judgement:
minal Appeal No. 172 of 1969.
Appeal by certificate under Article 134(1)(c) of the Con stitution of India from the judgment and order dated June 20, 1969 of the Delhi High Court at New Delhi in Criminal Revision No. 385 of 1968.
924 Hardev Singh, for the appellant.
Jindra Lal and B. P. Maheshwari, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
In March 1967, the appellant was an employee in a sweetmeat shop, known as Bengal Sweet Shop being shop No. 6, Sector 11, in Ramakrishna Puram, New Delhi.
The shop was owned by one Budh Ram and one A. K. Bhattacharya.
On March 15, 1967, wit.
F. Dean, a Food Inspector in the employment of the Municipal Corporation of Delhi, went to the said shop and purchased 'patisa ' which were sold to him by the appellant.
These were sold to him from a lot exposed for sale.
The Food Inspector then divided the patisa into three portions and packed each of them into sealed bottles, one of which was handed over by him to the appellant.
On an analysis of the sample by the Public Analyst appointed under the , XXXVII of 1954 it was found that the patisa were prepared with unpermitted coal tar dye, and therefore, were adulterated food stuff.
A complaint to that effect was filed before the Magistrate, 1st Class, Delhi, who, after recording evidence, found the appellant and the said Budh Ram guilty under section 7(1) read with section 16(1) of the Act, and sentenced each of the two accused to simple imprisonment for a period of six months and a fine of Rs. 1,000, in default imprisonment for a further period of three months.
On an appeal by the appellant and his co accused, the said Budh Ram, the Additional Sessions Judge allowed Budh Ram 's appeal and set aside the order of conviction passed against him on the ground that though he and the said Bhattacharya were partners in the firm which carried on the said shop, there was nothing to show that Budh Ram was in charge of the said shop or its business or was in any way responsible for the sale of articles sold in the shop.
He found that Budh Ram was, on the contrary, an employee of a club in New Delhi and was therefore at best a sleeping partner.
So far as the appellant was concerned, the Additional Sessions Judge held that he was an employee of the firm, concerned with the sales, that the prosecution had led sufficient evidence to establish its case against him, and therefore, his conviction could not be interfered with.
Regarding the sentence awarded to him, the Additional Sessions Judge remarked that (a) the case was not covered by section 2(i) (j) of the Act, but was one which amounted to violation of rules 23 to 30 of the Rules framed under the Act, (b) that there was nothing in the evidence to show that the use of the unpermitted coal tar dye in the manufacture of the patisa in question rendered them injurious to health, and (c) that there was no allegation of the appel 925 lant having committed a similar offence before.
On these 'grounds he partially allowed the appeal by reducing the sentence of imprisonment to the period of imprisonment already undergone by the appellant before.
he was granted bail.
The order awarding the said fine was not interfered with.
Against that order, the Municipal Corporation filed a revision petition in the High Court urging that in view of the mandatory provisions of section 16 of the Act providing for the compulsory miniMum sentence, the Additional sEssions Judge ought not to have interfered with and reduced the sentence imposed by the Trial Magistrate.
The High Court accepted that contention and setting aside the order of sentence, as modified by the Additional Sessions Judge, restored the order of sentence passed by the Trial Magis trate.
The High Court, however, granted a certificate under article 1 34 (c) of the Constitution.
The appellant filed this appeal on the strength of that certificate.
Counsel for the appellant did not challenge before us either the order of conviction or the order of sentence passed against him by the High Court, which, as aforesaid, confirmed the conviction and restored the order.
of sentence passed by the Trial Magistrate.
The only point raised by him was that the appellant should be given the benefit of section 4 of the under which the sentence of imprisonment awarded to the appellant could be dispensed with and an admonition should instead be given to him.
In a recent decision in Isher Das vs Punjab(1) to which two of us were parties, it was held on a consideration of section 18 of the that its operation is not excluded in cases of persons found guilty of offences under the .
The former Act was brought on the statute book in 1958, but no specific exception as regards the , though an earlier Act, is to be found therein, just as an exception in respect of the Prevention of Corruption Act, 1947 has been expressly made.
The provisions of the , therefore, apply to persons found guilty under the .
That decision, however, expressed a note of caution that adulteration of food being a menace to public health and the Act having been enacted with the object of eradicating that antisocial evil and for ensuring purity of articles of food sold to the members of the public courts should not lightly resort to the provisions of section 4 of the which applies to offenders who are 21 years of age or above.
(1) ; 926 The question, therefore, is whether we ought to, apply, in the circumstances of the case and the nature of the evil to, prevent which section 16 of the Prevention of Food Adulteration was enacted, section 4 of the and release the appellant from the sentence of simple imprisonment awarded to him with an admonition and a warning only.
Under section 2 (i) (j), the patisa, in the preparation of which a nonpermissible colouring matter has been used, is an adulterated article.
Such an article is adulterated food as defined by cl.
(v) of section 2, as that clause defines 'food ' to include any article used in the preparation of human food or any flavouring matter.
Sec. 7 provides that no person shall himself or by any person on his behalf manufacture for sale, or store, or sell "any adulterated food" or any article of food in contravention of any other provision of the Act or of any rule made thereunder.
16 provides for a minimum sentence of imprisonment for not less than six months inter alia for the offence of selling adulterated food.
The proviso confering discretion to the courts in the matter of sentence does not apply to sales of food which is adulterated under section 2(i) (j).
The policy of section 16, therefore, is clearly to impose a sentence not less than that provided therein inter alia for sale of food articles adulterated as defined _by section 2 (i) (j).
Under rule 23 of the Prevention of Food Adulteration Rules, 1955, addition of a colouring matter to any article of food except as specifically permitted under the rules is prohibited.
Rule 28 makes only the coal tar dyes specified therein permissible in the preparation or manufacture of articles of food set out in rule 29.
There is no dispute that the coal tar dye used in the patisa sold by the appellant was not one of the coal tar dyes permissible under rule 28.
That is also clear from the report of the Public Analyst, the correctness of which was not under any challenge before us.
Though there was no express evidence on the record that the use of the particular coal tar dye in the making of the patisa sold at this shop was injurious to health, it must be presumed to be so from the fact that it is not one of the permitted coal tar dyes enumerated in r. 28.
It is, therefore, clear that the sale of such an article of food was an anti social activity, deleterious to the health of those who would consume them as article of food, the eradication of which is the principal aim of the Act and in particular of section 16 thereof.
The evil would appear to be more pernicious when.
it is realised that patisa are more often than not purchased and consumed by children and by persons from the unaffluent sections of the society, who cannot afford to buy costlier sweets prepared by more sophisticated processes.
The colouring matter was obviously used to attract customers, without any regard to the 927 injury it would cause to those who consumed them.
The appellant 's activity being thus distinctly anti social, we do not think that it would be either expedient or in consonance with the object with which the was passed to apply section 4 of the .
There being no other point raised for our consideration, the appeal fails and is dismissed.

summary:
In Isherdas vs Punjab this Court held on a consideration of section 18 of the Probation of offenders Act that its operation is not excluded in cases of persons found guilty of offences under the .
That decision.
however, expressed a note of caution that adulteration of food being a menace to public health and the Act having been enacted with the object of eradicating that antisocial evil and for ensuring purity of articles of food sold to the members of the public, Courts should not lightly resort to the provisions of s.4 of the Probation of Offenders Act.
Isherdas vs Punjab ; The appellant, an employee of a sweetmeat shop found guilty under s.7(1) read with section 16(1) of the and sentenced to simple imprisonment for a period of six months and of rupees onethousand.
It was found that the patisa sold by him were prepared withunpermitted coal tar dye and therefore, were adulterated food stuffas defined by section 2(1) (j).
On the question whether in the circumstancesof the case and the nature of the evil to prevent which section 16 of the , was enacted, section 4, of the Probation of Offenders Act could be applied.
, HELD : The sale of an article of food prepared with unpermitted coal tar dye is an anti social activity, deleterious to the health of those who would consume them as article of food, the eradiction of which is the principal aim of the Act and in particular of s.16 thereof.
The evil would appear to be more pernicious when it is realised that patisa are more often than not purchased and consumed by children and by persons from the non affluent sections of the society.
The colouring matter was obviously used to attract customers, without any regard to the injury it would cause to those who consumed them.
The appellant 's activity being thus distinctly anti. social, it would be neither expedient nor in consonance with the object with which the Prevention of Food Act.


