judgement:
Criminal Appeals Nos. 120 & 121 of 1955.
497 Appeals from the judgment and order dated December 16, 1954, of the Mysore High Court at Bangalore in Criminal Appeals Nos. 49 and 50 of 1953 arising out of the judgment and order dated May 19, 1953, of the Court of the Third Additional Sessions Judge at Bangalore in Bangalore Sessions Case No. 7 of 1953.
V. Krishnamurthy and R. Gopalakrishnan, for the appellants.
G. Channappa, Assistant Advocate General for the State of Mysore and T. M. Sen, for the respondent.
April 14.
The Judgment of the Court AA as delivered by KAPUR J.
These two appeals under article 134(1)(c) of the Constitution arise out of the judgment and order of the High Court of Mysore at Bangalore confirming the convictions and sentences passed upon the appellants who were accused Nos. 2, 3 and 4 respectively by the Third Additional District Judge, Bangalore.
Accused Nos. 1, 5 and 6 who have been acquitted and the appellants were charged as follows: "I. . . hereby charge you A 1 Sanjeeva Rao, A 2 Srikantiah, A 3 Sidda, A 4 Kidaripathi, A 5 Hanumantha and A 6 Pujari Anantha as follows: 1.That you on or about the 25th day of August 1952 at Mayasandra in Magadi Taluk were members of an unlawful assembly the common object of which was to murder deceased Anne Gowda and thereby committed an offence punishable under section 143 of the Indian Penal Code and within the cognizance of the Court of Sessions.
2.That you A 2 Srikantiah.
, A 3 Sidda, A 4 Kadaripathi, A 5 Hanumantha and A 6 Pujari Anantha, on or about the 25tb.
day of August 1952 at Mayasandra in Magadi Taluk did commit murder by intentionally causing the death of Anne Gowda and thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of the Court of Sessions.
And that you A 1 Sanjeeva Rao on or about 498 the 25th day of August 1952 at Mayasandra in Magadi Taluk abetted the commission of the offence of murder by A 2 to A 6 which was committed in consequence of your abetment and thereby committed an offence punishable under sections 109 and 302 of the Indian Penal Code, and within the cognizance of the Court of Sessions.
" Thus all of them were charged with being members of an unlawful assembly, the common object of which was to murder the deceased, Anne Gowda.
The appellants along with Hanumantha accused No. 5 and Pujari accused No. 6 were further charged with committing murder of Anne Gowda by intentionally causing his death.
No doubt the charge does not contain the words " in furtherance of the common inten tion of all " but short of that the charge is as near them as it could be.
Accused No. I Sanjeeva Rao was further charged with abetting the offence of murder.
The trial Court acquitted all the accused of the charge under section 143 Indian Penal Code and accused Nos. 5 & 6 of the charge under section 302 but he convicted accused No. 1 under section 302/109 and the appellants under section 302 and sentenced them all to transportation for life.
They took an appeal to the High Court and the State appealed against the order of acquittal of accused Nos.
5 & 6 and the order of acquittal under section 143.
The High Court acquitted accused No. I Sanjeeva Rao of abetment of murder after the matter was referred to a third judge under section 429 of the Criminal Procedure Code as there was a difference of opinion between the two judges of the Division Bench hearing the appeal and thus the case of abetment set up by the prosecution failed.
It upheld the acquittal of accused Nos.
5 and 6.
The charge of unlawful assembly of which the common object was the murder of Anne Gowda the deceased also failed because of the acquittal of Sanjeeva Rao accused No. 1 Hanumantha accused No. 5 and Pujari accused No. 6 thus leaving only the appellants.
Their conviction for an offence under section 302, Indian Penal Code and the sentence of transportation was upheld.
The trial Court 's finding against them was as follows; 499 " So far as A 2 Srikantiah, A 3 Sidda and A 4 Kadaripathi alias Kunta are concerned, there is ample evidence to show that they alone inflicted injuries on the deceased Anne Gowda and caused his death.
Thus a prima facie case has been made out against them for the murder of Anne Gowda ".
The High Court in appeal said: "The evidence on the whole is consistent and in fact it is so consistent that it was being urged on behalf of the accused that each witness was repeating what the other says.
Some of the important witnesses have been mentioned in the First Information Report and the inquest itself was over within 24 hours after the incident.
Taking the consistent evidence of the witnesses and the probabilities of the case it has to be stated that the evidence of the prosecution witnesses as regards the incident has to be believed We have not had the advantage of a critical and analytical examination of the evidence of the prosecution witnesses by either of the courts below nor has the evidence against each of the appellants been collated and therefore it was necessary for its to examine the evidence in some detail.
The evidence of the witnesses for the prosecution shows that the deceased Anne Gowda and the party of Sanjeeva Rao accused No. I had considerable amount of enmity between each other.
On the date of the occurrence, i. e., August 25, 1952, the deceased had gone to Ramanagram where in a Magistrate 's Court a case had been brought against him by accused No. 1.
After the case was over the deceased and P. W. 18 Gangabyriah who was a co accused in the case and Putta P. W. 20 who was a witness traveled by the bus which reached a place called Kudur at about 7 p.m. From Kudur the deceased accompanied by his two companions and also P.W. 17 Thimmappa and P.W. 19 Puttarangiah and P.W. 21 Basavalingappa who had gone for shopping to the shop of P. W. II Subba Rao, started for their village Yollapore.
When they reached the bund of the tank of Mayasandra, accused Nos.
I and 5 and the appellants came from the opposite side.
Accused No.
I flashed his torch on to the 500 deceased and his companions.
Thereupon appellant No. 1 who is the brother of Sanjeeva Rao accused No. 1 gave a blow with his chopper which cut into two the torch which at the time :was in the hand of P.W. 18 Gangabyriah and on the instigation of accused No. 1 to kill the deceased the appellants started their attack on him.
Appellant No. 3 Sidda gave a blow from behind on the right side of the neck of the deceased with his chopper and accused No. 4 Kadaripathi aimed a, blow on his head but to ward off the blow the deceased raised his hand and the blow fell on his hand.
The deceased then ran towards the tank chased by the accused Nos. 1 and 5 and the appellants.
He fell into a shallow water pit.
Accused Nos. 5 and 6 who were empty handed are stated to have caught hold of him and the appellants gave five or six blows to the deceased with choppers.
Accused Nos. 5 and 6 then released him but the appellants continued the assault with their choppers and caused 24 incised injuries.
This story is supported by P.W. 17 Thimmappa, P.W. 18 Gangabyriah, P.W. 19 Puttarangiah and P.W. 20 Putta and lastly P .
W. 21 Basavalingappa.
The First Information Report which was lodged at about 1 a.m., on August 26, was made by P.W. 17 Thimmappa and ' the whole incident is there set out along with the names of the accused as well as the witnesses.
When the house of Appellant No. 3 Sidda was searched a bloodstained chopper M. O. 11 was produced by him before the Panchayatdars.
Similarly the house of accused No. 4 Kadaripathi was also searched and that appellant also produced a chopper there.
As the prosecution has not proved that any of these choppers was stained with human blood it cannot get much assistance from this recovery.
The medical witness P.W. 2 , found as many as 24 injuries.
Of these injury No. 5 was described as follows: "A transverse incised wound in front of the neck 5" long 2 1/2" deep, cutting the skin, muscles, arteries, veins above the thyroid cartilage, pharynx and muscles in front of the vertebral column.
On the right side the wound starts 2" below.
the lobule of the right 501 ear, runs to the left and ends 2" below and 1" behind the lobule of the left ear".
All the other injuries were incised varying in degree of seriousness.
The medical witness 's opinion was that injury No. 5 is a fatal injury sufficient to cause death All the other injuries taken as whole may be fatal "The prosecution has not proved as to who caused injury No. 5 nor has it specified the injuries caused by individual appellants.
The question then arises; what is the offence which the appellants are guilty of, if any.
Courts below have accepted the testimony of the witnesses which establishes that there was enmity between the parties and that on the date of the occurrence the deceased had gone to the Magi strate 's Court at Ramanagram for the case which had been brought at the instance of accused No. 1.
The evidence also shows that on that date appellants 3 and 4 were seen together at Kudur in front of the shop of P.W. 10 at about 6 p.m.
When accused No. 3 was asked by Siddappa P.W. 10 as to what had 'brought him there, his reply was that he was waiting for somebody who was coming by Renuka Bus Service ".
