judgement:
Civil Appeal Nos.
793 to 794 of 1971.
Appeal by Special Leave from the Judgment and order dated the 7th August, 1970 of the Kerala High Court at Ernakulam in Income Tax Reference No. 9 of 1968.
T. section Krishnamoorthy Iyer, N. Sudhakaran and K. M. K. Nair; for the Appellent (In CA 793/71) K. M. K. Nair; for the appellant (In C.A. 794/71).
658 D. V. Patel and A. section Nambiar; for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
One T. V. Kochvared who owned rubber plantations in Trichur was assessed by the Agricultural Income Tax other, Trichue on a net agricultural income of Rs. 31,662/ and Rs 30,856/ respectively for the assessment years 1959 60 and 1960 61.
The assessee had in his possession immature rubber plantation covering 193 acres dung the assessment year 1960 61.
In computing their income for the said two years.
the Agricultural Income tax Officer had disallowed out of the expenses clammed for the upkeep and maintenance of the immature area Rs. 2500/ for the year 1959 60 and Rs.3500/ for the year 1960 61.
T. V. Kochuvareed died in 1961 leaving behind him as his heir and legal representative his wife who is the respondent before us.
On March 13, 1963 the Commissioner of Agricultural Income tax issued a notice under section 34 of the Kerala Agricultural Income tax Act, 1960 to the respondent, which was served on her on March 15, 1963, proposing to revise suo motu the assessment for the said two year son the ground that the deductions allowed were excessive and without any proper basis as a result of which Rs. 16,800/ for the year 1959 60, and Rs. 25,800/ for 1960 61 had "escaped assessment".
The respondent was asked to file objections, if any within fifteen days of the receipt of the notice.
The respondent in her objection contended that the proposed revision of her husband 's income which was said to have " escaped assessment" was outside the scope of section 34.
On this objection another notice was served on her on September 26, 1966 stating that the expression "escaped assessment "used in the earlier notice was inadvertent and asking the respondent to file further objections, if she liked, after this eradication.
The respondent filed further objections on October 12, 1966 which the Commissioner rejected by his order dated August 23, 1967 and remanded the cases to the Agricultural Income tax officer for fresh disposal.
The relevant part of this order is as follows: "In these circumstances I find that the disallowance of Rs. 2500/ for 1959 60 and Rs. 3500/ for 1960 61 towards upkeep and maintenance of immature area is irregular as it is not based on any rational method.
The orders of assessment for these years are therefore set aside and the cases are remanded to the Agricultural Income tax Officer, Trichur, for fresh disposal according to law after examining each item of expenditure individually and the general charges by applying the principles laid down by the Kerala High Court in its judgment reported in At the instance of the respondent the Commissioner of Agricultural Income tax referred the following question of law to the High Court of Kerala under section 60(2) of the Kerala Agricultural Income Tax Act, 1950: 659 Whether on the facts and in the circumstances of the case the Commissioner has jurisdiction to pass an order in this case under section 34 of the Agricultural Income Tax Act, 1950.
The High Court by a majority held that the power of revision vested in the Commissioner under section 34 of the Act could not be invoked for the purpose of assessing income that had "escaped assessment:" and that such income could be assessed only by resorting to the procedure under section 35 of the Act.
In these appeals by special leave the appellant questions the correctness of this decision.
It is necessary to refer to the relevant provisions of the Act before proceeding to consider the contentions of the parties.
Section 3 provides that agricultural income tax shall be charged for each financial year on the total agricultural income of the previous year at the rate or rates specified in the Schedule to the Act.
Total agricultural income is defined in section 2(s) as the aggregate of all agricultural income mentioned in section 4 computed in accordance with the provisions of section 5 including all income of the description specified in section 9 and all receipts of the description specified in section 10(a), (c) and (d).
Section 5 enumerates the deductions from the total income which have to be made in computing the agricultural income.
Section 17(1) of the Act requires every person whose total agricultural income during the previous year exceeded the limit which is not chargeable to agricultural income tax, to furnish to the Agricultural Income tax officer a return stating his total agricultural income in that year and the expenditure incurred by him out of that income.
Section 18 deals with the powers of the Agricultural Income tax officer to assess the total agricultural income of the assessee and determine the sum payable by him.
Section 19 authorises the Agricultural Income tax officer to cancel the assessment in certain cases at the instance of the assessee and to make a fresh assessment in accordance with the provisions of section 18.
Section 31 provides an appeal to the Assistant Commissioner against any order of assessment with which the assessee is dissatisfied.
Sub section (7) of the section requires the Assistant Commissioner to communicate the orders passed by him disposing of the sessee objecting to an order passed by an Assistant Commissioner may appeal to the appellate Tribunal.
Sub section (2) of the section permits the Commissioner if he objects to any order passed by the Assistant Commissioner under section 31, to direct the Agricultural Income tax Officer to appeal to the appellate Tribunal against such order.
Subsection (5) of section 32 provides that the appellate Tribunal after giving both parties an opportunity of being heard may pass such order thereon as he thinks fit.
The tribunal is required to Communicate the order to the assessee and to the Commissioner.
Section 34 and section 35 are the two most important section for the purpose of these appeals.
Section 34 which confers on the Commissioner revisional powers is in these terms: 660 "34.
Revision. (1).
The Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee.
(2) Any order passed under subsection (1) shall be final subject to any reference that may be made to the High Court under section 60.
" Section 35 which deals with income escaping assessment reads: "35.
Income escaping assessment.(1) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income tax Officer may, at any time within three years, of that end of that year serve on the person liable to pay the tax or in the case of a company on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 17 and may proceed to assess or re assess such income and the provisions of this Act shall so far as may be, apply accordingly as if the notice were a notice issued under that sub section; Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be; Provided further that the Agricultural Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so.
(2) No order of assessment under section 18 or of assessment or reassessment under sub section (1) of this section shall be made after the expiry of three years from the end of the year in which the agricultural income was first assessable; Provided that where a notice under sub section (1) has been issued within the time therein limited, the assessment or reassessment to be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if at the time of the assessment or reassessment the three years aforesaid have already elapsed; 661 Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 19 or to an assessment or reassessment made in consequence of, or to give effect to any finding or direction contained in, an order under section 31, section 32, section 34 or section 60.
(3) In computing the period of limitation for the purposes of this section, any period during which the assessment proceeding is stayed by an order or injunction of any court or other competent authority shall be excluded.
" Section 35 as it originally stood contained only the provision now contained in sub section (1) including the first proviso.
The second proviso to sub section (1), and sub sections (2) and (3) were introduced and the original provision was renumbered as sub section (1) by an amending Act in 1964, but the newly added provisions were given effect from April 1, 1958.
Section 35 as extracted above was therefore, applicable in a proper case during the two assessment years we are concerned with.
It would appear that sub section (2) prescribes a time limit of three years for reassessment under sub section (1) of this section from the end of the year in which the agricultural income was first assessed though the first proviso to sub section (2) extends the time for reassessment in a case where notice under sub section (1) had been issued within the time prescribed by the sub section, till the expiry of one year from the date of service of the notice even if at the time of reassessment the prescribed period of three years had elapsed.
The second proviso to sub section (2) states that the limitation of time prescribed by section 35 will not apply to an assessment or reassessment made in consequence of any direction contained in an order under section 31, section 32, section 34 or section 60.
Section 36 empowers the authority which passed an order on appeal or revision, within three years from the date of such order, and the Agricultural Income tax Officer within three years from the date of any assessment made by him, to rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be.
Sub section (1) of section 60 provides that the assessee or the Commissioner may require the appellate tribunal to refer to the High Court any question of law arising out of an order under section 32(5).
Sub section (2) of section 60 permits an assesee who is served with a notice of an order under section 34 which is prejudicial to him to require the Commissioner to refer to the High Court any question of law arising out of such order.
The majority decision of the High Court took the view that this was a case of escaped assessment and that the power of revision conferred on the Commissioner by section 34 of the Act could not be utilised for the purpose of reassessment of income that escaped assessment disregarding the provisions of section 35.
Sub section (1) of section 34 makes it clear that the power of revision is exercisable "subject to the provisions of this Act.
" It was pointed out in the majority judgment that section 35 contains a specific provision for reassessment of income that had escaped assessment and it was held that revisional powers under section 34 could be availed of to reopen cases of escaped assessment 662 only within the time limit and in accordance with the procedure prescribed by section 35.
Before us, Mr. Patel, learned counsel for the respondent, reiterated the same contention.
Mr. Krishnamurthy Iyer appearing for the appellant challenged the decision of the High Court on two grounds: (1) the income sought to be reassed was not income that had "escaped" assessment and, as such, the provisions of section 35 are not relevant for the present purpose, and (2) assuming this was a case of income escaping assessment, even then the second proviso to sub section (2) of section 35 removes the bar of time for any assessment or reassessment made to give effect to a direction under section 34.
On the first question the High Court found, relying on the decision of this Court in Maharajadhiraj Sir Kameshwar Singh vs State of Bihar, that this was a case of escaped income.
