judgement:
N: Criminal Appeal No. 539 of 1984 From the judgment and order dated 17.11.82 of the High Court of Delhi in Criminal Appeal No. 268/82.
466 D K Sen, G.D. Gupta and R.N. Poddar for the Appellant.
D.B. Vohra for the Respondent.
The following Judgments were delivered VARADARAJAN, J.
This appeal by special leave is by the Delhi Administration and directed against the judgment of a learned Single Judge of the Delhi High Court dismissing Criminal Revision No. 268 of 1982 in limine.
That criminal revision was filed against the acquittal of the respondent by the learned Metropolitan Magistrate, Delhi in Case No. 11 of 1982, in which the respondent was tried for an offence under section 7 read with section 16 of the (hereinafter referred to as 'the Act ').
The Food Inspector, P.W. 4 took a sample of lal mirchi powder from the grocery shop of the respondent.
On analysis by the Public Analyst it was found in exhibit PW 1/C that the sample contained nine living meal worms.
There was no other evidence in support of the case of the prosecution that the lal mirchi powder was adulterated.
It was contended before the learned Magistrate that the evidence by way of the Public Analyst 's report does not satisfy the requirement of the definition of 'adulterated article ' of food contained in section 2 (1) (f) of the Act.
The learned Magistrate accepted this contention and found that the prosecution has failed to prove that the lal mirchi powder was adulterated and he accordingly acquitted the respondent.
The Calcutta High Court in M/s Narkeklange Roller Flour Mills and another vs The Corporation of Calcutta(1) has observed: ".
Clause (f) of Section 2 defines the word 'adulterated ' and an article of food is said to be adulterated if it is insect infested.
By physical examination the Public Analyst found blackish worms and the sample there is at best worm infested.
Is the word worm synonymous with 'insect ' ? Did the legislature intend to condemn wheat products due to presence of seasonal worms ? The word 'insect ' is defined in the Oxford Dictionary as "small invertebrate segmented animal having head, thorax, abdomen, and three pairs of thoracic legs, usually with one or two pairs of thoracic (1) 1973 (Prevention of Food Adulteration Cases) 257. 467 wings.
"The word "worm" in the same dictionary is defined as "kinds of invertebrate limbless or apparently limbless creeping animal, such as are segmented in rings or are parasite in the intestines or tissues.
" There is, therefore, a good deal of difference between worms and insects and a sample of food becomes adulterated only when it is insect infested.
In the present sample, however, worms were found to be present and that in our view, does not satisfy the requirements of the definition "adulterated" under Section 2 of the Act.
" According to the Webster 's New World Dictionary (1962 edition), 'worm ' means "any of many long, slender, soft bodied creeping animals, some segmented, that live by burrowing underground or as parasites, as the earth worm, tapeworm".
According to Webster 's New World Dictionary 'infest ' means "to overrun or inhabit in large numbers, usually so as to be harmful or bother some swarm in or about." According to that dictionary an 'insect ' means any "of a large group of small invertebrate animals characterized, in the adult state, by division of the body into head, thorax, and abdomen, three pairs of membranous wings: beetles, bees, flies, wasps, mosquitoes, etc.
are insects.
" According to the Shorter Oxford English Dictionary, 'worm means "a slender, creeping, naked, limbless animal usually brown or reddish with a soft body divided into a series of segments; an earthworm." According to that dictionary an 'insect ' means "a small invertebrate animal, usually having a body divided into segments, and several pairs of legs, and often winged." Therefore it is not possible to hold that a worm and an insect are the same.
Even if worms and insects are the same the appellant is not out of difficulty in this case.
As already stated the Public Analyst has found in the sample only nine living meal worms and he has neither stated that it is insect infested nor that it is unfit for human consumption on account of the presence of the meal worms nor that it is otherwise unfit for human consumption.
According to Webster 's Illustrated Contemporary Dictionary (Encyclopedic Edition), 'infest ' means "to overrun or spread in large numbers so as to be unpleasant or unsafe".
468 In Municipal Corporation of Delhi vs Kacheroo Mal, (1) the Public Analyst had reported: " Date of Analysis: 10 1 1969, Insect infested pieces of Kajus: 21.9% and I am of the opinion that the same is adulterated due to insect infested pieces of Kajus to the extent of 21.9%" Sarkaria, J. speaking for himself and Gupta, J. has observed in that case: " In view of the construction that the expression 'insect infested ', includes infestation even by dead insects, the further point to be considered is, whether mere insect infestation, without more, would be sufficient to hold the article to be 'adulterated ' within the meaning of sub clause (f) of clause (I) of section 2 of the Act .
The point sought to be made out is that in this case, the prosecution, the defence and the High Court all felt that the report of the Public Analyst was vague, inadequate and deficient, and in the absence of clear proof of the sample being unfit for human consumption, it could not constitute a valid basis for holding the article to be adulterated within the meaning of sec.
2(1)(f).
As against the above, Mr. F.S. Nariman, the learned; Counsel for the appellant Corporation submits that in the case of food articles for which no minimum standard or purity is prescribed, the moment it is proved that a proportion of percentage of the article not being a proportion or percentage as would be covered by the rule, de minimis non curat lex is putrid, filthy, disgusting, decomposed or insect infested, it would be deemed to be unfit for human consumption and therefore adulterated within the contemplation of section 2(1)(f).
In any case, proceeds the argument, it is implicit in the report of the Public Analyst that the article in question was found unfit for human consumption.
This implication according to the learned Counsel flows ' from the Analyst 's conclusion that the article was "adulterated".
Counsel has criticised the view taken by the Bench in Dhanraj 's case that if for an article of food, no (1) ; 469 standard of quality or purity has been prescribed or no limits have been prescribed for the validity or its constituents, then sub clause (I) of clause (f) of sec.
2 will not apply and that the Public Analyst is not competent to say as to what extent of insect infestation would make the article "adulterated ' The relevant part of Section 2 reads as under: "(1) "adulterated" an article of food shall be deemed to be adulterated (a) to (e) . . . (f) If the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption".
The phrase "or is otherwise unfit for human consumption" can be read conjunctively as well as disjunctively.
If it is read conjunctively, that is, in association with what precedes it, sub clause (f) with slight consequent rearrangement and parenthesis would read like this: "If the article, is unfit for human consumption on account of (a) its consisting wholly or in part of any filthy, putrid, disgusting rotten, decomposed or diseased animal or vegetable sub stance or being insect infested, (b) or on account of any other cause '.
In this view of the sub clause, proof of unfitness of the article for human consumption is a must for bringing the case within its purview.
F If the phrase is to be read disjunctively the mere proof of whole or any part of the article being "filthy, putrid, disgusting, rotten . or insect infested" would be conclusive to bring the case within the mischief of this sub clause, and it would not be necessary in such a case to prove further that the article was unfit for human consumption.
We would prefer the first construction as it comports best with reason, common sense, realities, the tenor of this provision and the main purpose and scheme of the Act.
The adjectives "filthy", "putrid ', "disgusting", "decomposed", 470 "rotten". "insect infested" refer to the quality of the article and furnish the indicia for presuming the article to be unfit for human consumption.
But the presumption may not be conclusive in a cases, irrespective of the character of the article, and the nature and extent of the vice afflicting it. ." In Dhanraj 's case (I.L.R. 1970 Delhi 681) the High Court construed this sub clause (f) thus: "The word 'otherwise ' in sub clause (f) of cl.
(I) of sec.
2 does suggest that all the adjectives used earlier refer to the quality of the article being unfit for human consumption.
To fall under that sub clause an article of food must be unfit for human consumption because it consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or because it is insect infested or on account of any other cause".
On the basis of that decision it is stated as follows in the , published by the Eastern Book Company, seventh edition, with reference to section 2 (1) (f) of that Act thus: " The phrase "or otherwise unfit for human consumption" should be read conjunctively and not disjunctively, that is, in association with what precedes it.
This sub clause would read like this: If the article is unfit for human consumption on account of (a) its consisting wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or being insect infested, (b) or on account of any other cause.
In this view of the sub clause proof of the unfitness of the article for human consumption is a must for bringing the case within its purview.
Municipal Corporation, Delhi vs Kacheroo Mal(l) (1) [1976] 2 S.C.R. I 471 All the adjectives used in this sub clause are presumptive and not an absolute test of the quality of the article being unfit for human consumption.
To be more precise, in the case of an article in respect of which the Rules do not prescribe any minimum standard of purity or any minimum proportion of insect infestation that would exclude in from the definition of "adulterated article" it will be a mixed question of law and fact whether the insect infestation is of such a nature, degree and extent as renders the article unfit for human consumption.
The opinion of the public analyst who examines and analyses the sample would constitute legal evidence.
As an expert in the science he is competent to opine and testify about this fact.
Municipal Corporation, Delhi vs Kacheroo Mal[(1976) 2 SCR 1]".
An equally strong ' Bench of this Court l has taken a different view in regard to section 2(1)(f) of the Act in Municipal Corporation of Delhi vs Tek Chand Bhatia(l), where A.P. Sen, J. speaking for himself and Murtaza Fazal Ali, J. has observed: " In Dhanraj 's case (supra) the High Court construed sub cl.
(f) thus: "The word 'otherwise ' in sub clause (f) of cl.
(l) of sec.
2 does suggest that all the adjectives used earlier refer to the quality of the article being unfit for human consumption.
To fall under that sub clause an article of food must be unfit for human consumption because it consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or because it is insect infested or on account of any other cause," We are of the opinion that the High Court was clearly wrong in its inter pretation of section 2(1)(f).
On the plain language of the definition section it is quite apparent that the words 'or is otherwise unfit for human consumption ' are disjunctive of the rest of the words preceding them.
It relates to a distinct and separate cclass altogether, It seems to us (1) [1980] I S.C.R., 910 472 that the last clause 'or is otherwise unfit for human consumption ' is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it.
