SATPAL & CO. ETC.

l'.

LT. GOVERNOR OF DELHI AND ORS.

April 12, 1979

[D. A. DESAI AND A P. SEN, JJ.]

Punjab Excise (Delhi 'A1nei1dn1eizt) Ordinance, 1979 ctnpowering tile Governnumt under the Punjab Excise Act, to levy "special duty" on the iniport of coun ..

try liquor. into Delhi and the Delhi Fiscal Duty Order, 1979 levying "special

duty'"-Validity of,

Powers o'~ Parliament to /egislat~ exclusively for Union Territory of Delhi,

a part of the Territory of India not included in a State-Constitution of India C Articles 246 to 248 and Entry 97 of t/ie Union List.

Right to trade in intoxicants-Whether a fundanientrd right-Constitution of India Article 14, 19(1)(g) and 301.

Retrospective Legislation is valid in case of intoxicants-Constitution of India Art. 47.

D While implementing the provisions of the Punjat, Excise Act, 1914 as in force in the Union Territory of Delhi, the concerned authority used to hold auction for grant of licence in Form L-10 for selling country liquor and at one such auction held on 29th March 1978, the petitioners' bids were accepted and they were granted licences in Form L-10 for the period 1st April 1978 to 31st Mairch 1979. The licence included a condition to sell a bottle of 750 ml. of country liquor at Rs. 15/- which was inter alia made up at excise duty E (<tyled as still-head duty) at the rate of Rs. 10.23 and profit of licensee at the rate of Rs. 2/-· In W.P. 716/78, validity of the levy of 'still head duty' was challenged by certain petitioners inter alia on the ground tha-t it was nothing but countervailing duty and in the absence of manufacture of liquor in Delhi, countervailing duty on the import of liquor cannot be constitutionally levied.

This contention found favour with a learned single judge of the Delhi High Court and a number of Letters Patent Appea.ls were filed against that Judgn1ent.

During the pendency of these appeals President of India pron1ulgated an Ordinance purporting to amend the Punjab Excise Act, 1914, styled as Punjab

Excise (Delht Amendment) Ordinance, 1979 with retrospective effect, conferring power on the Government under the provisions of the Act to levy 'special duty' on the import of country liquor in Delhi at rates not exceeding that set out in Schedule I~A which was introduced in the Act by the Ordinance.

Pursuant to the Ordinance amending the Principal Act, the Delhi Fiscal Duty Order, 1979 was issued levying special duty at the rates set out in the order on import of country liquor into Delhi.

Some of the petitioners questioned the validity 'generally of the Ordinance and specifically of the impost of special duty in Civil Writ No. 16/79. A Division Bench of the Delhi High

Court heard the Letters Patent Appeals and the Writ Petition No. 116/79 and by a common judgment held the ordinance as well as the impost of the special duty thereunder valid, dismissed the \Vrit Petition and a11owed the Letters Patent

Appeals.

:-- 1

Dismissing the special leave petitions, the Court

HELD ; 1. Scheme underlying distribution of Legislative power in Part XI Chapter I and especially Articles 246 and 248 is that except the matters spe<:ifically enumerated in List II (State List) in the Seventh Schedule, Parliament's plenary po\Ver to legislate extends to all conceivable matters which can be topic of legislation, and even this limitation on its power vanishes \Vhen Parliament legislates for part of the territory of India not included in a State. The three dimensional picture becomes complete, viz. (i) to select topic for legislation

(ii) enactment of legislation on the topic and (iii) to impose tax in respect of such subject matter of legislation by reference to Art. 248 which confers power to make any law with respect to any matter not enumerated in Lists JI and III including the po\ver to impose tax not mentioned in either of those lists. Under Art 246 ( 4) Parliament has power to make laws with respect to any matter for any part of the territory of India, not included in a State notwithstanding that such matter is a matter enumerated in the State List. Power of Parliament thus to legislate with respect to any matter for Delhi, territory not included in a

State is unabridged or unfettered by the entries in the State List.

Further residuary power of legislation including the power to levy tax is conferred on Parliament by the combined operation of Articles 246(4), 248(1l and (2) and_ Entry 97 in the Union List. That power is untrammelled by the limitations prescribed by Article 246(2) and (3) and Entry 51 of State List and is plenary and absolute subject only to such restrictions as imposed by the Constitution. [659 G-H, 660 A-Cl

Mithan Lal v. State of Delhi, [1959] SCR 445 @ 451; referred to.

2. While legislating for the Union Territories the Parliament unhampered by Articles 246(2) and (3) but enriched by Article 248(1) and (2) could legislate on any of the topics either in the List I and III or in List TI or in exercise of the residuary power under Entry 97. There is nothing in the Constitution to prevent Parliament from combining its powers under one or other Entry with its power under Entry 97. Parliament can rely on the powers under specified Entries 1 to 96 List I and supplement them with the powers under Entry 97 List I and Article 24 or even the powers under Entries in the concurrent list. There is no dearth of legislative competence of Parliament to enact legislation for a territory not included in a State because the power to legislate takes within its sweep matters included in all the three lists and added to it is the residuary power on matters not specifically included in any entry in any of the three..lists. [661 D-G]

If exercise or countervailing duty could be levied on country liquor JOOnufactured or imported into Delhi, Parliament \VOuld not lack competence to levy the same only because levy of such duty on alcoholic liquors for human consumption is within the competence of a State. As country liquor is not manufactured in Delhi, the Parliament could not under Entry 51 of the State List levy either excise or countervailing duty on it. Merely because Parliament could not levy countervailing duty on country liquor imported into Delhi because country liquor is not manufactured in Delhi it does not exhaust the power of Parliament to levy some other duty on the import of liquor if it is otherwise constitutiona11y permissible. [660 D-Fl

Union of India v. H. S. Dhillon, [1972] 2 SCR 33; followed.

SATPAL & CO. V. LT. GOVERNOR 653

3. With:· the advancement of society, expanding horizons of scientific and technical knowledge, probe into the mystery of creation, it is impossible to conceive that every imaginable, head of legislation within human comprehension and within the foreseeable future could have been within the contemplation of the founding fathers and was, therefore, specifically enumerated in one or the other of the th, ree Lists, meaning thereby that three Lists were exhaustive of Government2.l action and activity. D'emands of welfare State, hopes and aspirations and expectations in a developing society and the complex \VOrld situation \Vith inter-dependence and hostility amongst nations may necessitate legislation on some such topics that even for visionaxy they could not have been within the contemplation of the founding fathers. Con1plex modem governmental administration in a federal set up providing distribution of legislative power coupled with po\•, rer of judicial review may raise such situations that a subject of legisla tion may not squarely fall in ony specific entry in List I or II. Simultaneou<; ly on correct appraisal it may not be covered by any entry in List II though apparently or on a superficial view it may be covered by an entry in List IL In such a situation Parliiln1ent would have po\ver to legislate on the subject in exercise of residuary power under Entry 97, List I and it \vou1d not be proper to unduly circumscribe, corrode or w;;.ittle down this power by a process of interpretation by saying that subject cf legislation \Vas present to the ntind of the framers of the Constitution because apparently it falls in one of the entries in List II and thereby deny power to legislate under Entry 97.

The history of freedo1n struggle demonstrates in unequivocal ternlS the in1portane of residuary power of legislation beitig conferred on Parliament.

Accordingly, once the power of Parliament to legislate on a topic is not expressly taken a\vay by any constitutional provision, it remains intact under Entry 97 of l.ist I.

[662 G-H, 663 A-DJ

Undoubtedly e:x<:ise and countervailing duties on alcoholic. liquors for human coHsumption \\'ere within the contemplation of the framers of the Constitution.

That is a specific topic of legislation in List lT. It does not exhaust a conceivable levy that can be legitimately imposed on such items if otherwise they could be legally imposed on such items by reference to constitutional power to levy the same. And Entry 97 is a complete answer to the contention. [663 D-E]

I/is HoUness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973] F Suppl. S.C.R. I; explained and discussed.

l. C. Golaknath v. State of Punjab, [1967] 2 SCR 672; referred to.

Union of India v. H. S. Dhillon, [1972] 2 SCR 33, affirmed .

4. Terminal tax is entirely different from the special duty sought to be imposed by the impugned Ordinance. The impost is on entry of country liquor into Delhi to be recovered by the Delhi Administration for its own use. Delhi Administration and Delhi Municipal Administration are entirely different, and, therefore, it cannot be said that Entry 52 excludes the power of the Parliament to levy tax on in1port of country liquor in Delhi. [663 F-G]

5. If on the same subject the legislature choosesi to levy tax hvice over there is no inherent invalidity in the fiscal adventure.

More so when Special Duty levied by Parliament and the terminal tax imposed by the Municipal Administra- H tion on the import of liquor in Delhi can be traced to independent source of power. [664 A-Bl

r' I

A Avinder Singh and Ors. v. State of Punjab and Ors. [1979)

1 SCR 845;

followed.

6. The idea conveyed by the expression "colourable legislation" j3 that although apparently a legislature in passing a statute purported to be within the limits of its powers, yet in substance and i~ reality it transgressed those powers,

the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. Applying this test it is difficult to say that the impugned impost is either a camouflage or a colourable legislation. [664 G-H]

Merely because a statute was found to be invalid on the ground of lepjative competence that does not permanently inhibit the legislature from re-enacting the statute if the power to enact the same is properly traced and establhed.

In such a situation it would not be correct t('; say that the subsequent legift!ation would be merely a colourable legislation or a camouflage to re-enact the invalidated previous legislation. [665 E-F]

K. C. Gajapati Narayan Dea v. State of Orissa, [1954] SCH. 1, MahariUUl Sri layvant Singhji Ramnal Singhli etc. v. State of Gujarat, [1962) Suppl. 2 SCR 411 @ 440, Patel Gordhandas Rargovindas v. Municipal Commissioner, Alimedabad, [1964] 2 SCR 608, Prithvi Cotton Mills Ltd. and Ors. v. Broach Borough

Municipality and Ors., [1970) 1 SCR 388; referred to.

