judgement:
Civil Appeal No. 503 of 1978.
Appeal by Special Leave from the Judgment and order dated )76 of the Punjab and Haryana High Court at Chandigarh in L.P.A. No. 484/74.
section K. Mehta, J. section Chawla, P. N. Puri and P. Balakrishnan for the Appellant B;shamber Lal (for State) and Hardev Singh for the RR 1 4 and 6.
521 P. N. Lekhi and Girish Chandra for Respondent No. 17.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
The appellant, Gurdial Singh Fijji, was selected for the Punjab Civil Service (Executive Branch) in 1953 and was appointed as an Executive Magistrate on June 8, 1954.
Respondents 8 to 15 are also members of the same Service, namely, the P.C.S., but they were selected and appointed to that Service after the appellant.
They are all governed, in the matter of conditions of their service, by the Punjab Civil Service (Executive Branch) Rules 1930, as amended from time to time by the competent authority.
The appellant was confirmed in the cadre on May 8, 1958 while respondents 8 to 15 were confirmed on diverse dates thereafter.
In the gradation list circulated by the Government from time to time, respondents 8 to 15 were shown as junior to the appellant.
In the year 1966, as a result of the reorganisation of the erst while State of Punjab, the appellant and respondents 8 to 16 were allocated to the State of Punjab.
In 1966 67 an adverse entry was made in the confidential record of the appellant while he was working under one Shri Sewa Singh, District and Sessions Judge, Amritsar.
That entry was communicated to the appellant whereupon, he made a representation against it but that has still not been disposed of, for one reason or another.
The State Government forwarded the representation to Shri Sewa Singh, who declined to express his views upon it unless asked by the High Court to do so.
Nothing further has been done in the matter and no decision has yet been taken on the question whether the adverse entry was justified and whether the various contentions raised by the appellant in his representation are well founded.
The appellant worked in various capacities after 1966 67, earning good reports all along.
He was permitted to cross the first efficiency bar under an order of the State Government dated June 14, 1966 and the second efficiency bar on July 20, 1971.
By an order dated July 3, 1971 published in the Punjab Government Gazette on July 23, the Government promoted respondents 8 to 12 to the selection grade of the Punjab Civil Service cadre.
Respondent 15 was similarly promoted on December 19, 1970, respondent 16 on January 1, 1971 and respondents 13 and 14 on July 27, 1971.
On March 14, 1972, the appellant was also promoted to the selection grade with effect from January 15, 1972.
He made a representation to the Government against the orders promoting res 522 pondents to the selection grade prior to him but it was rejected by an order dated June 20, 1973.
A Committee consisting of respondents 2 to 7 was constituted under Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations 1955, for selecting persons from the Punjab Civil Service cadre for the purpose of bringing them on the select list of the Indian Administrative Service.
The Committee held its meeting at Chandigarh on May 11, 1973 after which it prepared a list under Regulation 5 selecting respondent 9 for being brought on the select list for the purpose of promotion to the Indian Administrative Service.
It would appear that the appellant 's name was not put on the select list since respondent 2, the Chief Secretary to the Government of Punjab, had refused to give an 'integrity certificate ' to him.
Appellant made a representation against his non inclusion in the select list and that representation having been rejected, he filed a Writ Petition (No. 3315 of 1973) in the High Court of Punjab and Haryana, challenging the promotion of respondent to the selection grade, the refusal of the Chief Secretary to issue an 'integrity certificate ' to him and his non inclusion in the Select List of the Indian Administrative Service.
The appellant 's Writ Petition was allowed partly by a learned single Judge of the High Court by his judgment dated August 19, 1974 whereby the order dated July 27, 1971 of the State Government granting seniority to two junior officers over the appellant in the selection grade was quashed.
The learned Judge directed the State Government to reconsider the case of the appellant along with that of three other officers regarding the grant of selection grade with effect from June 25, 1971.
The appellant filed a Letters Patent Appeal (No. 484 of 1974) against the decision of the learned Single Judge which was disposed of by the High Court on November 19, 1976.
It was held in appeal that the requirement of Resolution No. 1.1 as regards the production of the 'integrity certificate ' was in the nature of a mere executive instruction, that it went beyond the scope of the statutory regulations, that the provision requiring the production of the 'integrity certificate ' was unguided and was likely to lead to arbitrariness and unreasonableness and that therefore, Resolution No. 1.1 was ultra vires of Regulations 4 and 5.