If the phrase is to be read disjunctively the mere proof of the article of food being 'filthy, putrid, rotten, decomposed .
Or insect infested ' would be per se sufficient to bring the case within the purview of the word 'adulterated ' as defined in sub cl.
(f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption.
It is, however, pointed out that the construction placed by the High Court in Dhanraj 's case upon section 2(1)(f) of the Act has been received with approval by this Court in Municipal Corporation of Delhi vs Kacheroo Mal [(1976) 2 S.C.R.1] where it is observed that 'the construction placed by the High Court in Dhanraj 's case is the correct exposition of the law embodied in section 2(1)(f) '.
It is added for the sake of elucidation that the adjectives which precede the phrase 'or is otherwise unfit for human consumption ' indicate presumptive but not absolute criteria as to the quality of the article of food.
If we may say so with respect, we have reservations about the correctness of this decision, but it is not necessary to refer the case to a larger Bench.
In Kacheroo Mal 's case it is observed: "The phrase "or is otherwise unfit for human consumption" can be read conjunctively as well as disjunctively.
If it is read conjunctively, that is, in association with what precedes it, sub clause (f) with slight consequent rearrangement and parenthesis would read like this; "If the article is unfit for human consumption on account of (a) its consisting wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or being insect infested, (b) or on account of any other cause ' In this view of the sub clause, proof of 'unfitness of the article for human consumption ' is a must for bringing the case within its purview.
If the phrase is to be read disjunctively, the more proof of the whole or any part of the article being "filthy, putrid, disgusting, rotten. . or insect infested" would be conclu 473 sive to bring the case within the mischief of this sub clause, and it would not be necessary in such a case to prove further that the article was unfit for human consumption.
We would prefer the first construction as it comports best with reason, common sense, realities, the tenor of this provision and the main purpose and scheme of the Act.
The adjectives "filthy", "putrid", "disgusting", "decomposed", "rotten". "insect infested" refer to the quality of the article and furnish the indicia for presuming the article to be unfit for human consumption.
But the presumption may not be conclusive in all cases, irrespective of the character of the article, and the nature and extent of the vice afflicting it.
This is particularly so, where an article is found to be "insect infested.
" With utmost respect, we are not able to share this view and would hold that the observations made in the Judgment should be confined to the particular facts of that case.
The decision in Kacheroo Mal 's case (supra) was largely based on the circumstances that the standard of quality and purity was not prescribed in respect of cashew nuts.
Now that r. 48 B of the Prevention of Food Adulteration Rules; 1955 has been framed, the decision in Kacheroo Mal 's case (Supra) is rendered inapplicable.
" We also constitute a Bench of equal strength.
Therefore, I refrain from expressing any opinion as to which of the two aforesaid views is correct.
Nor is it necessary for me to do so having regard to the facts of this case.
Even if the nine worms found by the Public Analyst in the sample are considered to be insects, the certificate of the Public Analyst does not support the case of the prosecution that the lal mirchi powder was adulterated, for the Public Analyst ha not expressed his opinion that the lal mirchi powder was either worm.
infested or insect infested or that on account of the presence of the meal worms the sample was unfit for human consumption. 'Therefore, I am of the opinion that the prosecution has not established by any satisfactory evidence the requirement of section 2(1)(f) of the Act.
Consequently, no interference is called for with the judgment of the 474 High Court which, as stated above, has dismissed the criminal revision in limine.
The appeal is accordingly dismissed.
In my opinion, the true meaning of Section 2(ia) (f) has been brought out in Municipal Corporation of Delhi vs Tek Chand Bhatia (supra) and the conclusion that 'it would not be necessary in such a case to prove further that the article of food was unfit for human consumption ' is a correct statement of the law.
I agree with my learned brother that the evidence led by the prosecution is inadequate to warrant interference with the judgment of acquittal passed by the trying Magistrate and upheld by the High Court.
I, therefore, agree that the appeal has to be dismissed.

summary:
Section 2(1) (f) of the Provides that an article of food shall be deemed to be adulterated if the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption.
The respondent was prosecuted for an offence under section 7 read with section 16 of the Act.
The prosecution case was that a sample of lal mirchi powder was taken from the grocery shop of the respondent.
On an analysis by the Public Analyst it was found that the sample contained nine living meal worms.
Thor was no other evidence in support of the case of the prosecution that the lal mirch powder was adulterated.
The learned Magistrate found that the prosecution had failed to prove that the lal mirchi powder was adulterated and acquitted the respondent.
The High Court dismissed the Criminal Revision Petition filed by the appellant State in limine.
Dismissing the appeal by the State, ^ HELD: (I) The words 'worm ', 'infest ' and 'insect ' are defined in Webster 's New World Dictionary (1962 Edition). 'Worm ' means "any of many long, slender, soft bodied Creeping animals, some segmented, that live by burrowing underground or as parasites, as the earth worm, tapeworm," 'Infest ' means "to overrun or inhabit in large numbers, usually so as to be harmful or 465 bothersome, swarm in or about. 'Insect ' means "any of a large group of small invertebrate animals characterized, in the adult state, by division of the body into head, thorax, and abdomen, three pairs of membranes wings: beetles, bees, flies, wasps, mosquitoes, etc.
are insects.
" The same meaning is given of the above three words in the Shorter Oxford Dictionary.
Therefore, it is not possible to hold that a worm and an insect are the same.
[467C E] M/S Narkeklange Roller Flour Mills and another vs The Corporation of Calcutta 1973 (Prevention of Food Adulteration Cases) 257, referred to.
(2) Even if the nine worms found by the Public Analyst in the sample are considered to be insects, the certificate of the Public Analyst does not support the case of the prosecution that the lal mirchi powder was adulterated, for the Public Analyst has not expressed his opinion that the lal mirchi powder was either worm infested or insect infested or that on account of the presence of the meal worms the sample was unfit for human consumption.
Therefore, the prosecution has not established by any satisfactory evidence the requirement of Section 2(1) (f) of the Act.
Consequently no interference is called for with the Judgement of the High Court.
[473G H] Municipal Corporation of Delhi vs Kacheroo Mal ; , Municipal Corporation of Delhi vs Tek Chand Bhatia ; , held inapplicable.
Per Varadarajan J.
No opinion is expressed as to which of the two views expressed in Municipal Corporation of Delhi vs Kacheroo Mal, ; , and Municipal Corporation of Delhi vs Tek Chand Bhatia [1980] I S.C.R.910 is correct, Since this Bench also is of equal strength.
Moreover, it is not necessary to do so having regard to the facts of the present case.
[473F ] Per Ranganath Misra 1.
(concurring in the conclusion) The true meaning of section 2(1) (f) has been brought out in Municipal Corporation of Delhi vs Tek Chand Bhatia, 11980] I SCR 910 and the conclusion that 'it would not be necessary in such a case to prove further that the article of food was unfit for human consumption ' is a correct statement of the law.
In the instant case, the prosecution evidence is inadequate to warrant interference.
[474B C]


judgement:
Civil Appeal No. 149 of 1971.
On appeal by Certificate from the Judgment and Decree dated 28.4.69 of the Madhya Pradesh High Court in First Appeal No. 14 of 1963.
H. K.Puri for the Appellant.
UR.Lalit, S.K. Gambhir, Ashok Mahajan and section Kirplani for the Respondents.
The Judgment of the Court was delivered by MISRA J.
The present appeal by certificate is directed against the judgment deted 28th April, 1969 of the High Court of Madha Pradesh, Indore Bench.
The facts leading to this appeal are brief.
The respondents are the owners of Jaora Sugar Mills situated at Jaora in the earlier State of Madhya Bharat.
The erstwhile State of Jaora merged in the State of Madhya Bharat.
After the merger the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 came into force.
By a notification No. 5163/XXX (49) dated 5th September, 1949 the Madhya Bharat Government in exercise of the Powers vested under the said Act included 'sugar ' in the list of articles as an essential commodity By another notification l No. 563 5166/XXX(49) dated the 5th September, 1949 'the Madhya Bharat Government delegated its powers to issue orders under the said Act in favour of the Director, Civil Supplies, Madhya Bharat.
In exercise of the powers conferred on him under the Madhya Bharat Sugar Control Order, 1949 the Director of Civil Supplies issued a notification No. dated the 14th January, 1950 fixing ex factory prices for different sugar factories.
Under the said notification all sugar factories in Madhya Bharat were to supply and despatch sugar of Grade E 27 at Rs. 32.4.0 per maund F.O.R. destination.
The supply price was a little higher than the ex factory price.
The difference between the supply price and the ex factory price was to be credited of Madhya Bharat Government Sugar Fund.
The appellant made several demands on the respondents, the proprietors of the Jaora Sugar Mills, to credit such difference in the account of Madhya Bharat Government Sugar Fund and the respondents ultimately deposited Rs 50000 under protest.
On the 10th September, 1953 the respondents instituted a suit in the court of Fifth Additional District judge, Indore against the erstwhile State of Madhya Bharat for the refund of the sum of Rs. 50,000 which the respondents had deposited towards Sugar Fund and Rs. 10,000 towards interest at the rate of 6 per cent per annum from the date of deposit of the aforesaid sum of Rs. 50,000.
The suit continued against the newly formed State of Madhya Pradesh as provided by law.