In Kameshwar Singh 's case one of the provisions that came up for interpretation was section 26 of the Bihar Agricultural which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal.
It was held in Kameshawar Singh 's case that under section 26 of the Bihar Act, the Agricultural Income tax Officer was competent to "assess any item of income which he had omitted to tax earlier, even though in the return that income was inlcuded and the Agricultural Income tax Officer then thought that it was exempt".
The same view was taken in an earlier decision of this Court, Kamal Singh vs Commissioner of Income tax, that : "even if the assessee has submitted a return of his income, case may well occur where the whole of the income has not been assessed garded as having escaped assessment".
But the question that arises in the case before us is not covered by either of these decisions.
This is not a case where the Agricultural Income tax Officer omitted to assess any item of income disclosed in the assessee 's return.
Here the assessee made a full disclosure of his income and claimed certain deductions.
It is not disputed that he was entitled to claim some dedcations for the maintenance of the immature rubber planation.
The Agricultural Income tax Officer may have committed an error in allowing deductions to the extent he did, but he did so after applying his mind to the claim.
Every case of under assessment is not a case of escaped assessment.
The view we take finds support from the decision of this Court in Deputy Commissioner of Agricultural Income tax and Sales Tax, Quilon and another vs Dhanalakshmi Vilas Cashew Co. On the other question, the High Court held that the order of the Commissioner directing the Agricultural Income tax Officer to reassess the income for the two years was bad, having been made after the expiry of the period prescribed by section 35 for the reassessment of income that had escaped assessment.
For the appellant it was contended 663 that the second proviso to section 35 removed the limitation of time in the case of a reassessment made in consequence of a direction or order under section 34.
As we have held that this was not a case of escaped assessment, this other question does not arise for consideration.
In our opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should therefore be answered in the affirmative.
The appeals are allowed, but in the circumstances of the case we make no order as to costs.
V.P.S. Appeals allowed.

summary:
The assessee made a full disclosure of his income and claimed expenses incurred for the maintenance of his immature rubber plantations as deductions.
The Agricultural Income Tax Officer, after considering the matter, allowed such deductions as he thought proper.
The appellant Commissioner, in exercise of his revisional powers under section 34, Kerala Agricultural Income Tax Act, 1950, issued notice to the respondent (widow of the assessee) proposing to revise the assessment on the ground that the deductions allowed were excessive.
The appellant, after considering the respondent 's objections, held that the deductions allowed were excessive and remanded the matter to the Agricultural Income Tax Officer for fresh disposal according to law.
At the instance of the respondent, the question whether the appellant had jurisdiction to pass the order under section 34 was referred to the High Court, and the High Court, on the view that it was a case of re opening escaped assessment held, relying on Maharajadhiraj Sir Kameshwar Singh vs State of Bihar, , that the power of revision vested in the Commissioner under section 34 could not be invoked for the purpose of assessing income that had escaped assessment, and that such income could be assessed only by resorting to the procedure prescribed by section 35.
within the time limit prescribed therein.
Allowing the appeal to this Court, ^ HELD:(1) Every case of under assessment is not a case of escaped assessment.
The Agricultural Income Tax Officer may have committed an error in allowing the deductions to the extent he did, but he did so after applying his mind to the claims.
This is not a case where the officer omitted to assess any item of income disclosed in the assessee 's return as in the case relied on by the High Court and as in kamal Singh vs C.I.T.
Therefore, it is not a case of reopening escaped assessment.
[662F H] Deputy Commissioner of Agricultural Income tax and Sales Tax, Quilon and another vs Dhanalakshmi Vils Cashew Co., (1969) 24 S.T.C. 491, followed.
(2) Since it is not a case of escaped assessment, the appellant had jurisdiction to make the order under section 34.
[663B]


judgement:
riminal Appeal No. 19 of 1955.
Appeal by Special Leave from the Judgment and Order dated the llth May 1954 of the Patna High Court in Death Reference No. 8 of 1954 with Criminal Appeal No. 142 of 1954 arising out of the Judgment 571 and Order dated the 12th March 1954 in Sesssions Trial No. 2 of 1954.
B. P. Maheshwari, for the appellant.
M. M. Sinha, for the respondent.
September 28.
The appellant Deonandan Mishra (Deonandan Missir) who was a stenographer to the Inspecting Assistant Commissioner of Income tax , Patna, has been convicted under section 302 of the Indian Penal Code for having committed the murder of his second wife, Mst.
Parbati Devi, on the night of the 3rd/4th September, 1953 and sentenced to transportation for life.
The deceased was married to the appellant in or about the year 1941 and was his second wife.
As appears from the subsequent events, she was considered to be a woman of loose morals.
She appears to have been forsaken by her husband as also by her father in or about the year 1945 and to have sought shelter in the Anath Ashram at Gaya.
Through the intervention of the Secretary of the Ashram and with the consent of both the husband and the father, she got re married to one Nand Lail of Punjab in December, 1945.
After a stay of about an year and a half with Nand Lall in Punjab, she appears to have left him on account of alleged ill treatment.
She came back to the Anath Ashram at Gaya in June, 1947, but left it again in October, 1947.
What happened thereafter is not clear from the evidence and her whereabouts between October, 1947 and August, 1953, are not known and do not seem to have been traced, All that appears is that for some time prior to the date of the murder she was found going up and down in places near about Gaya and that particularly on the 2nd and 3rd September, 1953, i.e., two days prior to her murder she was found going between Gaya and Patna and a place Chakand in between these two places.
Early morning at about 7 A.M. on the 4th September, 1953, P.W. 10, Havildar, found a naked dead body of a 572 female lying in the Kabristhan at the outskirts of Gaya about a mile and a half from the police thana.
It was lying on the western verandah of the bungalow of the Kabristhan with a number of cut injuries on the neck and on other parts of the body.
Report of this was carried to the police and the body was subsequently identified to be that of Parbati Devi, the second wife of the appellant, Investigation followed and the appellant was arrested on the 6th September, 1953, and put up for trial in due course.
There is no eye witness to the murder and the case against the appellant depends entirely on circumstantial evidence.
The standard of proof required to convict a person on such evidence is well established by a series of decisions of this Court, of which it is sufficient to mention Hanumant vs The State of Madhya Pradesh(1).
This standard requires that the circumstances relied upon must be fully established and that the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
The learned counsel for the appellant has, therefore, strenuously contended before us that the circumstances relied on have not been fully established and that in any case they are not enough to bring the offence home to the accused.
The various circumstances relied upon have, therefore, to be briefly noticed.
The appellant belongs to a place called Chakanddih about a mile and a half from a railway station called Chakand, which is in between Patna and Gaya and which is about five miles from Gaya.
It is in evidence that the deceased woman was seen alighting at the Chakand railway station on the night of the 2nd September, 1953, at about 10 15 P.m. from a train proceeding from Gaya to Patna and that after so alighting she was found proceeding to the village Chakand dih.
It is also in evidence that she took the train again early next morning at Chakand for Patna.
The evidence further shows that on the 3rd morning at about 10 o 'clock, she presented herself at the (1) [1952] S.C.R. 1091.
573 Income tax office at Patna, and made enquiries about the appellant from a peon of the office, P.W. 12, and that the appellant was informed about this by him.
On receiving this information the appellant came out and on seeing the woman told the peon that she was his wife and asked him to make some arrangement to keep her for the day so that he might meet her in the evening after he was free from the office work.
The peon accordingly made arrangements for her stay till the evening in the quarters of the Chowkidar, P.W. 22, who lived in the compound of the office.
In the evening of that day, i.e., 3rd September, at about 7 P.m.
the appellant came to his quarters and took away this woman in a rickshaw.
These facts are spoken to by the peon, P.W. 12, and the Chowkidar, P.W. 22.
It is further in evidence that after midday on the 3rd September, 1953, the appellant filed an application for casual leave for one day, i.e., 4th September and that leave was granted.
That the appellant did apply for leave and got it is not disputed.
The next evidence against the appellant is that he was seen that night, travelling with the deceased Parbati Devi in a compartment of the train which left Patna at about 8 P.m. that night for Gaya.
This evidence is that of three witnesses, P.W. 1, a daffadar and P. Ws. 3 and 4, two chowkidars, all of whom were on duty at Chakand railway station that night.
All of them speak to their having seen the appellant along with the deceased woman in a third class compartment at about 11 or 11 30 P.m. that night in the train from Patna to Gaya when it stopped at Chakand railway station for a few minutes.
It is their evidence that they knew both these persons well and that these persons did not get down at that station but proceeded in the train towards Gaya.
This evidence, if accepted as it has been by both the courts below undoubtedly is a strong circumstance against the appellant inasmuch as it makes out that the appellant was last seen with the murdered woman a few hours before the time when the murder must have taken place.
This evidence has been strongly challenged.
The appellant admitted that the murdered 574 woman met him at his office at Patna in the first week of September, but his case before the Sessions Judge was that this was not on the 3rd but on the 2nd.