The entire record of the Selection Committee was placed by the State Government before the High Court in the Letters Patent Appeal, from a perusal of which the High Court came to the conclusion that the decision of the 523 Commttee not to include the appellant 's name in the Select List was not based solely on the ground that he was unable to produce the integrity certificate and that the Committee had given another cogent reason for its decision viz., that the appellant was not suitable for being placed on the Select List otherwise also.
Since inclusion in the select list for the purposes of promotion to the Indian Administrative Service was to be made on the basis of merit cum seniority, the Committee, according to the High Court, was justified in not including the name of the appellant in that list if, in its opinion, he was not otherwise suitable.
The Letters Patent Appeal was accordingly dismissed by the High Court, against which the appellant has filed this appeal by special leave.
We will first deal with the question whether resolution No. 1.1.
is ultra vires regulations 4 and 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955.
These regulations aree framed by the Central Government in pursuance of sub rule 1 of rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 in consultation with the State Governments and the Union Public Service Commission.
Regulations 3 to 7 provide for bringing members of the State Civil Service on the select list for promotion to the Indian Administrative Service.
Regulation 3 deals with the constitution of the committee for making selections.
Regulation 4 which deals with conditions of eligibility for promotion provides that each committee shall meet at intervals, ordinarily not exceeding one year, and consider the cases of all substantive members of State Civil Service who on the first day of January of that year had completed not less than eight years of continuous service, whether officiating or substantive, in a post of Deputy Collector or any other post or posts declared equivalent thereto by the Government.
By Clause (2) of regulation 4, the committee shall not ordinarily consider the cases of members of the State Civil Service who have attained the age of 52 years on the first day of January of the year in which the meeting of the committee is held, provided that a member of the State Civil Service whose name appears in the select list in force immediately before the date of the meeting of the committee shall be considered for inclusion in the fresh list to be prepared by the committee, even if in the meanwhile he has attained the age of 52 years.
Regulation 5 reads thus: "5.
Preparation of a list of suitable officers (1) The committee shall prepare a list of such members of the State Civil Service as satisfy the condition 524 specified in regulation 4 and as are held by the committee to be suitable for promotion to the service.
The number of members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commenceing from the date of the preparation of the list, in the posts available for them under rule 9 of the recruitment rules or 10 per cent of the senior duty posts borne on the cadre of the State or group of States whichever is greater: Provided that in the year ending on the 31st December, 1969, the maxmimum limit, imposed by this sub regulation, may be exceeded to such extent as may be determined by the Central Government in consultation with the State Government concerned.
(2) The selection for inclusion in such list shall be based on merit and suitablity in all respects with due regard to seniority.
(3) The names of the officers included in the list shall be arranged in order of seniority in the State Civil Service: Provided that any junior officer who in the opinion of the committee is of exceptional merit and suitability may be assigned a place in the list higher than that of officers senior to him.
(4) The list so prepared shall be reviewed and revised every year.
(5) If in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession.
" The All India Services Manual, Part II, which is issued under the authority of the Government of India, Cabinet Secretariat, (Department of Personnel and Administrative Reforms), sets out under appropriate regulations the "Government of India 's Decisions" which are, for convenience, referred to by the High Court as "resolutions".
525 Resolution 1.1 which incorporates a decision taken by the Government of India reads thus: "1.1.
On the basis of the recommendations of the Committee on the Prevention of Corruption, it has been decided that the following certificate should be recorded by the Chief Secretary to the State Government who is the sponsoring authority in respect of all eligible officers whose cases are placed before the Selection Committee for consideration: "The State Government certify the integrity of Shri with reference to the entries in his annual confidential reports".
Resolution 1.2 which is on the same subject says: "1.2.
The Selection Committee should also consider the question of suitability of the officers for selection with reference to their integrity and should specifically record in their proceedings that they were satisfied from the remarks in the confidential reports of the officers, selected by them for inclusion in the Select List, that there was nothing against their integrity.
" The learned Single Judge of the High Court rejected the appellant 's contention that resolution 1.1 is ultra vires of regulations 4 and 5.
The Letters Patent Bench of the High Court different from him and quashed the resolution, observing: "Regulations 3 to 7 are self contained regulations prescribing the whole procedure for the constitution of the selection committee, qualifications for the eligibility, preparation of list of suitable candidates etc.