The testimony of P.W. 11 on this point is that he saw accused Nos. 3 and 4 and another man about 5 30 p.m. or 6 p.m. in front of his shop.
He asked them why they had come.
They replied that "they had come to see some persons coining by Renuka Bus" and there is evidence to show that the deceased and his two companions had come from Ramanagram by this Bus Service at about 7 p.m.
The evidence of prosecution witnesses Nos.
17 to 21 also establishes that when the deceased and his party arrived near the bund of the tank the party of the accused came towards them.
One of the accused Sanjeeva Rao (accused No. 1) flashed a torch and the others started attacking the deceased with choppers at the instigation of that accused.
Injuries were caused on the head, the neck and the shoulders or on the right and left forearms which must have been caused when the deceased tried to, save himself by raising his arm to protect his head.
The common intention of the 6 502 appellants is clear from the fact that not only were they armed with deadly weapons which they used to cause injuries to the deceased at the place where they first met him and his companions but they also chased him when he tried to run away to save himself and all of them continued assaulting him with these deadly weapons till he was dead.
The evidence further shows that all of them took part in the assault.
There were 24 injuries on the person of the deceased and of them twenty one were incised.
They are either on his head or the neck or the shoulders and on the forearms.
All these except perhaps the last are vital parts of the body and anybody who causes injuries with weapons of the kind that the appellants used must be fixed with the intention of causing such bodily injury or injuries as would fall within section 300 of the Indian Penal Code.
The question has then been raised that there was no charge under section 34 and therefore the accused cannot be convicted of liability as sharers in an offence by the 'application of section 34, i. e., in prosecution of the common intention of all.
Now intention is a question ,of fact which is to be gathered from the acts of the parties and whoever caused injury No. 5 or the persons who caused the other injuries on the vital parts of the body could have had no other intention but of causing the death considering the nature and number of inju ries and the weapons used.
The omission to mention section 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof.
The charge was that the appellants and others were members of an unlawful assembly, the common object of which was to murder the deceased.
Although there is a difference in common object and common intention, they both deal " with combination of persons who become punishable as sharers in an offence ", and a charge under section 149, Indian Penal Code is no impedi ment to a conviction by the application of section 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all.
In the second charge it was clearly stated that the appellants and accused Nos.
5 & 6 committed the 503 murder by.
intentionally causing the death of the deceased.
No doubt it would have been better if in the charge section 34 had been specified.
But the mere omission to specify it cannot in the circumstances of this case have any effect as no prejudice has been alleged or shown.
As a matter of fact this question was never agitated in either of the Courts below.
This Court in Willie (William) Slaney vs The State of Madhya Pradesh (1) has laid down the law in regard to the effect of a defect in a charge.
In that case the charge was under section 302, read with section 34 and the conviction was under section 302, Indian Penal Code.
It was there pointed out that procedural laws are designed to subserve the ends of justice and not to frustrate them and if the trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct the irregularity is curable under section 537, Criminal Procedure Code.
See: Pulukuri Kotayya vs King Emperor (2).
As was pointed by Viscount Sumner in Atta Mohammad vs King Emperor (3): " In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere.
The object of a charge is to warn the accused person of the case he is to answer.
It cannot be treated as if it was a part of a ceremonial.
Bose J. observed in William Slaney 's case, (1) with reference to sections 232 (1) and 535 of the Criminal Procedure Code where the words used are " by the absence of a charge " in section 232(1) and no charge was framed " in section 535: " We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials.
We are unable to find any magic or charm in the ritual of a charge.
It is the substance of these provisions that count and not their outward form.
To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent." (1) ; , 1165.
(2) (1946) L.R. 74 I.A. 65, 75.
(3) (1929) L.R. 57 I.A. 71, 76.
504 The imperfection in the charge is curable provided no prejudice has been shown to have resulted because of it.
The appellants had notice that they were being tried as " sharers in the offence " ' and their liability was collective and vicarious and not individual.
No doubt they, were charged, under section 149 of the Indian Penal Code with being members of an unlawful assembly the common object of which was murder of the deceased but they were also charged that they with accused Nos.
5 & 6 had committed murder by intentionally causing the death of the deceased.
The prosecution led evidence to show that at least two of the appellants were waiting for the arrival of the evening Bus by which the deceased and his companions were traveling and that the appellants and others met them at the bund and there was a concerted attack by them followed by a chase and assault with choppers by all the appellants resulting in death because of 24 injuries of a serious nature given by the appellants collectively.
Of these injury No. 5 individually and others cumulatively were sufficient in the ordinary course of nature to cause death.
Section 34 is only a rule of evidence and does not create a substantive offence.
It means, that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done individually.
As the Privy Council have pointed out in Barendra Kumar Ghosh vs King Emperor (1) " Sect.
34 deals with the doing of separate acts, similiar or diverse, by several persons, if all are done in further ance of a ' common intention, each person is liable for the result of them all, as if he had done them himself.
The appellants ' defence was a total denial of taking part in the offence.
When examined under section 342 of the Criminal Procedure Code they stated that the prosecution case was false.
They did not state anything indicative of prejudice having resulted as a consequence of a defect in the charge.
To every question put to them, their reply was that the prosecution evidence was false.
One such question and the answer to it was: Q. " The witnesses have deposed that at about (1) (1924) L.R., 52 I. A.40, 51.
505 8 30 on the night of 25th August, 1952, you along with the accused persons 1, 3, 4 and 5 came upon the tank bund holding a matchu in the hand in order to hit Anne Gowda.
What do you say regarding this matter ? A.This is absolutely false.
" In answer to another question as to whether he had assaulted the deceased with a chopper, appellant No. 1 stated that he never saw the deceased on that date and the evidence was false and the other two appellants just stated that the evidence for the prosecution was false.
The form of the questions indicates notice to the appellants that the, prosecution was relying on collective responsibility and their having acted with a common intention.
They did not plead prejudice due to the want of section 34 in the charge itself.
The judgment of the High Court does not indicate that any such objection was taken before it.
The grounds of appeal taken in the High Court are not before us, but their application under article 134 (1)(c) made to the High Court shows that objection was taken as to the failure to specify section 34 in the following words: " There is no charge framed in the case against accused 2, 3 and 4, 5 and 6 for ail offence under Section 302 read with Section 34 of the Indian Penal Code.
It was, therefore, not a case in which accused 2, 3, 4 alone could be convicted of the charge under Section 302 by resorting to the rule of common intention under Section 34 of the Indian Penal Code for two reasons, viz., (a) There is no charge under Section 34 of the Indian Penal Code; (b) If it is implied ', Accused 5 and 6 are out of the grove and there is no evidence of any prior conspiracy conducive to that requisite inference.
Further it will be seen from the evidence of the eye witnesses it is not possible to predicate which blow caused by which instrument, by which accused resulted in death.
Therefore it is a case which accused 2, 3 and 4 are charged on individual responsibility alone for having caused murder punishable under Section 302, Indian 506 Penal Code individually.
Neither the trial Court nor it is submitted the High Court has considered this aspect of the matter and has considered the individual responsibility of accused 2, 3 and 4 for their individual acts" and in their grounds of appeal filed in this Court the language is the same.
Nowhere has it been alleged that as a result of omission to specify section 34 in the charge there was any prejudice and nothing is disclosed whether by the trend of cross examination or by anything on the record to show that the appellants were misled by this omission in the charge.
No case of prejudice has been alleged or established and there are no facts on the consideration of which the conclusion could be reached that the conviction under section 302 is vitiated as a result of prejudice.
This Court in Rawalpenta Venkulu vs The State of Hyderabad (1), held that the omission to add section 34 of the Indian Penal Code in a charge had only an academic significance where the accused had notice as to what they were being charged with.
That was a case where in pursuance of a conspiracy to commit murder the accused after locking the room in which the deceased was sleeping set fire to it and thus caused his death.
The charge against the accused persons was only under section 302 without section 34.
On the evidence the intention to kill was held proved as each one of the appellants had actively contributed to setting fire to the room by putting lighted matches to it while the deceased had been trapped in it and " each one of them therefore severally and in pursuance of the common intention brought about the same result by his own act.