The grievance of the respondent in the main was that the change and modification made by the Madhya Bharat Government in the definition of essential commodities given in the Act by including sugar therein was against the law, that the Director of Civil Supplies had no authority before 6th September, 1949 to issue the Sugar Control order, 1949 which had been issued on 5th September, 1949; that the State Government or the Director of Civil Supplies, Madhya Bharat had no power under the Essential Supplies (Temporary Powers) Act and the Sugar Control Order to impose a levy styled as 'Sugar Fund ' and to recover the same; that the levy and collection of tax/impost styled as 'Sugar Fund ' by the Director of Civil Supplies being violative of article 265 OF the Constitution, was illegal and invalid; that the provisions of Sugar Control Order, 1949 did not empower the Director of Civil Supplies to fix any price 564 other than ex factory wholesale or retail price or to fix a price which be called supply price or to impose and collect levy as 'Sugar Fund '; that is was illegal and unconstitutional for the Director of Civil Supplies to fix different ex factory prices for different sugar mills in the same State; that it was illegal and unconstitutional to collect money through certain mills for creating Sugar Fund when other factories in the same State were being exempted from doing so that there was clear discrimination in fixing ex factory price of sugar in respect of respondents ' mill lower than ex factory price fixed for; certain other mills in the State without there being a rational basis for the same; and that the levy and collection of certain money from the respondents being without lawful authority and without legislative competence, the State was bond to refund the same.
The State resisted the claim of the plaintiff respondents and refuted the allegation on the points.
The trial court decided all the issues against the plaintiffs and consequently it dismissed the suit.
On appeal by the plaintiffs the High Court set aside the judgment and decree of the trial court and decreed the suit for refund of Rs. 50,000 deposited by plaintiffs under protest and Rs. 10,000 as interest thereon calculated at the rate of 6 per cent from the date of suit till realisation.
The High Court repelled the contention of the State that the impost was not intended to augment general revenues of the State but was meant for a special purpose, i.e., for creating a fund which could be utilised for augmenting the production of sugarcane in the State so that the supply of sugar might be increased.
The High Court observed that legislative competence was necessary for such imposition irrespective of the fact whether the impost was intended to augment general revenues of the State or for a special purpose, i.e., for creating a fund for augmenting the production of sugar.
It further held that article 277 of the Constitution only saves such taxes, cesses or fees which immediately before the commencement of the Constitution were being lawfully levied by the Government of any State notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List.
But in the instant case levy of 'Sugar Fund ' was imposed by means of an order which was published for the first time in the Madhya Bharat Government Gazette dated 28th January, 1950 two days after the Constitution came into force.
The High Court proceeded further to hold that the power Conferred on the Director of Civil Supplies did not authorise him 565 to fix different prices in his discretion in different parts of Madhya Bharat under section 5 of the Sugar Control Order which in the case of some mills was higher than ex factory price.
The fixing of supply price higher than ex factory price had nothing to do with the enforcement of the order as it does not deal with licensing, ex factory sale price, movement or distribution of sugar.
Nor did sections 11 and 12 justify the Director of Civil Supplies recovering additional Amount apart from ex factory price from the purchasers.
Thus, in the opinion of the High Court the State had levied and collected under the purported legal authority certain money from the plaintiffs for which it had no legislative competence to do and therefore the State must restore the same to the persons from whom it was collected and cannot keep the same on the ground that plaintiffs too have been wrongly allowed to collect, and that the persons who could claim the same were the corresponding purchasers.
The High Court omitted to decide the question whether the particular purchasers can recover hereafter from the plaintiffs whatever they had collected in excess of the ex factory sale price on the ground that it need not be determined in this case.
Feeling aggrieved the State has come up in appeal.
It vainly tried to support its stand that the recovery of Rs. 50,000 from the respondents was perfectly lawful and proper and there was no discrimination as contemplated by article 14 of the Constitution.
On the question of refund of the amount to the plaintiffs respondents reliance was placed on The Orient Paper Mills Ltd. vs The State of Orissa & Ors (1).
In that case the appellants who were registered dealers under the Orissa Sales Tax Act, 1947 used to collect sales tax from the purchasers on all sales effected by them, including sales to dealers in other States.
They very assessed to and paid tax on their turnover which included sales outside the State of Orissa.
After the decision of this Court in State of Bombay vs The United Motors(India) Ltd (2).
the dealers applied under s.14 of the Act for refund of tax paid on the ground that sales outside the State were not taxable under cl.
(l)(a) of article 286 of (1) [1962]1 SCR 549.
(2) ; 566 the Constitution read with the Explanation.
Refund was refused by the Sales Tax Authorities and the Board of Revenue.
The High Court, however, ordered refund of tax paid for certain period but refused it in regard to other periods.
The Orissa Sales Tax Act was, however, amended in 1958 with retrospective effect incorporating s.14A which provided that refund could be claimed only by the person from whom the dealer had realised the amount by way of sales tax or otherwise.
On these facts it was held by this Court that under s.14A of the Act incorporated by the Orissa Sales Tax (Amendment) Act, 1958 refund of tax which the dealer was not liable to pay could be claimed by the person from whom the dealer had actually realised it whether as sales tax or otherwise and not by the dealer.
In Shiv Shankar Dal Mills etc.
vs State of Haryana (1) the appellants and the petitioners who had paid under mistake the excess sums demanded a direction to the effect that these amounts be refunded.
It, however, transpired that many of the traders had themselves recovered the excess percentage from the next purchasers.
It was held that to the extent the traders had paid out of their own, they were entitled to keep them, but not where they had in turn collected from elsewhere.
In Newabganj Sugar Mills vs Union of India & Ors (a).
this Court in a similar situation devised a new procedure to deal with a new situation where equity demanded redistribution but procedural expensiveness and cumbersomeness effectively thwarted legal action.
It directed the Registrar of the High Court to receive and dispose of claims from the ultimate consumers for excess price paid on proper proof, out of the security money.
In Sales Tax Officer, Banaras & Ors.
vs Kanhaiya Lal Mukundlal Saraf(3 the levy of sales tax on forward transaction was held to be ultra vires.
The respondents, therefore, applied for a refund of the amounts paid by a petition under article 226 of the Constitution.
This Court, however, took the view that the term 'mistake ' under section 72 of the Indian Contract Act comprises within its scope a mistake of law as well as a mistake of fact and that, under that section a party is entitled to recover (1) ; (2) ; (3) 567 money paid by mistake or under coercion and if it is established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law, the party receiving the money is bound to repay or return it though it might have been paid voluntarily subject, however, to questions of estoppel, waiver, limitation or the like.
Recently this Court in M/s Amar Nath Om Parkash & Ors.
v, The State of Punjab & Ors (1).
had the occasion to consider the question of refund to the dealers in a similar situation and it observed: '.
We do not see how a mere declaration that the levy and collection of fee in excess of Rs.2 per hundred would automatically vest in the dealer the right to get at the excess amount when in fact he did not bear the burden of it and when the moral and equitable owner of it was the consumer public to whom the burden had been passed on.
The primary purpose of sec.
23A is seen on the face of it; it prevents the refund of license lee by the market committee to dealers, who have already passed on the burden of such fee to the next purchaser of the agricultural produce and who went to unjustly enrich themselves by obtaining the refund from the market committes.
section 23A in truth, recognises the consumer public who have borne the ultimate burden as the persons who have really paid the amount and so entitled to refund of any excess fee collected and therefore directs the market committee representing their interests to retain the amount.
It has to be in this form because it would, in practice, be a difficult and futile exercise to attempt to trace the individual purchasers and consumer who ultimately bore the burden.
It is really a law returning to the public what it has taken from the public, by enabling the commitee to utilise the amount for the performance of services required of it under the Act.
Instead of allowing middlemen to profiteer by illgotten (1) ; 568 gains, the legislature has devised a procedure to undo the wrong that has been done by the excessive levy by allowing the committees to retain the amount to be utilised hereafter for the benefit of the very persons for whose benefit the marketing legislation was enacted.
" The principles laid down in the aforesaid cases were based on the specific provisions in those Acts but the same principles can safely be applied to the facts of the present case inasmuch as in the present case also the respondents had not to pay the amount from their coffers.
The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund.
Only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same.
The amount deposited towards the Fund was to be utilised for the development of sugarcane.
If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund Was created, namely, development of sugarcane.
There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund.
Doing so would virtually amount to allow the respondents unjust enrichment.
For the foregoing discussion the appeal must succeed.
It is accordingly allowed and the judgment and decree of the High Court for the refund of the amount of Rs.50,000 and interest thereon is set aside.
In the circumstances of the case the parties shall bear their own costs.
A.P.J. Appeal allowed.

dataset_name: IN-Abs

summary:
Respondents are owners of sugar mill situated in erstwhile Jaora State which merged in the State of Madhya Bharat.
After the merger, the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 came into force.
By a notification dated 5th September, 1949 the said Act included 'sugar ' in the list of articles as an essential commodity.
By another notification dated 5th September, 1949 the Government delegated its powers to the Director, Civil Supplies to issue orders under the Act.
The Director of Civil Supplies by a notification dated 14th January, 1950 fixed ex factory prices for different sugar factories, which were to supply and despatch sugar of Grade E 27 at Rs. 32.400 per maund F.O.R. destination.
The supply price was higher than ex factory price.
The difference between the supply price and the ex factory price was to be credited to Madhya Bharat Government Sugar Fund.
On demand by appellants, the respondents deposited a sum of Rs. 50,000 under protest in the said Sugar Fund.
The respondents instituted a suit for the refund of the amount deposited by them towards Sugar Fund and Rs. 10,000 towards interest.
Tho suit was dismissed.
On appeal, the High Court set aside the Judgment and Decree of the trial Court and decreed the suit.
Allowing the appeal of the State, ^ HELD: 1.
The respondents had not to pay the amount from their coffers.
The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund.
Only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same.[568C] 562 2.
The amount deposited towards the Fund was to be utilised for the development of sugarcane.
If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund was created, namely, the development of sugarcane.
There is no question of refunding the amount to the Respondents who had not eventually paid the U amount towards the Fund.
Doing so would virtually amount to allow the respondents unjust enrichment.
[568D E] The Orient Paper Mills Ltd. vs The State of Orissa & Ors.
[1962] I SCR 549.
State of Bombay vs The United Motors (India) Ltd. , Shiv Shankar Dal Mills etc.
vs State of Haryana ; , Newabganei Sugar Mills vs Union of India & Ors. ; , Sales Tax Officer, Banaras & Ors.
vs Kanhaiya Lal Mukundlal Saraf, , M s Amar Nath Om Parkash & Ors.
vs The State of Punjab & Ors., ; , relied upon.