judgement:
Appeals Nos.
1038 1040 of 1967.
Appeals by certificate under Article 133 of the Constitution of India from the judgment and decree dated August 7, 1962 of the Patna High Court in Original Decrees Nos. 384/52, 1155 and 2/55.
1017 R. C. Prasad, for the appellant Jagadish Swarup, K. K. Sinha, section K. Sinha and B. B. Sinha, for respondents Nos.
1 4 (in C.A. No. 1038 of 1967), for respondents 1 (a) & 2 (in C.A. No. 1039 of 1967 and for respondents Nos. 1, 2, 4 & 5 (in C.A. No. 1040 of 1967).
The Judgment of the Court was delivered by Ray, J.
These three appeals are by certificate against the judgment dated 7 August, 1962 of the High Court at Patna.
The High Court allowed in part the appeals filed by the appellant by decreeing in part the suits filed by the appellant for redemption of mortgages.
The High Court dismissed the appellant 's prayer for mesne profits.
The appellant filed three suits for redemption.
Title Suit No. 54 of 1950 filed by the appellant was with respect to Ijara bond dated 21 April, 1920 in favour of Ram Baran Singh for Rs. 2,300/ .
Title Suit No. 55 of 1950 was filed by the appellant with respect to another ljara bond dated 21 April, 1920 in favour of Inder Singh for Rs. 1293 12 0.
The third Title Suit No. 56 of 1950 was filed by the appellant with respect to the third Ijara bond dated 21 April, 1920 in favour of Raj Kumar Mahto for Rs. 1,150/ .
The bond was subsequently assigned to one Sheo Sharan Singh whose sons were defendants in that suit.
These bonds were executed by Maik Nizammuddin.
These three bonds were mortgage bonds in respect of certain Milkiyat share in village Keoran Mauzume Makhdumpur in the District of Patna.
The appellant was the purchaser of the Milkiyat share of Nizammuddin from his heirs by a deed dated 22 May, 1946.
The appellant alleged as follows.
There, are baksht lands within the said Milkiyat share covered by the Ijara bonds.
These bakasht lands were the subject matter of the mortgage.
After 'he purchase the appellant endered the ljara money to the respondents who were ijaradars or mortgagees.
The respondents refused to accept the money.
The appellant thereupon deposited the mortgage money.
The appellant served notice of the deposit on the respondents.
The respondents did not withdraw the ijara money.
They did not deliver possession of the Milkiyat share and the bakasht lands to the appellant.
The appellant therefore filed suits for redemption and for possession.
The appellant also claimed mesne profits.
The respondents in the written statements denied that there was any bakasht land.
It was also denied that there was any mortgage of bakasht land.
It was alleged that the lands were raiyati lands in possession of several tenants and therefore those lands could not be redeemed.
The further defence was that the 1018 Ijara bonds were really sale deeds and therefore the appellant had no right of redemption in respect of the milkiyat interest.
The respondents denied that the appellant tendered the mortgage money.
The trial Court held that the appellant was entitled to a decree for redemption but not for mesne profit.
The reason given was that the appellant did not deposit in court under Section 83 of the Transfer of Property Act the money due on mortgage.
The mortgagees had from time to time paid the Government revenue and cess in respect of the mortgage property.
The Government revenue and cess should have been paid by the mortgagor.
The amounts representing the Government revenue and cess should have been added up in the mortgage money.
The deposits in court did not cover those amounts.
The appellant preferred appeals to the High Court.
The High Court upheld the finding of the trial Court that certain lands were bakasht lands.
The High Court set aside the finding of the trial Court as to other lands which were found by the trial Court not to be bakasht lands.
The High Court upheld the finding and conclusion of the trial Court that there was no valid deposit in court of money due on mortgage.
The appellant was therefore not entitled to mesne profits.
The High Court found that the amount of revenue and cess was never less than the amount of haq ajri (meaning thereby 'annual reserve rent ') payable to.
the mortgagor.
The result was that the amount of revenue and cess paid by the mortgagees was always higher than the haq ajri and therefore there was no case of accounting.
Counsel for the appellant contended that the appellant was entitled to mesne profits from the dates of deposit of mortgage money in court under section 83 of the Transfer of Property Act.
The amounts were deposited in court of First Munsif, Patna on 26 May, 1947.
Notice under section 83 of the Transfer of Property Act was served on the respondents on 30 May, 1947 in two cases and on 3 June, 1947 in the third case.
The suits were filed for redemption of mortgage and mesne profits in the month of June, 1950.
The relevant terms of the ijara bond (mortgage bond) in favour of Ram Baran Singh were these : "It is desired that the said Mustajir, should enter into possession and occupation of the ijara property, himself cultivate the land, appropriate the produce thereof in lieu of interest on the peshgi money.
I, the executant, or my heirs and representatives, neither have nor 1019 shall have any claim for excess produce and mesne profits etc.
against the said Mustajir or his heirs and representatives, except to get a sum of Rs. 12/ (rupees *twelve) in king 's coins, as annual reserve rent till this deed remain intact.
Expenses over dispute regarding the milkiyat property and boundary limit and payment of Government revenue and road cess and Public works cess etc.
are entirely the concern of me, the executant.
The said Mustajir neither has nor shall have any connection and concern therewith".
The terms of the other two ijara deeds were identical.
The only difference was that in the case of the ijara bond in favour of Inder Singh the annual reserve rent (haq ajri) was Rs. 6 12 0 and in the case of Raj Kumar Mahto the annual reserve rent (haq ajri) was Rs. 6/ .
Broadly stated, these terms indicate three features.
First, the mortgagee shall have possession and occupation of the mortgaged property and appropriate the produce thereof in lieu of interest on the mortgage money and the mortgagor had no claim to any excess produce or mesne profits against the mortgage.
Secondly, the mortgagee was to pay to the mortgagor the amounts mentioned in each ijara bond the annual reserve rent or haq ajri.
Thirdly, the mortgagor was liable for payment of the Government revenue or cess.
The High Court found that the mortgagees paid the revenue and cess out of haq ajri.
In Title Suit No. 54 of 1950 the High Court held that the total amount of revenue and cess came to Rs. 15 9 3.
The haq ajri in that suit was Rs. 12/ .
It therefore followed that every year the mortgagee paid Rs. 3 9 0 in excess of the amount haq ajri.
The mortgagor was liable to the mortgagee for the excess payment.
Similarly, in Title Suit No. 55 of 1950 the mortgagee paid revenue and cess amounting to Rs. 9 13 3.
The haq ajri under the ijara bond in that suit was Rs. 6 12 0.
The result was that every year the mortgagee paid Rs. 3 1 3 in excess.
The mortgagor was liable to the mortgagee to pay that excess amount.
Again, in Title Suit No. 56 of 1950 the High Court found that the mortgagee paid every year revenue and cess amounting to Rs. 7 12 0.
The haq ajri there was Rs. 6/.
The mortgagee therefore paid annually Rs. 1 12 0 in excess of haq ajiri.
The mortgagor was liable to pay the excess amount to the mortgagee.
In the present appeals, the mortgagor had undertaken the liability to pay the revenue and cess.
The mortgagor failed to pay the same.
The mortgagees paid the revenue and cess on be 1020 half of the mortgagor.
The mortgagees were entitled to the excess payment of the amount of revenue and cess, because the mortgagor was liable to pay the same.
The mortgage bonds in the present case provided that as Ion as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money.
That amounts to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money.
That is section 77 of the Transfer of Property Act.
The provisions as to accounts contained in section 76(g) of the Transfer of Property Act are excluded in cases where section 77 of the Transfer of Property Act applies.
Section 77 of the Transfer of Property Act applies to the present appeals.
Further, the mortgages had to pay to the mortgagor a fixed amount, namely, the haq ajri.
There was nothing to account on the part of the mortgagees in relation to payment of haq ajri.
On the contrary, the mortgagor was liable for the payment of Government revenue and cess.
Under section 76 (c) of the Transfer of Property Act the mortgagee in possession, in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold.
In the present case, the mortgagor was liable for payment of both revenue and cess.
Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liable.
Section 4 of the Cess Act, 1880 defines 'annual value of land ' to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payable, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof.
Section 5 of the Cess Act, 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess.
Section 6 of the Cess Act, 1880 provides as to how the cess is to be assessed.