" In the trial Court the Sessions Judge had explained the charge as follows: " You are charged of the offence that you with the assistance of the other present accused with common intention. . . . . . " From this the Court came to the conclusion that the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention and, therefore, the omission (1) A.I.R. 1956 S.C. 171, 507 of section 34 in the charge had only academic significance and had in no way misled the accused.
Thus the accent was on whether the accused were misled or not or any prejudice resulted from the omission in the charge and on the facts and circumstances of that case this Court was of the opinion that they were not and there was no prejudice.
Chikkarange Gowda vs State of Mysore (1), was relied upon by the appellants ' counsel.
In that case the accused persons were charged as follows: " That you on or about the 18th day of April, 1951, at Talkad were member of an unlawful assembly and in prosecution of the common object or intention or such as you know to be likely to be committed in prosecution of that object or intention, namely, in killing Putte Gowda, caused the death of Putte Gowda and Nanje Gowda, and you are thereby under section 149 read with section 34 Penal Code, guilty of causing the said murders, an offence punishable under section 302, Penal Code and within the cognizance of the Court of Sessions.
" The Sessions Judge found that the common object of the unlawful assembly or the intention of the accused was not merely to assault Putte Gowda but also to kill him.
The High Court on appeal held that there was no evidence to prove or establish any plan for concerted action or any common object to kill that individual.
But it was of the opinion that the people of the locality were annoyed with Putte Gowda and the common object of the assembly as a whole was to give severe and open chastisement only.
The person who was stated to, have given the fatal injury to Putte Gowda was acquitted by the High Court on the ground of insufficiency of evidence and the other two accused were held guilty for severely assaulting the deceased and guilty of murder.
In this Court it was contended that on the findings given by the High Court in regard to the common object of the unlawful assembly, the conviction under section 302/34 or section 149 was unsustainable and that the manner in which the charges under section 149 and 34 were mixed up it could not be said that the (1) A.I.R. 1956 S.C. 731, 508 accused had a reasonable opportunity of meeting the charges against them.
This Court observed that " on the finding of the High Court none of the members of the unlawful assembly had the intention of killing Putte Gowda.
" It also held that the way in which the charge was framed gave the accused no effective notice of the case they had to meet.
In these circumstances the case of separate common intention of three persons was distinct from the common object of the other members of the unlawful assembly and, therefore, the question was not whether the specific charge under section 34 was or was not necessary but whether a reasonable opportunity of meeting the case of some of the accused having a separate common intention different from that of others of the unlawful assembly, was given and as the finding was that it had not been given the conviction of the two accused for offence under section 302/34 was unsustainable.
That case has not laid down a rule different from Willie (William) Slaney 's case (1).
It merely emphasises that in the case of imperfection of a charge if prejudice is shown a conviction of an accused would be insupportable.
In the present case the common intention of the appellants is indicated by their conduct, the ferocity of the attack, the weapon used, the situs of the injuries and their nature and there was preconcert as shown by the evidence of P. Ws. 10 and 11.
They have therefore been rightly convicted of murder as sharers ill the offence We would, therefore, dismiss these appeals.
Appeals dismissed.
(1) ; 140, 1 1165.

summary:
Six persons were charged under section I43 Indian Penal Code for being members of an unlawful assembly the common object of which was to murder one Anne Gowda.
Five of them were further charged under section 302 Indian Penal Code for committing murder by intentionally causing the death of Anne Gowda, and the sixth was charged under section 302/109 Indian Penal Code for abetment of murder.
The trial Court acquitted all the six accused under section 143, acquitted two of them but convicted the three appellants under section 302, and convicted the sixth accused under section 302/109.
On appeal the High Court maintained the conviction of the appellants under section 302 but acquitted the sixth accused under section 302/109.
It was contended by the appellant that as the prosecution had not established which of the appellants had given the fatal blow none of them could be convicted under section 302 simpliciter and that as no charge had been framed under section 34 they could not be convicted under section 302/34 Indian Penal Code : Held, that the omission to mention section 34 Indian Penal Code in the charge could not affect the case unless prejudice was shown to have resulted in consequence thereof.
The charge was that the appellants and two others committed the murder by intentionally causing the death of the deceased.
The appellants had notice that they were being tried as " sharers in the offence " and that their liability was collective and vicarious and not individual.
The appellants had neither alleged nor shown that the omission to specify section 34 in the charge had caused them any prejudice.
Common intention is a question of fact and is to be gathered from the acts of the parties.
The evidence showed that there was preconcert, that the appellants attacked the deceased with choppers injuring him on the head, the neck, the shoulders and the forearms and that the appellants not only caused injuries to the deceased at the place where they met him but they also chased him when he tried to run away to save himself and continued to assault him with the deadly weapons till he was dead.
The conduct of the appellants, the ferocity of the attack, the weapons used, the situs of the injuries and their nature together with the fact that there was preconcert established that the common intention of the appellants was to murder the deceased.


judgement:
Civil Appeal (Election) No.4030 of 1987.
From the Judgment and Order dated 13.11.87 of the Kerala High Court in Election Petition No. 2 of 1987.
P.S. Poti and T.T. Kunhikannan for the Appellant.
961 Dr. Y.S. Chitale, A.S. Nambiar, Dileep Pillai, M.A. Firoz and Aseem Mahrotra for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal under section 116 A of the Repre sentation of the People Act, 1951 (hereinafter referred to as 'the Act ') is directed against the judgment of the Kerala High Court dismissing the election petition of the appel lant.
The appellant is a voter in the Mala constituency of the Kerala Legislative Assembly.
The election of the members of the Assembly was held on March 23, 1987 and the first re spondent, who was then the sitting Chief Minister of the State of Kerala, was declared elected from Mala constituen cy.
The appellant challenged the election of the first respondent to the Kerala Legislative Assembly on the ground of various corrupt practices alleged to have been committed by the first respondent.
In paragraphs 5(i) and 5(ii) of the election petition, the corrupt practice that was alleged by the appellant was to the effect that the second respondent, who was a candidate for the election, published a notice wherein it was declared that the second respondent was withdrawing from the contest and stated, inter alia, that it was to highlight the grievances of his community, namely, the Kudumbi Samudayam which is a backward community, that he had decided to contest the election, and that one of the demands of the community was that it should be included in the list of Scheduled Castes.
Further, the second respondent stated in the notice that the Kerala Government under the leadership of the first respondent had decided to give favourable consideration in regard to his community 's demand for inclusion in the list of Scheduled Castes.
Accordingly, the second respondent declared in the notice that for ob taining their rights, it had become necessary that the first respondent should win in the election and for that purpose he was withdrawing his candidature offering full support to the first respondent.
It was alleged that the second re spondent published the notice at the instigation and with the assistance and initiative and at the cost of the first respondent and his supporters.
Such acts constituted corrupt practice within the meaning of section 123 of the Act.
In paragraph 5(xvi), it is alleged that the first re spondent also committed corrupt practice in the course of his election work by asking Government servants including Shri P.M. Shabul Hameed, Teacher, 962 Government Upper Primary School, Kaduppassery, to lead processions in support of his candidature in the constituen cy.
It was submitted by the appellant that he was prepared to prove the allegation by examining the said persons.
A photograph of a procession was filed.
In paragraph 5(xi) of the election petition, the appel lant inter alia stated as follows: "5(xi) . . . . . . .
Besides at the instigation of the first re spondent a video cassette called "Malayude Purogathi" has been used in the constituency.
The persons who speak are one Shri Jose P. George, Government Pleader, Kerala High Court, 2.
Shri Thomas Thottappally, Veterinary Doc tor, Veterinary Polyclinic, Valiyaparambu.
This is also a corrupt practice.
The video cassette is produced herewith in a sealed cover.
" The first respondent opposed the election petition by filing a written statement denying the allegations of cor rupt practices.
It was submitted by him that as the copies of the said notice, photograph and video cassette were not supplied to the first respondent along with the copy of the election petition, the election petition was liable to be dismissed in limine under section 86(1) for non compliance with section 81(3) of the Act.
The High Court came to the findings that the allegations in the election petition would really show that the said documents formed integral part of the election petition and, therefore, it was really necessary to serve copies of the same on the first respondent and overruled the contention of the appellant that as he had filed the documents and pro duced the video cassette in Court, the first respondent could very well take copies of the same and defend his case.
The High Court took the view that non furnishing to the first respondent copies of the documents along with a copy of the election petition was non compliance with section 81(3) and, as such, the election petition was liable to be dismissed under section 86(1) of the Act.