judgement:
ISDICTION: Civil Appeal No. 1372 of 1979.
From the judgment and decree of the Allahabad High Court dated March 2,1979 in Second Appeal No. 626/76.
P.K. Chatterjee and P.K Mukherjee for the Appellant, G. ViswanathaIyer and M.V. Goswami him for the Respon dents.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is by the defendant respondent in Second Appeal No. 626 Of 1976 on the file of the Allahabad High Court and directed against judgement of the learned Single Judge of that High Court in so far as it relates to the 375 appointment of the second respondent/second plaintiff Man Mohan as the Mohatmim/Shebait of the first respondent Shri Thakur Ladli Radhachandra Madan Gopalji Maharaj (for short "Gopalji") and the properties belonging to that idol.
The second appeal was filed by the respondents Gopalji and Man Mohan, plaintiffs 1 and 2 respectively.
The second respondent who is the son of one Shyam Sundar claimed to have been adopted by Asharfi Devi, widow of one Purushottam Lal by the document A 24 dated 20 11 1956.
The High Court has not gone into the question of this adoption in its judgment.
Therefore, it is not necessary to refer to the case of the parties and the judgment of the courts below in detail in regard to the question of the adoption.
The suit was filed by both the respondents for recovery of possession of the idol and temple of Gopalji described in the plaint and the money lying in deposit with the Punjab National Bank at Vrindavan, the zamindari abolition compensation and the rehabilitation grant bonds specified in the plaint.
The trial court decreed the suit except as regards items 1 to 25 and 37 to 41 of list I of Schedule "Ba" and the sum of Rs. 1004.97.
The appellant filed an appeal in the District Court and the respondents filed a cross objection in that appeal in regard to the money claim disallowed by the trial court.
The learned Second Additional District Judge, Mathura allowed the appeal and dismissed the cross objection and the suit.
Therefore, both the respondents filed the second appeal.
The respondents ' case was that the idol of Gopalji was installed by Purushottam Lal in his house at Vrindavan which later became the temple of the deity.
Purushottam Lal, who had no issue, performed seva puja of the deity so long as he was alive and it was performed thereafter by his wife Asharfi Devi.
By his will exhibit A 2 dated 14 4 1944 he dedicated his entire property to the deity and made his wife the Mohatmim/Shebait without any power to transfer any property.
In accordance with the directions of her husband, Asharfi Devi adopted the second respondent by a registered deed dated 21 11 1956 by performing the necessary religious ceremonies.
After the death of Asharfi Devi the appellant worked as Pujari in the temple of Gopalji with the consent of the second respondent 's guardian and natural father Shyam Sunder.
Later, he denied the rights of the second respondent contending that Asharfi Devi executed her last will exhibit A 6 dated 21 12 1957 bequeathing her bank deposits, government bonds, household articles etc.
to the appel 376 lant Shambhu Charan and all her jewellery including those kept by her in the custody of Shyam Sunder to the second respondent and declaring that so long as the second respondent was a minor the appellant shall act as Mohatmim of Gopal ji and be responsible for the sewa puja and raj bhog of the deity and the management of the deity 's properties.
They will further declare that the appellant shall continue to live in the house at Bengal Bindala, Vrindavan and act as the guardian of the second respondent in view of his natural father Shyam Sunder 's refusal to do so and that on the second respondent attaining majority the appellant shall hand over the sewa puja and raj bhog and he shall have all the rights of Mohatmim which Asharfi Devi held, without any right to alienate any of the properties.
But this will was not duly executed by Asharfi Devi and she had no right to execute such a will and it does not confer any right on the appellant.
Besides denying the adoption of the second respondent the appellant contended in his written statement that Asharfi Devi validly executed the will dated 21 12 1957 inter alia bequeathing items 1 to 25 and 37 to 41 of Schedule "Ba" and items 3 and 4 of the plaint Schedule, namely, the fixed deposit in Punjab National Bank, Vrindavan, the zamindari abolition compensation bonds and the rehabilitation grant bonds which were all her personal properties, i and not endowed properties, to the appellant and he has thereby become the absolute owner of those properties.
In that will Shyam Sunder had got certain provisions alleged to confer certain rights on the second respondent inserted by exercising undue influence on Asharfi Devi, and they are not binding on the appellant.
The trial court held the adoption of the second respondent by the Asharfi Devi to be duly authorised and valid and found that she had validly executed the will exhibit A 6 dated 21 12 1957 but could not transfer the shebaiti rights to the second respondent thereby and that the second respondent has, however, become the Mohatmim/ Shebait by reason of the adoption and that the appellant had spent the sum of Rs. 1004.97 towards sewa puja and raj bhog of Gopal Ji.
The trial court further found that the movable properties and the cash claimed by the appellant under the will were the personal properties of Asharfi Devi and that the appellant has become entitled to them as a legatee under the will and that the other properties belong to the first respondent Gopal Ji and thus decreed the suit in part.
377 In the appeal by the appellant and the cross objections filed by the respondents the learned Second Additional District Judge.
Mathura found that the adoption made in November 1956 was without the authority of Asharfi Devi s husband to adopt and, therefore, invalid in law.
In the event of the adoption not being upheld the respondents wanted to fall back on the will to support the second respondent 's claim to shebaitship.
That was naturally opposed by the appellant as the respondents did not raly upon the will in the plaint and based the second respondent 's claim to shebaitship only on the adoption.
The learned Second additional District Judge rejected that contention as also the contention of the respondents that Asharfi Devi as the heir of her husband could appoint her successor shebait by her will on the ground that it could not be done by will following this Court 's decision in KK Ganguli vs Panna Banerjee(l) and he held that the second respondent has not become shebait under the will.
In this view the learned Additional District Judge allowed the appeal and dismissed the cross objection and the suit in full.
In the second appeal also the question whether the appointment of the second respondent as shebait of the first respondent deity by Asharfi Devi 's will was valid in law was the only question considered by the Single Judge.
The learned Judge expressed the view that it cannot be disputed that prior to the commencement of the a successor to shebaitship could not be appointed by will unless it be that the will was executed by the founder who had created the endowment by dedicating his own absolute properties to the deify.
In the light of this Court 's decision Angurbala Mullick vs Debvbrata Mullick (2) in which it has been held that if a shebait dies leaving behind him a widow and no son she would succeed to the shebaiti right under the ordinary law but her rights in the shebaiti would be restricted in the same manner as they would have been if the successor was the son, which view reiterates the view expressed by the Privy Council in Bhabe Foririe Devi vs Ashalata Devi (3) that shebaiti is heritable property, the learned Single judge held that shebaiti is property and found that no restriction had been placed in the will of Asharfi Devi 's husband Purushottam Lal in regard to the shebaiti and, therefore, Asharfi Devi had (1 ) AIR .1974 SC (3) AIR 1943 PC 89 378 succeeded to the limited right of shebait as the heir of her husband and it became enlarged into an absolute right by section 14(1) of the and that as there was no other heir or successor to Purushottam Lal, Asharfi Devi 's appointment of the second respondent as the shebait under her will exhibit A 6 dated 21 12 57 is valid in law.
The learned Judge found that the zamindari abolition compensation and rehabilitation grant bonds go with the shebaiti and could not be claimed by the appellant.
Thus he allowed the second appeal in part except as regards items l.to 25 and 37 to 41 and the cash of Rs. 1004.97 and the fixed deposit lying with the Punjab National Bank at Vrindavan.
In this Court, the only question to which the arguments were confined by the learned counsel for the parties is whether the shebaiti right could be bequeathed by Asharfi Devi by her will exhibit A 6.
It has to be noticed at the outset that the respontents had based their claim to the . properties and the shebaiti right only on Purushottam Lal 's last will and testimony exhibit A 2 dated 14A 1944 whereby he created the endowment constituting himself as the shebait and on the adoption deed exhibit A 24 dated 10 11 1956.
That adoption which has been held to be valid by the trial court has been found by the first appellate court to be invalid in law for want of authority of the husband to make the adoption prior to the commencement of the , and the High Court has not gone into that question.
The respondents attacked the genuineness of the will exhibit A 6 in toto in their plaint while the appellant had relied upon it in part to the extent that it purports to confer on him absolute right in regard to certain properties including items 1 to 25 and 37 to 41 of list 1 of Schedule "Ba".
He contended that the remaining position of that will which purports to confer shebaiti rights on the second respondent had been fraudulently introduced by the second respondent 's natural father Shyam Sunder by the exercise of undue influence on Asharfi Devi and that portion of the will is not, therefore, binding on him.
However, the learned Judge of the High Court has allowed the second appeal in part stated above only on the basis of that will.
It may be stated that it was not contended by Mr. P.K. Chattrjee, learned Senior Advocate appearing for the appellant that it was not open to tho High Court to grant relief to the second respondent on the basis of the will on which no reliance had been placed in the plaint.
A8 379 stated earlier the only question regrading which Mr. Chatterjee appearing for the appellant and Mr. G. Viswanath Iyer, learned Senior Advocate appealing for the respondent advanced their arguments was as regards the validity of the appointment of the second respondent as shebait by Asharfi Devi 's will, exhibit A 6.
Mr. Chatterjee conceded in the course of his arguments that shebaitship is heritable property but submitted that heriditary succession to shebait is not mentioned in Purushottam Lal 's will, exhibit A 2 and, therefore, after the death of Asharfi Devi shebaitship right will revert to the heirs of the founder Purushottam Lal and that the second respondent could not, therefore, claim to be shebait of the first respondent temple.
In this connection, Mr. Chattarjee invited our attention to the judgment of A.N. Ray, J., and K.K. Mathew, J. Of this Court in K.K. Ganguli vs Panna Banerjee (Supra) where at page 737, Chief Justice Ray speaking for the Bench has observed that the transfer of shebaitiship by will is not permitted because nothing which the shebait has can pass by his will which operates only after his death.