Section 38 of the Cess Act, 1880 provides as to how rate of local cess ' on the annual value of land is 'to be fixed.
Section 98 of the Cess Act, 1880 enacts that the amount which may become due under the provisions of the I Cess Act in respect of arrears of cess shall be deemed to be a public demand.
Section 99 provides that the 'Collector may recover dues out of rent and the Collector 's claim to have priority.
These provisions show that cess is linked with rent.
Cess is payable on annual value of land.
Annual value is linked with rent.
Cess is deemed to be a public demand.
The mortgagee were entitled to add the amounts paid by them towards revenue and cess on the mortgage money.
1021 The High Court was correct in refusing the mesne profits.
On behalf of the respondents it was mentioned in their statement of case that the appellant after having deposited the further amount after the decree of the High Court had taken possession of the land.
This statement was not challenged and denied by the appellant.
This indicates that the appeals have now become academic.
The appeals therefore fail and are dismissed.
The respon dents will be entitled to one set of costs in this Court.
V.P.S. Appeals dismissed.

dataset_name: IN-Abs

summary:
The appellant mortgagor tendered to the mortgagees the mortgage money due on their mortgages and, on the refusal of the mortgagees to accept the amount, deposited the mortgage money into court.
The appellant thereafter filed suits for redemption and mesne profits.
The terms of the mortgage deeds indicated that, (i) the mortgagee shall have the possession and occupation of the mortgaged property and the right to appropriate the produce thereof in lieu of interest on the mortgage money and that the mortgagor shall have no claim to any excess produce or mesne profits; (ii) the mortgagee was to pay to the mortgagor the amount mentioned in each mortgage bond as annual reserve rent; and (iii) the mortgagor was liable for the payment of government revenue or cess.
The mortgagees, however, paid the revenue and cess on behalf of the mortgagor.
The total amount of revenue and cess paid by the mortgagees each year exceeded the amount due to the mortgagor as reserve rent.
The trial court, and the High Court in appeal, held that the amounts representing the government revenue and cess should have been added to the mortgage money and deposited in court, and, since it was not done, there was no valid deposit in court of the money due on the mortgages, and hence, the appellant was not entitled to mesne profits.
Dismissing the appeal to this Court, HELD : (1) Under the provisions of the Cess Act, 1880, cess is a public demand and linked with rent.
Under the terms of the mortgage deed the appellant was liable for the payment of both revenue and cess.
Since the mortgagees paid the government revenue or cess on behalf of the appellant and the amount so paid exceeded the amount payable by the mortgagees as reserve rent, the mortgagees were entitled to the excess payment from the appellant and add it to the mortgage money due.
[1020E F H] (2) There was nothing to account on the part of the mortgagees, because, (a) the mortgagees had to pay to the mortgagor a fixed amount as reserve rent; and (b) the mortgages were covered by section 77 of the Transfer of Property Act and therefore the provisions as to accounts in section 76(g), are excluded.
[1020B D]


judgement:
Appeal No. 1920 of 1968.
Appeal from the judgment and decree dated April 15, 1968 of the Madhya Pradesh High Court in Letters Patent Appeal No. 21 of 1962.
M. C. Chagla, A. K. Verma, B. Datta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
562 Jagdish Swarup, Solicitor General of India, section N. Prasad and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal by certificate from the judgment dated 15 April, 1968 of the High Court of Madhya Pradesh up holding the judgment and decree passed by Nevaskar, J. of that High Court.
The Union filed a suit against the appellant in the Court of Small Causes Judge at Indore in the year 1953 and claimed a decree for Rs. 83 12 0.
The claim in the suit represented coal production cess levied under Ordinance No. XXXIX of 1944 on coal and coke dispatched from collieries in the then British India to the appellant.
The only question which falls for consideration in this appeal is whether the Union could make a valid claim for the amount.
Counsel on behalf of the appellant contended that the appellant was at the material time a resident at Indore in the then Holkar State and the Ordinance passed in the then British India would have no territorial operation to reach him.
The Ordinance was called the Coal Production Fund Ordinance of 1944.
It extended to the whole of the then British India.
Section 2 of the Ordinance provided inter alia as follows : ( 1 ) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, there shall be levied and collected as a cess for the purposes of this Ordinance, on all coal and coke dispatched from collieries in British India a duty of excise at such rate not exceeding one rupee and four annas for ton, as may from time to time be fixed by the Central Government by notification in the official gazette; Provided that the Central Government may, by notification in the official Gazette, exempt from liability to the duty of excise any specified class or classes of coal or coke.
(2) ** ** ** (3)A duty levied under this section shall be in addition to any other duty of excise or customs for the time being leviable under any other law.
563 (4)The., duties imposed by this section shall, subject to and in accordance with the rules made under this Ordinance in this behalf, be collected on behalf of the Central Government by such agencies and in such manner as may be prescribed by the rules.
" Section 5 of the Ordinance conferred power on the Central Government to make rules and to provide for inter alia the manner in which the duties imposed by this Ordinance shall be collected, the persons who shall be liable to make the payments, the making of refunds, remissions and recoveries, the deduction of collections agencies, of a percentage of the realizations to cover the cost of collection, and the procedure to be followed in remitting the proceeds to the credit of the Central, Government.
The Coal Production Fund Rules, 1944 were made by the Central Government, in exercise of powers conferred by section 5 of the Coal Production Fund Ordinance 1944.
Rule 3 related to recovery of excise duty.
Rule 3(1) was as follows "Recovery of excise duty : (1) The duty of excise imposed under sub section (1) of section 2 of the Ordinance on coal and coke shall, when such coal or coke is dispatched by rail from collieries or coke plants, be collected by the Railway Administrations by means of a surcharge on freight, and such duty of excise shall be recovered (a) from the consignee if the freight charges are being prepaid at the destination of the consignment; (b) from the consignee if the freight charges are collected at the destination of the consignment; (c) from the party paying freight if the consignment is booked on the "Weight Only" system".
The Coal Production Fund Ordinance 1944 was repealed by the Coal Production Fund (Repealing) Ordinance, 1947.
The Repealing Ordinance of 1947 for the avoidance of doubts declared that the provisions of section 6 'of the General Clauses Act, 1887 applied in respect of such repeal.
Therefore the repeal of the 1944 Ordinance did not affect the right of the railway to recover the surcharge on freight or the liability of the appellant to pay and the remedy in respect of the right and liability.
The claim of the Union related to coal production cess on three several consignments of coal dispatched in the months of 564 December, 1946, January 1947 and February, 1947 from three different collieries at Mohuda, Unwia and Burhar respectively in the then British India to the, appellant the consignee at Indore.
Each consignment was under a railway invoice and a railway receipt.
Freight was payable on each consignment.
Coal production cess was under the 1944 Rules to be collected by means of a surcharge on freight.
Freight and the coal production cess as a surcharge thereon were payable at the destination at Indore by the consignee.
The appellant paid freight but did not pay the coal production cess by way of surcharge.
The Union therefore sued the appellant for the sums of Rs. 27 8 0, Rs. 27 8 0 and Rs. 28 12 0 aggregating Rs. 83 12 0 in respect of the aforesaid surcharge on the three several consignments.
The validity of the Ordinance came up for consideration by this Court in R. C. fall vs Union of India(1).
In that case suit was filed in the year 1953 at Chhindwara for recovery of coal cess on 3 consignments, of coal despatched from collieries in the then British India in the months of January/February, 1947 to the consignee at Indore.
This Court held that coal cess was levied and collected with the authority of law.
This Court however did not decide two contentions sought to be raised in that case.
These were first, that coal cess is a fee and not a tax or duty and secondly, that the consignee was a non resident and therefore the Ordinance not having extra territorial operation could not reach him.
Counsel on behalf of the appellant contended that the, appellant was at the material time a resident of Indore and was therefore not bound by the revenue law of the then British India and no suit could be filed for enforcing recovery of revenue dues against the appellant.
Reliance was placed in support of the contention on the decision of the House of Lords in Government of India, Ministry of Finance vs Taylor and Anr.(2).
In Taylor 's(2) case the Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax including capital gains tax, which arose on the sale of the company 's undertaking in India.
It was held by the majority opinion that although under section 302 of the English Companies Act, 1948 a liquidator was required to provide in the liquidation of the company for liabilities of the company the tax claims would not be a liability within the meaning of section 302 of the English Companies Act.