7. The expression 'excisable article' which alone can be the subject matter of levy special duty is merely descriptive of the goods subject to charge. It is <mly an identifying mark, a tag, whlch would attract special duty. If liquor was manufactured in Delhi it v.:uuld be an excisable article.

It is that article on which, if manufactured in Delhi excise duty could be levied which when imported would provide the taxing event for the levy of special duty because in the absence of manufacture in Delhi countervailing duty cannot be imposed Upon it. The expreiSEiion is used for identifying the subject-matter of impost and nothing more need be r'ead into it.

[666DE]

8. There is no fundamental right to do trade or business in intoxicaBis. The State under its regulatory powers, has right: to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export import, ale and possession.

In all their manifestations these 1ights are vested in the State F and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicnnf5, [666 l-1. 667 Al

If there is no fundamental right to carry on trade or business in liquor, there is no question of its abridgement by any restriction \vhich can be styled as unreasonable. Ther State under its regulatory power has a right to control or even to prohibit absolutely every form of activity in relation to intoxicants apart from G anything else, its import too. This power of control is question of gociety's right to self-protection and it rests upon the right of the State to act for the health, moral and \vclfare of the people. Liquor traffic is a source of pauperism and crime. Such an impost, therefore, is one in the public interest for preserving public health and public moral and is not one as infringing the inter!tate freedom of trade and commerce. All taxes are imposed in public intert.

r667 F-R 668 A-BJ ff In the instant case the Preamble to the impugned Ordinance clearly recites that the special duty on the importation of country liquor into Delhi an endeavour towards bringing about prohibition of consumption of alcoholic drinks, and,

• )(

_)/

SATPAL & CO. V. LT. GOVERNOR 655

therefore, it is a step in th, e. direction of safeguarding public health and with a view to rlising the goal fixed in Article 47 of the Constitution. It is a fiscal n1easure and the one safeguarding public health and even public morals became

it is well recognised that liquor tre is instinct with injury to individual and community and has serious side-effects recognized everywhere in every age. Not to control alcohol business is to abdicate the right to rule for the good of the people. [669 B, G-H, 670 A]

Har Shanker and Ors. etc. v. Dy. Excise and Taxation Con11niss1011er and Ors. [1975] 3 SCR 254, State of Bombay v. R.M.D. Chamarbaug/iwala, [1957]

SCR

0874; P. N. Kaushal and Ors. v. Union of India and Ors., [1978] 3 SCC 558; applied.

Crowlty v. Christafisen, 54 Law Ed. 620; quoted \Vith approval.

P. N. Kaushal and Ors. v. Union of India and Ors., [1979] 1 SCR 122; referred to.

9. There is no substance in the contention that the retrospectivity of the Ordinance is illegal, and invalid. The argument overlooks the twin objects sought to be achieved by the measure namely, validating an import which was found to bo inY8lid on the ground that it was countervailing duty which could not have been legitimately imposed and also tho object to •afeguard public health •ud public mor.l [670 B-D] ·

Prith11i COtton MUls Ltd. and Anr. v. Broach Borough Municipality and OrJ., [1,70] I SCR 388; applied.

10. _The altruistic grievance of the petitioner by proxy for consumers strikes E as hollow because even with the impost the petitioners' profit of Rs. 21~ per bottle is guaranteed and they are in no way adversely affected by the impt

because the levy is passed on to consumers, except for t1'e detention of their money for a day or two when they pay in advance while taking the bottles from the Warehouse and recovers it when they sell the bottle and this detention of their money for a period of two days is a trivality and is a part of <1ny busines. ~~ F

CIVIL APPELLATE JURISDICTION Special Leave Petitions (Civil)

• Nos. 2585-2594/79 .

From the Judgment and Order dated 9-3-1979 of the Delhi High Court in Civil Writ Petition Nos. 116-122 and 135-137/79.

V. S. Desai (In SLP 2585), L. N. Sinha (In SLP. 2586), L. M.

Singhvi (In SLP 2587), P.P. Rao (In SLP 2588), R. C.

Verma, Y. K. Sabharwal, D. P. Mukherjee, (In SLP 2589-94) and A. K.

Ganguli (In all the S.L.Ps.) for the Petitioners.

Soli !. Sorabiee, ddl. Sol. Genl. R. K. Bhatt and R. N. Sachthey for the Respondent.

II'

The Order of the Court was delivered by D11sA1, J.

Law touching manufacture, import, use or ,.consumption of liquor (as understood in common parlance) is recently vigorously assailed with almost afllicted sentimentalism that even though we have dhmissed this batch of Special Leave Petitions on 23rd March, 1979, in fairness to petitioners on whose behalf all possible contentions that can be formulated by research and dialectics were advanced with eloquence and devoid of inebriation likely to be caused by the subject-matter of dispute, we propose shortly to. state our reasons for dismissal of the petitions.

To illuniine the contours of controversy events preceding the promulgation of the Ordinance amending the Punjab Excise Act, 1914 ('Act' for short), as in force in the Union Territory of Delhi ('Delhi' for short) styled as Punjab Excise (Delhi Amendment) Ordinance, 1979 ('Ordinance' for short) may be stated. Punjab Excise Act, 1914 has been extended to Delhi. While implementing the provisions of the Act, the concerned authority used to hold auction for grant of licence in Form L-10 for selling country liquor and at one such auction held on 29th March 1978 the petitioners' bids were accepted and they were granted licences in Form L-10 for the period 1st April 1978 to 31st March 1979. The licence included a condition to sell a bottle of 750 ml. of country liquor at Rs. 15/- which was, inter alia, made up of excise duly at the rate of Rs. 10.23 and profit of licensee at the rate of Rs. 2/-. This excise duty was styled as 'still head duly' for obvious reasons. In Writ Petition No. 716/78 filed in the High Court of Delhi by certain petitioners, validity of the levy of 'still head duty' was challenged inter alia on the ground that it was nothing but countervailing duty and in the absence of manufacture of liquor in Delhi, countervailing duty on the import of liquor cannot be constitutionally levied. This contention found favour with a learned single Judge of the Delhi High Court and a number of Letters Patent Appeals were filed against that judgment which were pending in the High Court. In the mean time on 20th January 1979 the President of India, promulgated the Ordianance purporting to amend the Punjab Excise Act with retrospective effect and conferring power on the Government under the provisions of the Act to levy special duty on the import of country liquor in Delhi at rates not exceeding that set out in Schedule I-A which was introduced in the Act by the Ordinance Pursuant to the Ordinance amending the principal Act, the Delhi Fiscal Duty Order, 1979, was issued levying special duty at the rates set out in the order on import of country liquor into Delhi. Some of the petitioners questioned the validity generally of the Ordinance and specifically of the import of special duty in Civil Writ No. 116/79. A Division Bench of the Delhi

~-...

High Court heard the Letters Patent Appeals against the judgment of the learned single Judge of the Delhi High Court as wen as the aforementioned writ petition and by a common judgment held the Ordinance

as wen as th~ impost thereunder valid mid dismissed the writ petition and allowed the Letters Patent Appeals setting aside the judgment of the learned single Judge. This bunch of petitions is filed against the judgment of the Delhi High Court in Civil Writ No. 116/79 and allied writ petitions and the Letters Patent Appeals.

The cardinal question around which the various facts of controversy rotates turns upon the competence of Parliament to enact legislation under challenge which would directly impinge upon the competence of the President to issue the impugned Ordinance. Article 123 of thr Constitution enables the President to issue an Ordinance in the circumstances thereunder mentioned and the power to issn0 Ordinance is co-extensive with the legislative power of Parliament vide Article 123 (3). The question, therefore, is whether Parliament had the power to impose special duty on the import of country liquor in Delhi.

Jn order to avoid the slightest confusion it must be reiterated that the power of Parliament to legislate for Delhi is in question . .l\rticle 246(1) confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. Sub-article (3) confers similar powor on the Legislature of any State with respect to any of the matters enumerated in List II.

Sub-article (2) confers power both on Parliament and the State Legislature to make laws with respect to any of the matters enumerated in List III (Concurrent List). Sub-article ( 4) reads as under :-

"Parliament has power to make laws with respect to any matter for any part of the Territory of India not included m a State notwithstanding that such matter is a matter enumerated in the State List".

Article 248(1) provides that Parfament has exclusive power to make

ay law with respect to any matter not enumerated in the Concurrent List or State List. In other words, residuary power of legislation is conferred on Parliament Sub-article (2) of Article 248 is material and may be extracted :

"(2). Such power shall include the power of making any Jaw imposing a tax not mentioned in either of those Lists".

Entry 84 in the Union List reads as under :

"84. Duties of excise on tobacco and other goods manufactured or produced in India except :-

(a) alcoholic liquors for human consumption;

(b) opium, Indian hemp and other narcotic drugs and narcotics,

but including medicinal and toilen preparations containing alcohol or any substance included in sub-paragraph (b) nf

this entry".

Entry 97 of the Union List reads as under :

"97. Any other matter not enumerated in List )( or List III including any tax not mentioned in either of those

Lists".

Entry 51 in the State Lis~ reads as under:

"51. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India :

(a) alcoholic liquors for human consumption;

(b) opium, Indian hemp and other narcotic drugs and narcotics;

but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) F of this entry".

Entry 52 is as under :

"52. Taxes on the entry of goods into a local area for consumption, use or sale therein".

The relevant provisions of the impugned Ordinance may also be extracted for convenience of reference. The Ordinance in its Preamble states that by reason of certain excisable articles not being manufactured or produced in Delhi, one snch being con'ntry liquor, countervailing duty is not leviable on such articles which are imported into Delhi, and proceeds to define duty in clause S(a) of s. 3 as under:

"(Sa). "duty" means the excise duty or countervailing duty or, as the case may be, special duty;"

Clause (c) was add, cd to clause (6) of s. 3 specifying the words "any spirit".