In answer to questions under section 342, Criminal Procedure Code by the learned Sessions Judge, he admitted that the deceased came to the Income tax Office at Patna, to see him and that he met her there and that he made her stay in the house of the Chowkidar and that he took her from the lodging of the chowkidar in the evening on a rickshaw.
But he maintained that all this happened on the 2nd and not on the 3rd and said that after taking her from the lodgings of the chowkidar, at Patna on a rickshaw, he got down at the crossing and gave her money and sent her away.
He also added that once formerly she had come to his office to demand money.
His case that be met the deceased woman at Patna on the 2nd and not on the 3rd was not accepted by both the courts below.
Not only was there the evidence of the peon, P.W. 12, and the chowkidar, P.W. 22, in support of the prosecution case as to the date being the 3rd but a responsible and, educated person like the Inspector of Income tax, against whom nothing has been alleged, has also spoken to the same from his personal knowledge.
It is also significant that the appellant when he was questioned under section 342, Criminal Procedure Code in the court of the Committing Magistrate did not specifically put forward his case that it was on the 2nd and not on the 3rd, that he met the woman at his office in Patna.
His answer,% in that court were bare denials when he was asked whether he saw Parbati Devi at the Patna Incometax Office on the 3rd and whether he asked the chowkidar to allow her to remain in his house for the whole of the day.
His present case that he met the deceased at Patna on the 2nd and not on the 3rd appears to be an afterthought.
In the circumstances, the following facts, viz., that the appellant met the deceased at Patna Income tax Office on the 3rd, that he took charge of her that evening from the quarters of the chowkidar of the office by taking her in a rickshaw, that he was found travelling with her by 575 the night train at about 11 or 11 30 p.m. at the Chakand railway station and proceeding towards Gaya, must be taken to have been fully and clearly established, as found by both the courts below.
, The next important circumstance alleged against him is the existence of a strong motive.
That the relations between both of them were completely strained, and that the marital tie was virtually (though not legally) snapped, is admitted and is clearly borne out on the record by the Thyagpatra which he gave to the Secretary, Anath Ashram, in 1945 authorising him to get her married to an ' other person.
It is also admitted that the appellant had married a third wife some time before this murder.
The suggestion for the prosecution is that in, all these circumstances and having regard to the bad reputation which this woman had gathered round her, as the evidence clearly shows, and in view of the fact that she started troubling him by visits at his office, the appellant had a strong motive to commit the, murder.
It is urged for the defence that this woman must have had a number of persons with whom she must have been carrying on love intrigues and that she must have provoked strong jealousies of various persons in and around the place where she was admittedly moving for at least some time prior to her murder and that any one of such persons might have had much stronger motives to commit the crime.
Now, while it is perfectly true that there is no clear evidence about the life and movements of this woman from about October, 1947 to August, 1953, there can be no doubt that on the material before the Court, the existence of a strong motive on the part of the appellant is clearly indicated.
As has been already stated this woman left the appellant in the year 1945 and took shelter in the Anath Ashram, Gaya.
exhibit 2 (a), a Thyagpatra executed by the appellant on the 12th October., 1945, shows that he purported to give up all rights over this woman as a husband and authorised the Ashram to arrange to get her married according to her choice.
Simultaneously with this Thyagpatra, he also sent a letter to the Secretary, 73 576 Anath Ashram, exhibit 2 A(1), which is as follows: "It is submitted that I have duly filled the tyagpatra (divorce form) in connection with my wife Parbati Devi and submitted the same to the Ashram.
Besides this, I pray to the Ashram Samiti and the Bibah Samiti, with my folded hands that they should keep in mind to get Parbati Devi married at a very distant place in any other State, because she is Woman of such a loose character that if she is married to a place near about it will bring ill fame to the Ashram and to me.
As I am an employee in the Police department, it shall adversely affect my service.
I pray you not to refuse my prayer".
The state of mind of the appellant as disclosed in this letter furnishes a clue as to how his mind would have reacted when in spite of her having been married away at a distant place, she came back and was virtually knocking about from place to place between Patna and Gaya and went so far as to meet him in the very office where he was working to demand money.
It is strongly urged that this letter only shows the state of his mind about eight years prior to the murder.
But in view of his own admission that she started troubling him again by visiting him at his office, and demanding money at least on two occasions including that on the 3rd September, the courts below were perfectly justified in considering that a strong present motive on the part of the appellant has been made out.
Learned counsel for the appellant urges that the existence of the motive and the evidence as to the appellant having been last seen travelling in the train with this woman on the night of the 3rd September a few hours prior to the time of the murder, even if believed are, at best circumstances which may create a strong suspicion but that they are not enough by themselves to make out the guilt of the accused.
It s pointed out that there is no evidence that the ap pellant and the deceased woman were found getting down at the Gaya station or that they were both fond proceeding towards Kabristhan after so getting down.
Undoubtedly there is some gap in the evidence 577 at this point.
But their getting down at Gaya or proceeding towards Kabristhan must have taken place at or after midnight.
It is in evidence that Kabristhan was on the out skirts of Gaya about a mile and a half from the Gaya police station, on the bank of the river Phalgu and that there was no human habitation within about 100 yards of the place.
The absence of any specific evidence, therefore, as to the appellant having been seen with the murdered woman going towards Kabristhan or near about Kabristban is intelligible.
It cannot be denied, however, that if the circumstances against the appellant stopped short at this point, there may be room for hesitation.
There are however further circumstances relied upon by the courts below and they require to be noticed and considered.
These further circumstances are (1) the finding of a blood stained knife (pen knife) near the dead body, and (2) the existence of certain injuries upon the person of the appellant when he was arrested on the 6th.
The evidence of P.W. 23, the officer in charge of Kotwali police station, Gaya, who proceeded to investigate this offence on getting information thereof at 7 A.M. on the 4th September shows that he then found the dead body of the woman, in a pool of blood underneath and near the neck, and that there was found at the time a blood stained knife near the head.
This knife was seized and marked as exhibit 1.
The prosecution has given evidence of three witnesses, P.Ws. 11) 13 and 18, who are respectively the Daftari, the Chaprasi and the Inspector attach to the Income tax Office, Patna, in which the appellant was working, that they had seen with the appellant a knife similar to the one which was shown to them in Court, as having been found by the side of the dead body.
Out of these P. W. 18, the Income tax Inspector says in cross examination that he had never seen such a knife "before".
The appellant, while in his examination under section 342, Criminal Procedure Code admitted that he used to keep a knife for mending pencil, denied that the knife, produced in court as being the one which was found by the side of the dead body, was 578 his or was like the one he kept.
It was strongly urged on behalf of the defence that there was no proof that this was the very knife which the appellant used to have.
The learned Judges of the High Court met this criticism as follows: " 'Of course no witness could have possibly deposed that this was the knife which was in possession of the appellant.
They say that the knife which they had seen with the appellant prior to the occurrence was a knife similar to the one which was found in a blood stained condition near the dead body.
We have examined that knife for ourselves and it has a peculiarity of its own.
The knife has an ivory handle.
It has a cork screw and a bottle opener all combined.
A knife of this description, therefore, can be identified and it is not one of the kind which can be said to be an ordinary one".
In view of the above observation by the learned Judges and having regard to the evidence of P.W. 18, who, though he did not speak of these peculiar features, has categorically said that be had never seen such a knife before, there is no reason to disagree with the finding of the High Court that the find of this knife near the dead body is a strong circumstance against the appellant.
The next, circumstance found against the appellant is the presence of injuries on his body at the time of his arrest on the 6th.
P.W. 24, a Civil Assistant Surgeon of Gaya who examined him at 6 P.m. on the 6th of September, found the following four simple injuries on his person.
(1) One wound on the left ring finger, (2) one wound on the back of left hand near thumb, (3) two abrasions in front of right knee, and (4) one small abrasion in front of left knee.
In his opinion, the injuries were all about three days old.
Numbers 1 and 2 might have been caused by a sharpedged weapon such as a penknife and injuries 3 and 4 by some hard and rough substance such as friction against the ground.
According to him.
the nature and position of the injuries were such that "if the victim is lying on the ground and if the assailant is over on the chest of the victim and he is holding the victim 579 by his left hand and if he is inflicting, injuries near about his left hand the victim is struggling making the assailant unsteady, then injuries Nos. 1 and 2 may be caused by his own weapon and injuries Nos. 3 and 4 may be caused due to friction against the ground".
This answer indicates the possibility of the injuries having been received by a person while making a murderous attack on the victim with a pen knife.
The appellant when asked about these injuries in his examination under section 342, Criminal Procedure Code stated in the Sessions Court (as well as in the committal court) that he fell down at Jehanabad platform on the 3rd due to Dhoti getting entangled, and sustained injuries.
In support of his explanation he relied on an application for extension of leave sent first by telegram on the morning of the 5th of September to the Commissioner of Income tax, Patna asking for extension of leave followed by a letter of that very date to the same effect.