The unanimous opinion was that the revenue claims would not be enforceable in relation to assets in England.
The ratio of the decision in Taylor 's(2) case is that India being a foreign Government could not sue tile liquidator (1) [1962] Supp. 3 S.C.R. 436.
(2) ; 565 taylor in England for income tax levied and declared to be payable under the Indian law.
A foreign State cannot enforce a claim for revenues against a foreigner in his home country.
The ' reason is that a foreign court will not be an agency for tax gathering.
The decision in Taylor 's(1) case is of no aid to the appellant in the present case.
The Union in the present case did not either sue or enforce any revenue law in a foreign court.
The Coal Production Cess was levied on coal despatched from collieries in the then British India.
Under the Rules the excise duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination.
The fact found in the present case was that the coal was despatched from the collieries within the then British India.
The appellant was the consignee.
Freight charges were to be collected at the station of destination, namely, Indore.
The appellant also paid the freight charges on the consignments.
The levy of cess which is the taxable event happened within the then British India.
The duty of excise is determined by reference to goods despatched from collieries.
The tax is on the production of coal.
The liability to pay cess is on the goods.
The cess is a tax on goods and not on the sale of goods.
This Court examined the true character of the cess in Jall 's(2) case and Subba Rao, J. speaking for the Court said at page 451 of the Report : "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country.
It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer.
Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost.
The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience. . .
A perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence excise duty and there is a rational connection between the said tax and the person on whom it is imposed".
The ruling in gall 's(2) case establishes two propositions.
First, that the cess is a duty on the manufacture or production of coal and secondly, the method of collection does not affect the essence of the excise duty.
(1) [1955] A C 491 (2) [1962] Supp. 3 S.C. P. 43 6. 566 The transaction of sale is a composite transaction consisting of agreement of sale, passing of title, delivery of goods and payment of price and costs charges of transportation.
The cess formed surcharge on the freight.
The appellant being the consignee was liable for the same.
The cess became a part of the freight for purposes of collection but in essence the cess remained a tax on goods.
The machinery for collection of the duty is not to be confused with the duty itself.
Once the duty attaches to the goods these became impressed with the liability and the purchaser, namely, the consignee in the present case was affixed with the liability to pay.
The liability arose at the colliery.
The collection was to be at Indore.
The appellant became liable to pay the cess along with the payment of the freight charges.
The suit was filed in the year 1953 when Indore was within India and the right of the Union to claim as well as the liability of the appellant to pay the cess was valid and subsisting.
The Union was therefore entitled to a decree against the appellant.
Counsel on behalf of the appellant sought to raise an addi tional ground that there was no cause of action against appellant No. 2. 'Notice of the application for urging additional ground was given on 22 January, 1972.
We did not allow this additional ground to be raised at this late stage.
If the appellant had raised this question at the trial of the suit the respondent would have dealt with the same.
We therefore thought that it would not be fair and proper to allow this ground to be raised.
For these reasons the judgment of the High Court is affirmed.
The appeal is dismissed with costs.

summary:
Coal was despatched from colleiries within British India in December 1946 and January and February 1947, to the appellant in Indore.
The respondent filed a suit in 1953 for recovery of coal production cess levied under the Coal Production Fund Ordinance, 1944, and r. 3(1) of the Coal Production Fund Rules, 1944.
On the question whether the Ordinance had no territorial operation to reach the appellant, because, he was a resident of a Princely State at the time of dispatch of the coal.
HELD:In R. C. Jall vs Union of India, [1962] Supp. 3 S.C.R. 436,.
it was held that the cess was an excise duty on the manufacture or production of coal and that the method of collection did not affect the essence of the duty.
The coal production cess was on the production of coal and was levied on coal dispatched from collieries in the then British India, that is, the taxable event happened within the then British India.
Under the Rules, the duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination.
The appellant was the consignee and the freight charges were to be collected from him at the destination, namely, Indore.
The cess thus became a part of the freight for purposes of collection but in essence remained a tax on goods.
Once the duty attaches to the goods they became impressed with the liability and the consignee was liable to pay.
The suit was filed in 1953 when Indore was within India and the right of the Union to claim, as well the liability of the appellant to pay, the cess, was valid and subsisting.
It was not a case of the Union seeing or enforcing any revenure law in a foreign court.
Therefore, the Union was entitled to a decree against the appellant.
[565D H; 566B D] Govt.
of India, Ministry of Finance vs Taylor, [1955] A.C. 491; , distinguished.


judgement:
Appeals Nos.
1194, 11 96, 1197 & 1250 of 1967.
400 Appeals by certificate from the judgment and order dated November 22, 23 and 24, 1966 of the Bombay High Court in Special Civil Applications Nos.
1476 and 1424 of 1966.
G. L. Sanghi, C. K. Ratnaparkhi and A. G. Ratnaparkhi, for the appellant (in C.A. No. 1194/67).
B. N. Lokur, C. K. Ratnaparkhi, A. G. Ratnaparkhi and B. M. Srivastava, for the appellant (in C.A. No. 1196/67).
M. C. Bhandare, B. D. Sharma, for the appellants (in C.As.
1197 and 1250/67 and Respondent No. 2 (in C.As.
1194 and 1196/67).
Sharad Manohar and B. P. Maheshwari, for respondent No. 1 (in C. As.
1194 and 1197 of 1967).
M. N. Phadke, Sharad Manohar and B. P. Maheshwari, for respondent No. 1 (in C.As.
1196 & 1250/67).
B. N. Lokur, G. L. Sanghi, C. K. Ratnaparkhi, A. G. Ratna parkhi and B. M. Srivastava, for respondent No. 2 (in C.As.
1197 & 1250/67).
The Judgment of the Court was delivered by MATHEW, J.
The respondents in these appeals filed writ peti tions in the Bombay High Court challenging the validity of the Borough Municipalities (Validation of Certain Taxes on Buildings and Lands) Act, 1965 (Maharashtra Act No. 111 of 1966), hereinafter called the "Validating Act", on the ground that the provisions of the Act violated their fundamental rights under article 14 of the Constitution and for restraining the appellants from levying house tax on the mills, factories and buildings connected therewith of the respondents or collecting the same from them.
A Division Bench of the High Court held that sections 3(b), 4(1), 4(2) and 5 of the Validating Act were invalid as they contravened article 14 and granted the prayer for restraining the appellant Municipality from levying and collecting the tax.
These appeals, by certificate, are directed against the judgment of the Division Bench.
Till the year 1947, the appellant Municipality used to levy house tax on the mills, factories and buildings connected therewith of the respondents in these appeals on the basis of their annual letting value and the annual letting value for this purpose was ascertained in the normal way, that is, by ascertaining the amount at which the buildings might reasonably be expected to let from year to year.
In 1947, the appellant Municipality made fresh rules for levy of house tax and rule 2 (c) of the new rules ran as follows 401 "2(c) In the case of mills and factories and buildings connected therewith, house tax on buildings shall be levied at the usual rate on the annual rental value fixed at Rs. 40/ for every 100 square feet or portions thereof for each sterey, floor or cellar.
"Explanation : The expression "building connected therewith" means and includes warehouses, godowns, millshops, etc.
which are within the compound of mill premises but does not include residential buildings, such as bungalows, out houses.
"Note : Buildings which are not taxed under Rule 2(c) shall be taxed under the ordinary rules.
" Under this rule, the annual rental value of all the buildings of mills and factories other than residential buildings was fixed at a uniform rate of Rs. 40/ for every square foot of floor area irrespective of the actual rental value of the premises.
One of the respondents, namely, Lokamanya Mills.
Barsi, Limited, claimed refund of amounts paid by them on the basis that Rule 2(c) was ultra vires the Boroughs Act and they filed 4 suits for the same.
Against the decrees dismissing the suits, appeals were preferred to this Court and they were finally disposed of by this Court in Lokamanya Mills, Barsi Ltd. vs Barsi Borough Municipality(1).
This Court, after referring to the provisions of section 78 and the explanation to section 75 of the Boroughs Act, held that the Municipality could levy a rate on lands and buildings on the basis of their capital or annual letting value and that in framing rule 2(c), the Municipality had adopted a mode of valuation different from the one sanctioned by the Boroughs Act.
The Court also observed : "The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation." Accordingly, the Court allowed the appeals and decreed the suits.