In that view of the matter, the High Court dismissed the election petition.
Hence this appeal.
Section 81 of the Act provides as follows: "81.
Presentation of petitions.
(1) An elec tion petition calling in question any election may be presented on one or more of the grounds specified in sub section (1) of section 963 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
(2) [Omitted by Act 47 of 1966.] (3) Every election petition shall be accompa nied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the peti tioner under his own signature to be a true copy of the petition.
" We are concerned with section 81(3) which enjoins that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the peti tioner under his own signature to be a true copy of the petition.
Section 81(3), however, does not provide for giving of copies of the documents either referred to in the election petition or filed in the proceedings.
We may now refer to section 86(1) of the Act which reads as follows: "86(1).
The High Court shall dismiss an elec tion petition which does not comply with the provisions of section 81 or section 82 or section 117." Section 86(1), therefore, is a mandate on the court to dismiss an election petition if there be a non compliance with the provision of section 81(3).
In other words, both section 81(3) and section 86(1) are mandatory in nature and if there be any non compliance with the mandatory provision of section 81(3), the court will be bound to dismiss the election petition.
Before considering whether a copy of the document re ferred to in the election petition or filed in the proceed ings should be furnished to the elected candidate, whose election is under challenge, along with a copy of the elec tion petition, we may refer to section 83 of the Act provid ing as to the contents of an election petition.
Section 83 provides as follows: 964 "83.
Contents of petition. (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allega tion of such corrupt practice and the particu lars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
" It is apparent from clauses (a) and (b) of section 83 that an election petition shall contain a concise statement of the material facts and also set forth full particulars of any corrupt practice.
These two requirements are also manda tory in nature.
So, whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner.
As has been held in Satya Narain vs Dhuja Ram, ; , the right to challenge an election is not a common law right, but a special right as conferred by the Act.
The provision for setting aside the election on the grounds mentioned in section 100 of the Act including the ground of corrupt practice has been made for the purpose of maintain ing purity of elections.
An election is the democratic method for selecting the representatives of the people in Parliament or in the Legislative Assembly.
When a candidate gets himself elected by adopting or committing any corrupt practice, his election must be set aside on proof of such corrupt practice.
At the same time, the proce 965 dure prescribed by the Act for challenging an election must be strictly followed.
So, if there be any deviation from or non compliance with the provision of section 81(3), the court will have no other alternative than to dismiss the election petition.
It has been already noticed that the High Court dis missed the election petition as the appellant has not fur nished to the first respondent copies of the notice, photo graph and the video cassette referred to above along with a copy of the election petition.
So far as the copies of the notice and the photograph are concerned, we do not think that the High Court was justified in holding that these should have also been furnished to the first respondent along with the copy of the election petition.
Dr. Chitale, learned Counsel appearing on behalf of the first respondent, also has not urged that the copies of these two documents should have been served upon the first respondent.
What has, however, been vehemently urged on behalf of the first re spondent is that he should, have been served along with the election a copy of the video cassette.
This contention will be considered presently.
We have already referred to section 83 relating to the contents of an election petition.
The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice.
The material facts or particulars relating to any corrupt prac tice may be contained in a document and the election peti tioner, without pleading the material facts or particulars of corrupt practice, may refer to the document.
When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference.
In other words, it forms an integral part of the election petition.
Section 81(3) pro vides for giving a true copy of the election petition.
When a document forms an integral part of the election petition and a copy of such document is not furnished to the respond ent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of section 81(3) and, as such, the court has to dismiss the election petition under section 86(1) for non compliance with section 81(3).
On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition.
In such a case, a copy of the document need not be served on the respondent and that will not be non compliance with the provision of section 81(3).
The document 966 may be relied upon as an evidence in the proceedings.
In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition.
There may be another situation when a copy of the docu ment need not be served on the respondent along with the election petition.
When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent.
What section 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate.
When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the elec tion petition.
Copy of such document must be served on the respondents.
Keeping in view the above principles, let us consider whether the video cassette, as mentioned in paragraph 5(xi) in the election petition, forms an integral part of the election petition.
It is not disputed that a copy of the video cassette was not served on the first respondent along with the copy of the election petition.
Indeed, the same was submitted by the appellant in a sealed cover with an appli cation praying for keeping the video cassettee in the sealed cover till the stage of examination of witnesses.
It is, therefore, apparent that not only the copy of the video cassette was not served on the first respondent, but also the appellant had no intention of serving a copy of the same on the first respondent.
It is urged by Mr. Poti, learned Counsel appearing on behalf of the appellant, that the video cassette is only an evidence of the fact stated in paragraph 5(xi) of the elec tion petition, relevant portion of which has been extracted above.
It has been alleged in paragraph 5(xi) that at the instigation of the first respondent, a video cassette called "Malayude Purogathi" has been used in the constituency.
The expression "Malayude Purogathi" means progress of Mala, which is the constituency in question.
Further, it has been alleged that the persons whose speeches have been recorded in the video cassette regarding progress of Mala are two Government officers named in paragraph 5(xi), and that the cassette has been used in the constituency at the 967 instigation of the first respondent.
This has been averred as a corrupt practice.
It is also mentioned in the same paragraph that the video cassette is produced with the election petition in a sealed cover.
It is not disputed that by corrupt practice as referred to in paragraph 5(xi) of the election petition, the appellant is referring to the corrupt practice within the meaning of section 123(7) of the Act.
Section 123 enumerates the different corrupt practices for the purposes of the Act.
One of the corrupt practices, as contained in section 123(7), is the obtaining or procuring or abetting or attempting to obtain or procure by a candi date or his agent, or by any other person, with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate 's election, from any person in the service of the Government and belonging to any of the classes as mentioned in clauses (a) to (g) of the section.
The signifi cant ingredient of corrupt practice, as mentioned in section 123(7), is that the assistance which is obtained or procured from a Government servant of the classes mentioned in clauses (a) to (g) must be for the furtherance of the pros pect of the election of the candidate who or on whose behalf such assistance has been obtained or procured.
It is not disputed that the two Government servants mentioned in paragraph 5(xi) of the election petition whose speeches have been recorded in the video cassette, are Government servants within the meaning of section 123(7).
The speeches of the two Government servants relating to "Malayude Purogathi", that is, the progress of Mala, sim pliciter will not constitute a corrupt practice within the meaning of section 123(7).
In order to be a corrupt practice within the meaning of section 123(7), the speeches of the said Government servants as recorded in the video cassette and alleged to have been used in the constituency at the instigation of the first respondent, must be with a view to obtaining or procuring or abetting or attempting to obtain or procure the assistance for the furtherance of the pros pects of the first respondent 's election.
It is urged by the learned Counsel for the appellant that as no such allegation has been made in paragraph 5(xi), the allegations in that paragraph do not constitute a corrupt practice within the meaning of section 123(7) and, accordingly, the video cas sette does not form an integral part of that paragraph.
We are unable to accept the contention.
It is true that there is no allegation in paragraph 5(xi) that the video cassette was used by the first respondent for the purpose of any assistance for the furtherance of the prospects of his election.
But, in our opinion, it is apparent that 968 such an allegation is implied in the paragraph.
After alleg ing that the video cassette was used in the constituency at the instigation of the first respondent, it is alleged that the same constituted a corrupt practice which points to the only fact that the video cassette containing the speeches of the Government servants was used for the purpose of some assistance for the furtherance of the prospects of the election of the first respondent.
It is implied that the video cassette is referred to in paragraph 5(xi) in regard to the alleged assistance for the furtherance of the pros pects of the election of the first respondent and, accord ingly, the contents of the cassette are incorporated in that paragraph by reference.
In other words, the cassette forms an integral part of paragraph 5(xi).
In this connection, we may refer to Item No. 1 of the List of Documents which reads as follows: "1.
Video Cassette by Kala Audio & Video, Kallettumkara, Tricur District titled "Mala yude Purogathi" prepared at the instance of the first respondent for election propaganda, as stated in paragraph 5(xi) of the election petition.
" It is clear from Item No. 1 of the List of Documents that it is the specific case of the appellant that the video cassette was prepared at the instance of the first respond ent for election propaganda, as stated in paragraph 5(xi) of the election petition.