Earlier at page 733 the learned Chief Justice has observed: "The rule against alienation of shebait right has been relaxed by reason of certain special circumstances.
These are classified by Dr. B.K. Mukherjee at page 231 in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust, First Edition under three heads.
The first case is where transfer is not for any pecuniary benefit and the transferee is the next heir of the transferor or stands in the line of succession of shebaits and suffers from no disqualification regarding the performance of the duties.
Second, when the transfer is made in the interests of the deity itself and to meet some pressing necessity.
Third, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential shebaits of the deity or otherwise connected with the family." This decision rendered in a case of sale of shebaitiright for pecuniary consideration appears to support the stand taken by Mr. Chatterjee.
But later decisions of this Court have taken a different view which appears to be consistent with the principles of Hindu Law.
We find the following passage in para 419A of Mulla 's Hindu Law, Fifteenth Edition: 380 "Though a female is personally disqualified from officiating as a Pujari for the shastraically installed and consecrated idols in the temples, the usage or a female succeeding to a priestly office and getting the same performed through a competent deputy has been well recognised and it is not contrary to textual Hindu Law nor opposed to public policy.
In Raj Kali Kuer vs Ram Ratan Pandey(1) the Supreme Court upheld such usage. ' In the next para 420 we find the following passage: "A sale by a shebait or mohunt of his right to manage debutter property is void, even though the transfer may be coupled With an obligation to manage the property in confirmity with the trust attached thereto.
Nor can the right be sold in execution of a decree against him".
At page 158 of Mukherjee 's Hindu Law of Religious and Charitable Trusts, Third Edition, it is stated thus: "Unless therefore the founder has disposed of the shebait ship in any particular way and except when an usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder.
Where the founder of a temple had died without having appointed a shebait, it was held that his widow on whom the right to appoint had developed was entitled to appoint a shebait for the temple, and such appointment was not open to attack as an alienation of the office of a trustee.
And the rule that shebaitship devolves like and other species of pro.
party has been applied to the office of archaka, as well, where emoluments were attached to it.
" In the decision in Profulla Choronl Requittee vs Satya Choronl Requittee(2), Sarkaria, J, speaking for himself and Tulzapurkar, J. has observed at page 440 thus: (1) ; (2) 381 "Office and property are both blended in the conception of shebaitship.
Apart from the obligations and duties resting on him in connection with the endowment, the shebait has a personal interest in the endowed property.
He has, to some extent, the rights of a limited owner.
Shebaitship being property, it devolves like any other species of heritable property.
It follows that, where the founder does not dispose of the shebaiti rights in the endowment created by him, the shebaitship develves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist." A similar view has been expressed in an earlier decision of Chandrachud, C.J. and Desai and Pathak, JJ.
in Ram Rattan vs Bajrang Lal & Ors.(1) where Desai, J. speaking for the Bench has observed thus: "This hereditary office of shebait is traceable to old Hindu texts and is a recognised concept of traditional Hindu Law.
It appears to be heritable and partible in the strict sense that it is enjoyed by heirs of equal degree by turn and transferable by gift subject to the limitation that it may not pass to a non Hindu.
On principles of morality and propriety sale of the office of shebait is not favoured .
Both the elements of office and property, of duties and personal interest are blended together in the conception of shebaitship and neither can be detached from the other .
A full Bench of the Calcutta High Court in Manohar Mukherjee vs Bhupendra Nath Mukherjee and Ors.
held that the office of shebait is , hereditary and is regarded in Hindu Law as immovable property.
This court took note of this decision with approval in Angurbala Mullick 's case (supra).
Office of shebait is hereditary unless provision to the contrary is made in the deed creating the endowment.
In the conception of shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other.
It is, therefore, safe to conclude that the hereditary office of shebait which (1) 382 " would be enjoyed by the person by turn would be immovable property.
The gift of such immovable property must of course be by registered instrument.
" The text of Hindu Law and the aforesaid two decisions of this Court and the earlier decision in Angurbala Mullick 's case (supra) show that shebaitship is in the nature of immovable property heritable by the widow of the last male holder unless there is an usage or custom of a different nature in cases There the founder has not disposed of the shebaiti right in the endowment created by him.
In the present case Purushottam Lal has not made any disposition regarding shebaiti right in his will, exhibit A 2 dated 14.4.1944 whereby he created the endowment.
No custom or usage to the contrary has been pleaded.
Therefore, the widow Asharfi Devi had succeeded to the shebaiti right held by him on his death as a limited owner and that right has become enlarged into an absolute right by the provisions of section 4 (l) of the and she could transfer that right by a will in favour of a person who is not a non Hindu and who could get the duties of shebait performed either by himself or by any other suitable person.
In these circumstances I hold that the second respondent has acquired the shebaiti right under the will Ex.
A 6 executed by Asharfi Devi on her death on 7.3.1963.
No interference is called for in this appeal with the judgment of the learned Single Judge of the High Court.
The appeal is accordingly dismissed with costs.
SABYASACHI MUKHARJI, J.
I agree that the appeal should be dismissed with costs.
I would, however, like to explain the reasons why I come to that conclusion.
In my opinion it is well settled by the authorities that shebaitship is a property which is heritable.
The devolution of the office of Shebait depends on the terms of the deed or the will or on the endowment or the act by which the Deity was installed and property consecrated or given to the Deity, where there is no provision in the endowment or in the deed or will made by the founder as to the succession or There the mode of 6 succession in the deed or the will or endowment comes to an end, the title to the property or to the management and control of the property as the case may be, follows the ordinary rules of inheritance according to Hindu Law As Shebaitship is property, this Court in the case of Angurbala Mullick vs Debabrata Mullick(1) recognised (1) [1951] 2 S.C.R. 1125.
383 the right of a female to succeed to the religious office of shebaitship in view of the Hindu Women 's Rights to Property Act, 1937.
Section 14 (1) of the enlarged the limited right of a Hindu female to the absolute right of the holder.
As in this case there was no bar against alienation imposed by the founder, the property in the nature of shebaitship in this case was devolved on Smt.
Asharfi Devi under the will of her husband Shri Purushottam Lal dated 14th April, 1944.
This will, the wordings of which have been set out in the judgment in the Second Appeal of the High Court, has not restricted the property in any manner in shebaitship bequeathed to Smt.
Asharfi Devi.
The High Court found and I respectfully agree with the High Court that the first sentence of the will makes an absolute bequest of shebaitship to Smt.
Asharfi Devi.
The subsequent words only describe the rights and duties.
In the premises, in view of the law as laid down in Angurbala 's case (supra), she could make a will in respect of shebaitship On the aforesaid reason, in my opinion, the appeal should fail.
It is not necessary, therefore, to express any opinion on the correctness or otherwise of the views expressed by this Court in K K. Ganguli vs Panna Banerjee(1).
Appeal dismissed with costs.

summary:
The idol of Gopalji was installed by one Purshottam Lal in his house at Vrindavan, which later became the temple of the deity.
The founder who had no issue, performed Seva Puja of the deity so long as he was alive and thereafter it was performed by his wife.
By his will exhibit A 2, he dedicated his entire property to the deity, and made his wife the Mohatmim/ Shebait without any power to transfer any property.
In accordance with the directions of her husband, the wife adopted the second respondent by a registered deed after performing the necessary religious ceremonies.
After the death of the wife, the appellant in the appeal worked as Pujari in the temple with the consent of the second respondent 's guardian and natural father.
Later he denied the rights of the second respondent and contended that the founder 's wife executed her last will and testament exhibit A 6 bequeathing her bank deposits, government bonds, household articles, utensils etc.
to the appellant to be kept by him in his custody, so long as the second respondent was a minor and to be responsible for the seva puja and raj bhog of the deity and the management of the deity 's properties.
A suit was filed by the respondents, for recovery of possession of the idol and temple of Gopalji and for the money lying in deposit with the bank, the zamindari abolition compensation etc.
373 The trial court held the adoption of the second respondent to be duly authorised and valid and found that the founder 's wife had validly executed the will exhibit A 6, but could not transfer the shebaiti rights to the second respondent thereby and that the second respondent had, however become the Mohatmim/Shebait by reason of the adoption, and found that the movable properties and the cash claimed by the appellant under the will were the personal properties of the wife and that the appellant had become entitled to them as a legatee under the will and that the other properties belong to the first respondent Gopal Ji, and decreed the suit in part.
In the appeal by the appellant, and the cross objections filed by the second respondent, the additional district judge found that as the adoption was without the authority of the husband to adopt, it was invalid in law and following this Courts ' decision in K.K. Ganguli v Pama Banerjee, AIR held that the second respondent had not become shebait under the will and allowed the appeal and dismissed the corss objections and the suit in full.
In the second appeal, the High Court following this Courts ' decision in Angurbala Mullick vs Debabrata Mullick, [1951] 2 S.C R. 1125 that shebaiti is heritabal property, held shebaiti is property & found that no restriction had been placed in the will of the founder in regard to the shebaiti, and therefore the wife had succeeded to the limited right of shebait as the heir of her husband and it became enlarged into an absolute right under section 14(1) of the and that as there was on other heir or successor to the founder, the wife 's appointment of the second respondent as the shebait under her will exhibit A 6 was valid in law.
The second appeal was accordingly allowed in part except in respect of certain items enumerated in the plaint, and cash in fixed deposit with a bank.
Dismissing the appeal, to this Court.
, ^ HELD: (Per Varadarajan J.) 1.
The text of Hindu Law and the two decisions of this Court in Profulla Choronl Requittee vs Salya Chornal Requittee and Ram Rattan vs Bajrang Lal Angurbala Mullick vs
Debabrata Mullick, [1951] 2 S,C R 1125 show that shebait ship is in the nature of immovable property heritable by the widow of the last male holder unless there is an usage or custom of a different nature in cases where the founder had not disposed of the shebaiti right in the endowment created by him.