The main objects of the Validatting Act were to enable the municipalities governed by the Boroughs Act to levy house tax on mill 's factories and buildings connected therewith on the basis of rule 2(c) and to validate the levy and collection of the tax with retrospective effect.
Section 3 of ,the, Validating Act (1) ; 402 brings about certain amendments in the Boroughs Act.
In section 3 of the Boroughs Act, a clause is inserted which lays down that " rate on buildings or lands" includes any tax imposed on buildings or lands.
Another amendment introduced in the Boroughs Act is with reference to Explanation to section 75.
Prior to the amendment, the explanation to section 75 was as follows : "In the case of lands the basis of valuation may be either capital or annual letting value.
" This explanation was substituted by the Validating Act by an explanation which reads "Explanation : For the purposes of a rate on buildings or lands, the basis of valuation may be (i) the annual letting value.
(ii) the annual value; (iii) the floor area, in the case of mills, factories buildings and lands connected therewith; (iv) the capital value in the case of vacant lands".
Both these amendments were given retrospective effect from the commencement of the Boroughs Act.
Sections 4 and 5 of the Validating Act are designed to validate with retrospective effect, the levy and collection of tax notwithstanding the decision of this Court.
Sub section (1) and (2) of section 4 provide "4(1) Any house tax and any water tax levied or purported to be levied and collected in respect of any mills, factories and buildings and lands connected therewith or in respect of any vacant lands, under the Boroughs Act and rules made thereunder, at any time before the commencement of this Act shall be deemed to have been levied and collected by or under the Boroughs Act as amended by this Act; and accordingly notwithstanding anything in any judgment, decree or order of any Court any such house tax or water tax levied and collected shall, for all purposes be deemed to be, and always to have been, validity levied and collected, and shall not be called in question merely on the ground that the tax was not levied on the basis of the annual letting value, or was levied on the basis of a uniform rate on the floor area, or that it was levied on the basis 403 of capital value or a percentage on such value, or on the ground that any proceeding laid down in the Boroughs Act or in the rules was not followed." "4(2) anything done or any action taken, by or on behalf of any Borough Municipality or any officer of such Municipality, acting or purporting to act under the provisions of the Boroughs Act or any rules made thereunder for or in connection with the levy or collection of the said taxes, shall be deemed for all purposes to have been validly done or taken; and no suit or other legal proceedings whatsoever shall be entertained or continued in any Court on any or all of the grounds mentioned in sub section (1).
" Section 5 provides, among other things, for recovery of tax by the municipal authority concerned and the period within which it should be recovered, etc.
The two points which arise for consideration in these appeals are, whether rule, 2(c) was available to the appellant Municipality for imposing house tax on mills, factories and buildings connected therewith of the respondents and whether the rule can be deemed to have been in operation in order that the levy and collection of house tax might be validated with retrospective effect It may be recalled that rule, 2 (c) was struck down by this Court in Lokamanya Mills, Barsi Ltd. vs Barsi Borough Muni cipality (1) on the, basis that the Boroughs Act authorized levy of house tax only on the basis of annual letting value or capital value of the land or building as the case may be, and that rule 2(c) as it purported to levy house tax on the basis of the floor area was ultra vires the Act.
When the rule was struck down by this Court, the effect was, that the rule could never be deemed to have been passed.
Apart from rule 2(c), there was no charging provision similar to rule 2(c) either in the Boroughs Act, or in the Validating Act for levying house tax on mills, factories and buildings connected therewith.
After rule 2(c) was struck down, the Municipality did not frame any rule under the provision of section 75 of the Boroughs Act for imposing house tax on mills factories or buildings connected therewith.
The Validating Act has not also revived or resurrected rule 2(c).
Therefore, the position was ,that there was no charging provision for imposition of house tax on the mills, factories or buildings connected therewith.
It is only if there was a charging provision for imposing house tax on the mills, factories or buildings connected therewith that any house tax could be imposed upon the mills, factories or buildings connected therewith of the respondents.
All that the explanation to section 75 substituted by the Validating Act did was (1) ; 404 to enact that, for imposing house tax, floor area will be the basis of valuation in the case of mills, factories or buildings connected therewith.
The consequence is that (there could be no levy of house tax on the mills, factories or buildings connected therewith of the respondents nor could any demand be made on the respondents on the basis of any levy.
The High Court was, therefore, right in restraining the appellant Municipality from levying house tax on the mills, factories or buildings connected therewith of the respondents and in quashing the demand notice issued.
Section 4 did not resurrect rule 2(c) with retrospective effect in order that it might be said that there was, in the eye of law, a provision for charging house tax on mills, factories or buildings connected therewith so that the tax levied and collected might be validated.
Even if section 4 had resurrected rule 2(c) and said that it shall be deemed to have been passed under the Validating Act with retrospective effect, that might not have cured invalidity on account of its being violative of article 14 of the Constitution as it imposed a flat rate on the floor area without making any classification of the area on the basis of income, productivity.
or age of building, etc.
But we do not think it necessary to pass upon this hypothetical question as section 4 did not revive or resurrect rule 2(c), much less, give it retrospective operation.
In this view, we have no occasion to reach ?the constitutional question as regards the validity of the impugned sections of the Validating Act and we express no opinion upon it.
We think that it was not necessary for the High Court to have struck down the provisions of sections 3(2), 4(1), 4(2) and 5 of the Validating Act.
When rule 2(c) was held to be inoperative by virtue of the decision of this Court, all the reliefs claimed by the respondents in the writ petitions could have been given to them without striking down these provisions.
It is a wise tradition with Courts not to decide a constitutional question if the case can be disposed of on other grounds.
We dismiss the appeals but, in the circumstances, make no order as to costs.
S.B.W. Appeals dismissed.

summary:
The Supreme Court, in Lokmanya Mills, Barsi Led.
vs Barsi Borough Municipality ; struck down Rule 2(c) as being violative of article 14 of the Constitution of India, for the vice of assumed uniformity of return per sq.
from structures of different classes which are in their nature not similar.
The Maharashtra Legislature passed Borough Municipalities (validation of certain taxes on buildings and lands) Act 1965, to validate the levy and collection of the tax with retrospective effect and to enable the municipalities to levy house tax on mills factories and buildings on the basis of Rule 2(c).
Explanation to Sec.
75 of the Act was substituted by the new explanation, by the Validating Act.
Ss. 4 and 5 are designed to validate the levy and collection of tax with retrospective effect.
On challenge through a Writ Petition, the Division Bench of the Bombay High Court struck down Sections 3(b), 4(1), 4(2) and 5 of the Validating Act for their contravention of article 14.
The appeal filed by the State and the Barsi Municipal Council before this Court among other things, raised a question as to whether the Validating Act has resurrected the provisions of Rule 2(c) and levy and collection were validated as required by law.
Dismissing the appeal, HELD : When the rule was struck down by this Court, the effect was that the Rule could never be deemed to have been passed.
Apart from Rule 2(c), there was no charging provision 'similar to Rule 2(c) either in the Boroughs Act or in the Validating Act for levying house tax on mills, factories and buildings connected therewith.
After Rule 2(c) was struck down, the Municipality did not frame any rule under the provisions of Section 75 of the Boroughs Act for imposing tax on mills, factories or buildings connected therewith.
Section 4 of the Validating Act does not revive or resurrect Rule 2(c).
Since the charging section is not revived, there was no authority under law to collect tax on the said categories of properties.
Since in the eye of law there was no charging provision, there could be no validation of any levy or collection.
[403G] Held further, that the above holding was enough to grant all reliefs claimed by the respondent in the Writ Petition and there was no need to express an opinion on the validity of the impugned sections of the Validating Act.
[404F]


judgement:
22 of 1955.
Under Article 32 of the Constitution for a Writ in the nature of habeas corpus.
Sadhan Chandra Gupta (The Petitioner also present) for the petitioner.
M. C. Setalvad, Attorney General of India (B. Sen, and I. N. Shroff, for P. K. Bose, with him) for the respondents.
February 23.
The Judgment of the Court was delivered by BOSE J.
The petitioner, Hans Muller, who is not a citizen of India, and who is said to be a West German subject, was arrested by the Calcutta Police on the 18th September, 1954 and was placed under preventive detention.
The order was made by the West Bengal Government under section 3(1) of the of 1950 (Act IV of 1950) on the ground that his detention was "with a view to making arrangements for his explusion from India".