Clause (18a) was added specifying thereunder the definition of 'special duty' which reads as under :

"(18A). "Special duty" means a tax on the imporr of any excisable article being an article on which countervailihg duty as is mentioned in entry 51 of List II in the Seventh Schedule to the Constitution is not imposable on the ground merely that such article is not being manufactured or produced in the territory to which this Act extends".

Section 31 was amended enabling the Government to levy over and above excise duty a countervailing duty or special duty at such rate or rates not exceeding the rates set forth in Schedule IA which was

alo added by the Ordinance.

The contention is that Entry 51 in the State List enables the State Legislature to levy duty of excise or countervailing duty on alcoholic liquors for human consumption and that the almost corresponding Entry 84 of the Union List denies power to Parliament to levy duty of excise on alcoholic liquors for human consumption. Proceeding further it was said that initially countervailing duty was levied on the country liquor imported in Delhi and when it was found that as country liquor was not manufactured in Delhi countervailing duty. could not be levied upon it, an attempt was made to levy the same duty by a camouflage of changing the name and that in pith and substance the Ordinance levies countervailing duty which Parliament had no power to levy particularly because country liquor on which duty is levied is not manufactured in Delhi.

It is an admitted position that country liquor, the subject-matter

of impost, is not manufactured in Delhi. It is again an admitted posi- F lion that as country liquor is not manufactured in Delhi, countervailing duty as is commonly understood could not be levied upon its import in Delhi. The question is : does that exhaust the power of Parliament to levy a duty on the import of country liquor into Delhi ?

Scheme underlying distribution of legislative powers in t'art XI, Chapter I ailci especially Articles 246 and 248 is that except the matters specifically enumerated in List II (State List) in the Seventh . Schedule, Parliament's plenary power to legislate extends to all conceivable matters which can be topic of legislation, and even this limitation on its power vanishes when Parliament legislates for part of the territory of India not included in a State. The three dimensional picture D becomes complete, viz., (i) to select topic for legislation; (ii) enactment of legislation on the topic; and (iii) to impose tax in respect

SUPRE11E COURT REPORTS

(1979] 3 S.C.R.

A of such subject-matter. of legislation, by reference to Art. 248 which confers powtr to make any law with respect to any matter not enume-, -· rated in Lists II and III including the power to impose tax not men- X tioned in either of those Lists. Under Article 246 ( 4) Parliament has power to make laws with respect to any matter for any part of the B territory. of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. Power of Parfoment thus to legislate with respect to any matter for Delhi, territory not

- - - included in a State, is unabridged or unfettered by the entries in the

State List. Further, residuary power of legislation including. the power

to levy tax is conferred on Parliament by the combined operation of

• c Articles 246(4), 248(1) & (2) and Entry 97 in the Union List. That power is nntramelled by the limitations prescribed by.Articles 2~6(2) k

and (3) and Entry 51 of State List and is plenary and absolute subject only to such restrictions as are imposed by the Constitu!i:Jn and ·! we find none such which is material to the present question (vide Mithan Lal v. State of Delhi)(').

Accordingly, if excise or countervailing duty could be leviod on country liquor manufactured or imported into Delhi, albeit other conditions for the levy of such duty being fulfilled, Parliament would not lack competence to levy the same only because levy of such duty on alcoholic liquors for human consumption is within the competence of a Sta!e. But it must be confessed that as country liquor is not manufactured in Delhi, the Parliament could 1101 under Entry 51 of the State List levy either excise or countervailing duty on it. Merely because Parliament could not levy countervailing duty on country liquor imported into Delhi because country liquor is not manufactured in Delhi, it does not exhaust the power of Parliament to levy some other duty on the import of Uquor if it is otherwise constitutiPnally permissible

. It was, however, said that Entry 51 in State List being a specific entry providing for levy of duty either on manufacture or import of country liquor and there being. no other specific entry enabling to levy • special duty it is inconceivable that the framers of the Constitution should have ldt some such levy on the import of country liquor in respect of Delhi under residuary entry. In other words, it was said that

,. J 1

where there is a specific entry the kgislation must squarely ftill within _,.,..- .the entry and correspondingly is must be assum'd that it would not

b~ covered by the residuary entry. In fact the argument went so far that before resort could be had to the residuary Entry 97 the Court in

C1)[t95ll S.C.R. 445 to 451

its exploration to ascertain under which Entry the legislation falls, must proceed from the beginning and in its journey till Entry 97 if it falls somewhere, removing the camouflage under which the legislation is sought to be taken out from the specific entry, it would not be proper to say that the legislation is covered by the residuary entry. Whenever

legislative competence is in question attempt of the Courts is to find out whether the legislation squarely falls in one or the other entry. If

a particular legislation is covered by any specific entry well and good.

If it does not, the second question would be : is it beyond the legislative competence of Parliament? In undertaking this exercise it is quite often known that a legislation may be covered by more than one entry because an analysis bas shown that the entries are overlapping. 1f the legislation may fall in one entry partly and part of it may be covered by the residuary entry, the legislation would none-the-less be immune from the attack on the ground of legislative competence.

This was the approach adopted by a 7 Judges Bench of this Ciurt in

Unior. of India v. H. S.

Dhillon(') wherein while examining the constitutio11al validity of the amended Wealth Tax Act which included the capital value of agricultural land for the purpose of computing net wealth, the controversy was whether the impugned Act was a Jaw with respect to entry, including Entry 49 in the List II or was it one under Entry 86 read with Entry 97 or Entry 97 itself of the List I.

Repelling the contention of legislative incompetence this Com t held that there is nothing in the Constitution to prevent Parliament from combining its powers under one or other Entry with its power under Entry 97. The terse observation is that this Court knows no principle which debars Parliament from relying on the powers uuder the specified entries 1 to 96, List I and supplement them with the powers under Entry 97, List I and Article 248 or even the powers under entries in the Concurrent List. This authoritative pronouncement would answer the conten~10n that while legislating for the Union Territories the Parliament unhampered by Articles 246(2) and (3) but enriched by Article 248(1) and (2) could legislate on any of the topics either in the List I or in List II or in exercise of the residuary power under Entry 97. There is thus no dearth of legislative competence of Parliament to enact legislation for a territory not included in a State because the power to legislate takes within its sweep matters included in all the three Lists and added to it is the residuary power on matters not specifically included in any entry in any of the three Lists.

It was, however, said that the observations in Dhillon's case (supra) are no more good law in view of the opinion of Judges constituting

(I) [19721 2 S.C.R. 33.

majority in His Holiness Kesavananda Bharati Sripadagalavaru v.

State of Kera/a('). The controversy in Kesavananda Bharat i's case was about the power of the Parliament to amend the Constitution and a contention being the spill over from J.C. Golaknath v. State of Punjab(") was that apart from Article 368, Entry 97 of List I would

confrr power on Parliament to amend the Constitution. After pointing out that when all the three Lists were exhaustively drawn up it is difficult to believe that an important power would be kept hidden in Entry 97 of the Union List leaving to the off chance of the courts locating that power in that entry, it was said that if a subject of legislation was present to the minds of the framers of the Constitution, it could not Lave been left to be found by the Courts in the residuary powers. Mr. Scervai's commentary at p. 1264 on Constitutional Law of India, 2nd Edn., was pressed into service wherein it is ob>erved that a forteori if a subject of legislative power was promill'ntly present to the minds of the framers of our Constitution, they would not have left it to be found by Courts in the residuary power. Proceeding ahead it was submitted that while enacting Entry 51 in List II the subicct of levying duty on import of alcoholic liquor was present to the minds of the framers of the Constitution and, therefore, it is futile to search that power in the residuary Entry. The observations in Kesavancmda's case (supra) have to be kept in focus in the context of the controversy whether Article 368 confers specific power of amendment of the Constitution and it was sought to be brushed aside by saying that it merely provided procedure for amendment of the Constitution and, therefore, the power for amendment must be located in the residuary Entry 97 01 the Union List. The position here is materially different.

With the advancement of society, expanding horizons of scinti fi.c and technical knowledge, probe into the mystery of creation, it is impossible to conceive that every imaginable head of legislation within human comprehension and within the foreseeable future could have been within the contemplation of the founding fathers and was, therefore, specifically enumerated in one or the other of three Lists, meaning the; cby that thre;, Lists were exhaustive of Governmental action and activity. Demands of welfare State, hopes and aspirations and expectations in a developing society and the complex '."orld situation with intEI-dependence and hostility amongst nations may necessitate legislation on some such topics that even for visionary they could not have lxcn within the contemplation of the founding fathers.

Complex modern governmental administration in a federal set up pro-

(ll [1973] Suppl. S.C.R. I.

(2) [1967] 2 S.C.R. 672.

viding distribution of legislative powers coupled with power of judicial review may raise such situations that a subject of legislation may not squarely fall in any specific entry in List I or III. Simultaneously on correct appraisal it may not be covered by any entry in List II though apparently or on a superficial view it may be covered by an entry in List II. In such a situation Parliament would have power to legislate on the subject in exercise of residuary power under Entry 97, List I and it would not be proper to unduly circumscribe, corrode or whittle down this power by saying that subject of legislation was present to the mind of the framers of the Constitution because apparently it falls in one of the entries in List II and thereby deny power to legislate under Entry 97. The history of freedom struggle demonstrates in unequivocal terms the importance of residuary power of legislation being co'nferred on Parliament. Therefore, the scope and .ambit of Entry 97 need not be whittled down or circumscribed by a

proce£S of interpretation. In any case majority decision in Dhillon's case (supra) is neither overruled not cicpartcd from in Kesavananda's case (supra). Accordingly, once the power of Parliament to legislate on a topic is not expressly taken away by any constitutional provision, it remains intact under Entry 97 of List I.

Undoubtedly, excise and countervailing duties on alcoholic liquors for human consumption were within the contemplation of the framers of the Constitution. That is a specific topic of legislation in List IL It <loes not exhaust all conceivable levy that can be legitimately imposed on snch items if otherwise they could be legally levied by reference to constitutional power to levy the same. And Entry 97 is a complete answer to the contention.