The letter was addressed to the Inspecting Assistant Commissioner of Income tax, Northern Range, Patna, and runs as follows: "I beg to state that I started from home from Patna in the night train of 3rd September 1953.
When the train stopped at Jehanabad I wanted to come out of the train for taking a stand on the platform due to unbearable heat in the train.
At the gate of the compartment as soon as I wanted to come out my one leg entangled with the lower part of my dhoti resulting instantaneous fell down from the train.
Due to this accident I got injuries at both the knees and the cut marks in the back of my left palm.
I therefore request you to kindly extend my leave up to 10th September, '53".
When questioned under section 342, Criminal Procedure Code before the Sessions Court about the extension of his leave, he said "I was a stenographer.
How can have I typed when my left hand was injured.
Hence I wanted to extend the leave".
It appears to us, however, very doubtful, having regard to the nature of the injuries, whether this can be the real reason for his extending the leave, He does not 580 say so specifically in his application for leave.
Nor, does it appear so likely from the.
medical evidence how injuries Nos. 1 and 2 could have been caused by the alleged fall on the railway platform.
In the crossexamination of the Doctor it was suggested that if there is a broken glass piece lying on the ground and if during the fall the hand came in violent contact with that piece of glass, then such injuries may be caused.
But the appellant in his explanation and in the application for leave does not say anything which indicates that he received the injuries on the band from a piece of glass.
In this state of the evidence, it cannot be said that the courts below were not justified in coming to the conclusion which they did, viz., that the explanation of the appellant for the injuries was false and that the injuries may well have been received on the occasion of the murder.
Summing up, the various facts, which formed the links in the chain of circumstantial evidence in this case, may be stated to be as follows: 1.
There was a fairly strong motive for the ap pellantto commit the murder in question.
He took charge of the murdered woman on the evening of the 3rd September by taking her out from the quarters of the chowkidar of the Incometax Office, Patna, and leaving the place with her in a rickshaw.
3.He was found travelling with her by a train which was proceeding to Gaya that night, at Chakand railway station and this was at about 11 or 11 30 P.M., i.e., a few hours prior to the time when she must have been murdered.
4.The knife, which looked like the one which he was known to be using in his office and which was not of a common pattern, was found just by the side of the head of the murdered woman stained with blood.
5.When he was arrested two and a half days after the murder, he bad simple injuries on his hand and the knees which might well have been received, according to the medical evidence, in an assault on the murdered woman with the knife above mentioned.
581 These circumstances taken together, advance the case against the appellant very much beyond suspicion and reasonably and definitely point to the appellant as the ' person who committed the murder.
In such a situation the fact that he has no explanation to offer as to how, after having taken charge of this woman on the evening of the 3rd at Patna and after having travelled with her in the train that very night towards Gaya, he left the woman, where and how he parted company with her and what became of her so far as he knows, goes a long way against him.
The fact that on the other hand he tries to dissociate himself from her company at the relevant time by putting forward for the first time in the Sessions Court, the story of having met her at Patna on the 2nd September and of his having parted company with her that evening at some crossing after giving her some money, which is patently false, is very significant.
The further fact that the explanation for his injuries appears to be false is also significant.
These false explanations are telling circumstances which, in a case depending on circumstantial evidence taken with the other facts such as those in this case, are enough to bring the guilt home to the accused.
To combat this conclusion learned counsel for the appellant drew our attention to the nature and position of the injuries on the body of the deceased woman as disclosed by the medical evidence of the Doctor, P.W. 17, who conducted the postmortem examination, as also the various indications at the site of the Occurrence., as found and spoken to by the police officer, P. W. 23, who was the first officer to go to the scene by about 7 A.M. on the 4th on receiving information, He also drew our attention to the fact that according to the report of the Serologist and Chemical Examiner, no human blood appeared to have been found on the saree and the bodice found lying near about the place where the dead body was lying and that neither the saree nor the bodice showed any indication of having been torn or tampered with and that on the other hand the body was found lying absolutely naked with face upwards.
These features 582 have all been pressed into service for a strong argument that the murder must have been the act of more than one person and probably having its source in sex jealousy.
We have very closely and anxiously gone into this aspect of the matter by carefully scrutinising the entire evidence in this behalf.
It is unnecessary to recapitulate the same.
Whatever may have been.
the actual situation on the spot and the method by which the murder was in fact committed a matter for mere speculation we are satisfied that the murder could have been committed by a single individual in the position of the appellant.
Sitting in an appeal by way of special leave, we are not prepared to say that the medical evidence and other concomitant circumstances were such as to compel a conclusion contrary to that arrived at by the Courts below.
It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an addi tional link which completes the chain.
We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence.
I We find, therefore, no sufficient reason to differ from the view taken by the lower courts and this appeal must accordingly be dismissed.

dataset_name: IN-Abs

summary:
The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court.
According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion con sistent with the innocence of the accused.
The appellant was convicted under section 302 of the Indian Penal Code and sentenced to transportation for life.
There were no eyewitnesses to the murder and the conviction of the appellant rested solely on the circumstantial evidence which was relied on by the courts below.
The various facts which formed the links in the chain of circumstantial evidence in the present case taken together advanced the case against the appellant very much beyond suspicion and reasonably and definitely pointed to the appellant as the person who committed the murder.
In a case like the present when the various links in the chain had been satisfactorily made out and the circumstances pointed to the appellant as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation, and be offered no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completed the chain.
Hanumant vs The State of Madhya Pradesh ([1952] S.C.R. 1091), referred to.


judgement:
Civil Appeal No. 582 of 1971.
Appeal by Special Leave from the Judgment and order dated the 29th July 1970 of the Punjab & Haryana High Court in Civil Writ No. 2376170 and 511 CIVIL APPEAL No. 1418 of 1970.
From the Judgment order dated 4th December 1969 of the Punjab and Haryana High Court in C.W.No.
342 of 1969.
Tirath Singh Munjral, G. K. Arora, B. C. Das Gupta & Co. for the Appellant.
N. section Das Behl and o. P. Sharma for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
There two Civil Appeals Nos. 1418 of 1970 and 582 of 1971, the first by certificate of fitness granted under Article 133(1)(a) of the Constitution by the Punjab and Haryana High Court and the second by special leave granted by this Court which are directed against the Judgments and orders of the said High Court dated December 4, 1969, and July 29, 1970, rendered in Civil Writ r Petitions No. 342 of 1969 and No. 2376 of 1970 respectively shall be disposed of by this Judgment as they arise out of identical proceedings and raise common questions of law.
The appellant, a public limited company incorporated under the Indian Companies Act, which carried on the business inter alia of manufacture, storage and sale of various kinds of Indian made foreign liquors and had its plants for manufacture and production of beer and distillation and production of the said liquors at Solan (in Himachal Pradesh), at Mohan Nagar (in Uttar Pradesh), at Lucknow (in Uttar Pradesh) and at Kasauli (in Himachal Pradesh) held in the years 1967, 1968 and 1969 a licence in From B.W.H. 2 under section 22 of the Punjab Excise Act (1 of 1914) (hereinafter referred to as 'the Act ') read with Rule 2 of the Punjab Bonded Warehouse Rules, 1957 (herein after referred to as 'the 1957 Rules ') which were framed by the Financial Commissioner under section 59 read with section 22 of the Act, permitting it to run on conditions specified therein a Bonded Warehouse at Chandigarh for storage of bottled and bulk liquor and issue thereof under bond or on payment of duty to the licensees of Punjab, Haryana, Himachal Pradesh etc.
One of these conditions required the appellant to observe the provisions of the Act as also the Rules framed and instructions issued thereunder from time to time.
Rules 7 to 10 of 1957 Rules governing the appellant 's licence ran thus: "7.
No liquor shall be received in the bonded warehouse unless accompanied by a pass from the offlcer in charge of the distiller or bonded warehouse from which it has been imported or transported.
Immediately on arrival of a consignment at the bonded warehouse the officer in charge shall be informed and the consignment shall not be opened until the same has been examined and verified with the pass by the officer in charge who shall also note the results in the register maintained for the purpose and also on the pass covering the consign 512 ment.
One copy of the pass with entries of receipt shall be immediately returned to the officer, who issued the pass ; the other copy with entries thereon.
shall he kept in the.
Warehouse.
8 A wastage allowance not exceeding 1 per cent shall be made for the actual loss in transit by leakage or breakage of vessels or bottles containing liquor.
The allowance shall be determined by deducting from the quantity despatched the quantity received at the destination, both quantities being that in terms of proof liters of spirit contents or in case of beer bulk liters.
9 If the report of the officer in charge shows that the wastage exceeds the prescribed limit, the licensee shall be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually been removed from the Warehouse.
Provided that each case of excessive wastage shall be re ported to the Financial Commissioner for orders who may in his discretion, on good cause being shown remit it whole or a . part or the duty leviable on such wastage.