The grounds were served on the 22nd of September, 1954.
The second ground runs "That you are a foreigner within the meaning of the (Act XXXI of 1946) and that it has become necessary to make arrangements for your expulsion from India and for this purpose you are required to be detained under section 3 (1) (b) of the until the issue of an appropriate order of expulsion from the Central Government".
On the day after his arrest, namely on the 19th September, 1954 he wrote to the Consul General of West Germany at Calcutta saying that be had been arrested and asking for an early interview.
This was granted.
On the 21st of September 1954, the petitioner wrote to the West Bengal Government asking it "to be kind enough to pass an order for our immediate repatriation from India" 1287 and "to do the necessary arrangement for our transmission out of India".
On the 9th of October 1954 the Calcutta Police handed the petitioner 's passport over to the West German Consul at the Consul 's request.
This passport was issued to the petitioner by the West German Government at Nurenburg in West Germany on the 27th of November 1953.
When the passport was handed over to the West German Consul it had on it a number of visas, including an Indian, all of which had on them the condition "while the passport is valid".
When the West German Consul got the passport he made the following entry on it: "Valid only for the return voyage to the Federal Republic of Germany until the 8th January 1955".
The petitioner complains that this invalidated all the other visas and as, according to this fresh entry, the passport ceased to be valid after the 8th of January 1955, he now has no passport.
On the same day, the 9th of October 1954, the West German Government wrote to the West Bengal Government saying that a warrant of arrest was issued against the petitioner in West Germany in connection with a number of frauds and that legal proceedings in connection with those warrants are still pending.
The Consul also said that he had received information that similar charges had been made against the petitioner in Lebanon and in Egypt and be concluded "The Government of the Federal Republic of Germany will apply for Muller 's extradition through diplomatic channels whilst at the same time submitting the supporting documents.
As this will require a certain amount of time, I am directed to give you advance information of this step and hereby request the Government of West Bengal to issue a provisional warrant of arrest which ensures Muller 's detention up to the date of his extradition to Germany.
This Consulate has already arranged for Muller 's repatriation by the German boat 'KANDELFELS ' due to arrive in Calcutta on the 19th instant.
All 165 1288 expenses in connection with Muller 's repatriation will be borne by the Government of the Federal Republic of Germany".
On receipt of this letter the Secretary to the Government of West Bengal recorded the following note: "I suppose there would be no objection to our keeping Muller in detention till the 19th instant.
We must issue order of his release as soon as his boat is ready to sail".
The West Bengal Government had no power to deport the petitioner.
Only the Central Government could do that, and up till the 20th of October the Central Government had not passed any orders.
On that date the petitioner applied to the High Court of Calcutta for a writ in the nature of habeas corpus under section 491 of the Criminal Procedure Code.
Because of that, and because this matter has been pending in the courts ever since, no orders have yet been issued for his expulsion from India though we are told by the learned Attorney General that they have been made and signed but are being held in abeyance pending the decision of this petition.
The petitioner contended that his detention was invalid for the following, among other, reasons: (1) Because section 3(1)(b) of the , the section under which the order was.
made, is ultra vires the Constitution on three grounds (a) that it contravenes articles 21 and 22; (b) that it contravenes article 14, and (c) that it was beyond the legislative competence of Parliament to enact such a law; (2) Because section 3(1) (b) is not a law of preventive detention within the meaning of article 22(3) and therefore it contravenes article 22 (1) and (2); and (3) Because, in any event, the order was made in bad faith.
The High Court decided against the petitioner on all points and dismissed the petition on 10 12 1954.
He thereupon made the present petition to this Court on the same grounds, presumably under article 32 of the Constitution.
It was filed oil 10 1 1955.
1289 We will first consider the vires of section 3(1) (b).
It is in these terms: "The Central Government or the State Government may . . . (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained".
The detention order is by a State Government and not by the Centre.
The portion of the section on which the order is based is the part that gives a State Government power to make an order of detention against a foreigner, on satisfaction, "with a view to making arrangements for his expulsion from India".
The competence of the Central Legislature to enact a law dealing with this aspect of preventive detention is derived from Entry 9 of the Union List read with Entry 10, The portion of Entry 9 which concerns us is as follows: "Preventive detention for reasons connected with Foreign Affairs The scope of the expression "Foreign Affairs" is indicated in Entry 10: "Foreign Affairs; all matters which bring the Union into relation with any foreign country".
It is well settled that the language of these Entries must be given the widest scope of which their meaning is fairly capable because they set up a machinery of Government and are not mere Acts of a legislature subordinate to the Constitution.
Giving Entry 9 its widest range we find it impossible to hold that legislation that deals with the right of a State to keep foreigners under preventive detention without trial does not bring the Union into relation with a foreign country.
Every country claims the right to the allegiance of its subjects wherever they may be and in return guarantees to them the right of diplomatic 1290 protection when abroad.
It is therefore the privilege, and the anxiety, of every civilised nation to keep vigilant watch over its subjects abroad and to ensure for them, as far as that is possible through diplomatic channels, fair play and justice administered along lines of what is called, broadly for want of a better term, natural justice.
A foreign State has a very direct interest in what is done to its subjects in a foreign land.
Therefore, legislation that confers jurisdiction upon Governments in this country to deprive foreigners of their liberty cannot but be a matter that will bring the Union into relation with foreign States, particularly when there is no public hearing and no trial in the ordinary courts of the land.
But in this particular case, the relation is even more direct, for the provision here is for detention with a view to making arrangements for a foreigner 's expulsion from India.
A foreign State has a very deep interest in knowing where and how its subjects can be forcibly expelled against their will.
The legislative competence of Parliament to deal with this question is, we think, clear; and this covers not only section 3(1) (b) of the but also the (Act XXXI of 1946) in so far as it deals with the powers of expulsion and the right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land.
The learned Attorney General sought to base the legislative competence upon other Entries as well and claimed that Parliament is not confined to Entry 9 in List I and Entry 3 in List III (the only Entries that touch directly on preventive detention).
He claimed, for example, that laws for the preventive detention of foreigners can also be based upon Entry 17 in List I which relates to aliens and Entry 19 which relates to expulsion from India; and also upon the portions of Entries 9 in List I and 3 in List III that deal with the "security of India" and the "security of the State" and the "maintenance of public order", provided always that they comply with articles 21 and 22 of the Constitution, We express no opinion 1291 about this as we can uphold the portion of the Statute that is impugned here on the narrower ground we have set out above.
The next question is whether the limitations imposed on this power by articles 21 and 22 have been observed.
Article 21 guarantees the protection of personal liberty to citizen and foreigner alike.
No person can be deprived of his personal liberty "except according to procedure established by law", and article 22 prescribes the minimum that the procedure established by law must provide.
There can be no arrest or detention without the person being produced before the nearest magistrate within twenty four hours, excluding the time necessary for the journey, etc., nor can he be detained beyond that period without the authority of a magistrate.
The only exceptions are (1) enemy aliens and (2) "any person who is arrested or detained under any law providing for preventive detention".
There are further limitations, but they were not invoked except that the learned Attorney General explained that the unrestricted power given by section 4(1) of the (a pre constitution measure) to confine and detain foreigners became invalid on the passing of the Constitution because of articles 21 and 22.
Therefore, to bring this part of the law into line with the Constitution, section 3 (1) (b) of the was enacted.
It was more convenient to insert new provisions about the confinement and detention of foreigners in the rather than amend the because the was a comprehensive Act dealing with preventive detention and was framed with the limitations of articles 21 and 22 in view.
It was urged on behalf of the petitioner that section 3(1)(b) of the is ' not reasonably related to the purpose of the Act, namely, "preventive detention".
It was argued that preventive detention can only be for the purpose of prevent 1292 ing something and when you seek to make arrangements for a man 's expulsion from the country you are not preventing anything, or trying to, but are facilitating the performance of a positive act by the State, namely the act of expulsion.
We do not agree and will first examine the position where an order of expulsion is made before any steps to enforce it are taken.
The right to expel is conferred by section 3(2)(c) of the on the Central Government and the right to enforce an order of expulsion and also to prevent any breach of it, and the right to use such force as may be reasonably necessary "for the effective exercise of such power" is conferred by section 11(1), also on the Central Government.
There is, therefore, implicit in the right of expulsion a number of ancillary rights, among them, the right to prevent any breach of the order and the right to use force and to take effective measures to carry out those purposes.