It was incidentally urged that Entry 52 in the State List which enables the levying of taxes on entry of goods in local area for consumption, use or sale therein was also within the contemplation uf the founding fathers and that power under Entry 52 having been exercised by the Delhi Municipal Administration in the form of terminal tax the same cannot be arrogated by Parliament to itself. Terminal tax is entirely dillerent from the special duty sought to be imposed by the impugned Ordinance. The impost is on entry of country liquor into Dell1i to be recovered by the Delhi Administration for its own use.

Delhi Administration and Delhi Municipal Administration are entirely different, and therefore, it cannot be said that Entry 52 excludes the power of the Parliament to levy tax on import of country liquor in Delhi.

Incidentally, the argument is that the taxing event being th~ import

~ of liquor in Delhi it is exposed to double taxation, namely, the special

duty levied by Parliament and the terminal tax imposed by the .Municipal Administration and that is impermissible. Titis has merely to be mentioned to be rejected in view of the decision of this Court in Avinder Singh & Ors. v. State of Punjab & Ors.,(') wherein it was observea that if on the same subject the legislature chooses to levy tax twice over there is no inherent invalidity in the fiscal adventure save wherever prohibitions exist.

It was next contended that what is sought to be done by the impugned Ordinance is to circumvent the decision of the learned single Judge of the High Court which invalidated the levy of countervailing duty and that at best it is a colourable legislation and that in pith and substance it is re-introduction of countervailing duty under a different nomenclature and hence unsustainabk If by a legislation tax is sought to be imposed in exercise of certain legislative power which under judicial review is found to be wanting, it does not prohibit the legislature from exercising the same power if it can be traced to provisions of tl1e Constitution. Merely because an incorrect exercise of legislative power under a misconception of power itself is once invalidated that very legislative power if it is traceable to provisions in the Constitution cannot be struck down on the ground that it is a colourable legislation or a mere camouflage. Undoubtedly initially countervailing duty was levied but it was found that as country liquor was not manufactured in Delhi legally it was impermissible to levy countervailing duty. This is admitted in the Preamblo;; of the Ordinance itself.

It was a constitutional error to have levied such a duty and the same was pomted out.

Now, if the very duty could be levied under . the power which is available it can never be said that it is a colcurable exercise of power or that the new impost is a camouflage for the old one. What is colourable legislation was explained by this Court in K. C. Gajapati Narayan Dea v. State of Onissa, (2) and it was re-aflirmed in Maharana Shri Jayvant Singhji Ranmal Singhji etc. v. State cf Gujarat.(') This Court said that the idea conveyed by the expreMion

"colourable legislation" is that although apparently a legislature in passing a •tatute purported to act within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a more pretence or disguise.

Applying this test it is difficult to say that the impugned impost is either a camouflage or a colourable legislation.

Conditions for levy of countervailing duty may not be satisfied. That

(I) [1979! I S.C.C. 137. (2) [19541 S.C.R. I.

IJ) [1962] Suppl. 2 S.C.R. 411 at 440.

_, •

'.· ....•. •••••• / . ..

does not debar the Parliament from levying tax on import of country liquor if it has otherwise power to do so. It would be too trik a saying that if countervailing duty cannot be imposed there would be no power to impose duty in any form on the import of country liquor into ' a territory where that country liquor is not manufactured.

In fact, where particular pre-requisites for levying a tax are not satisfied and it is so pointed out by a Court of law, the legislature would not lack power to levy that tax if it could be traced to the provisions of the Constitution. In such a situation Legislature has power to set at naught the judgment of the court by resort to appropriate power. 'This is well settled by the decision of this Court in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad,(1) where the word 'rate' as used in Bombay Municipal Boroughs Act, 1925, came l'tp for inrerpretation and it was held that it can be imposed on the annual letting value of the property but not on the capital value of the property. The legislature stepped in by enacting Gujarat Imposition of Tax by Municipalities (Validation) Act, 1963, providing in s. 3 thereof assessment and collection of rate on lands and buildings on the basis of capital valne or a percentage of the capital value and declaring the past levy to be valid by further providing that tax on lands and buildings may be imposed ei:her on the basis of annual letting value or on the basis of capital value. When the amending and validating Act was questioned m Prithvi Cotton Mills Ltd. & Anr. v.

Broach Borough Municipality & Ors.,(2) this Court observed that the legislature exercised its undoubted powers of redefining 'rate' so as to equate it to a tax on capital value and convert the tax purported to be collected as a 'rate' into a tax on lands and buildings, and thus got rid of the judgment in Patei Gordhandas's case, (supra). It would thus folluw that merely because a statute was found to be invalid on the ground of legislative compdence that does not permanently inhibit the Legislature from re-enacting the statute if the power to enact the same is properly traced and stablished. In such a situation it would not be correct to

r say that the subsequent legislation would be merely a colourable legis-

• lation or a c.amonflage to re-enact the invalidated previous legislation .

Jn passing it was mentioned that there is inherent evidence to show that the fresh impost wos nothing but the invalidated countervailing duty under a guise of different nomenclature. It was said that special duty can be levied under the Act amended by the Ordinance only on the impnrt cf any 'excisable article' being an article on which countervailing duty as is mentioned in Entry 51 of List, 2, Seventh Scheclule to the Cons; i1ution is not imposable on the ground merely that such -(lj [1964]TS.C.R. 608.

(2\ [1970] I S.C.R. 388.

4-3JOSCI/79

' "

article is not being manufactured or produced in the territory to which the Act is extended. Reference was then made to the definition of 'excisable article' in s. 3 of the Act. Excisable article has been defined to mean (a) an alcoholic liquor for human consumption, or (b) any intoxicating drug, or ( c) spirit, the last being added by the impugned Ordinance. Apart from the definition, it was urged that excisable article in common parlance o.r by judicial interpretation has been understood to mean article on which excise is levied, or leviable.

Proceeding further it was said that as country liquor was not manufactured h1 Delhi, excise could not be levied on it nor countervailing duty could be imposed on its import though that very liquor where J~ manufactured may be an excisable article in that area. It was, there- ,-.! • fore, said that subject-matter of impost being an excisable article, ' .._ meaning if ruanufactured in Delhi excise could be levied on it, the special duty is nothing but invalidated countervailing duty on excisable article. There is no merit in this submission because the expression 'excisable article' which alone can be the subject-matter of levy of special duty is merely descriptive of the goods subject to charge. It is only an identifying mark, a tag, which would attract special duty. If liquor was manufactured in Delhi it would be an excisable article. It is that article on which, if manufactnred in Delhi, excise could be levied which when imported would provide the taxing event for the levy of special duty because in the absence of manufacture in Delhi countervailing duty cannot be imposed upon it. The expression is used for identifymg the subject-matter of impost and nothing more need be read into it.

The next important contention was that this impost imposed unreasonable restrictions on the freedom of inter-State trade, commerce and intercourse guaranteed by Article 301 or the freedom to carry on trade or business in liquor is a fundamental right under Article 19(1) being not m public interest, the enactment is constitutionally invalid. 'That raises the oft repeated vexc :I question whether right to carry on trade or business in liquor is a fun< lamental right under Article 19 (I) {g) and tl\\lt same considerations would apply for acting under Article 301.

This quostion has cropped up before the Court at regular intervals but it would be sufficient to take note of two decisions to dispose of the contention. In Har Shankar & Ors. etc. v. Dy. Excise & Taxation Commis.1ior.e1 & Ors.(1) after referring to Crowley v. Christan<en,(") and several cases of this Court it was in terms stataj that there is no fundamental right to do trade or business in intoxicants. The State ---- --·

(I) (19751 3 S.C.R. 254.

(2) 54 Law. Ed. 620.

...,.

uuder its regulatory powers, has right to prohibit absolutely every form of activity in relation to intoxicants--its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants.

In reaching this conclusion the Court took note of an important observation made in the State of Bombay v. R. M. D.

Chamarbaugwala,(') which may be extracted as under:

"We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country's trade, rnmmerce or intercourse to be declared as free under Art. 301. It !s not our purpose nor is it necessary for us in deciding this case to attempt an exhaustive definition of the word 'lrade', 'business', or 'intercourse'.

We are, however, clearly oi opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Arts. 19(1) (g) and 301 could not possibly have been to guarantee or declare the freedom of gambling.

Gambling activities from their very nature and in essence are extra-commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Art. 19(1) (g) or Art. 301 of our Constitution".

After extracting these observations this Court observed in Har Shwkar's case (supra) that the reasons mentioned by Das, C. J. for holding that there can be no fundamental right to do trade or business in an activity like gambling apply with equal force to the alleged right to trade in liquor and those reasons may not be brushed aside by restricting them to gambling operations.

Recently, in P. N. Kaushal & Ors. v. Union of India & Ors.,(2) after an exJ; austive review of all previous decisions, this conclusion was affirmed that there is no fundamental right to trade or business in nauseous drinks which includes liquor. If there is no fundamental right to carr; on trade or business in liquor, there is no question of its abridgement by any restriction which can be styled as unreasonable. In fact, as stated in Har Shankar's case, (supra) the State under its regulatory power has a right to control or even to prohibit absolutely every form of activity in relation to intoxicants apart from anything else, its import

(I) [1957] S.C.R. 874.

(2) [1978] 3 s.c.c. 558.

668 SUPll.EME COURT REPORTS [1979] 3 s.c.R.

too.