Whether it was so stated in Item No. 1 of the List of Documents or not it is, as stated already, apparent on the face of the allegation in paragraph 5(xi) that it was used by the first respondent by way of assist ance in furtherance of the prospects of his election and so the video cassette formed an integral part of paragraph 5(xi).
Unless a copy of the video cassette was given to the first respondent, he would not know how the speeches of the said Government servants could assist the furtherance of the prospects of his election and would not be in a position to deal with the allegations made in paragraph 5(xi).
The copy of the election petition which was served on the first respondent without a copy of the video cassette was not, therefore, a true copy of the election petition within the meaning of section 81(3) of the Act.
Much reliance has been placed on behalf of the appellant on a decision of this Court in Sahodrabai Rai vs Ram Singh Aharwar, ; In that case, the appellant filed an election petition challenging the election of the first respondent on four grounds, one of which was corrupt prac tice inasmuch as the first respondent had appealed to reli gion through a pamphlet marked Annexure A.
In the 969 body of the election petition a translation in English of the Hindi pamphlet was incorporated.
The original pamphlet was attached to the election petition and was marked Annex ure A.
The election petitioner, thereafter, stated in the petition that the pamphlet formed part of the petition.
The first respondent raised an objection that a copy of the pamphlet had not been annexed to the copy of the election petition served on him and, therefore, the 'election peti tion was liable to be dismissed under section 86 of the Act.
The High Court accepted the objection and dismissed 'the election petition.
On an appeal to this Court by the appel lant, this Court set aside the judgment of the High Court holding that the pamphlet must be treated as a document and not as a part of the election petition in so far as the averments were concerned.
The decision in Sahodrabai 's case does not, in our opinion, lend any assistance to the contention of the appel lant that the video cassette is only evidence and does not form part of the election petition.
In that case, the elec tion petition reproduced the whole of the pamphlet and, accordingly, it was held that it was only an evidence and not a part of the election petition.
What has been stressed in that case is that each and every document does not form part of the election petition.
Moreover, the Court was considering the scope of section 83(2) of the Act before it was amended.
We are unable to accept the contention made on behalf of the appellant that a document, in no circum stances, can form an integral part of the election petition.
As has been noticed already, the phamplet in that case was fully reproduced in the election petition and, therefore, it was merely an evidence and did not form a part of the elec tion petition.
In Thakur Virendra Singh vs Vimal Kumar, ; the question was whether a leaflet, a copy of which was Annexure A to the election petition and referred to in paragraph 13 thereof, constituted a part of the election petition and, accordingly should have been served on the elected candidate.
This Court overruled the contention of the elected candidate that the petition was liable to be dismissed as the copy of the petition meant to be served on the appellant was not accompanied by a copy of Annexure A on the ground that the allegation of corrupt practice and particulars thereof, as given in paragraph 13 of the elec tion petition, were sufficiently clear and precise.
This decision is, therefore, of no help to the contention of the appellant that the video cassette is not a part of the election petition.
The most important case for our purpose is the decision of this 970 Court in M. Karunanidhi vs H.V. Hande, In that case, in paragraph 18(b) of the election petition it was alleged as follows: "18(b).
The first Respondent erected fancy banners throughout the constituency and the number of such banners is about 50.
A photo graph of one such banner is filed herewith.
The cost of each such banner will be not less than Rs. 1,000.
The expenditure involved in erecting these fifty banners is about Rs.50,000.
It is submitted that the first Respondent has incurred the above said expend iture which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section 77(3) of the Act thus amounting to a corrupt practice under Section 123(6) of the Act.
" Admittedly, a copy of the photograph as referred to in paragraph 18(b) was not furnished to the appellant along with a copy of the election petition.
This Court took the view that the averment contained in paragraph 18(b) would be incomplete without a copy of the photograph being supplied with a copy of the election petition.
The reason being that it was not possible to conceive of the dimension of the large fancy banner unless one had a look at the photograph.
1n that view of the matter, it was held by this Court that the photograph formed an integral part of the petition and a copy of it should have been served along with the election petition.
Accordingly, this Court reversed the judgment of the High Court in so far as it held that the photograph of the fancy banner adverted to in paragraph 18(b) could not be treated to be an integral part of the election petition, but was merely a piece of evidence ' as to the nature and type of fancy banner erected by the appellant and, therefore, fail ure to supply a copy of the photograph to the appellant did not amount to a violation of the provision of sub section (3) of section 81 of the Act.
The decision in Karunanidhi 's case fully supports the view which we take, namely, the video cassette formed an integral part of the election petition because without a copy of the video cassette the first respondent was not in a position to know whether ' the video cassette recording the speeches of the two Government servants could be said to have been used by the first respondent for the purpose of any assistance in furtherance of the prospects of his elec tion.
Karunanidhi 's case was referred to and approved in a subsequent decision of this Court in Mithilesh Kumar Pandey vs Baidyanath Yadav, [1984] 2 SCR 278.
971 Mr. Poti has, however, urged that if the averments in paragraph 5(xi) of the election petition are full and com plete or, in other words, if they do not give particulars of the corrupt practice, in that case the said averments may be struck out under the provisions of Order VI Rule 16 of the Code of Civil Procedure, but the entire election petition cannot be dismissed.
It has already been noticed that under clauses (a) and (b) of section 83(1) of the Act, an election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice.
The material facts and the full particulars of corrupt practice will constitute cause of action for the election petition.
If the material facts are not supplied or full particulars of corrupt practice are not given in the election petition, as a consequence of which the election petition does not disclose any cause of action, it is liable to be dismissed under the provision of Order VII, Rule 11(a) of the Code of Civil Procedure.
See Azhar Hussain vs Rajiv Gandhi, ; Apart from the striking out the whole of the election petition when it does not disclose a cause of action, the court can strike out any statement which is irrelevant, scandalous or has nothing to do with the cause of action under the provision of Order VI, Rule 16 of the Code of Civil Procedure.
It is submitted by Mr. Poti that if the averments in paragraph 5(xi) of the election petition are irrelevant or do not disclose any cause of action, at the most the said paragraph can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure.
We are afraid, we are unable to accept the con tention.
We are not concerned with whether paragraph 5(xi) can be struck out by the court under the provision of Order VI, Rule 16 of the Code of Civil Procedure as not disclosing any cause of action, but really we are concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of the video cassette is a true copy of the election peti tion or not within the meaning of section 81(3) of the Act.
We have come to the conclusion that the appellant has not served on the first respondent a true copy of the election petition inasmuch as, admittedly, a copy of the video cas sette which forms an integral part of the election petition, was not served along with the election petition.
There is, therefore, no substance in the contention which is rejected.
Mr. Poti has drawn our attention to the observations made by this Court in Shri Udhav Singh vs Madhay Rao Scin dia, [1977] 1 SCC 511 which reads as follows: 972 "Like the Code of Civil Procedure, this sec tion also envisages a distinction between "material facts" and "material particulars".
Clause (a) of sub section (1) corresponds to Order 6, Rule 2, while clause (b) is analogous to Order 6, Rules 4 and 6 of the Code.
The distinction between "material facts" and "material particulars" is important because different consequences may flow from a defi ciency of such facts or particulars in the pleading.
Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off .under
Order 6, Rule 16, Code of Civil Procedure.
If the petition is based solely on those allega tions which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action, In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.
" On the basis of the above observations, it is submitted that if paragraph 5(xi) of the election petition suffers from a deficiency of material particulars, the court .has a discretion to allow the appellant to supply the required particulars even after the expiry of limitation.
The above observations have been made in a different context and are quite inapplicable to the facts and circumstances of the instant case which, as noticed already, relate to the ques tion as to whether the video cassette is an integral part .of the election petition and whether non furnishing of a copy of the video cassette to the first respondent along with a copy of election petition is non compliance with the mandatory provision of section 81(3) and, as such, liable to be dismissed under section 86(1) of the Act.
The question of exercise of discretion by the court in permitting the appel lant to supply the particulars does not arise at all.
Lastly, the decision of this Court in A. Madan Mohan vs Kalavakunta Chandrasekhara, has been relied upon by the learned Counsel for the appellant.
We fail to understand how this case is of any assistance to the appel lant, for in this case also this Court once more approved of the decision in Karunanidhi 's case.
No other point has been urged by either party in this appeal.
In view of the discussion made above, we affirm the judgment of the High Court dismissing the election petition of the appellant on the 973 ground that as the copy of the video cassette was not served on the first respondent along with a copy of the election petition, it was noncompliance with the provision of section 81(3) of the Act.