10 Liquor shall be imported/transported under bond in accordance with the Punjab Liquor permit and Pass Rules at the sole risk and responsibility of the licensee.
The bond in form L. 37 shall be discharged, after liquor been duly checked and proved by the officer in charge and deposited in the Ware house." Between Junc.
1967 and April, 1969, the appellant transported.
for the purpose of bottling, various quantities of Indian made foreign liquors from its aforesaid distilleries in Uttar Pradesh and Himachal Pradesh to it Bonded Warehouse at Chandigarh.
This was done on the strength of the permits issued by the Excise and Taxation officer, Chandigarh.
Pursuant to Rule 7 of the 1957 Rules, the officer in charge of the Warehouse examined the consignments on their arrival at their destination with a view to checking and verifying the quantities thereof with those shown in the permits and discovered that they suffered from shortage which exceeded the wastage allowance of 1 per cent permissible under Rule 8 of the said Rules.
As a sequel to the detection of the aforesaid shortages.
the Excise and Taxation Commissioner exercising the powers of Financial Com missioner, Chandigarh Administration, who is the first respondent here in, issued notices calling upon the appellant to show Cause why duty at the prescribed rate of Rs. 20/ per proof litre be not levied against it on the wastage in excess of the prescribed limit "as if the same had been removed from its Bonded Warehouse at Chandigarh.
" In the written representation submitted on behalf of the appellant in reply to the notices, it was pleaded that the liquor evaporated during transit: that 513 the Bonded Warehouse was in its initial stage and the method of measurement of spirit was crude; that at the time of measurement, the temperature of spirit was not taken and that apart from evaporation, wastage occurred by leakage of drums in transit.
By his detailed orders dated January 10, 1969 and February 10, 1970, the said respondent repelled all the pleas raised on behalf of the appellant and made the ' notices absolute holding that there was no material on the record to show that anything peculiar had taken place in respect of the consignments in question which entitled the appellant to any remission in the duty leviable on the wastage.
The appellant thereupon preferred to the High Court writ petitions Nos.
342 of 1969 and 2376 of 1970 under Articles 226 and 227 of the Constitution challenging the aforesaid orders on various grounds.
While the first writ petition was dismissed by the High Court by an elaborate Judgment and order dated December 4, 1969, the second one was dismissed in limine vide order dated July 29, 1970.
While the High Court granted, as already indicated, a certificate of fitness for appeal to this Court against its Judgment and order dated December 4, 1969, it refused to so in respect of its order dated July 29, 1970.
Though several contentions were raised by the appellant in the aforesaid two writ petitions filed by it in the High Court, counsel appearing on its behalf has assailed before us the correctness of the impugned orders passed by the first respondent on two grounds.
He has in the first instance contended that Rules 8 and 9 of the 1957 Rules under which the duty is sought to be imposed are ultra vires the rule making power of the Financial Commissioner.
Elaborating this submission, counsel has urged that since the state alone has, by virtue of election 31 of the Act, the power to impose duties mentioned therein, as also the exclusive power under section 58(1) of the Act to make rules for the purpose of carrying out the provisions of the Act including those of section 31 or any other law for the time being in force relating to excise revenue and section 13(a) of the Act prohibits the state Government to delegate the powers conferred on it by sections 14, 21, 31, 56 and 58 of the Act, Rules 8 and 9 of the 1957 Rules are manifestly beyond the competence of the Financial Commissioner.
This contention cannot, in our opinion be accepted as it proceeds on a misconception of the correct legal position.
It is, no doubt, true that it is the state Government alone which is empowered tn impose excise duty or countervailing duty on any excisable article and to prescribe rates thereof as also the make rules for carrying out inter alia the purposes of section 31 of the Act.
but it seems to be overlooked that the impugned rules do not impose any one of the aforesaid duties or prescribe the rates thereof or create any liability in respect thereof.
They are in essence and substance of a regulatory character meant to guard against perpetration of fraud or deception on the Revenue.
They provide for and regulate the storage of liquor ill the Bonded Warehouse without payment at the initial stage of the duty payable under the Act and subsequently the removal of the liquor from the Warehouse on payment or otherwise of the duty which.
as correctly pointed out by the High Court, is chargeable under the Fiscal Rule of 1937 issued by the state Government.
The powers exercised 35 833 SCI/76 514 by the Financial Commissioner were clearly available to him under sections 59 and 22 of the Act and he has not, in our opinion, overstepped the same.
The first contention raised on behalf of appellant is, therefore, overruled.
It is next contended by counsel for the appellant that Rules 8 and 9 of the 1957 Rules are also invalid as they go beyond the scope of sections 16, 23 and 31 and Entry Sl of List ll of the Seventh Schedule to the Constitution.
Dwelling on this contention, counsel has submitted that as the taxing power of even the State Legislature is restricted to the imposition of excise duty or countervailing city on an excisable article which, according to section 3(6) of the Act, means inter alia an alcoholic liquor for human consumption implying thereby an alcoholic liquor in existence, the incorporation in Rule 9 of the 1957 Rules of the fiction making the licensee liable to pay duty at the prescribed rate on wastage in excess of permissible limit as if the said wastage had actually been removed from the Warehouse has the effect of imposing duty on an article which neither existed in the State nor was removed from the Bonded Warehouse thus violating the scope and extent of the taxing power.
, For a proper appreciation of the true legal position, it is necessary to advert to sections 3(6 b), 31, 32, 16 and 23 of the Act and Entry Sl of List II of the Seventh Schedule to the Constitution and the connotation of the term 'countervailing duty. ' "Section 3 (6 b) . 'excise duty ' and 'countervaling duty ' mean any such excise duty or countervailing duty as the case may be, as is mentioned in Entry Sl of List II in the Seventh Schedule to the Constitution.
Section 31.
Duty on excisable articles.
An excise duty, or a countervailing duty, as the case may be at such rate or rates as the State Government shall direct, may be imposed, either generally or for any special local area, on any excisable article (a) imported, exported or transported m accordance with the provisions of section 16, or (b) manufactured or cultivated under any licence granted under section 20.
Or (c) manufactured in any distillery established or any distillery or brewery licensed under section 21; "Provided follows: (i) Duty shall not be so imposed on any article which has been imported into India and was liable on importation to duty under the India Tarrif Act, 1894, or the .
(ii) xx xx xx xx xx xx Explanation.
Duty may be imposed under this section at different rates according to the places to which 515 any excisable article is to be removed for consumption, A or according to the varying strength and quality of such article "Section 32.
Manner in which duty may be levied. subject to such rules regulating the time, place and manner as the Financial Commissioner may prescribe, such duty shall be levied rateably, on the quantity of excisable article imported, exported, transported, collected or manufactured in, or issued from, a distillery, brewery or warehouse; Provided that duty may be levied (a) on intoxicating drugs by an acreage rate levied on the cultivation of the hemp plant, or by a rate charged on the quantity collected; (b) on spirit or beer manufactured in any distillery established, or any distillery or brewery licensed, under this Act in accordance with such scale of equivalents calculated on the quantity of materials used, or by the degree of attenuation of the wash or wort, as the case may be, as the state Government may prescribe; (c) on tari, by a tax on each tree from which the tari is drawn: Provided further that, where payment is made upon issue of an excisable article for sale from a warehouse established or licensed under section 22(a), it shall be made (a) if the state Government by notification so directs, at the rate of duty which was in force at the date of import of that article or (b) in the absence of such direction by the state Government, at the rate of duty which is in force on that article on the date when it is issued from a ware house.
* "Section 16.
Import, export and transport of intoxicants No intoxicant shall be imported, exported or transported .
1. except (a) after payment of any duty to which it may be liable under this Act, or execution of a bond for such payment, and (b) in compliance with such conditions as the state 1.
Government may impose." "Section 23.
Removal of intoxicant from distillery no intoxicant shall be removed from any distillery, brewery, 516 warehouse or other place of storage established or licensed under this Act, unless the duty, if, any, payable under Chapter V has been paid or a bond has been executed for the payment thereof.
"Entry 51 of List the of the Seventh Schedule to the Constitution Duties on 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 para graph (b) of this Entry." The expression 'countervailing duty ' is not defined in the Act but its meaning has been made clear in the Judgment the this Court in Kalyani Stores vs The State of Orissa and or.(1) where it was observed _ "This bring the consideration of the meaning of the expression "countervailing duties" used in Entry 51.
List II of the Seventh Schedule to the Constitution.
The "expression "countervailing duties" has not been defined in .
the Constitution or the Bihar & Orissa Act 2 of 1915.
We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51.
In its etymological sense, it means to counterbalance; to avail against with equal force or virtue; to compensate for some thing or serve as an equivalent of or substitute for: sec Black 's live Dictionary, 4th Edn.
This would suggest that a countervailing duty is imposed for the purpose of countervailing or to avail against something with equal force or to compensate for something as an equivalent.
Entry in List II of the Seventh Schedule to the Constitution gives power to the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods are manufactured of produced in the State.