This power of control is question of society's right to selfprotection and it rests upon the right of the State to act for the health, moral and welfare of the people. Liquor traffic is' a source of pauperism and crime. In this background <it is now too late in the day to entertain an argument that imposition of tax on the import of liquor which serves the double purpose of restraining its use by making it costly and • prohibiting its use on the grorn:id that it trenches upon the manufacturers slowly and gradually to restrict its manufacture directly impinging upon its unrestricted consumption. Such an impost, therefore, can be said to be one in the public interest for preserving public health and _ .,. public morals and cannot be said to be one as infringing the mter-State ; J.. freedom of trade and commerce. Mr. Rao, who appeared for some of the petitioners specifically submitted that this question is no more

res-mtegra in view of the decision of a Constitution Bench of this Court in Kalyani Stores v. The State of Orissa & Ors.( 1) In that case the validity of a Notification enhancing the duty on the import of foreign liquors from Rs. 40/- to Rs. 70/- per L.P. Gallon was questioned on the ground that it interferes with freedom of inter-State trade and commerce guaranteed by Article 301. This challenge was upheld by the majority decision observing that-

"the notification levying duty at the enhanced rate is purely a fiscal measure and cannot be said to be a reasonable restriction on the freedom of trade in the public interest. ..

Without entering upon an exhaustive categorisation of what may be deemed "required in the public interest", it may be said that restrictions which may validly be imposed under Art. 304(b) are those which seek to protect public health, safety, morals and property within the territory".

Since Kalyam Stores case (supra) judicial opinion on the vexed question of right to carry on trade or business in intoxicating drinks has undergone a sea change culminating into Har Shankar's case (supra) which again is a decision of 5 Judges Constitution Bench of this Court.

Unfortunately the judgment in Kalyani Stores case is not referred to in Har Shankar's case. However, th•e undisputed position that now emerges is that there is no fundamental right to do trade or business in intocants. Once that latter pronounoment is u'nambiguous and incontrovertible a regulatory measure imposing a tax cannot be questioned on the ground of unreasonableness or want to public interest because one must not lose sight of the well accepted legal proposition !bat all taxes are imposed in public interest. Even apart from this, the majority judgment in Kalyani Stores case (supra) clearly recognises the test of

(I) [1966] ! [S.C.R. 865.

reasonable restrictions to be judged in the light of the purpose for which the restrictiou is imposed, i.e. as may be required in the public interest and restrictions that may validly be imposed under Article

304(b) are those which seek to protect public health, safety, morals and property withiu the territory.

The Preamble to the impugned Ordinance clearly recites that the special duty on the importa•ion of country liquor into Delhi is an endeavour towards bringing about prohibition of consumptiou of alcoholic driuks, and, therefore, it is a step in the direction of safeguarding public health.

Incidentally, however, it was stated that when the Minister piloted the Bill replacing the Ordinance it was in terms said that the Act replacing the Ordinance was purely a fiscal measure and had nothing to do with the prohibition. lrt the same breath it was stated that the Government was committed to total prohibition and would ; incerely try to achieve this objective. Opinion of the Minister would be hardly relevant in examining the object and purpose behind enacting a certain legislation.

Provision in Punjab Excise Act, 1914, conferring power on the State to direct closure of liquor shops on certain days in a week, month or year was challenged as one not of a regulatory character but introduced with the avowed object of enforcing prohibition and a contention was raised that way back in 1914 the then rulers could not have thought of enforcing prohibition through the provisions of the Punjab Act which was specifically enacted for the purpose of collecting revenue from liquor vendors and indirectly from liquor consumers. This Court in P. N. Kaushal's case (supra) while repelling this contention observed as under :-

"In short, while the imperial masters were concerned about the revenues they could make from the liquor trade they were not indifferent to the social control of this business which, if left unbridled, was fraught with danger to health, morals, public order and the flow of life without stress or distress.

Indeed, even collection of revenue was intertwined with orderly milieu; and these twin objects are reflected in the scheme and provisions of the Act".

The present levy under the amended provisions of the Act in 1t3 application to Delhi could certainly be said to be one enacted both with the object of regulating the trade or business in intoxicants and with a view to realising the goal fixed in Article 47 of the Constitution Therefore, one can look upon this measure both as a fiscal measure and the one safeguarding public health and even public morals because it is .

A well recognised that liquor trade is instinct with injury to individual and community and has serious side-effects recognised everywhere in every age. [Not to control alcohol business is to abdicate the right to rule for the good of the people] [see P. N. Kaushafs case (supra)]. •

In this very breath it was, however, contended that if this Ordinance was promulgated with a view to advancing the policy of prohibition enunciated in Art. 4 7 it could only be prospective and not retrospective because one cannot introduce prohibition retrospectively.

This argument overiovks the twin objects sought to be achieved by the measure, namely, validating an import which was found to be invalid on the ground that it was countervailing duty which could not have been legitimately imposed, and also a measure to safeguard public health and public morals. These twin objects underlying the measure would clearly permit its being retrospective because retrospective validation of impost bas been recognised in a number of decisions (see Prithvi Cotton Mills case) (supra). Therefore, there is no substance in the contention that the retrospectivity of the Ordinance is illegal and invalid.

Having given the matter our anxious cohsideration not sw•yed in any manner by moral, religious, ethical or extraneous preachers' considerations the altruistic grievance of the petitioners by proxy for consumers strikes as hollow, because even with the impost the petitioners' profit of Rs. 2/- per bottle is guaranteed ahd they are in no way adversely affected by the impost because the levy is passed on to consumers.

For years the impugned levy was paid. as countervailing duty. Then a loophole appeared which is sought to be plugged by a valid legislaticn.

And even with this turmoil the licen&ee in L-10 Form having rountry liquor vend is assured of this profit of Rs. 2/- per bottle. The entire impost is passed on to the shoulder of consumers except for the detention of his money for a day or two when he pays in advance while taking the botiles from the Warehouse and recovers it when he sells the bottle and this detention of his money for a period of two days is a triviality which need not detain any one. It is a part of any business.

Therefore, we see no substance in these petitions.

V.D.K.

Petitions dismissed.

SATPAL & CO. ETC

LT. GOVERNOR OF DELHI AND ORS

D. A. DESAI

A P. SEN, JJ.

Governnumt under the Punjab Excise Act

Constitution of India

Articles 246 to 248

Constitution of India

Article 14, 19(1)(g) and 301

Constitution of India

Art. 47

Excise Act, 1914

29th March 1978

1st April 1978

31st Mairch 1979

Delhi

Delhi High Court

President of India

Schedule I

Articles 246 and 248

Seventh Schedule

Parliament

India

Art. 248

Art 246

Articles 246(4), 248(1l and (2)

Article 246(2)

Articles 246(2)

Article 248(1)

Article 24

[1972] 2 SCR 33

[1967] 2 SCR 672

[1972] 2 SCR 33

Delhi Administration

Delhi Municipal Administration

[1979)

1 SCR 845

[1964] 2 SCR 608

[1970) 1 SCR 388

Article 47

[1975] 3 SCR 254

[1979] 1 SCR 122

V. S. Desai

L. N. Sinha

L. M.

Singhvi

P.P. Rao

R. C.

Verma

Y. K. Sabharwal

D. P. Mukherjee

A. K.

Ganguli

Soli !. Sorabiee

R. K. Bhatt

R. N. Sachthey

Punjab Excise Act, 1914

31st March 1979

High Court of Delhi

20th January 1979

Schedule I

Article 123

Article 123

Seventh Schedule

Article 248(1)

Article 248

s. 3

s. 3

Seventh Schedule

Section 31

Schedule I

Articles 246 and 248

Art. 248

Article 246

Articles 246(4), 248(1)

Articles 2

Uquor

Wealth Tax Act

Article 248

Articles 246(2)

Article 248(1)

Dhillon

Kesavananda Bharat i

Article 368

Scervai

Kesavancmda

Article 368

[1967] 2 S.C.R. 672

Kesavananda

Bombay Municipal Boroughs Act, 1925

s. 3

Patei Gordhandas

s. 3

Article 301

Article 19(1)

Article 19

Article 301

Art. 301

Arts. 19(1)

Art. 19(1)

Art. 301

Har Shwkar

Das

Har Shankar

Rao

Article 301

Art. 304(b)

Kalyam Stores

Kalyani Stores

Article

304(b)

Provision in Punjab Excise Act, 1914

P. N. Kaushal

Article 47

P. N. Kaushafs

Art. 4


SUKHRANI (DEAD) BY L.RS. & ORS.

HAR! SHANKER & OTIIERS

April 12, 1979

[P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ.)

Partition of ance5tral property and business-One of the partie! a rnino1 11t the time of partition-Partition-If could be re-opened when minor became a major.

The plaintiff's father and the fifth defendant were brothers. During his minority. the plaintiff filed a suit aileging that the business which his father and uncle were doing was ancestral in that it was being carried on with the capital v•en by his grandfather, that on the death of 11is grandfather his uncle proposed to his father for a nominal partition of the business and other family aMets to avoid income tax, that in so doing he took two-thirds share in the business as well as in other assets but gave only one-third to his father and that 188tly the partition, even if true, was ''unequal, unfair and unconscionable.'• He further alleged that the partition did not bind the interest of the minor plaintiff and his minor brotherl'I.

During the pendency of the suit a reference was made to arbitration. Tue

"-'-- arbitrators gave an award.

But that award was impugned by the defendants alleging that it was given without any enquiry and without giving the parti~ a chance to adduce evidence and that the arbitrators had no jurisdiction to reopen the parthion. The trial court set aside the award. The plaintiff's appeal against;

1his decision of the trial court was dismissed by the High Court holding that E there was an error of law on the face of the award because the artitrators had found that there was neither fraud nor misrepresentation and that unequal shares had been accepted voluntarily and yet had reopened the partition.

After remand the trial judge found that the business WM not ancestral bul 1'• only a joint business and that there was a complete partition of the joi:.tlt family property, and that there was neither fraud nor misrepresentation in F bringing about the partition. The trial court however observed that though the ]tlaintiff's father voluntarily agreed to llCCCp! one-third share, the partition of the business WM "unequal and unconscionable." It, however, dismissed tbie suit on the ground that the business was not ancestral and therefore the plaintiff had •o right to reopen the partition.

On appeal by the plaintiff the High Court found that the business being an- G ce&tral the sons of the two brothers acquired interest by birth and that so far as the partition WM concerned there was no fraud or undue influence vitiating the partition. It, however, affirmed the trial court's view that one-third share given to the plaintiff's father was unfair and prejudicial to the interests of the minors.