[382B C] In the instant case, the founder (Purshottam Lal) had not made any disposition regarding shebaiti right in his will, exhibit A 2 dated 14 4 1944 where by he created the endowment.
No custom or usage to the contrary had been pleaded.
Therefore, the widow (Asharfi Devi) had succeeded to the shebaiti 374 right held by him on his death as a limited owner and that right had become enlarged into an absolute right by the provisions of Section 14(1) of the and she could transfer that right by a will in favour of a person who is not a non Hindu and who could get the duties of shebait per formed either by himself or by any other suitable person.
[382C D] 2.
The second respondent has acquired the shebaiti right under the will exhibit A 6.
No interference is called for with the judgment of the Single Judge of the High Court in the Second appeal.
[382E] (Per Sabyasachi Mukharji J. 'concurring) ' 1.
It is well settled that shebaitship is heritable.
This Court in Angurbale Mullick vs Debabrata Mullick, 119511 2 S.C.R. 1125 recognised the right of a female to succeed to the religious office of shebaitship in view of the Hindu Women 's Right to Property Act 1937.
Section 14(1) of the enlarged the limited right of a Hindu female to the absolute right of the holder.
[382H; 383A] In the instant case, the property in the nature of shebaitship devolved on Smt.
Asharfi Devi under the will of her husband, Shri Purushottam Lal dated April 14, 1944.
This will had not restricted the property in any manner in shebaitship bequeathed to Smt.
Asharfi Devi could therefore make a will in respect of shebaitship.
[383B C] 2.
It is not necessary, to express any opinion on the correctness or otherwise of the views expressed in K.K. Ganguli vs Panna Banerjee, ;


judgement:
Civil Appeal No. 1384 of 1935 From the Judgment and Order dated 24.3.83 of the Administrative Tribunal at Hyderabad in Representation Petition No. 1172 of 1977.
A. Subba Rao for the Appellant.
P. Ram Reddy, R.V.S.N. Chari and Sudesh Menon for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
Special leave granted.
Delay in filing the special leave petition condoned.
We heard mr.A Subba Rao, learned counsel for the appellant and Mr. Ram Reddy, learned senior.
counsel for the State of Andhra Pradesh.
The appellant claims that if appropriate action would have been taken at the time it was due, as per the Ors.
No. 559 571 dated May 4, 1961 which provides that the principle of reservation should be extended to all cadres of posts including posts involving promotions in all departments including the Departments of Secretariat to which it did not apply till then, the appellant would have been eligible for promotion as Deputy Registrar of Co operative Societies in 1965.
He also claims that by denying him the promotion in violation of the afore mentioned Govt.
Order, his furture promotion to the post of Joint Registrar has been adversely affected because in that event he would have long since been appointed as Joint Registrar.
The appellant sought relief by filing Representation Petition No. 1172 of 1977 in the Andhra Pradesh Administrative Tribunal, Hyderabad The Tribunal held that the special rules for the Co operative service did not contain any specific provision for the application of rule of reservation and, therefore, in accordance with the Government Memo dated 27.3.1963, the appellant was not entitled to claim the benefit of the rule of reservation for promotion to the rank of Deputy Registrar between 1965 and 1972 as claimed by him. ' Alternative submission of the appellant that the action of the Government in giving the benefit of the rule of reservation to the category of Section Officers in the Secretariat in Andhra Pradesh General Service for appointment to the rank of Deputy Registrar while omitting other feeder categories from which appointments by transfers were made to the post of Deputy Registrar, was discriminatory and hence violative of articles 14 and 16 of the Constitution, was rejected observing that the promotion from the post of Sub Registrar of Co operative Societies to the post of Deputy Registrar of Co operative Societies was in direct line of promotion and therefore, this category has been excluded from the table annexed to G.O.Ms No. 758 dated October 30,1976.
Accordingly, the representation petition was rejected.
Hence this appeal by special leave.
When the appeal was taken up for hearing, Mr. Ram Reddy frankly stated that if the benefit of the rule of reservation as set out in the G.O.Ms. 559 of May 4, 1961 was available to the appellant, he would become eligible for promotion to the post of Deputy Registrar wayback in 1965 or latest in 1972.
He also frankly conceded that if now the appellant is given promotion out of turn when he did not take effective remedial measures till 1977, when he filed the representation petition, there would be extensive disturbance in various categories of posts because once the appellant is given the 572 benefit, there are numerous similar cases to whom the same benefit will have to be extended and there will be number of promotions and reversions affecting the service.
Mr. Subba Rao repelled the submission saying that the appellant has been making numerous representations which have fallen on deaf ears and therefore, he should not be made to suffer and be the victim of bureaucratic callousness and indifference.
It is now admitted that the petitioner had filed Writ Petition No. 376 of 1968 in the High Court, of Andhra Pradesh and in response to his request, the Government re fixed the seniority of the appellant in the cadre of sub Registrars of Co operative Societies just below Shri N. Raghunatha Rao.
It is also admitted that the petitioner became eligible for promotion as Deputy Registrar from the year 1965.
It is further admitted that the petitioner has been working as Deputy Registrar with effect from October 14, 1983.
The vertical line of promotion in Co operative service appears to be sub Registrar of Co operative Societies moving upward as Deputy Registrar of Co operative Societies and then to special category of Deputy Registrars and then as Joint Registrar.
We were informed that the post of Registrar is an I.A.S. cadre post.
The appellant as Deputy Registrar at present is in the pay scale of Rs. 1050 1600 and his substantive pay is Rs. 1400 per month.
The pay scale admissible for the post of special category of Deputy Registrar is Rs. 1250 1800.
Mr. Ram Reddy, learned counsel for the State of A.P. fairly stated that if the court does not accept the interpretation as put by the Tribunal, then obviously the appellant would be eligible for promotion from 1965.
But his is not the lone case and if the court grants him the relief as claimed by him, though he has sought relief after a very long unexplained delay, it would create chaos in the service and many promotions and reversions will have to be effected.
According to Mr. Ram Reddy, it is a case in which monetary compensation would be more than adequate.
There is considerable force in this submission.
As pointed out earlier, though undoubtedly the appellant made number of representations, he moved for an effective relief as late as 1977.
We are therefore, not inclined to disturb the existing promotions and postings by holding that the 573 appellant was entitled to promotion way back in 1965.
In this background, the appellant is entitled to some monetary compensation.
Mr. Ram Reddy pointed out that after giving the appellant a deemed promotion from 1965, if his monthly salary is worked out according to the scale then admissible for the promotional post, roughly Rs. 1,20,000 would be payable to him.
And if he is given the benifit, the State cannot deny identical benefit to persons similarly situated and similarly circumstanced.
And they never questioned the alleged impropriety of not giving them the benefit of the Government order in respect of reservations in promotional posts.
All these are relevant considerations and to some extent for this situation the appellant himself is to blame.
Mr. Ram Reddy suggested that the adequate monetary compensation could be around Rs. 30,000.
On the other hand, Mr. A. Subba Rao attempted to pursuade us to give all the backwages on the footing of a deemed date of promotion.
We propose to steer the middle course.
Before we determine the amount payable as backwages, we must make it distinctly clear that while computing the amount we have kept in view the period during which the appellant would be entitled to relief at our hands.
As pointed earlier, on a proper inter pretation of the relevant Government order, the appellant was entitled to promotion in the year 1965 which was postponed upto 1983.
Therefore, this amount which we propose to award as compensation in the form of backwages is to be spread over for the period 1965 to 1982.
Now that the amount of Rs 40,000 which we are hereby awarding is payable in one lump sum, presumably the Government may resort to Sec.
192 of the Income Tax Act, but let it be made distinctly clear that the appellant is entitled to the benefit of Sec. 89 of the Income Tax Act, 1961 and Rules 21A of the Income Tax Rules and he is entitled to relief of spread over.
Therefore, while computing the total amount of Rs 40,000 we have kept the spread over in view for a period of roughly 17 years which would mean that he is being awarded Rs. 2, 500 per year as backwages.
This would not make the income taxable, if it is not otherwise taxable.
If therefore, any deduction is made towards income tax while making the payment it is iucumbent upon the Andhra Pardesh authorities to take all necessary steps to obtain the 574 relief for the appellant under Sec.
89 of the Income Tax Act read with Rule 21A of the Income Tax Rules.
The appellant is already promoted as Deputy Registrar of Co operative Societies.
The scale admissible for the post is Rs 1050 1600.
We direct that the pay of the appellant shall be fixed at Rs. 1600 i.e. the maximum of the scale effective from January 1, 1984 and he should be paid Rs 40,000 in all towards backwages.
We order accordingly.
The payment herein directed shall be made within a period of three months from today.
We order accordingly.
There will be no order as to costs.

summary:
G.O.Ms.
No. 559 dated May 4.
1961 issued by the respondent State provides that the principle of reservation of appointments should be extended to all cadres of posts including posts involving promotions in all departments including the Departments of Secretariat to which it did not apply till then.
The appellant filed a Representation Petition before the Tribunal as late as 1977 contending that if appropriate action would have been taken at the time it was due as per G.O.Ms.
No. 559, he would have been eligible for promotion as Deputy Registrar of Cooperative Societies in 1965 and by denying him the said promotion in violation of the aforesaid Govt.
Order; his future promotion to the post of Joint Registrar has been adversely affected.
The Tribunal dismissed the petition holding that tho special rules for the Cooperative service did not contain any specific provision for the application of rule of reservation and, therefore.
the appellant was not entitled to claim the benefit of the rule of reservation for promotion to the rank of Deputy Registrar between 1965 and 1972 as claimed by him.
Hence this appeal by special leave.
Condoning the delay in filing the special leave petition and disposing of the appeal, the Court ^ HELD: (1) On a proper interpretation of the relevant Government Order, the appellant was entitled to promotion as Deputy Registrar in the year 1965 which was postponed upto October 14, 1983 when he was promoted as Deputy Register.