It also gives power to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India.
The fact that countervailing duties may be imposed at the same or lower rates suggests that they are meant for counterbalance the duties of excise imposed on goods manufactured in the State.
They may be imposed at the same rate as excise duties or at a lower rate, presumably to equalise the burden after taking into account the cost of transport from the place of manufacture of the taxing (1) ; 517 State.
It seems, therefore, that countervailing duties are ment to equalise the burden on alcoholic liquors manufactured or produced in the State.
If no alcoholic liquors similar to those imported into the state are produced or manufactured, the right to impose counterbalancing duties of excise levied on the goods manufactured in the state will not arise.
It may, therefore, be accepted that countervailing duties can only be levied is similar goods are actually produced or manufactured in the state on which excise duties are being levied.
" lt will be seen that section 31 of the Act read with Entry 51 of` List II of the Seventh Schedule to the Constitution permits imposition of (i) excise duty by the state Government on any exisable article imported into or exported from or transported ill accordance with the provisions of section 16 of the Act which means after payment of any duty to which it may be liable under the Act or after execution of a bond for such payment and (ii) countervailing duty inter alia on Alcoholic liquors for human consumption manufactured or produced elsewhere in India.
The contention advanced on behalf of appellant which seems to proceed on the assumption that the Chandigarh Administration cant impose duty only if liquor is consumed in its territory is erroneous as, according to section 31 of the Act read with the aforesaid Entry 51 of List of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India.
It is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not.
What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh.
In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellant 's distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility.
It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellant 's Warehouse and was not found therein and the shortage remained unaccounted for.
It is thus evident that duty is not sought to be charged on an excisable article which was not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof.
There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well.
The decision of this Court in Bimal Chandra Banerjee vs State of Madhya Pradesh(l) which is strongly relied upon on behalf of the (1) ; 518 appellant is not applicable to the present case.
In that case, the condition introduced by the state Government in the purported exercise of its power under clause (d) and (h) of section 62(2) of the Madhya Pradesh Excise Act, 1915, in the appellants ' licenses prescribing the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of was held to be invalid as it went beyond.
The provisions of sections 25, 26 27, 62(1) and ' clauses (d) and (h) of section 62(2) of the aforesaid Act.
In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination.
For the foregoing reasons, the respondents were right in demanding the duty on the shortages.
In the result, the appeals fail and are dismissed with costs, limited to one set.

summary:
The appellant company carried on the business of manufacture, storage and sale of liquors Between June 1967 and April 1969 it transported various quantities of liquor from its distilleries in Uttar Pradesh to its bonded warehouse at Chandigarh On arrival the consignments were examined by the Officer in Charge of the warehouse and a shortage was found exceeding the wastage allowance permissible under rule 8 of the Punjab Bonded Warehouse Rules 1957 and April 1969, it Transported various quantities of liquor from its distilleries in Uttar Pradesh to its bonded warehouse at Chandigarh.
On arrival, the consignments were examined by the Officer in Charge of the warehouse, and a shortage was found, exceeding the wastage allowance permissible under rule of the Punjab Bonded Warehouse Rule, 1957.
The Excise and Taxation Commissioner, exercising the power of the Financial Commissioner, issued a show cause notice and then ordered the appellant to pay duty on the wastage in excess.
The appellant 's petitions to the High Court under Articles 226 and 227 of the Constitution, were dismissed.
It was contended before this Court, firstly that Rules 8 and 9 of the 1957 Rules under which the duty was sought to be imposed, were ultra vires the rule making power of the Financial Commissioner, and secondly, that these rules were invalid as they went beyond the scope of Ss. 16, 23 and 31 and Entry 51 List II, 7th Schedule of the Constitution, by imposing excise duty or counter vailing duty on articles which neither existed in the State nor were removed from the warehouse.
Dismissing the appeals the Court, ^ HELD .
(1) The impugned rules do not impose any duties or prescribe the rates thereof or create `any liability in respect thereof.
They are in essence and substance of a regulatory character rent to guard against perpetration of fraud or deception on the revenue.
They provide for and regulate the storage and subsequently the Removal of liquor from the bonded warehouse, on payment or otherwise of the duty which is chargeable under the Fiscal Rules of 1937, issued be the State Government.
The power exercised by the Financial Commissioner were clearly available to him under Sections 59 and 22 of the Act and he has not overstepped the same.
1513G H; 514A] (2) According to Section 31 of the Act read with Entry 51 of list II of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India.
It is immaterial whether the liquor of which permits were obtained was consumed within the union territory of Chandigarh or was in existence in that territory or not.
Duty is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof.
[517D G] Kalyoni Stores vs The State of Orissa & ors.
[1966] I S.C.R. 865 referred to.


judgement:
Civil Appeal No. 1116 of 1975.
Appeal by Special Leave from the Judgment and order dated 21st January, 1975 of the High Court of Madras at Madras in Writ Petition No. 3962 of 1972.
Petitioner in person; for the Appellant.
A. V. Rangam and (Miss) A. Subhashini; for the Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by special leave from the judgment dated 21 January, 1975 of the Madras High Court.
The appellant made an application under Article 226 challenging the power of the Government of Tamil Nadu to grant of pension to Anti Hindi agitators.
The appellant further challenged the power of the State to make payment from the Consolidated Fund of the State Exchequer.
Article 351 of the Constitution says that it shall be the duty of the Union Government to promote the spread of the Hindi language to 602 develop so that it may serve as a medium of expression for all the elements of the composite culture of our country.
The appellant contended that the spirit and letter of Article 351 is violated by the Pension Scheme of the Tamil Nadu State.
The appellant said that the agitators who brought about violence broke the law and were honoured by the pension scheme of the State.
The High Court said that the Stat Legislature has control over purse and that in the view of the State Legislature the agitators against Hindi fought for a cause and, therefore, those who are eligible should be granted pension.
The High Court found that if a scheme is provide which is not destructive of the Directive Principles but aimed at amelorating those who the legislature thought deserve that treatment Article 351 was not violated.
The High Court found that because of Appropriation Act No. 38 of 1974 it could not be said that payment was illegal.
In our opinion the pension scheme formulated by the Tamil Nadu Government contains the vice of disintegration and fomenting fissiparous tendencies.
If any State will be engaged in exciting emotion against Hindi or any other language such provocation has to be nipped in the bud because these are anti national and anti democratic tendencies.
The Madras Budget Manual 4th Edition was referred to by the appellant.
The appropriation in the present case shows that a fund was kept apart to meet the pension scheme.
There is no legislative sanction for such pension scheme.
The Government by an executive order could not authorise payment of pension scheme.
The appellant is right in his contention that the pension scheme is unconstitutional and the budget sanction is equally unconstitutional.
For these reasons the judgment of the High Court is set aside.
A mandamus will go directing the respondent to forbear from implementing the pension scheme.
The State will be competent to claim refund of moneys illegally and unconstitutionally paid.
The appellant is entitled to costs to be paid by the State.

summary:
The appellant challenged the constitutional validity of the pension scheme of the respondent State by which the anti Hindi agitators were to be paid pension from the Consolidated Fund of the State.
The High Court dismissed the writ holding that (1) the spirit and letter of article 351 was not violated and (2) in view of the Appropriation Act 38 of 1974, the payment was not illegal.
Allowing the appeal by special leave, the Court ^ HELD: (1) The pension scheme formulated by the Tamil Nadu Government contains the vice of disintegration and fomenting fissiparour tendencies.
If any State will be engaged in exicting emotion against Hindi or any other language, such provocation has to be nipped in the bud because these are anti national and anti democratic tendencies.
[602C D] (2) There is no legislative sanction in the instant case for such pension scheme.
The Government by an executive order could not authorise payment of pension scheme.
The pension scheme is unconstitutional and the Budget sanction is equally unconstitutional.


judgement:
iminal Appeal No. 314315 of 1976.
Appeals by special leave from the Judgment and order dated 4 1975 of the Bombay High Court in Criminal Revision Appln.
No. 1115/73.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan, 7 3 .
K. Mathur and A.K. Sharma, for the Appellants.
M.N. Phadke and M.N. Shroff, for the Respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Judicial fluctuations in sentencing and societal seriousness in punishing have combined to persuade Parliament to prescribe inflexible, judge proof, sentencing minima in the Food Adulteration law.
This depri vatory punitive strategy sometimes inflicts harsher than deserved compulsory imprisonment on lighter offenders, the situation being beyond judicial discretion even if prosecu tion and accused consent to an ameliorative course.
The two appeals, by special leave, partially illustrate this proposition.
Khurasani oil is an edible oil extracted by crushing oil seeds in mills.
Groundnut oil, also edible, is expressed likewise.
A firm by name almukand Hiralal Loya & Co., in a minor town in Maharashtra, ms an oil mill where Khurasani oil and groundnut oil are manufactured by the firm.
Sometimes they crush oil seeds for others on ire who pay milling charges.