In appeal to this Court the defendants contended that tire partition could, not be reopened by the plaintiff because he and his brothers were represented in the. partition by their father and there was no allegation of fraud or misrepresentation.

A Dismissing the appeal,.t, he Court, ',. . ,- ' HELD.: 1. It" is not the practice of this Court to interfere v.ith findings .of fact arrived at by the High Court except to prevent gross miscarriage of jwtic'e.. y

. [676 BJ . . . , , ' . ill -

In the instant case there is no justifiable ground to go behind the findings of fact. [676 CJ .. ' • ' ·" · . '

2. It is well established that simply because a matter has been: decided at an earlier stage. by interl0C1:1tory order and no appeal has been taken therefrom or \ • Ii'' • • · ' • I \ >I 1 • ' • • ' . _. ' '• •

.~?. 1~.J?~~, , di, d 1 ~e, .a 1 ~.igher_ ~?u~ . p.Jot p~~_cl,1:1.ded i fr~_iµ _ ~~-i~_en.g, fe , t-r again at a latei stage of the same litigation. 'Th.el correctness. of an order 01' remand passed by the High Court which was not questioned at that time by filing an appeal .in. the Supreme .Court can nevertlleless, be challenge~ Jater ill

, C the .supreme Court in. the appeal arising. out of the .final. judgment pr()Ilounced ' iri, the action. [676&FJ · ·

 Saty<U/han G.hosal .&. Qrs. v. Smt. Ilea _Ra; an , Debi ,{nr., 119.§0J..3 .590, J.asraj lllfl.uinglz. v. Jlemraj f'r!.ultqn. Cha~<!. l1972] _2 ~GR,,!173, ]l.fargaret , IAiit_a .v. , Jnfl.o,_Co"!mt; r_cial Bank , Ltd., , AIR ; i?7~~S.c.-.1Q2, Arjan Sin$h y. __ J1of!i!!fla J(umpr .P<. O.rs. :{l~.64] 5 ~R 19,16: .rrf.rief! .to. ·

Where an application: under Order IX, r. 7 was dismissed and an appeal was filed against the decree in the suit in which the appliCatlOn .... ·as .. made, '"tile

-. v.op~!ety. <?f, lh:e ~!4r . i.:j~<rting the -q~~-g <?fl-the pr~!Jlg ght, ~!OO•t

.ou, bt, , e "'1IlV~)<jl in , tll_e ~~Jl<al .P.Pfl , 49tt J<ith 1py te ·, aJ?P<ll~!; e :~ ; l6\6, GJ . .

In the present case the same principle applies and the parties could challenge in tihis1 c0\iit in -the' a~'at g<iiiiSt 1he fin.at JudgIDCD.t m:-the suifany Illldiilg

 iiivenby the Hlgfl'cllrt ai the·alie;_ .... sgein''tliesuit-fien ihiwid m3de by .the 'aibitrcitOis was-sef aste ilnCf tliC sUlt .. th]owii OPeii rottriaf. (676H;-677A1 ,.,,,.--" """ f., ), .. •'-~" t ~·-··• '·• ,...-.1tn.,· ,._.. ...• !.- ·-·· t .. ; .1 • ._ t:. '-·• o• '• •·" • •• ,.

3. Even.though.there ; vas p.o, fraµd, _misrepresentaP'pn, or _undµe iq.flen~ .a

ption could be ieopened at the instancC of "a minor coparce-ner, despite tho fact ihat .lii.S. bniiich. w.S representai' bi b)g filiher at the partitiOn, if the partition I? ~Was Unfair" Or PejUdiCiai io die fnte'rCsfOf.ihC ffiifioi~ Th"e eiitlre partition need (" llot bd're0penoo"if'ihe partitl0n:-w35Wifrur fu regard to a distinct'and sepcirabie : part 0( the' SCheirie~ Of Partifi'oii. ; Iii Such-ari eVCD.t the. reopenhig of the partiiioll ' :eoulif' be" suiiably cireumscrilied. [67TG-H, '678. A] ... " " . ' • ' .. . . • • •+ "":, •

~ \ .,. •··-'I; .,.~···••••• -' ,,;

•, I ... ,. • • • ,. 1 ,. •

atnam .Gfzet(iar Qrs. S. M. f:uppuswa'!'i , Chet!iar Qr,3. ir _1976 ·- S.C. 1 applied.

, G CIVIL , APPEI, LATE JURisDiqION: Civil .(\.ppeal_No. 168 of 1969. ,,. •·· l•: ~···!l ,,., ~~ ... .,, t .,. ... ..... - , ...•. ·-~ ... ·- Appeal .by .Special .Leave from the Judgment and Decree .dated 31-1-1968 of the Madhya Pradesh High" Court in First Appeal N'o'. 80/64.·. "' .. " - . . - ·· . -· .

I. P. Naik, S. L. lain, Miss M. Gupta and M. S. Gupta for the '- • -,·~ , 1 !t·, ·•·n••'< 1"' ,. • 1,.,~ .,.,,. ' A; ipellat . .

B. D. Sharma for the Resndents.

....,;.:>.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.-The legal representatives of the fifth defendants 6 to 15 in Civil Snit No. 17-A of 1957 in the Court of Additional District Judge, Narsinghpur are the appellants in this appeal by special leave. Mannulal (5th defendant) and Rajaram (!st defendant), both of whom died during the pendency of the suit, were brothers. They were the sons of Pusau. The plaintiff, a son of Rajaram and a minor on the date of the institution o~ the suit, filed the suit for partition and separate possession of a one eighth share in the properties mentioned in schedule 'A' of the plaint and also for an account from defendants 5 to 8 of the assets and income of the business, "Mannulal Lakhanlal".

It was alleged in the plaint that with the capital given to them by their father, Pusau, Mannulal and Rajaram started the business of manufacturing Bidis. After the death of Pusau in 1936 the business was continued by the two brothers. In 1948 Mannula! represented to Rajaram that in order to avoid income tax it was necessary that there should be a nominal partition and that the joint family business should be converted into a partnership business. Accordingly the firm "Mannu- Jal Lakhanlal" was registered under the Partnership Act.

Mannulal's share was shown as 10 Ans. 8 ps. in a rupee while Rajaram's share was shown as 5 Ans. 4 ps. In 1953 Babula! and Sunderlal, sons of Mannulal were also shown as partners. The share of Mannulal was reduced to 5 Ans. 4 ps. and the share of Babula! and Sunderlal was shown as 5 Ans. 4 ps. All this, was done nominally with a view to avoid incometax. The houses belonging to the family were also divided. Rajaram was given one-third share and Mannula! took two-thirds share. The partition of ancestral property and business between the two brothers Rajaram and Mannulal, even if true, was "unequal, unfair and unconscionable". The partition and the formation and dissolution of the firm did not bind the interest of the minor plaintiff and all his brothers. It was further alleged in the plaint that Mannulal promised Rajaram at the time of the ficticious partition that he would be given his half share when a real partition was made. It was on those allegations that the plaintiff, a minor, represented by his next friend Harchand filed the suit, out of which the appeal arises, for the reliefs already mentioned. The suit was contested by Mannufal and his sons who pleaded that the business was not joint family business and that it was a purely partnership business. The, allegations that the partition was nominal and that the formation and dissolution of the partnership were nominal, were denied. It was pleaded that there was a complete disruption of the family on 31st March, 1948. The partition was not unfair. After the partition the two brothers decided to run the Bidi manufacturing business in partnership, with Rajaram taking a share of 5 Ans. 4 ps. and

SUP~ME COURT REPORTS [19791 3 s.c.R.

Mannulal taking a share of 10 Ans. 8 ps.

During the pendency of the suit a reference was made to arbitration and the Arbitrators gave an award under which it was directed that a sum of Rs. 12,000/- was to be paid to each of the 2 minor sons of Rajaram to equalize the shares of the two branches. The contesting defendants filed an application to set aside the award claiming that the Arbitrators had given their award without any enquiry and without giving the parties a chance to adduce evidence. It was also claimed that the Arbitrat-Ors had found that the earlier partition was not fraudulent and that it was also not the result of any misrepresentation and on that finding the Arbitrators had no jurisdiction to reopen the partition. The Trial Court set aside the award on the ground that the Arbitrators had made the award without any enquiry and without giving the parties a

chance to adduce evidence. The plaintiff preferred an appeal to the High Court. The appeal was dismissed by the High Court on 10th January, 1962. The High Court upheld the finding of the Trial Court that the award was vitiated as it was made without enquiry and without opportunity being afforded to the parties to adduce evidence. The High Court also found that there was an error of law on the face of the award inasmuch as the Arbitrators had found that there was neither fraud nor misrepresentation and that unequal shares had been accepted voluntarily and yet had reopened the partition. It was observed that this was contrary to law as the plaintiff and his other minor brother E were duly represented by their father Rajaram.

Thereafter, consequent to the setting aside of the award, the 'uit proceeded to trial. The plaintiff attained majority during the pendency of the suit and elected to continue the suit. Among the witnes examined on behalf of the plaintifl' was Rajaram. Mannulal, the 5th defendant, did not step into the witness box and he also objected to answer the interrogatories which were sought to be served on him. The learned Trial Judge found that the business was not ancestral buiness but only a joint business and that there was a complete partition of the joint family property and the Bidi business on 31st March, 1948. There was neither fraud nor misrepresentation practised on Rajaram to bring about the said partition. The learned Trial Judge, however, observed that though Rajaram voluntarily agreed to accept one third share. only, the partition of the joint business appeared to be 'unequal, unfaIT and unconscionable'.

The suit was, however, dismissed in view of the finding that the business was not ancestral business, and the plaintiff, therefore had no right to reopen the partition on the ground that the partition f the joint business was 'unequal, unfair and unconscionable'.