The appeal is, accordingly, dismissed.
There will, however, be no order as to costs.
Y. Lal Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was a voter in the Mala constituency of the Kerala Legislative Assembly, election whereof was held on March 23, 1987 and the first respondent, sitting Chief Minister of the State was declared elected from the said constituency.
The appellant challenged the validity of 1st Respond ent 's election on the ground of various corrupt practices committed by him.
It was alleged in the Election Petition that at the instigation of the first respondent, Respondent No. 2 published a notice wherein it was stated that he was withdrawing his candidature.
It was further stated in the notice that his purpose of contesting was to highlight the grievances of the Kudumbi Samudayam community with a view to get that community the status of Scheduled Caste and since the Kerala Government under the leadership of the first respondent (returned candidate) had decided to give a fa vourable consideration in regard to the community 's den.and for inclusion in the list of Scheduled Castes, it had become necessary for the first respondent to win the election.
He thereby offered his support to Respondent No. 1.
According to the appellant this act constituted a corrupt practice within the meaning of Section 123 of the Representation of the People Act, 1951.
It was further alleged by the Election Petitioner that Respondent No. 1, committed corrupt practice by asking Government servants to lead processions in support of his candidature.
A photograph of a procession was filed.
Election Petitioner further alleged that at the instiga tion of the first respondent a video cassette called "Mala yude Purogathi" had been used in the constituency wherein persons like Shri Jose P. George, Government Pleader, Kerala High Court, Shri Tomas Thottappally, 959 Veterinary Doctor spoke in support of the first respondent which is a corrupt practice.
The video cassette was filed in a sealed cover.
The first respondent contested the Election Petition and pleaded that since the copies of the photograph, notice and the video cassette have not been furnished to him alongwith the Election Petition, the same was liable to be dismissed in limine under section 86(1) for noncompliance with the provisions of section 83(1).
The High Court rejected the contention of the appellant that Respondent No. I could obtain copies of the documents from the High Court; and defend his case, and took the view that non furnishing to the respondent copies of the docu ments alongwith a copy of the Election Petition was non compliance with section 81(3) and as such, the election petition was liable to be dismissed, which the High Court did.
Hence this appeal.
Almost identical arguments were advanced before this Court.
Counsel for the appellant strenuously contended that the video cassette etc.
do not from an integral part of the petition, on the other hand, they had been filed in the proceedings as evidence of facts and copies of such docu ments need not be served on the respondent alongwith a copy of the Election Petition.
On behalf of the first respondent it was mainly argued that failure to supply the documents violates the provisions of section 81(3) as in the absence of those the Election Petition served cannot be said to be true copy of the election petition as contemplated by sec tion 81(3) of the Act.
Dismissing the appeal, this Court, HELD: An election is the democratic method for selecting the representatives of the people in Parliament or in the Legislative Assembly.
When a candidate gets himself elected by adopting or committing any corrupt practice, his election must be set aside on proof of such corrupt practice.
At the same time, the procedure prescribed by the Act for challeng ing an election must be strictly followed.
[964H 965A] Satya Narain vs Dhuja Ram, ; Whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner.
[964F] 960 When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent alongwith a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of section 81(3) and, as such, the Court has to dismiss the election petition under section 86(1) for non compliance with section 81(3).
[965F G] Section 81(3) which enjoins that every election peti tion shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
Section 81(3) however, does not provide for giving of copies of the docu ments either referred to in the election petition or filed in the proceedings.
[963D] Section 86(1) is a mandate on the Court to dismiss an election petition if there be a non compliance with the provisions of section 81(3).
I963F] The appellant in the instant case, has not served on the first respondent a true copy of the election petition inasmuch as admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served alongwith the election petition.
It was noncompliance with the provisions of section 81(3) of the Act.
(M. Karuna nidhi vs H.V. Hande, [972H 973A] The question of exercise of jurisdiction by the Court in permitting the appellant to supply the particulars does not arise at all.
[972F] Sahodrabai Rai vs Ram Singh Aharwar, ; ; Thakur Virendra Singh vs Vimal Kumar, ; ; Mithilesh Kumar Pandey vs Baidyanath Yadav, [1984] 2 SCR 278; Azhar Hussain vs Rajiv Gandhi, ; ; Shri Udhav Singh vs Madhav Rao Scindia, [1977] 1 SCC 511 and A. Madan Mohan vs Kalavakunta Chandrasekhara,


judgement:
Criminal Appeal No. 533 of 1989.
From the Judgment and Order dated 31.8.88 of the Bombay High Court in Criminal Appeal No. 24 of 1988.
Govind Mukhoty and V.B. Joshi for the Appellant.
Anil Dev Singh, C.K. Sucharita and Ms. A. Subhashini for the Respondent.
The following order of the Court was delivered Special leave granted.
The appellant who is a French national has preferred this appeal 1029 under Article 136 of the Constitution of India canvassing the correctness of his conviction under Sections 21, 20(b)(ii) and 18 of the (for brevity hereinafter referred to as the 'Act ') and the sentence of 10 years rigorous imprison ment in addition to pay a fine of Rs. 1,00,000 in default to undergo rigorous imprisonment for one year inflicted by the Court of Sessions Judge, South Goa, Margao and confirmed by the High Court of Bombay, Panaji Bench (Goa) with a modifi cation of the default sentence from one year to six months on the indictment that the appellant on 7.12.87 at about 0.40 hours at Colva was found in possession of prohibited drugs/namely 51 gms.
of brown sugar, 45 gins.
of ganja oil and 55 gms.
of opium all worth approximately Rs. 13,465 without valid documents.
Adumberated in brief, the relevant facts of the prosecu tion case giving rise to this appeal are as follows.
On 6th December, 1987 at about 11.00 p.m. the Assistant Sub Inspector of Police, Shri Laxman Mahalsekar (PW 7) while along with his police party was on his patrol duty at the 3rd ward of Colva, saw the appellant speeding up his motor cycle, bearing Registration No. GDK 851 ignoring his signal to stop.
The appellant in such attempt, presumably to escape from being nabbed by the police lost control over the vehi cle and fell down.
No sooner he stood up and removed a paper wrapping from his pant pocket and threw it away.
PW 7 on entertaining suspicion over the conduct of the appellant verified that wrapping to contain small quantity of brown sugar and then he took the appellant along with his motor cycle to the nearby Police Out Post.
A handbag, bluish in colour with red strips had been attached to the motorcycle.
When the said bag was opened with a key handed over by the appellant and examined in the presence of two pancha wit nesses, namely Francis Xavier D 'Silva (PW 1) and one Connie D 'Silva (not examined), it was found to contain some person al belongings such as wearing apparels, a pair of shoes and a canvas bag.
Inside the bag, there was one shaving cream tube, one camera, a torch and four plastic rolls.
There was also one plastic bag containing contraceptives.
The torch was found to contain two bundles of plastic material each one containing a small piece of blackish substance.
Inside the cream tube, four bandies wrapped in a plastic material were found.
Each of the bundle contained small pieces of blackish substance.
There was also one more bundle of plas tic material concealed in the shoes which when opened was found to contain small piece of blackish substance similar to the one found in the torch as well in the shaving cream tube.
The 1030 camera was found in a box in which there were five packets of plastic material with some powder of yellowish colour i.e. brown sugar.
According to PW 7, there were 50 gms.
of brown sugar hidden in the camera case, 45 gms.
of Ganja oil in the steel container and 55 gms.
of opium in the shaving cream tube, torch light and shoes.
All the materials were weighed and seized under a panchnama (exhibit P. 1) attested by PW 1 and Connie D 'Silva.
The appellant was arrested and kept under medical treatment and observation.
Samples of these articles were sent to Chemical Analyst (PW 6) who has de posed that she received three envelopes Ex.1 to 3.
According to her, the envelope marked Ex.1 contained 1.57 gms.
of substance which on analysis was found to contain 16.8% w/w of Morphine (which is an alkaloid extracted from opium i.e. conversion of opium).
The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the envelope exhibit 2, weighing 2.45 gms.
was not sufficient to carry out further analysis.
The substance in envelope exhibit 3 weighing 2.97 gms.
on analysis was found to contain a dark brown sticky substance having odour similar to that of extract of cannabis.