Though the appellant made number of representation but he moved for an effective relief as late as 1977.
Moreover, This is not the lone case and if the Court grants him the Relief as claimed by him.
though he has 570 sought relief after a very long unexplained delay, it would create chaos in the service and many promotions and reversions will have to be effected.
The Court is, therefore not inclined to disturb the existing promotions and postings by holding that the appellant was entitled to promotion way back in 1965.
In this backgaround, be is entitled to some monetary compensation.
[572G H; 573A] (2) If the appellant is given the benefit of deemed promotion from 1965 the State cannot deny identical benefit to persons similarly situated and similarly circumstanced.
And they never questioned the alleged impropriety of not giving them the benefit of the Government Order in respect of reservations in promotion posts.
All these are relevant considerations and therefore the amount of backwages is fixed at Rs. 40,000 payable in one lump sum.
While computing the amount, the Court has kept in view the period during which , the appellant would be entitled to relief.
Therefore, The amount of Rs. 40,000 awarded as compensation in the form of backwages is to be spread over for the period 1965 to 1982.
Since the amount is payable in one lump sum, presumably the Government may resort to section 192 of the Income Tax Act, but let it be made distinctly clear that the appellant is entitled to the benefit of sec.
89 of the Income Tax Act, 1961 and Rule 21A of the Income Tax Rules and is entitled to relief of spread over.
The pay of the appellant shall also be fixed at Rs. 1600 i.e. the maximum of the scale of Deputy Registrar effective from January 1, 1984.
[573E H; 574B C]


judgement:
Prevention of Corruption Act , 1947 , the minimum sentence that can be imposed is imprisonment for One year and the maximum sentence is seven years.
However , the Court , for any special reasons to be recorded in writing.
may impose a sentence of imprisonment of less than one year.
There is no special circumstance in this case justifying the court to take a lenient view.
Corruption has become so rampant in the country and the offence in this particular case cannot be considered trivial at all.
This is not a case of a petty clerk or a peon accepting a small amount as a bribe for doing some little favour.
The Court can lot take a lenient view of the conduct of an Income tax officer , who accepts a large amount as a bribe for causing loss to public revenue.
[742A C] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.180 of 1976.
D From the Judgment and Order dt.
17.10.1974 of the Gujarat High Court in Crl.
Appeal No. 750 of 1973.
N. L. Kakar , and R.N. Poddar for the Appellant.
S.K. Dholakia , R.C. Bhatia and P.C. Kapur for the Respondent.
He was tried and convicted by the Additional Special Judge , Ahmedabad of offence under Section 161 , Indian Penal Code and Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act.
He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000 on each of the two counts.
On appeal , the High Court of Gujarat acquitted the accused of both the offences.
The State of Gujarat has preferred this appeal by special leave of this Court under Article 136 of the Constitution.
The case of the prosecution briefly was as follows: One Shashi Kant Mansukh Lal Sheth (P.W. 2) was the 736 Managing partner of a firm known as M/s Hind Fertilizers , Bhavnagar.
The assessments for the years 1968 69 , 1969 70 , 1970 71 and 1971 72 were pending before the accused income tax Officer.
Between June and October 1971 , there were nine hearings of the case.
On 3.5.72 , Laxmikant Sheth (p.W. 7) the Income tax practioner who was representing the firm , received a notice directing the firm 's representative to attend his office on 14.3.72 with the firm 's books of account and to show cause why sums totaling Rs. 1,94,378 should not be added to their returns of income for the years in question.
The firm felt that the notice was not justified As P.W. 7 would be busy on 14.3.72 , it was decided that they would go to the income tax office with their books of account on 13th itself.
On 10.3.72 , Shashi Kant Sheth (P.W. 2) contacted the income tax officer on the telephone and the latter asked him to meet him at his residence at 2.00 P.M. Shashi Kant went to the house of accused at Bhavnagar that afternoon.
He was told to come again on the evening of 13th.
On the 13th , P.Ws 2 and 7 went to the office and submitted the reply to the show cause notice.
The accused wanted them to meet him again on 14th.
P.W.7 said he was busy on 14th.
The accused then asked P.W. 2 to come alone.
As previously agreed on 10th , Shashi Kant went to the house of the accused on the night of 13th when the accused told him that the clarification given by the firm was not satisfactory and that they would have to pay a sum of about Rs. 12,500 by way of tax unless a sum of Rs. 40,000 was given to him as a bribe.
On P.W. 2 pleading his inability to pay such a large sum , it was settled that a sum of Rs. 12,500 should be paid.
P.W. 2 wanted to consult his partner.
He was told by the accused that he should bring the amount to his house on the evening of 14th March , 1973.
There after , Shashi Kant contacted Shri Judeja , Deputy Superintendent of police , CBI who was camping at Bhavnayar Shashi Kant complained to him about the demand of bribe of Rs. 12,500 by the accused.
Shri Judeja then took the necessary steps for laying a trap.
Two officers of the postal department Shri Parikh , Manager , Postal Store Depot , Ahmedabad (P.W. 3) who was staying in the guest house , and Shri Panchal , an officer of the Postal Department stationed at Bhavnagar itself were requested to serve as panch witnesses.
Shashi Kant was asked to bring currency notes of the value of Rs. 12,500.
The notes were treated with phenol phethelen powder.
Shashi Kant put the notes in his pocket.
He was instructed to go to the house of the accused accompanied by Parikh and to tender 737 the amount to the accused.
On the accused receiving the amount Shri Parikh was to come out of the house and signal the police party to come.
A panchnama stating all these facts was duly prepared at the guest house.
Thereafter , as arranged , the raiding party proceeded towards the house of the accused.
Shahsi Kant and Parikh , P.Ws 2 and 3 , went inside.
Shahsi Kant introduces Parikh to him as a member of his staff.
They chatted generally for some time.
The accused then mentioned about the amount to be paid to him whereupon Shashi Kant handed over the bundle of currency notes him.
The currency notes were received by the accused who carefully put them in a newspaper and folded the newspaper.
Parikh then went out and signalled to the police party.
Judeja , Dy.
Supdt.
Of Police P.W. 9 , the other panch witness Panchal and the rest of the police party rushed inside.
The notes were seized.
The accused was asked to dip his fingers in a solution of bicarbonate.
The solution turned pink Thereafter , the panchnama was prepared.
After the investigation was duly completed , the respondent was charge sheeted for the two offences of which he was ultimately convicted.
The defence of the accused was that the prosecution case was false.
Shashi Kant came to his house with a stranger on the night of 14.3.72.
He was surprised at his visit , but for the sake Of courtesy , he asked him to sit down and asked him the purpose of his visit.
Instead of replying him , Shashi Kant and the stranger started talking about politics to him.
He told him that he was a public servant and he was not interested in politics He also told them that he wanted to go to bed.
He went to the toilet for a few minutes and when he returned , Shahsi Kant and the stranger stood up and went away after shaking hands with him.
A few moments later they returned with the police party.
They must have planted the notes in the newspaper which was lying on the table when he had gone to the toilet.
It is seen from the facts narrated above that meeting of Shashi Kant and Parikh with the accused on the night of 14.3.72 at 8.00P.M. is not disputed.
It is also not disputed that Shashi Kant and Parikh talked to the a accused for quite considerable time , nearly 40 minutes.
It is further not disputed that within a few moments after Shashi Kant and Parikh left the accused , Judeja , Panchal and rest of 738 police party entered the house of the accused and currency notes of the value of Rs. 12,500 were seized from in a fold of a newspaper laying on the table.
The accused was present all the time and there was no protest by him.
That the fingers of the accused were also dipped in some solution is not disputed.
The only question is whether the amount of Rs. 12,500 was received by the accused as a bribe or whether the amount was planted by Shashi Kant and Parikh during the brief visit of the accused to the toilet.
The learned Sessions Judge accepted the evidence of Shashi Kant , Parikh and Judeja and convicted the accused as aforesaid.
The High Court , however , took are markably curious view of the evidence and acquitted the accused.
The High Court narrated several circumstances , one after an other , why the prosecution case should not be accepted.
We have considered every one of the circumstances and we find that there is not a single satisfactory circumstance reasonably justifying the acquittal.
On the other hand we find that everyone of the circumstances is overstated and fanciful.
The most important circumstance which seems to have weighed heavily with the High Court , almost to the point of obsession , was that Parikh and Panchal were not independent witnesses as they were both government servants and as they had some previous acquaintance with Inspector Sharma who was assisting Judeja in the investigation , The High Court was of the view that some other respectable residents of Bhavnagar should have been called as Panch witnesses to be associated with the raid.
We are afraid the High Court has entirely misdirected itself in appreciating the evidence.
In their approach to the evidence , the High Court has done injustice to the witnesses and this has resulted in a grave miscarriage of justice.
In appreciating oral evidence , the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes Where the witness is found to be untruthful on material facts that is an end of the matter.
Where the witness is found to be partly truthful or to spring from tainted sources , the Court may take the precaution of seeking some corroboration , adequate and reasonable to meet the demands of the situation , but a court is not entitled to reject the evidence of a witness merely because they are government servants , who , in the course of their duties or even otherwise , might have come into contact with inves 739 tigating officers and who might have been requested to assist the investigating agencies.
If their association with the investigating agencies is unusual , frequent or designed , there may be occasion to view their evidence with suspicion.
But merely because they are called in to associate themselves with the investigation as they happened to be available or it is convenient to call them , it is no ground to view their evidence with suspicion.
Even in cases where officers who , in the course of their duties , generally assist the investigating agencies , there is no need to view their evidence with suspicion as an invariable rule.
For example , in rural areas , investigating officers would ordinarily think of calling in the village officers , such as , the Headman , the Patel or Patwari to act.
as punch witnesses , as they are expected to be respectable persons of the locality.