Now the most effective method of preventing a breach of the order and ensuring that it is duly obeyed is by arresting and detaining the person ordered to be expelled until proper arrangements for the expulsion can be made.
Therefore, the right to make arrangements for an expulsion includes the right to make arrangements for preventing any evasion or breach of the order, and the confers the power to use the means of preventive detention as one of the methods of achieving this end.
How far it is necessary to take this step in a given case is a matter that must be left to the discretion of the Government concerned, but, in any event, when criminal charges for offences said to have been committed in this country and abroad are levelled against a person, an apprehension that he is likely to disappear and evade an order of expulsion cannot be called either unfounded or unreasonable.
Detention in such circumstances is rightly termed preventive and falls within the ambit of the and is reasonably related to the purpose of the Act.
The next question is whether any steps can be 1293 taken under the law in anticipation of an order that is about to be made, or which may be made, by the competent authority on the recommendation of another authority seized with certain powers of Government and yet not competent to make an order of this kind.
The confers the right of expulsion on the Central Government.
Therefore, a State Government has no right either to make an order of expulsion or to expel.
It was argued that if a State Government cannot expel or make an order of expulsion, then it cannot be permitted to detain "with a view to making arrangements for the expulsion".
It was contended that the only authority that can make such arrangements, or direct that they should be made, is the Central Government.
It was also argued that until an order of expulsion is made by the proper authority, no one can start making arrangements for its due execution; the arrangements contemplated by section 3(1)(b) must follow and not precede the order, especially as they involve curtail ment of a man 's personal liberty, for the order may never be made and it would be wrong to permit an authority not authorised to decide the question to detain a man of its own motion till somebody else has time and leisure to consider the matter.
That would be inconsistent with the fundamental right to liberty guaranteed by the Constitution to citizen and foreigner alike.
Again, we do not agree.
The expressly confers the right to detain ' with a view to making, arrangements" for the expulsion upon both the State and the Central Government and the "satisfaction" required by section 3(1)(b) can be of either Government.
The right to satisfy itself that the drastic method of preventive detention is necessary to enable suitable arrangements for expulsion to be made is therefore expressly conferred on the State Government and as a State Government cannot expel, the conferral of the right can only mean that the State Government is given the power to decide and to satisfy itself whether expulsion is desirable or neces 1294 sary, and if it thinks it is, then to detain until proper arrangements for the expulsion are made, one of them, and an essential one, being reference to the Central Government for final orders.
It is evident that the authorities must be vested with wide discretion in the present field where international complications might easily follow in a given case.
Unless a State Government has authority to act in anticipation of orders from the Centre, it might be too late to act at all.
We now turn to the argument that section 3 (1) (b) is ultra vires because it offends article 14 of the Constitution.
Actually, the attack here is on section 3 (2) (c) of the but as section (3) (1) (b) of the is consequential on that it is also involved.
Section 3(1)(b) permits detention of a "foreigner" with in the meaning of the .
The definition of "foreigner" is given in section 2(a) of that Act and is as follows: " `foreigner ' means a person who (i)is not a natural born British subject as defined in sub sections (1) and (2) of section (1) of the British Nationality and Status of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalization as a British subject under any law for the time being in force in India".
The rest of the definition is not material.
The argument is that this differentiates between foreigner and foreigner.
It takes two classes of British subjects who are now as much foreigners as anyone else not an Indian citizen, out of the class of foreigners for the purposes of preventive detention and for the purposes of expulsion under the .
This, it was contended, offends article 14 which provides that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
This argument is easily answered by the classification rule which has been repeatedly applied in this Court.
The classification of foreigners into those who are British subjects of the kind set out in the definition, and others, so as to make the former not 1295 foreigners for the purposes of the and the , is a reasonable and rational classification and so does not, on the authority of our previous decisions, offend article 14.
There is no individual discrimination and it is easily understandable that reasons of State may make it desirable to classify foreigners into different groups.
We repel this argument.
It was then said that at any rate there is differentiation in the same group because the definition discriminates between classes of British subjects inter se.
It was pointed out that the British Nationality and Status of Aliens Act, 1914 was repealed in 1948 and re enacted in another form but as our Act has retained the 1914 definition that is the one we must consider.
We do not intend to examine this contention because, even if it be true that there is the discrimination alleged, namely between one class of British subject and another, that will not give the petitioner a right of challenge on this ground.
He is not a British subject and so is not a member of the only class that could claim to be aggrieved on this score.
This Court has decided in earlier cases that the only persons who can impugn any given piece of legislation under article 32 are those who are aggrieved thereby.
As the petitioner is not a person aggrieved, so far as this point is concerned, he not being a British subject, he cannot attack the section on this ground.
We hold that the impugned portions of section 3(1)(b) of the and section 3(2)(c) of the are intra vires.
We now turn to a wider question that brings us to the fringe of International law.
It arises in this way.
The good faith of the Government of the State of West Bengal in making the order of detention was challenged on the following, among other, grounds.
It was argued that the real object of Government in continuing the detention was to keep the petitioner in custody so that it would be in a position to hand him over to the West German authorities as soon as a suitable German boat arrived.
It will be remembered 166 1296 that the West German Government wants the petitioner for offences which he is alleged to have committed in West Germany and that the West German Consul at Calcutta wrote to the West Bengal Government on 9 10 1954 asking that Government to issue a provisional warrant of arrest against the petitioner and to keep him in custody until the West German Government could initiate extradition proceedings against him, and added that the West German Consulate at Calcutta had already arranged for his repatriation on a German boat that was to arrive on the 19th of October 1954.
On receipt of this letter, the Secretary of the West Bengal Government recorded a note saying that he supposed there would be no objection to the West Bengal Government keeping the petitioner in detention till the 19th.
It was said that the connection between the letter, the expected arrival of the boat on the 19th and the Secretary 's proposal to keep the petitioner till that date, was obvious.
The attack on the good faith of the West Bengal Government at this point was two fold.
First, it was said that whatever the original intention of the West Bengal Government may have been, when the West German Consul 's letter was received, the object of the detention was no longer for the purpose of making arrangements for the petitioner 's expulsion but for keeping him in custody till the West German Government was in a position to commence extradition proceedings; that, it was said, was an abuse of the and was not justified by any of its provisions.
The second ground of attack was that, if that was not the object, then, very clearly, the idea was to hand the petitioner over to the German authorities on a German boat without the formality of extradition proceedings and without giving the petitioner a chance to defend himself and show that be could not be extradited.
That, it was said, made the matter worse than ever.
It was denied that the petitioner had committed any offence in West Germany or any where else.
He claimed to be a communist and said that the real object of the West German Government 1297 was to subject him to political persecution the moment they could lay bands on him.
The contention was that once an order of extradition is asked for, a foreigner cannot be handed over to the Government seeking his extradition except under the Extradition Act.
The learned Attorney General contended very Cc strongly that this question was academic and should not be considered because no order of expulsion had yet been served on the petitioner and no one knows the terms of the order.
We do not think it is in view of what the learned Attorney General told us, namely that an order of expulsion has actually been made and signed but is kept in abeyance pending our deci sion.
We see no force in the first part of the petitioner 's argument.
We are at bottom considering the question of the West Bengal Government 's good faith.
The order of detention was made before the West German Consul wrote his letter, so there was no connection between that letter and the order.
After that there is no material to indicate that the West Bengal Government changed its mind and continued the deten tion for another purpose.
The note referred to is the note of a Secretary to Government and embodies his suggestion about what should be done.
It cannot be used either as an order of Government itself or as an indication of its mind.
The second point raises a question of wider import touching the status and rights of foreigners in India, and the question we have to determine is whether there is any law in India vesting the executive government with power to expel a foreigner from this land as opposed to extraditing him.
Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right "to move freely throughout the territory of India" and "to reside and settle in any part of India", subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
No cor 1298 responding rights are given to foreigners.
All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land.
This is conferred by article 21 which is in the following terms: "No person shall be deprived of his life or personal liberty except according to procedure established by law".
Entries 9, 10) 17, 18 and 19 in the Union List confer wide powers on the Centre to make laws about among other things, admission into and expulsion from India, about extradition and aliens and about preventive detention connected with foreign affairs.