The plaintiff preferred an appeal to the High Court. The !ligh Cort

found that the oral evidence adduced on behalf of the plamt1ff which

was practically unrebutted by the defendants and the documentary evidence including the deed of partition and the deed of partnership clearly established that the busiuess of "Mannulal Lakhanlal" was ancestral business in which the sons of Mannulal and Rajaram acquired interest by birth. The High Court also found that there was no fraud or undue influence vitiating the partition. The High Court, however, llffirmed the finding of the Trial Court that the partition of the joint family busiuess resulting in the formation of a partnership in which Mannulal took 10 Ans. 8 ps. share and Rajaram took 5 Ans 4 ps.

ihare was unfair and prejudicial to the interests of the minor sons of Rajaram. On those findings the High Court granted a decree in favour of the plaintiff for an account of his one eighth share of the Bidi business, upto 30th. November, 1955, on which date the partnership business of which Rajaram was a partner was dissolved. It was also directe~ that a sum of Rs. 5,000/- representing one eighth of the amount which had already been: received by Rajaram should be adjusted when account3 were taken to determine the amount to which the plaintiff was entitled.

The contesting defendants have preferred this appeal by special leave

-0{ this Court.

The learned counsel for the appellants submitted that the finding of the High Court in the proceeding to set aside the award to the effect that the partition could not be reopened since there was no fraud or misrepresentation and since unequal shares had been voluntarily accepted was binding on the parties at all subsequent stages of the suit.

He pointed out that, in any event, on the facts of the present case, the plaintiff and his brothers were effectively represented in the partition by their father Rajaram and in that situation the partition could not be reopened by the plaintiff on the mere ground of equality of shares, in the absence of fraud or misrepresentation. He further questioned the findings of the High Court that the business was ancestral and that the partition was unfair. In supp6rt of his contentions the learned couniel relied upon a passage from N. R. Raghavachariar's Hindu Law (5th Edn. p. 428). He also drew our attention to Balkishan Das & Ors. v.

Ram Narain Sahu & Ors.(') On the other hand the learned counsel for the respondent urged that an erstwhile minor coparcener could always seek to reopen a partition on attaining majority if he could show that it was unfair or prejudicial to his interest. He also contended that the decision of the High Court in the proceeding to set aside award would not be binding on this Court at a later stage of the same suit and that it was open to him: to challenge in this Court the earlier finding -0f the High Court. The learned counsel placed reliance on Ratnam

(1) 30 I. A. 139.

Chettiar & Ors. v. S. M. Kuppuswami Chettiar & Ors(') and Jas Raf lndu Singh v. Hem Raj Multan Chand.(')

The findings of fact arrived at by the High Court are: ( 1) the business was ancestral, (2) the partition was not vitiated by fraud or misrepresentation and (3) the partition was unfair and prejudicial to interests of the minor sons of Rajaram in so far as it related to the definition of shares in the partnership business.

Now, it is not the practice of this Court to interfere with fi'ndings of fact arrived at by the High Courts except to prevent gross miscarriages of justice.

We find no justifiable ground to go behind these findings of fact and we, therefore, proceed to consider the questions raised in the appeal on those basic findings.

It is true that at an earlier stage of the suit, in the proceeding to set aside the award, the High Court recorded a finding that the plain- . tiff was not entitled to seek reopening of the partition on the ground of unfairness when there was neither fraud nor misrepresentation. It is true that the plaintiff did not further pursue the matter at that stage by taking it in appeal to the Supreme Court but preferred to proceed to the trial of his suit.

It is also true that a decision given at an earlier stage of a suit will bind the parties at later stages c:if the same suit.

But it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation (vide Satyadhan Ghosal v. Smt. Deorajan Devi & Anr.( 3 ) ). So, it has been held that the correctness of an order of remand passed by the High Court which was not questioned at that time by filing an appeal in the Supreme Court could nevertheless be challenged latr in the Supreme Court in the appeal arising out of the final judgment pronounced in the action (vid•o Jasraj Indu :Singh v. Hem Raj Multan Chand (supra) and Margaret Lalita v. Inda Commercial Bank Ltd.( 4 ) In Arjun Singh v. Mahindra Kumar & Ors.(5 ) it was held that where an application under Order IX, Rule 7 was dismissed and an appeal was filed against the decree in the suit in which the application was made, the propriety of the order rejecting the reopening of the proceeding might without doubt, be canvassed in the appeal and dealt with by the appellate Court.

In our view the same principle applies in the

(I) A.I.R. 1976 S.C. 1. [2) (1977] 2 S.C.R. 973 at 981.

(3) [1960] 3 S.C.R. 590.

(4) A.LR. 1979 S.C. 102.

----"'-

SUKHRANI v. HARi SHANKER (Chinnappa Reddy, !.) 677

p:esent case and the parties can challenge in this Court in the appeal against the final judgment in the suit any finding given by the High Court at the earlier stage in the suit when the award made by the . arbitrators was set aside and the suit thrown open for trial.

The only question therefore, reqrnnng our consideration is whether the partition in so far as it rela!d to the business could be reopened on the sole ground that it was unfair and prejudicial to the interest of the minor, when there was no fraud or misrepresentation. In N. R. Raghavachariar's Hindu Law (5th Edn.), the learned anthor has said at page 428:

"Ordinarily where a partition bas been entered into by adult members of a joint family, each of them having minor sons, the minors are represented by their respective fathers in the partition, and it is not open to any of them to challenge the validity of the partition arrangement except where i.t is alleged and provided that there has been fraud vitiating the transaction and resulting in inequity and obviously smaller share having been allotted to a particular adult member who represented his minor son. The mere fact that outwardly or apparently the shares appear to be unequal is no ground for reopening the same at the instance of the minor sons of an adult member who was a party to the partition, because. in a partition arrangement so many factors enter into the reckoning with reference to the proper shares to be allotted and unless it can be distinctly shown that there had been an element of overreaching or fraud taking advantage of the ignorance or incapacity or other disqualification of a particular member, the partition should rarely be reopened".

All that we need say is that the learned anthor has not referred

to any decided case in support of what he has said, but the matter is G now no longer res integra. In Ratnam Chettiar & Ors.

v. S. M.

Kuppuswami Chettiar & Ors. (supra) an identical question arose and it was held that even though there was no fraud misrepre&:!ntation or undue influence, a partition could be reopened at the instance of a minor coparcener, despite the fact that the branch was represented by his father at the partition, if the partition was unfair or prejudicial H to the interest of the minor.

It was also held that the entire partition need not be reopened if the partition was unfair in regard to a distinct

A and separable part of the scheme of partition. In such an event the reopening of the partition could be suitably circumscribed.

In the light 9f the principles laid down in Ratnam Chettiar & Ors. v. S. M.

Kuppuswami Chettiar & Ors. (supra) this appeal is dismissed with costs .

• N.K.A.

Appeal dismissed. •

SUKHRANI (DEAD) BY L.RS. & ORS

HAR! SHANKER & OTIIERS

April 12, 1979

0. CHINNAPPA REDDY, JJ.

Supreme .Court can nevertlleless,

Arjan Sin$h

Jnfl.o,Co"!mt; rcial Bank , Ltd., , AIR ; i?7~~S.c.-.1Q2, Arjan Sin$h y.  J1of!i!!fla J(umpr .P<.

I. P. Naik

S. L. lain

M. Gupta

M. S. Gupta

B. D. Sharma

CHINNAPPA REDDY

Additional District Judge, Narsinghpur

Mannulal

Rajaram

Pusau

Rajaram

Mannulal Lakhanlal

Mannulal

Mannula

Mannu- Jal Lakhanlal

Babula

Sunderlal

Harchand

Mannufal

31st March, 1948

10th January, 1962

Mannulal

30th. November, 1955

N. R. Raghavachariar

Ratnam

Supreme Court

(1977] 2 S.C.R. 973

[1960] 3 S.C.R. 590


S. N. BANERJEE

BABU LAL GUPTA (DHANUKA) & ORS.

April 12, 1979

[S. MURTAZA FAZAL ALI AND A. D. KoSHAL, JJ.J

Section 181.A Sea Customs Act and s. 196A Code of Criminal Procedure, 1898-Scope of.

Section 187A of the Sea Customs Act provides that no court shall take cognizaace of any offence relating to smuggling of goods punishable under Item

81 of the Schedule to s. 167 except upon a complaint in writing made by the C C.'hief Customs Officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs authorised by the Chief Customs Officer.

Section 196A of the Code of Criminal Procedure, 1898, so far as relevant, _prOTidcs that no court shall take cognizance of the offence of criminal conspiracy punishable under s. 120B of the IPC unless a Chief Presidency Magistrate hu, by order in writing consented to the initiation of the proceeding.

The appellant, ~'ho was Assistant Collector of Customs, sought the consent of the Chief Presidency Magistrate under s, 196A of the Code of Criminal Procedure for the prosecution of the respondents under s. 120B IPC a.! ttey were guilty of a conspiracy to Commit offences under Item 81 of the Schedule to s. 167 of the Cutorns Act and s. 5 of Import and Exports (Control) Act.

This was accorded.

The appellant was authorised by the E Chief Customs Officer to prosecute the respondents. A complaint was accord.

ingly filed against them.

Jn the course of proceedings before the Chief Presidency Magistrate, one of the respondents moved the High Court alleging that the Chief Presidency Magistrate had no power to give his consent because tiit the date of their

proecution the appellant \Vas not an officer holding the authorisation envi- F sagcd in s. 187-A of the Act and that the Magistrate could not act under s. 196A of the Code unless an application was made to him by a person holdina such authorisation.

The High Court upheld the respondent's contention.

It was contended on behalf of the appeliant that the Higb_ Court erred in interpreting s. 196A so as to incorporate therein the provisions regarding authorisation enacted by s. 187 A of the Act.

Allowing the appeal.

HELD: The authorisation contempJated by s. 187A of the Act, which could be given only in respect of complaints embracing offences under Item 81

of the •chedule to s. 167 of the Act. was actually obtained by the appellant H from the competent authority before the complaint was filed.

The complaint cannot be said to be hit by the provisions of s. 187A of the Act. [683 A-BJ

Section 196-A of the Code does not envisage any application whatsoever and, therefore, no application at all is necessary for action under that section.