PW 6 gave her report (exhibit
P 3) dated 8.2.88.
PW 7, after receiving exhibit P 3 and complet ing the investigation charge sheeted the accused under the provisions of the Act on the ground that the appellant was in possession of prohibited drugs without a valid licence or permit or authorisation in violation of Section 8 punishable under the penal provisions of the Act.
The defence of the appellant is one of total denial.
As pointed out in the earlier part of this judgment both the Trial Court and the Appellate Court have concurrently found the accused guilty.
Mr. Govind Mukhoty, learned senior advocate appearing on behalf of the appellant directed a manifold scathing attack on the prosecution case raising the following conten tions: 1.
The absence of any visible injury on the person of the appellant while apprehended belies the prosecution version that the appel lant had fallen down from the vehicle on accelerating the speed; 2.
The fact that the Investigating Offi cer did not deliberately join with him respec tive inhabitants of the locality i.e. within the vicinity of the Police Out Post to witness the seizure but had taken pain to secure PW 1 and Connie D 'Silva who were residing far away from the place of seizure and who seem to 1031 have been readily willing and obliging to be pancha witnesses devalues the evidence regard ing the seizure of the contrabands and more so it is in violation of the salutary provisions of law prescribing the procedure to be fol lowed before making the search and seizure; 3.
PW 7 sent only three samples from the alleged seized substances that too in small quantity instead of sending sufficient repre sentative quantity from each of the packets seized for assay.
Therefore, in the absence of scientific test of all the substances found in each of the packets, no safe conclusion can be arrived that the entire substances seized under various packets were all prohibited drugs; 4.
The admission of PW 6 in her evidence that she does not know the difference between the narcotic drugs and psychotropic substances militates against the evidentiary value of her opinion under Exh.
P 3. 5.
The non inclusion of PW 5, the owner of the motor cycle as an accused and the non examination of Cavin at whose instance PW 5 lent the vehicle are fatal to the prosecution case; 6.
Even assuming but not conceding that the prosecution version is acceptable in the absence of any evidence that the appellant was carrying on with the nefarious trade of pro hibited drugs either as a 'peddler ' or 'push er ', the appellant would be liable to be punished within the mischief of Section 27(a) of the Act, since the attending circumstances present in this case indicate that the appel lant was in possession of the drugs in small quantity only for his personal consumption.
We shall now examine the contentions seriatim with reference to the evidence available on record.
There is no denying the fact that the appellant had been taken into police custody on the early hours of 7.12.87 by PW 7 along with the motor cycle involved in this case.
The submission of Mr. Mukhoty is that in the absence of any injury on the person of the appellant, the case of the prosecution that the appellant fell down from his vehicle is hardly acceptable.
No doubt if a person is thrown off or falls down from a speeding vehicle he may sustain injuries either serious or simple or escape sometimes unhurt but it depends on the speed of the 1032 vehicle, the manner of fall, the nature of the soil and the surface of the earth etc.
In the present case, evidence of PWs 4 and 7 is that the appellant on seeing the police party accelerated the speed ignoring the signal given by PW 7 to stop and it was only during the course of this attempt, the appellant fell down from the motor cycle at a place where the street lights i.e. the fluorescent tube lights and bulbs were on and thereafter immediately stood up.
The evidence on these two witnesses and the other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police.
It is not the case of the prosecution that the appellant sped away to some distance and then had fallen down from the speeding vehicle.
PW 3, the Medical Officer attached to Hospicio Hospital speaks to the fact that when she examined the appellant on 8.12.87 at about 8.00 p.m., the appellant complained of bodyache, nosia etc.
but PW 3 does not whisper of having seen any visible injury on the person of the appellant.
After carefully scanning the evidence of PWs 4 and 7 coupled with the recovery of the articles Nos 1 to 14, we unhesitatingly hold that the appel lant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt.
Hence in the light of the above evidence, we are constrained to hold that this submission made by the learned defence counsel does not merit consideration.
After the appellant was secured by the police, PW 7 directed PW 4 to bring two pancha witnesses.
Accordingly, PW 4 brought two witnesses from a place which is according to PW 7 is within a distance of 1 KM and according to PW 5 at five minutes walking distance.
Much argument was advanced by the learned defence counsel that these two witnesses were not the respectable inhabitants of that locality; that they were readily willing and obliging witnesses to the police and that there is deliberate violation of the statutory safeguard.
This argument cannot be endured for more than one reason to be presently stated.
The appellant was secured in the midnight near the police out post.
It clearly transpires from the records that these two witnesses are not outsiders but residents of the same area, namely Colva.
Except making some bare suggestions that both the witnesses were regular and professional witnesses, nothing tangible has been brought out in the cross examination to discredit the testi mony of PW 1.
This Court, while considering a similar con tention in Sunder Singh vs State of U.P., [1956] Crl.
Law Journal 801 and Tej Bahadur vs State of U.P., has observed that if pancha witnesses are not respect ables of the same locality but from another locality, it may amount only to an 1033 irregularity, not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below.
See also State of Punjab vs Wasson Singh and Five Oth ers; , When such is the view, expressed by this Court on a number of occasions, we are unable to appreciate the submis sion of the learned counsel that the prosecution case is in violent disregard of the procedure relating to search and seizure.
The question that PW 1 and other pancha witnesses are not the inhabitants of the locality does not arise in the present case because it is indisputably shown that they are the residents of the same Colva area where the Police Out Post is situated.
The fact that these two witnesses are not residing in the vicinity of the seizure, in our view, does not disturb the acceptance of the evidence of PW 1 relating to the seizure of the contrabands and other arti cles.
With regard to the drawing up of the panchnama, the defence has come forward with two diametrically contradicto ry suggestions in that, the suggestion made to PW 1 is that he only subscribed his signatures on some papers whilst a new story, suggested to PW 7 is that the panchanama was fabricated around the 5th of January 1988 in order to save one Ramesh, brother of PW 5 from being prosecuted in connec tion with this seizure.
To establish the seizure of all the articles including the contrabands, the prosecution rests its case not only on the testimony of PW 1 but also on the evidence of PWs 5 and 7 whose evidence is amply corroborated by the towering circumstances attending the case.
From the records, it is found that PW 7 divided the contrabands into three categories and sent the samples from each of the categories for analysis.
No doubt, it would have been appreciable, had PW 7 sent sufficient representative quantity from each of the packets but however this omission in the present case does not affect the intrinsic veracity of the prosecution case.
PW 6 has fairly stated that she was able to thoroughly assay only the substances found in two envelopes marked as exhibit P 1 and P 3 and the substances in envelop exhibit P 2 was not sufficient to carry out further analysis though it was a dark brown soft mass having charac teristic of odour of opium.
The testimony of PW 6 and her opinion recorded in the unimpeachable document (exhibit P 3) lend assurance to the case of the prosecution that the contrabands seized from the possession of the appellant were prohibited drugs and substances.
1034 The criticism levelled by the learned defence counsel is that the evidence of PW 6 is not worthy of acceptance since she has admitted that she does not know the difference between the narcotic drugs and psychotropic substances.
This attack, in our view, does not assume any significance be cause as rightly pointed out by Mr. Anil Dev Singh, the learned senior advocate for the respondent, the Medical Officer is not expected to know the differences in the legal parlance as defined in Section 2(xiv) and (xxii) and speci fied under Schedules 1 to III in accordance with the con cerned Narcotic Drugs and Psychotropic Substances Rules, 1985 made under the Act and so this ground by itself, in our view, is no ground for ruling out the evidence of PW 6.
Yet another attack by the defence that the omission on the part of the prosecution to include PW 5 as an accused and to examine Cavin as a witness has to be mentioned simply to be rejected as devoid of any merit, as there is absolute ly no material to hold that PW 5 was in any way connected with the seizure of the contrabands or he has committed any indictable offence though the vehicle belonged to him.
The non examination of Cavin at whose instance PW 5 lent his motorcycle to the appellant does not in any way affect the prosecution case.
For the discussions made above, we see no force in the contentions 1 to 5.
Lastly, we have to consider the legal submission made by Mr. Mukhoty that the appellant was in possession of these drugs or substances in a small quantity for his personal consumption and as such he would be punishable only under Section 27(a) of the Act providing imprisonment for a term which may extend to one year or with fine or with both.