Therefore, the right to make laws about the extradition of aliens and about their expulsion from the land is expressly conferred; also, it is to be observed that extradition and expulsion are contained in separate, entries indicating that though they may overlap in certain aspects, they are different and distinct subjects.
And that brings us to the which deals, among other things, with expulsion, and the Extradition Act which regulates extradition.
The confers the power to expel foreigners from India.
It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.
The law of extradition is quite different.
Because of treaty obligations it confers a right on certain countries (not all) to ask that persons who are alleged to have committed certain specified offences in their territories, or who have already been convicted of those offences by their courts, be handed over to them in custody for prosecution or punishment.
But despite that the Government of India is not bound to comply with the request and has an absolute and unfettered discretion to refuse.
There are important differences between the two Acts.
In the first place, the Extradition Act applies to everybody, citizen and foreigner alike, and to every class of foreigner, that is to say, even to foreigners who are not nationals of the country asking for 1299 extradition.
But, as has been seen, because of article 19 no citizen can be expelled (as opposed to extradition) in the absence of a specific law to that effect; and there is none; also, the kind of law touching expulsion (as opposed to extradition) that could be made in the case of a citizen would have to be restricted in scope.
That is not the case where a foreigner is concerned because article 19 does not apply.
But a citizen who has committed certain kinds of offences abroad can be extradited if the formalities prescribed by the Extradition Act are observed.
A foreigner has no such right and he can be expelled without any formality beyond the making of an order by the Central Government.
But if he is extradited instead of being expelled, then the formalities of the Extradition Act must be complied with.
The importance of the distinction will be realised from what follows; and that applies to citizen and foreigner alike.
The Extradition Act is really a special branch of the law of Criminal Procedure.
It deals with criminals and those accused of certain crimes.
The is not directly concerned with criminals or crime though the fact that a foreigner has committed offences, or is suspected of that, may be a good ground for regarding him as undesirable.
Therefore, under the Extradition Act warrants or a summons must be issued; there must be a magisterial enquiry and when there is an arrest it is penal in character; and and this is the most important distinction of all when the person to be extradited leaves India he does not leave the country a free man.
The police in India hand him over to the police of the requisitioning State and he remains in custody throughout.
In the case of expulsion, no idea of punishment is involved, at any rate, in theory, and if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases.
But the right is not his.
Under the Indian law, the matter is left to the unfettered discretion of the Union Government and that Government can prescribe the route and the port or place of departure and can place him on a particular ship or plane.
(See sections 3(2) (b) and 6 of the Foreigners 1300 Act).
Whether the Captain of a foreign ship or plane can be compelled to take a passenger he does not want or to follow a particular route is a matter that does not arise and we express no opinion on it.
But assuming that he is willing to do so, the right of the Government to make the order vis a vis the man expelled is absolute.
This may not be the law in all countries.
Oppenheim, for example, says that in England, until December 1919, the British Government bad "no power to expel even the most dangerous alien without the recommendation of a court, or without an Act of Parliament making provision for 'such expulsion, except during war or on an occasion of imminent national danger or great emergency".
(Oppenheim 's International Law, Vol. 1, 7th edition, page 631).
But that is immaterial, for the law in each country is different and we are concerned with the law as it obtains in our land.
Here the matter of expulsion has to be viewed from three points of view: (1) does the Constitution permit the making of such a law? (2) does it place any limits on such laws? and (3) is there in fact any law on this topic in India and if so, what does it enact? We have already examined the law making power in this behalf and its scope, and as to the third question the law on this matter in India is embodied in the which gives an unfettered right to the Union Government to expel.
But there is this distinction.
If the order is one of expulsion, as opposed to extradition, then the person expelled leaves India a free man.
It is true he may be apprehended the moment he leaves, by some other power and consequently, in some cases this would be small consolation to him, but in most cases the distinction is substantial, for the right of a foreign power to arrest except in its own territory and on its own boats is not unlimited.
But however that may be, so far as India is concerned, there must be an order of release if he is in preventive custody and though he may be conducted to the frontier under detention he must be permitted to leave a free man 1301 and cannot be handed over under arrest.
In a case of extradition, he does not leave a free man.
He remains under arrest throughout and is merely handed over by one set of police to the next.
But in that event, the formalities of the Extradition Act must be complied with.
There must be a magisterial enquiry with a regular hearing and the person C sought to be extradited must be afforded the right to submit a written statement to the Central Government and to ask, if he so chooses, for political asy lum; also be has the right to defend himself and the right to consult, and to be defended by, a legal practitioner of his choice.
(Article 22(1) Of course, he can also make a representation against an order of expulsion and ask for political asylum apart from any Act but those are not matters of right as under the Extradition Act.
Our conclusion is that the is not governed by the provisions of the Extradition Act.
The two are distinct and neither impinges on the other.
Even if there is a requisition and a good case for extradition, Government is not bound to accede to the request.
It is given an unfettered right to refuse.
Section 3(1) of the Extradition Act says "the Central Government may, if it thinks fit".
Therefore, if it chooses not to comply with the request, the person against whom the request is made cannot insist that it should.
The right is not his; and the fact that a request has been made does not fetter the discretion of Government to choose the less cumbrous procedure of the when a foreigner is concerned, provided always, that in that event the person concerned leaves India a free man.
If no choice had been left to the Government, the position would have been different but as Government is given the right to choose, no question of want of good faith can arise merely because it exercises the right of choice which the law confers.
This line of attack oil the good faith of Government falls to the ground.
The remaining grounds about want of good faith 1302 that were raised in the petition were not seriously pressed and as they are of no substance we need not discuss them.
The petition fails and is dismissed.
Petition dismissed.

summary:
The petitioner, a West German subject, was placed under pre ventive detention by an order of the West Bengal Government under section 3(1)(b) of the on the ground that he was a foreigner within the meaning of the and that it had become necessary to make arrangements for his expulsion from India and therefore he was required to be detained until the issue of an appropriate order from the Central Government.
The questions for determination in the case were: (i) whether section 3(1)(b) of the was ultravires the Constitution inasmuch as it contravenes articles 14, 21 and 22 of the Constitution and whether it was beyond the legislative competence of Parliament to enact such a law; (ii)whether, in any event, the detention was invalid as it was made in bad faith.
Held that the impugned portion of the and section 3(2)(c) of the on which it is based are not ultra vires the Constitution inasmuch as; (i)in view of Entry 9 and Entry 10 of the Union list of the Seventh Schedule to the Constitution, the language of which must be given the widest meaning, the legislative competence of Parliament to deal with the question of preventive detention of foreigners 1285 is clear and this covers not only section 3(1)(b) of the but also the , in so far as it deals with the powers of expulsion and the right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land; (ii)the was a comprehensive Act dealing with preventive detention and was framed with the Limitations of articles 21 and 22 in view.
Section 3(1)(b) of the was enacted to bring the unrestrained power given by section 4(1) of the into line with the provisions of the Constitution; (iii)section 3 (1) (b) of the is reasonably related to the purpose of the Act, namely preventive detention, inasmuch as the right to expel a foreigner conferred by section 3(2) of the on the Central Government and the right to make arrangements for expulsion include the right to make arrangements for preventing any breach or evasion of the order; and the confers the power to use the means of preventive detention as one of the methods of achieving this end; (iv)the State Government is competent to make an order of detention under the law in anticipation of an order of expulsion that is about to be made, or which may be made by the Central Government on the recommendation of the State Government which, though seized with certain powers of Government is not competent to make an order of expulsion itself.
Unless a State Government has authority to act in anticipation of orders from the Centre it might be too late to act at all; (v)the impugned section does not offend article 14 of the Con stitution inasmuch as differentiation between foreigner and foreigner as envisaged in section 2(a) and section 3(2)(c) of the and section 3(1)(b) of the is based on a reasonable and rational classification.
There is no individual discrimination, and reasons of State may make it desirable to classify foreigners into different groups On the question of good faith, held, that the circumstance of the case did not show bad faith on the part of the West Bengal Government.
The is not governed by the provisions of the Extradition Act 1870.
The two are distinct and neither impinges on the other.
Even if there is a requisition and a good case for extradition, Government is not bound to accede to the request.
It is given an unfettered right to refuse, vide section 3(1) of the Extradition Act, and has got an absolute discretion to choose the less cumbrous procedure of the when a foreigner is concerned.
As the Government is given the right to choose, no question of want of good faith can arise merely because it exercises the right of choice which the law confers.