It does not mean that their evidence should be viewed with suspicion because they are government servants or because they are generally associated with investigating agencies whenever there is a crime in the village.
For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution.
The court may be justified in looking with suspicion upon the evidence of officers who have been , demonstrated to have displayed excess of zeal in the conduct and success of the prosecution.
But to reject the evidence of all official witnesses as the High Court has done in the present case , is going far too far.
We think that it is extremely unfair to a witness to reject his evidence by merely giving him a label.
There were two panch witnesses Parikh and Panchal of whom Parikh has been examined as PW.3 while Panchal has not been examined.
We have been taken through the whole of the deposition of Parikh and we find nothing whatever to doubt his veracity.
Nothing was suggested to him as to why he should give false evidence to implicate the accused.
All that was elicited from him was that he had worked as departmental inquiry officer and also to defend delinquents in such inquiries in his department.
He had become acquainted with Inspector Sharma fifteen days before March 14 , 1972 as he was defending a delinquent at Bhavnagar in a case in which Shri Sharma was the prosecuting officer.
Shri Panchal , who was Assistant Superintendent of Post Offices , Bhavnagar was the Inquiry Officer in that case.
This is stated to be the "close association" of the two panch witnesses 740 with the investigating agency in this case.
It is impossible to subscribe to this view.
When Judeja , Deputy Superintendent of Police asked Inspector Sharma to get two independent panch witnesses , Parikh was readily available in the guest house and he had known Panchal as the Inquiry Officer in a departmental inquiry in the Postal Department.
Both of them being Government Servants belonging to a different department , if Inspector Sharma thought that they could be called as independent punch witnesses , we are unable to impute any motives to the investigating agency or to cast aspersions on the witnesses Parikh and Panchal.
We do not have any doubt in accepting the evidence of Parikh as that of an independent witness.
Having examined his evidence in detail , we find his evidence to be truthful.
His evidence substantiates the evidence of PWs 2 about the acceptance of the bribe by the accused and his keeping the money in a folded newspaper.
If we accept the evidence of PWs 2 and 4 , the prosecution case that the money was given as a bribe must be accepted and the defence version that the money was planted must be rejected.
The other circumstances upon which the High Court relied Court are very trivial and it is unnecessary to burden this judgment with a seriatim discussion of those circumstances.
For example , one of the circumstances was that if the accused had arranged that PW 2 should come to him on.
the evening of 14th with the bribe , he would have been waiting in his house to receive him with the doors of the house open so that the bribe giver may walk in straight and he was not likely to have kept the doors closed and wait for the bribe giver to knock at the door.
We consider it needless even to comment upon this circumstance.
Another circumstance upon which the High Court relied was that the accused was not likely to have talked with PWs 2 and 3 for as long as 40 minutes if he was accepting a bribe.
He would have merely received the money and sent them away.
The very fact that he was talking to them for nearly 40 minutes indicated that no bribe was given or taken.
On the other hand , we consider that this is a strong circumstance against the accused.
The accused knew that PW 2 was an assessee who had a pending case before him.
If the assessee paid him a visit after 8.00 PM at his residence , one would expect the accused to immediately suspect the reason for the visit and to turn him away at once or at least 741 within a few minutes after his coming to his house.
Instead of that , he takes them inside the house , talks to them for nearly 40 minutes.
This conduct of the accused is clearly against his innocence.
Some question was raised that the solution which according to the investigating officer and the panch witness turned pink when the accused was asked to dip his fingers in it , had become yellowish when the chemical examiner examined the solution.
Nothing really turns on this in view of the evidence of PWs 2 , 4 and that of the investigating officer PW 9.
A point was sought to be made in this court of the failure of the prosecution to examine Inspector Sharma as a witness.
All that Inspector Sharma did in the case was to assist Judeja , Deputy Superintendent of Police and to fetch the two panch witnesses when he was asked to do so.
He could not by any means be called a material witness.
As some comment was made during the course of the trial about the failure of the prosecution to examine Inspector Sharma , the prosecution offered him for cross examination and kept Inspector Sharma ready in court.
The counsel for the accused stated that since the witness had already been dropped by the prosecution , he did not want to examine him unless the court directed him to do so.
After the failure of the counsel of the accused to take advantage .
Of the offer made by the prosecution , we do not think that it is open to the accused to comment upon the so called failure of the prosecution to examine inspector Sharma as a witness.
Nor can we draw any adverse inference against the prosecution.
On this question , the High Court took the same view as we do.
From the evidence of PWs 2 , 3 and 9 , we do not have the slightest doubt that a sum of Rs. 12,500 was paid to and received by the accused as a bribe.
The learned Sessions Judge was clearly right in convicting the accused and the High Court was wronging acquitting the accused.
We do not think that this is a case where two views were reasonably possible.
The only possible view was J that the accused was guilty and we hold him guilty of both the offences under section 161 IPC and section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act , 1947.
The learned counsel for the accused argued that in view of the long time that has elapsed since the commission of the offence and in view of the circumstance that the accused has also retired from service , 742 we may take a lenient view and not sentence the accused to any term of imprisonment.
13th under sec 5 (2) of the Prevention of Corruption Act , 1947 , the minimum sentence that can be imposed is imprisonment for one year and the maximum sentence is seven years.
However , the court , for any special reasons to be recorded in writing , may impose a sentence of imprisonment of less than one year.
We are unable to find any special circumstance in this case justifying our taking a lenient view.
Corruption has become so rampant in the country and the offence in this particular case cannot be considered trivial at all.
This is not a case of a petty clerk or a peon accepting a small amount as a bribe for doing some little favour.
We cannot possibly take a lenient view of the conduct of an income tax officer , who accepts a large amount as a bribe for causing loss to public revenue.
We think that the sentences imposed by the learned Session Judge were the right sentences to be imposed on the accused.
The judgment of the High Court is set aside and that of the learned Special Judge is restored.
The accused will surrender to his bail.

summary:
The Respondent was an Income Tax Officer He was tried a d convicted of the offence under section 161 Indian Penal Code read and section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act The prosecution produced among other , PWs the managing partner of a firm known as M/s Hind Fertilizer , Bhavnagar an assessee before the accused from whom a bribe of Rs. 12 , 500 was demanded and accepted on 14.3.1972 Sri Parikh Manager Postal Store Department witness to the trap laid against the accused and Mr Judeja (PW 9) the Dy.
Supdt.
of Police The defence of the accused was that the prosecutions version of how the currency notes were seized from him was false and that PWs 2 gone to the toilet The Additional Special Judge Ahmedabad accepted the prosecution version convicted the respondent of the offences with which he was charged and sentenced hi n to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2 000 on each of the two counts On appeal the High Court of Gujarat acquitted the accused of both the offences.
Hence the State appeal by special leave of the Court Allowing the appeal , the Court.
^ HELD 1 1 From the evidence of PWs 2 3 and 9 it is clear beyond doubt that a sum of R 12 500 Was paid to and received by the accused as a bribe and therefore his conviction by the Trial Court was wrongly set aside by the High Court This is not a case where the views were reasonably possible The only possible view was that the accused was guilty of both the offences under section 161 Indian Penal code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act , 1947 [741G H] 734 1.2 In the instant case , both Parikh (PW 3) and Panchal (not examined) arc certainly independent witnesses.
Both of them are government servants belonging to a different department , and if Inspector Sharma thought that they could be called as independent panch witnesses , no motive can be imputed to the investigating agency and no aspersions can be cast on the said witnesses.
The evidence of Parikh was truthful.
His evidence substantiates the evidence of PW 2 , about the acceptance of the bribe by the accused and his keeping the money in a folded newspaper.
From the circumstances that the accused did not keep open the doors of his house expecting PW 2 , that he was in conversation with PW 2 for more than 40 minutes instead of sending him away after taking the alleged bribe , the colour of the solution had changed to yellow when the Chemical Examiner , examined it and that the failure to examine Sharma the inspector no adverse inference can be drawn against the prosecution.
In fact , the prosecution offered Sharma for cross examination and kept him ready in court.
The counsel for the accused stated that since the witness had already been dropped by the prosecution , he did not want to examine him unless the court directed him to do so.
After the failure of the counsel of the accused to take advantage of the offer made by the prosecution it is not open to the accuses in the appeal by special leave to comment upon the so called failure of the prosecution to examine Inspector Sharma as a witness.
[740B D , F; 741B , B E] 2.1 In appreciating oral evidence , the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes.
Where the witness is found to be untruthful on material facts that is an end of the matter.
Where the witness is found to be partly truthful or spring from tainted sources , the court may take the precaution of seeking some corroboration , adequate and reason.
able to meet the demands of the situation.
[738F G] 2.2 But a Court is not entitled to reject the evidence of a witness merely because they are government servants , who , in the course of their duties or even otherwise might have come into contact with investigating officers and who might have been requested to assist investigating agencies.
If their association with the investigating agencies is unusual , frequent designed , there may be occasion to view their evidence with suspicion.
But merely because they are called in to associate themselves with the investigation as they happened to be available or it is convenient to call them , it is no ground to view their evidence with suspicion.
Even in cases where officers who in the course of their duties , generally assist the investigation agencies , there is no need to view their evidence h suspicion as an invariable rule.
For example , in rural areas , investigating officers would ordinarily think of calling in the village officers , such as , the Headman , the Patel or Patwari to act as punch witnesses , as they are expected to be respectable persons of the locality.
It does not mean that their evidence should be viewed with suspicion because they are government servants or because they are generally associated with investigating agencies whenever there is a crime in the village.
For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution.
[708H; 739A D] 735 2.3 The court may be justified in looking with suspicion upon the evidence of officers who have been demonstrated to have displayed excess of zeal in the conduct and success of the prosecution.
But to reject the evidence of all official witnesses as the High Court has done in the present case , ii going far too far.
It is extremely unfair to a witness to reject his evidence by merely giving him a label.
[739D E]