The appellants in Criminal Appeal No. 314 are the manag ing partner and the manager of the mill and the appellant in Criminal appeal No. 315 is the operator of the expeller in the mill who actual sold the offending commodity.
On Febru ary 16, 1972 the Food inspector of Bhagur Municipality walked into the sales section of the Mill, asked for 375 grams of khurasani oil from accused No. 8, appellant in Criminal Appeal No. 315.
The quantity required was applied and, thereafter, the Food Inspector went through the statu tory exercises preparatory to an analysis by the Public Ana lyst.
After receiving the report of the Analyst to the effect that the sample of hurasani oil sent for analysis contained 30% of groundnut oil which amounted to a contra vention of rule 44(e) of the Prevention of Food Adultera tion Rules (for short, the rules), a complaint was lodged for selling adulterated food within the meaning of section 2(i) of he Prevention of Food Adulteration Act (hereinafter called the Act) read with sections 7(1) and 16 (1)(a) and r.44(e).
Evidence was led to make out a prima facie case.
The accused were questioned under section 342 Cr.
P.C., and the appellants confidently pleaded guilty to the charge where upon the trial Magistrate, perhaps agreeably to expecta tions, sentenced them each to a piffling fine of 3 Rs. 250.
Although the whole process in court is strongly suggestive of a tripartite consensual arrangement and re minds one of pie, bargaining procedures in the United States of America, the State Government appears to have taken a 7 3 trate 's adroit avoidance of the penal provisions which obligate him to inflict a minimum prison sentence, viz., section 2(i)(a) and section 16(1) with a view to apply the proviso to section 16(1).
This is, at best, a conjecture about the Magistrate and might as well be imputed to the prosecutor and the food inspector.
However, the State filed a revision to the High Court against the illegal and ultra lenient impost.
The revisional Judge converted the offence into one under section 2(i)(a) read with section 16(1 and enhanced the sentence to the minimum of six months an Rs. 1,000 by way of fine on the ground that the offence committee by the accused squarely fell within section 16(1)(a) and did not face within the proviso of that provision which vests a guarded discretion in the Court to soften the sentence to special cases.
The appel lants, shocked by this drastic reversal of fortune at the High Court 's hand: have sought restoration of the Magis trate 's conviction and sentence If this aggravated convic tion is correct, the enhanced punishment is inescapable.
The circumstances leading up to and constituting the offence hay 'been briefly set out already and the divergence between the trial court and the High Court turns on the legal inferance to be drawn from the factual matrix.
Has there been adulteration of food, in the sens imputed to that expression by section 2(i)(a)? Assuming it fails under section 2(i) (1) of the definition, does that factor exclude it from section 2(i) (a) Even if section 2(i)(a) does apply, is the benigrant proviso to section 16(1 attracted on the score that the crime in this case constitutes a violation of r. 44(e) prescribing minimum standards? These questions agricultural to the submission made by Shri Bhandare for the appellants.
his argument being that the scheme of s.2 is to erect separate corn apartments for the many types of adulteration so that if a food article is adulterated within the meaning of s.2(i)(1) more appropriately it falls outside the ambit of s.2(i)(a).
Otherwise, he argues, there is no point in itemising the various sub divisions even though he con cedes that marginally there may be overlapping among the sub clauses He further contends that even assuming that s.2(i)(a) is all corn prehensive, it must be read as the genus and thereafter sub clause (b) to (1) fall under two.
broad categories, viz., adulteration where injurious sub stances have been admixed and adulteration where innocent additions have been made or the substances sold merely violate a standard or degree of purity prescribed.
If there were force in this submission, the culpa, according to counsel, could reasonably 'fall under the non injurious type of adulteration covered by s.2(i)(1) The statute, says Shri Bhandare, sensibly dichotomises the senreno.
and invests a discretion in the court in the second category to reduce the sentence below the minimum stipulated, if special reasons exist for such clemency.
Of course, counsel concedes that if the adulteration is of the injurious brand, judicial sympathy is statutorily supplanted 73 4 this, he reasons, fits into and explains the scheme of s.16 which is a penal provision with dual limbs.
We wilt examine the validity of this interpretative dissection.
Indeed, if this somewhat strained argument fails,.
everything fails because, otherwise, the appellants have glibly convicted themselves, but of their own mouth, by an unusually obliging 'yes ' to every material question under s.342 Cr. P. Code.
Thus, on the merits, the sole question is about the proper offence made out on the facts admitted.
This, in turn, depends on the acceptability of the interpre tative dexterity displayed by counsel for the appellants.
It is trite that the social mission of Food Laws should inform the interpretative process so that the legal blow may fail .on every adulterator.
Any narrow and pedantic, liter al and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged.
For the new criminal juris prudence must depart from the old canons, which make indul gent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes Calculated to protect the public health and the nation 's wealth.
This humanist approach and cute construction persuades us to reject Shri Bhandare 's analysis of s.2(1).
Sub clause (a) of s.2(i) has a wide sweep and loyalty to the intendment of the statute forbids truncating its ambit.
There cannot be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance or quality which it purports or is represented to be ' The suggestion that there is no format evidence of representa tion or prejudice as stated in the section does not merit consideration being a quibble over a trifle.
If we read s.2(i)(a) spaciously and if the facts alleged are accommodated by the definition of 'adulteration ' under that sub clause,.
section 16 ( 1 ) is attracted.
The first proviso to section 16 ( 1 ) will be attracted if and only if s.2(i)(1) applies.
In the present case the facts disclose that the offence is both under s.2(i)(a) and under section 7(v) for breach of r.44(e).
Section 2(i)(1) is repelled on the facts and it is obvious that this is not a case where either s.2(i)(1) or r.
A 17.12 urged by Shri Bhandare applies.
In this view it is not possible to invoke the amelioratory proviso to s.16(1) and the High Court is legally right in its conversion of the provision for conviction and enhance ment of the sentence.
We unhesitatingly hold that if s.2(i)(a) adequately fits in, adulteration under that provision must be found.
73 Once this position is made plain, the penalty that the appellants must suffer is fool proof.
Section 16 lays down the penalties and classifies them.
We are particularly concerned with s,16(1) of the Act which itself clubs togeth er many categories out of which we have to pick out only two for the purposes of this case, viz., (i) sale of any article of food which is adulterated; and (ii) sale of any article of 5 food other than one which is adulterated 'in contravention of any of the provisions of this Act or of any rule made thereunder '.
Ordinarily, both these clauses.
of offences are punishable with the minimum prescribed 'of not less ,than six months ' imprisonment, together with fine which shall not be less than Rs. 1,000/ '.
However, there is a kindly proviso which confers on the court a power to be exercised for any adequate and special reasons to be men tioned in the judgment whereby a sentence of imprisonment for a lesser term than six months or of fine smaller than Rs. 1,000/ or of both may be imposed, but this more moder ate punitive net is conditioned by the proviso itself.
We may read the proviso: "Provided that (i) if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub clause (1) of clause (i) of sec. 2 or misbranded under sub clause (k) of clause (ix) of that section; or (ii) if the offence is under sub clause (ii) of clause (a).
the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a terms of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
" Judicial compassion can play upon the situation only if the offence is under sub cl.
(i) of cl.
(a) of s.16(1) and the adulteration is one which fails under sub cl.
(1) of el.
(i) of s.2.
Secondly, the proviso also applies if the offence is under sub cl.
(ii) of el.
(a), that is to say, the offence is not one of adulteration but is made up of a contravention of any of the other provisions of the Act or 7 3 already found that the accused is guilty of an offence of adulteration of food under s.2(i)(a).
Therefore, proviso (ii) is out.
Proviso (i) will be attracted, according to Shri Bhandare, if s.2(i)(1) applies to the species of adul teration committed.
In our view, the only sensible under standing of proviso (i) is that judicial jurisdiction to soften the sentence arises if the offence of adulteration fails only under sub cl.
(1) of cl.
(i) of s.2 and we have held that it does not.
We cannot but deplore the clumsy draftsmanship displayed in a statute which affects the common man in his daily bread.
It is unfortunate that easy comprehensibility and simplicity for the laity.
are discard ed sometimes through oversophisticated scholarship in the art of drawing up legislative bills.
It cannot be over stressed that a new orientation for drafting methodology adopting directness of language and avoiding involved refer ence and obscurity is overdue.
Be that as it may, in the present case s.2(i) (a) applies and s.16(1)(a) has been breached.
Therefore the proviso cannot be applied in exten uation and the conviction of the High Court has to be up held.
6 The possibility of long argument in a case where the accused has pleaded guilty arises because the provision lends itself to adroit exercises.
The court has to look at the interpretative problem in the social setting of the statute, visualising the rough and tumble of the market place, the finesse with which clever victuallers fob off adulterated edibles and gullible buyers goofily fall victim.
Viewed this way, chasing recondite semantics or niceties of classification or chopping of logic has no scope for play.
The appeals must fail, without more.
