of imprisonemnt of six months is also set aside and the fine is reduced to Rs. 500/-. In other words, the order of the Trial Court Magistrate is hereby restored.

The appeal is accordingly allowed.

N.V.K.

A ppea/ ollowed.

I,.

{ 7

BAL KISHAN TIIAPER

UNICIPAL CORPORATION OF DELHI

March 9, 1979

S. l\1URTAZA FAZAL ALI

S. 2(ix)(a)

s. 2(ix)

s. 2(ix)

s. 2(ix)

s. 2(iv)

s. 2(ix)(a)

Frank Anthony

K. C. Dua

0. P. Soni

C Soli. !. Sorabjee

Additiooal Soli

B. P. Maheshwari

Suresh Sethi

FAZAL Au

section 7

Section 2(ix)

Municipal Corporation of Delhi

section 7

Section 2(ix)

Delhi Administration

James

Sinha

section 2(ix)

section 2(ix)

Frank Anthony

Section 2(ix)

Section 2(ix)

Sorabjee

Section 2(ix)

India

Section 2(ix)

Section 2(ix)

N.V.K.