He further pleaded that the appellant is neither an 'uncrowned king of the mafia world ' nor a 'peddler ' nor a 'pusher '; that he being a foreigner by prolonged and continuous use of drugs has become a drug dependent and that he had all symp toms of an addict and exhibited sufferance of withdrawal symptoms on discontinuing the drug which, it seems, he was taking on his own as borne out from the testimony of the Medical Officers (PWs 2 and 3) under whose observation the appellant has been kept for some days.
Incidentally, he has added that though ignorance of law is not an excuse and it cannot be permitted to be pleaded, yet this Court may take note of the fact that the appellant who is a foreigner should have been lacking awareness of the stringent provi sions of the Act.
Firstly, let us examine whether the offence would fail within the 1035 mischief of Section 27(a) of the Act.
This section provides punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance.
The expression 'small ' quantity occuring in that section is explained under Explanation I annexed to that Section which reads thus: "For the purposes of this section 'small quantity ' means such quantity as may be speci fied by the Central Government by notification in the Official Gazette.
" In compliance with this explanation, the Ministry of Finance (Department of Revenue) has issued notification No. S.O. 827(E) dated November 14, 1985 published in the Gazette of India, Extra., Part II Section 3(ii) dated 14th November 1985 which notification reads thus: "In exercise of the powers conferred by Expla nation (1) of Section 27 of the (61 of 1985) and in partial modification of the notification of the Government of India in the Ministry of Finance, Department of Revenue No.S.O. 825(E), dated the 14th November 1985 the Central Government hereby specifies the quantity mentioned in Column 3 of the Table below, in relation to the narcotic drug men tioned in the corresponding entry in column (2) of the said Table, as 'small quantity ' for the purposes of that section.
TABLE Serial No. Name of the Narcotic Drug Quantity 1 2 3 1.
Heroin or drug commonly 250 milligrams known as Brown Sugar or smack 1036 2.
Hashish or Charas 5 grams 3.
Opium 5 grams 4.
Cocaine 125 milligrams 5.
Ganja 500 grams Coming to the case on hand, the appellant was found to be in possession of the narcotic drugs or substances far in excess of the quantity mentioned in column 3 of the table under the notification.
According to the prosecution, he was in possession of 51 grams of brown sugar, 45 grams of Ganja oil and 55 grams of opium.
In view of the above position, it cannot be contended that the prohibited drugs and substances seized from the appellant 's possession were in small quantity so as to bring him only within the mischief of Section 27(a) of the Act.
It may not be out of place to mention that even if a person is shown to have been in possession of a small quan tity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
Thirdly, the very fact that the appellant had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
We, for the above reasons, see no merit in this contention also.
The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows: "The spreading of the drugs in Gao is becoming day by day a terrible menace which is com pletely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming 1037 provisions calling for severe punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade.
" With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming pro portions in the recent years.
Therefore, in order to effec tively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
As we have now rejected the plea of the defence hold ing that the penal provisions of Section 27(a) has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the notification, the sen tence of 10 years rigorous imprisonment and the fine of Rs. 1,00,000 with the default clause as modified by the High Court does not call for interference.
In the result, the appeal is dismissed.
T.N.A. Appeal dismissed.

summary:
The appellant is a foreign national.
At Colva, on seeing a police party on patrol he accelerated the speed of his motor cycle ignoring the signal given by Assistant Sub Inspector of Police (P.W. 7) and in that process lost con trol over the vehicle and fell down.
Thereafter he immedi ately stood up and removed a paper wrapping from his pant pocket and threw it away which on verification was found to contain a small quantity of brown sugar.
The appellant was taken to the nearby police post along with the motor cycle.
A hand bag attached to the motor cycle was opened and exam ined in the presence of two pancha witnesses and it was found that there was brown sugar hidden in the Camera case, Ganja oil in the steel container, and opium in the shaving cream tube, torch light and shoe.
All the substances were weighed and seized under a panchnama and sample of these contrabands divided into three categories were sent to Chemical Analyst (PW. 6) who found that one sample contained 16.8% w/w of Morphine (an alkaloid extracted from opium), and the other sample contained a dark brown 1026 sticky substance having odour similar to that of extract of cannabis.
The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the third sample was not sufficient to carry out further analy sis.
The appellant was consequently prosecuted for possession of prohibited drugs under the Narcotic Drugs and Psychotrop ic Substances Act, 1985.
The Sessions Judge convicted him under Sections 21, 20(b)(ii) and 18 of the Act and imposed a sentence of 10 years rigorous imprisonment and a fine of Rs. 1,00,000 and in default to undergo rigorous imprisonment for one year.
The High Court dismissed the appeal of the appel lant and confirmed the sentence passed by the Trial Court but modified the default sentence from one year to six months.
In this appeal challenging the correctness of the con viction it was contended on behalf of the appellant that: (i) in the absence of any injury on the person of the appel lant, the case of the prosecution that the appellant fell down from his vehicle is hardly acceptable (ii) the pancha witnesses were not the respectable inhabitants of the local ity therefore the seizure of the contrabands was in viola tion of the provisions relating to search and seizure; (iii) the omission to send sufficient representative quantity of the contrabands for analysis affected the veracity of the prosecution case; (iv) the omission to include the owner of the motor cycle (PW 5) as an accused and the non examination of the person at whose instance the vehicle was lent to the appellant affected the prosecution case; and (v) since the appellant was in possession of these drugs or substances in a small quantity for his personal consumption he was liable to be punished only under section 27(a) of the Act.
Dismissing the appeal, HELD: 1.
If a person is thrown off or fails from a speeding vehicle he may sustain injuries either serious or simple or escape sometimes unhurt but it depends on the speed of the vehicle, the manner of fall, the nature of the soft and the surface of the earth etc.
In the instant case, the evidence and other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police.
Therefore it is right that the appellant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt.
[1031H; 1032A D] 2.
If pancha witnesses are not respectables of the same locality 1027 but from another locality, it may amount only to an irregu larity, not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below.
[1032G H; 1033A B] Sunder Singh vs State of U.P., ; Tej Bahadur vs State of U.P., and State of Punjab vs Wasson Singh and Ors.
, ; ; ap plied.
2.1 In the instant case, the appellant was secured in the midnight near the Police Out Post.
It is indisputably shown that the pancha witnesses are not outsiders but are residents of the same area where the Police Out Post is situated.
The fact that these two witnesses are not residing in the vicinity of the seizure, does not disturb the accept ance of the evidence relating to the seizure of the contra bands and other articles.
Except making some bare sugges tions that both the witnesses were regular and professional witnesses, nothing tangible has been brought out in the cross examination to discredit the testimony.
[1033C E] 3.
In the instant case, the omission to send sufficient quantity of samples of contrabands for analysis does not affect the intrinsic veracity of the prosecution case.
The testimony of the Chemical Analyst and her opinion recorded in the unimpeachable document lend assurance to the case of the prosecution that the contrabands seized from the posses sion of the appellant were prohibited drugs and substances.
[1033F H] 4.
The Medical Officer is not expected to know the differences in the legal parlance as defined in section 2(xiv) and (xxii) and specified under Schedules I to III of the Narcotic Drugs and Psychotropic Substances Rules 1985 made under the Act.
Therefore, the admission of the Chemical Analyst that she does not know the difference between the narcotic drugs and psychotropic substances by itself is no ground for ruling out her evidence.
[1034A B] 5.
There is absolutely no material to hold that the owner of the motor cycle was in any way connected with the seizure of the contrabands or he has committed any indict able offence though the vehicle belonged to him.
The non examination of the person at whose instance the owner lent his motor cycle to the appellant does not in any way affect the prosecution case.
[1034C D] 1028 6.
Section 27(a) of the Act provides punishment for illegal possession in small quantity for personal consump tion of any narcotic drug or psychotropic substance.
The expression 'small quantity ' occuring in that section is explained under Explanation I there of as such quantity as may be specified by the Central Government by Notification in the Official Gazette.
[1035A B] In the instant case, the penal provisions of section 27(a) has no role to play as the prohibited drugs and sub stances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the rele vant Notification.
[1036D] Even if a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic sub stance, the burden of proving that it was intended for the personal consumption of such person, and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
[1036E] The very fact that the appellant in the instant case had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having full knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
Therefore, the sentence of 10 years rigorous imprisonment and the fine of Rs.1,O0,000 with the default clause as modified by the High Court does not call for interference.
[1036F; 1037D]