Assuming that such an application was necessary it \Yould not follow that the same had to be made by a person holding the type of authorisation envisaged by s. 187-A of the Act. Under s. 196-A, there is no bar at all against the power of the Chief Presidency Magistrate to consent to the initiation ot proceedings being exercised on an application made by any person, whether or not he is connected with the official n1achinery normally burdened with the duty of initiation o.f prosecutions.

The status of the person •0/ho supplies facts is not relevant. [683 D-EJ

In the instant case the requirements of both the sections viz .. s. 196A of the Code and s. 187-A of the Act were fulfilled before the complaint was filed and, therefore, there is no infirmity in the impugned proceeding.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 233 of 1972.

Appeal by Special Leave from the Judgment and Order dated 6-5-1970 of the Calcutta High Court in Cr!. Revision No. 739/68.

D K. K. Venugopal, Addi. So!i. Genl., S. Markandey and S. P. Nayar

for the Appellant.

N. C. Talukdar and Sukumar Ghosh for Respondent 3.

The Judgment of the Court was de!iveJ'ed by

KosHAL, J.-This appeal by special leave which is directed against a judgment dated May 6, 1970 of the High Court of Calcutta has arisen in the following circumstances.

On March 2, 1963, Shri S. N.

Banerjee, Assistant Collector of Customs, Calcutta, made an application to the Chief Presidency Magistrate, Calcutta, praying that consent be given under section 196A of the Code of Criminal Procedure, 1898 (hereinafter called the Code) to the prosecution of 14 persons in respect of an offence under section 120B of the Indian Penal Code as they were guilty of a conspiracy to commit offences under item 81 of the Schedule to section 167 of the Sea Customs Act (hereinafter referred to as the Act) and section 5 of the Imports and Exports (Control) Act (the Control Act, for short).

The application was granted on Ma.rch 5, 1963 when the Chief Presidency Magistrate accorded the consent asked for.

Four days later, i.e., on March 9,

1963. Shri Banerjee was authorised by the Chief Customs Officer, Calcutta, to prosecute the said persons for the commission of offences under item 81 and section 5 above mentioned. On the same date, i.e., March 9, 1963, Shri Banerjee actually filed a complaint against the said 14 persons accusing them of the commission of offences under section 120B of the Indian Penal Code and item 81 as well as section 5 aforesaid.

s. N. llANERJEE v. B. L. GUPTA (Koshal, !.) 68 1

After the Presidency Magistrate, who was seized of the case, had examined 43 witnesses, one of the accused challenged his jurisdiction to entertain the. complaint through a petition made to the High Court under sections 439' and 561A of the Code on the ground that the Chief Presidency Magistrate had no power to give the consent which he did on March 5, 1963, because, till that date, Shri Banerjee was not an officer holding the anthorisation envisaged in section 187 A of the Act.

The petition stated that the Chief Presidency Magistrate could not act under the provisions of section 196A of the Code unless an application was made to him in that behalf by a person holding such

- • l.. an authorisation. .. l The High Court accepted the contention of the petitioner before it with the following observations :

" ..... The requirement of authorisation under section 187A Sea Customs Act ............ to enable a Court to take cognizance attaches to sanction under section 196A Cr. P.C., as the allegations made or the charge framed is in respect of one offence and sanction granted by the Chief Presidency Magistrate' at the instance of S. N. Banerjee, who was not authorised to initiate proceeding is therefore bad in law, as the officer had no authority to apply for sanction."

" ..... Obviously, for an offence of the nature charged, there can be only one cognizance and therefore the sanction under section 120B must also be obtained by an Officer

mentioned in section 187 A Sea Customs Act, ..... "

An argument put forward on behalf of Shri Banerjee that section 196A of the Code did not speak of any authorisation was repelled by the High Court in the following terms :

"Mr. Mitra has also submitted that not only section i96A does not speak of any authority but that even after sanction, prosecution may not be initiated.

This, in our view is oversimplification of the matter. Prosecution has been initiated and therefore this Court has to decide whether the magistrate is authorised under the law to take cognizance, without sanction under section 196A being obtained by person c0mpetent to initiate proceeding."

2. On behalf of Shri Banerjee, who is the appellant before us, it has .been urged that the High Court has erred in interpreting section 196A of the COOe so as to incorporate therein the provision regarding authorisation enacted by section 187 A of the Act, and, after hearing

5-330SCI/79

SUPREME COURT REPORTS (1979] 3 S.C.It.

A learned counsel for the parties, we find ourselves in complete agreement with him for the reasons which follow.

3. The two sections requiring inteq)retation by us are reproduced below:

Section 196A of the Code

"No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Indian Penal Code,

(1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an offence to which the provisions of section 196 apply, unless upon complaint made by order or under authority from the State Government or some officer empowered by the State Government in this behalf, or

(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishabl~ with death, imprisonment for life or rigorous imprisonment for _a term of two years or upwards, unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has. by order in writing, consented to the initiation of the proceedings :

Provided that where the criminal conspiracy is one to which the provisions of sub-section (4) of section 195 apply no such consent shall be necessary."

Section 187 A of the Act

"Cognizance of offences : No Court shall take cognizance of any offence relating to smuggling of goods punishable under item 81 of the Schedule to section 167, except upon complaint in writing, made by the Chief Customs Officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs Officer."

There is a corresponding section in the Control Act which, according to the High Court, provides for a similar bar against the taking c:A. cognmmce of complaints by Courts but to which we shall no longer advert a9 arguments were not addressed to us in relation thereto by learned counsel for either party. -- ,

I"'

• • •

/ ...

. ·~

• •

s. N. BANERJEE v. B. L. GUPTA (Kasha/, !.) 683

4. Now, section 187A above extracted contemplates authorisation by the Chief Customs Officer only in respect of complaints embracing

offences unde.r item 81 aforesaid.

As stated above, such an authorisation was actually obtained by Shri Banerjee in his favour from the competent authority, viz., the Chief Customs Officer, before the complaint was filed, so that the complaint cannot be said to hit by the provisions of sectioh 187 A of the Act. The argument raised on

beltalf uf the accused respondents and accepted by the High Court, however, was that, as the conspiracy forming the subject-matter of the offence under section l 20B of the Indian Penal Code was a conspiracy to commit offences under the Act, ll.n application by a person holding the authorisation above mentioned was a sine qua non for the accord of consent under sub-section (2) of section 196A of the Code. This argument, in our opinion, has no substance.

For one thing, section 196A of the Code does not envisage any application whatsoever and, therefore, no application at all is necessary for action under that section.

Even if it be held that such an application was inherent in the scheme of the section, it would not follow that the same had to be made by a person holding the type of authorisation envisaged by section 187 A of the Act.

As the language of section l 96A of the .:::ode stands, there is no bar at all against the power of the Chief Presidency Magistrate to consent to the initiation of proceedings being exercised on an application made by any person whosoever, whether or not he is connected with the official machinery normally burdened with the duty of initiating prosecutions. It is no doubt true that the consent to be given has to follow a consideration of a.II the material facts of the case, but then the status of the person who supplies such facts is not relevant.

If the legislatme had intended to restrict the accord of consent under section 19.6A of the Code to cases in which applications had been made by persons authorised in a particular manner, the exercise of the power would surely have been made subject to such a condition in specific terms.

Holding that no application was at all needed for the accord of consent provided for in the section, <md that, in any case, such an application need not have been made by a person authorised in the manner spoken of by section 187A of the Act, we repel the argument raised to the contrary on behalf of the accusedrespondents.

It follows that in the instant case the requirements of both the sections, namely, section 196A of the Code and ·; cction 187A of the Act were fulfilled before the complaint was filed so that, as found by the High Court, there is no infirmity in the impugned proceedings.

5. Learoed counsel fo.r the accused-respondents also contended

->. that the consent given by the Chief Presidency Magistrate was not valid

....

I •

It.. in law as it had been accorded without proper application ai the mind to the material facts of the ca&e.

This contention we do not allow to be raised as it was not put forward before the High Court and embraces questions of fact.

6. For the reasons stated, the appeal succeeds and is accepted.· The B impugned order is set aside and the trial court is directed to proceed with the case from the stage at which it was interrupted by reason of the impugned judgment.

P.B.R.

Appeal allowed. ~' . \~

S. N. BANERJEE

BABU LAL GUPTA (DHANUKA) & ORS

April 12, 1979

S. MURTAZA FAZAL ALI

A. D. KoSHAL, JJ

Section 181

Sea Customs Act

s. 196A

Code of Criminal Procedure, 1898

Section 187A

Customs Act

s. 167

Section 196A

Code of Criminal Procedure, 1898

s. 120B

IPC

Code of Criminal Procedure

s. 120B

IPC

s. 167

s. 5

Chief Presidency Magistrate

s. 187

s. 196A

s. 196A

s. 187

s. 187A

s. 167

s. 187A

Section 196

s. 187

s. 196

s. 196A

s. 187

D K. K. Venugopal

S. Markandey

S. P. Nayar

N. C. Talukdar

Sukumar Ghosh

KosHAL

High Court of Calcutta

March 2, 1963

S. N.

Banerjee

Chief Presidency Magistrate, Calcutta

section 196A

Code of Criminal Procedure, 1898

section 120B

Indian Penal Code

section 167

Customs Act

section 5

March 9,

1963

Banerjee

Calcutta

section 5

March 9, 1963

section 120B

Indian Penal Code

section 5

Presidency Magistrate

sections 439

March 5, 1963

section 187

section 196A

section 187A

Sea Customs Act

section 196A

S. N. Banerjee

section 120B

section 187

Sea Customs Act

section 196A

Mitra

section 196A

section 196A

section 187

SUPREME COURT REPORTS (1979] 3 S.C.It

Section 196A

section 120B

Indian Penal Code

section 196

section 195

Section 187

section 167

section 187A

Indian Penal Code

section 196A

section 196A

section 187

section 19

section 187A

section 196A