But we have to take note of a few circumstances of significance brought to our notice by counsel for the appellant .with which the State 's counsel could not express serious disagreement, although he made no concessions.
, We now proceed to refer to these factors which do not deflect us from confirming the conviction.
The curtain has been drawn thereon.
To begin with, we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance.
Many economic offenders resort to practices the American call 'plea bargaining ', 'plea negotiation ', 'trading out ' and 'compromise in criminal cases ' and the trial magistrate drowned by a docket burden nods assent to the sub rosa ante room settlement.
The business man culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a 7 3 being a plea of guilt, coupled with a promise of 'no jail '.
These advance arrangements please everyone except the dis tant victim, the silent society.
The prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to.
higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the accused is happy that even if legalistic bat tles might have held out some astrological hope of abstract acquittal in the expensive hierarchy of the justice system he is free early in the day to pursue his old professions.
It is idle to speculate on the virtue of negotiated settle ments of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society 's interests by opposing society 's decision expressed through pre determined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.
The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly justify it philosoph ically as a sentence concession to a defendant who has, by his plea 'aided in ensuring the prompt and certain applica tion of correctional measures to him ', "In civil cases we find compromises actually encouraged as a more satisfactory method of set tling disputes between individuals than an actual trial.
However, if the dispute . finds itself in the field of criminal law, "Law Enforcement" repu diates the idea of compromise as immoral, or at best a necessary evil.
The "State" can never com promise.
It must 7 enforce the law.
" Therefore open methods of com promise are impossible." (Arnold, Law Enforcement An Attempt at Social Dissec tion, , 19 (1932).
We have no sanction, except surreptitious practice in some courts, for 'trading out ' of punitive severity although this aspect of the criminal system deserves Indian jurists ' consideration.
The sole relevance of this digression in this judgment is to highlight the fact that the appellants perhaps acted on an expectation which came to pass at the trial level but was reversed at the appellate level and this touch of 'immorality ' in the harsh morality of the punish ment is a factor counsel wants us to take note of.
But we can do nothing about it when the minimum is set by the 7 3 justice to the citizen and relieve over worked courts by more judicial agencies and streamlined procedures instead of leaving the uninformed public blindly to censure delayed disposals.
One real reason for long litigation is inaction or ineffective action of the legislature.
All knowledgeable law men may concede that the procedures in municipal and higher courts are ossified to the point, priced to the level, and slow to the degree where they cannot flexibly assist disputants in early resolution of their everyday disputes.
This, we hope, will change and the source of the evil eliminated.
The next draft on the court 's commiseration, made by counsel, is based on the milling operation realities sur rounding the commission of the crime.
It is asserted by the appellant 's advocate and not seriously controverted by his opponent that the small town milling practice is multi purpose, in the sense that whoever brings any edible oil seed for extraction of oil gets it done so that ground nut crushing may be followed by Khurasani seed or some other oil seed may chance to take turns by rotation.
Even the mill er 's own oil seeds may be sometimes khurasani; at other times, some other.
This process may result in the residue of one getting mixed up with the next.
May be, innocently some groundnut oil, in the present case, got into the khu rasani oil by the same expeller handling both.
Even so, the presence of 30% groundnut oil is, perhaps too high an admix ture to be explained away this easy way.
While we appreci ate the situation we must adhere to the provision.
Where the law lays down an absolute liability, alibis cancelling mens tea are out of bounds.
The last plea, urged ex mesericordium, ameliorative in appeal and unavailing against conviction, is that actually groundnut oil costs more and so profit motive stands nega tived, that the mixture of these edible oils, though techni cally forbidden, is in fact non injurious and a terrifying term of six months ' rigorous imprisonment is unjust.
The facts are probably right but ex necessitate legis the court has to inflict the heavy minimum sentence.
While in stray cases a jail term even in a trivial food offence may.
look harsh, Parliament, in its wider wisdom, and having regard .to social defence in a sensitive area standardised the sentence by insisting on a minimum, ignoring exceptional 2 1003SC1/76 8 cases where leniency is needed.
Individual hardships deserv ing of lighter sentence are sometimes exploited by counsel 's 7 3 offenders milder punishments.
It is worthy of note though that in the present case the mixing of the two oils is a motiveless act.
May be.
And the circumstances above men tioned add up to a plea for paring down the sentence and Shri Bhandare, for the appellants, sought to wheedle us into lending evedence to these circumstances and bring down.
the offence to a lesser one.
Logically and sociologically and, above all, legally, such a course is impermissible.
Never theless, there is one circumstance which has impressed us not to the extent of undoing the sentence imposed by the High Court but of drawing the attention of the top executive to what may justly be done by way of remission of sentence.
The appellants have sworn an affidavit in this Court stating that khurasam oil is the same as nigar seed oil.
This is backed by a certificate from the Maharashtra Chamber of Commerce and is evidently correct.
What is more important is that the appellants, when surprised by a modification of their sentence to a heavier one for what they thought was undeserving, moved in the matter of cases generally of adulteration of khurasani oil with groundnut oil.
They drew the attention of the authorities to punishment of innocents and it appears that the.
State Government was satisfied about this grievance and has since withdrawn a substantial number of cases against dealers of khurasani oil whose sales were contaminated with presence of groundnut oil.
The affi davit on behalf of the appellants states: "I further say that various cases filed by the respondents against the dealers of khurasani oil are now being withdrawn as invariably groundnut oil is observed in khurasani oil.
I crave leave to refer to and rely on the Journal of Maharashtra Chumher Patrika dated 21st September, 1975, when produced.
" Probably, had the present case survived till the government took action, it might have been withdrawn.
Moreover, there are circumstances suggesting of innocent admixture although it is beyond us to pronounce definitely on this aspect and it is not for us to enquire into the matter when section 16( 1 ) is clear and the sentence is legal.
Nevertheless, it may be appropriate for government to consider whether in the cir cumstances of this case and in the light of the observa tions made by us in this judgment it is not a matter for exercise of commutation powers.
Sentencing policy has a punitive and a correctional role and we are sure that what is the need of the appellants will be meted out to them if they deserve any activist administrative empathy at all.
accordingly dismiss the appeals.

summary:
An analysis of a sample of khurasani oil from the appel lants ' mill collected by the Food Inspector showed 30% groundnut oil content amounting to contravention of r. 44(a) of the Rules which prohibits sale of a mixture of two or more edible oils as an edible oil.
The appellants were charged with an offence under section 2(i) of the Act read with sections 7 and 16(1)(a) and r. 44(a).
The appellants having pleaded guilty, each of them was sentenced to pay a small fine.
On revision, the High Court converted the offence into one under section 2(i) (a) read with section 16(1) and enhanced the sentence to a minimum of six month, imprisonment and fine of rupees one thousand on the ground that the offence committed by them fell within section 16(1)(a) and did not fall within the proviso to that section.
On appeal to this Court it was contended that even assuming section 2(i)(a) is all comprehensive it must be read as the genus and thereafter sub clauses (b) to (e) fall under two broad categories namely adulteration with injurious substances and adulteration with innocent additions or the substance sold merely violates a standard or degree of purity prescribed and in this case the offence would fall under the non injurious type covered by section 2(i)(1).
Dismissing the appeal, HELD: 1. (a) Sub clause (a) of section 2(1) has a wide sweep.
There causes be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance and quality which it purports or is represented to be.
[4 E] (b) It is not possible to invoke the proviso to section 16(1) and the High Court is legally right in its conversion of the provision for conviction and enhancement of the sentence.
Though section 2(i)(a) is read speciously and if the facts al leged are accommodated by the definition of adulteration under that sub clause, section 16.(1) is attracted.
The first proviso to section 16(1) will be attracted if and only if section 2(i)(1) applies.
[4 F G] In the present case the facts disclose that the offence is both under section 2(i)(a) and under section 7(v) for breach of r. 44(e).
Section 2(i)(1) is repelled on the facts and this is not a case.
where either section 2(i)(1) or r. A17.12 applies.
2.(a) The proviso cannot apply in extenuation and the High Court was right in convicting the appellants.
Judicial compassion can play upon the situation only if the offence is under section 16(1)(a)(i) and the adulteration is one under section 2(i)(1).
The proviso applies if the offence is under cl.
(a)(ii), that is to say, the offence is not one of adultera tion but is made up of a contravention of the other provi sions of the Act or of any rule made thereunder.
Since in this case the offence falls under section 2(i)(a) proviso (ii) has no application.
[5 E F] (b) The judicial jurisdiction to soften the sentence arises if the offence of adulteration falls only under section 2(i)(1).
This case does not fall under this sub clause.
[5 G] [The Court drew attention to (a) the propriety of ac cepting by the prosecution and the Courts the accused 's plea of guilty of a lesser offence in dangerous economic crimes and food offences and (b) in view of the fact that a sub stantial number of cases of the kind were withdrawn by the Government because 2 variably groundnut oil is observed in Khurasani oil, the Government may consider whether in the circumstances of this case it is not a matter for exercise its commutation powers].