It is evident from the plain reading of these regulations that integrity certificate is not the requirement for eligibility for promotion.
Integrity certificate is the requirement of resolution 1.1 which is only an executive instruction.
The regulations are quite detailed and the whole mode of selection is given and merit cum seniority is the main basis for bringing the persons on the select list.
It is nowhere laid down in the regulations that integrity certificate is also required for eligibility for promotion.
Hence this requirement under the executive instruction goes counter to the statutory regulations.
It has put restrictions and limitations on the committee in its discretion.
Moreover, it is nowhere laid down as to how the integrity certificate is to be issued.
No 526 criteria is mentioned in resolution 1.1.
No guideline is provided.
Hence it can lead to arbitrariness and unreasonableness in certain cases. .
I have, therefore, no hesitation in holding that resolution 1.1 contravenes the regulations, which cannot legally be sustained and is struck down as ultra vires of regulations 4 and 5.
" We find it impossible to sustain this conclusion and are of the opinion that the learned Single Judge of the High Court was right in upholding the validity of resolution 1.1 on the ground that it is not inconsistent with any of the regulations.
Clause (2) of Regulation 5 provides that selection for inclusion in the Select List shall be based on merit and suitability in all respects, with due regard to seniority.
In other words, the test for inclusion in the Select List is merit cum seniority.
Neither the Indian Administrative Service (Recruitment) Rules, 1954 under which the Regulations are framed nor indeed the provisions of the All India Services Act, 61 of 1951, under which the Rules are made, furnish any guidelines for assessing merit or suitability of a candidate for inclusion in the Select List or provide for the consideration of any particular data before a candidate can be brought on the Select List.
Every executive authority is charged with the obligation of organising its services so as to ensure maximum efficiency.
The ideal of maximum efficiency cannot be achieved unless persons who are selected for public offices possess integrity in as high a measure as ability.
Integrity is indeed the sine qua non of merit and suitability: no person can be considered as possessing merit and suitability if he lacks in character and integrity.
If, as provided by Regulation 5, selection for inclusion in the Select List has to be based on merit and suitability in all respects, and the Rules and Regulations do not furnish guidelines for a proper assessment of these requirements, the government would have the power to prescribe the criteria for determining whether the requirements are fulfilled by any particular candidate.
The prescription of the Regulation for inclusion in the Select List is merit cum seniority.
The executive decision which is contained in resolutions 1.1 and 1.2 effectuates the purpose of that prescription.
Undoubtedly the government in the exercise of its executive authority cannot supersede a statutory rule or regulation but it can certainly effectuate the purpose of a rule or regualtion by supplementing it.
Resolution 1.2 provides that the Selection Committee should consider the question of suitability of officers with reference to their integrity and should specifically record in its proceedings, that it is satisfied from the remarks in the confidential reports of the officers selected by it for inclusion in the Select List, 527 that there was nothing against their integrity.
Resolution 1.1 requires the Chief Secretary of the concerned State Government, who is the sponsoring authority, to record a certificate in respect of all eligible officers, whose cases are placed before the Selection Committee for consideration, that the State Government certifies the integrity of the officers with reference to the entries in their annual confidential reports.
These resolutions of the Government of India do not transgress the requirement of the Regulations but are in furtherance thereof.
The circumstance that the Chief Secretary has to record a certificate does not confer upon him unguided or unfettered discretion to assess the integrity of the officers by granting or refusing the integrity certificate at his sweet will.
The State Government has to certify the integrity of the eligible candidate "with reference to the entries in his annual confidential reports".
We are, therefore, quite clear that the Letters Patent Bench of the High Court was in error in striking down resolution 1.1 as being ultra vires of Regulation 5.
Both the resolutions 1.1 and 1.2, are in our opinion within the scope of the Regulations and are valid.
Though the High Court was of the opinion that Resolution 1.1 is ultra vires of Regulation 5, it did not quash the decision of the Selection Committee because, having perused the record and proceedings of the Selection Committee (which were made available to it during the hearing of the Letters Patent Appeal), it found that the non selection of the appellant was not based solely on the ground that the Chief Secretary had not issued an integrity certificate in his favour.
The proceedings of the Selection Committee, according to the High Court, disclosed that the appellant was not selected for the reason also that he was "not found suitable otherwise".
The course adopted by the High Court has cause to the appellant an amount of injustice which has to be rectified.
It is clear that the Chief Secretary, Punjab, did not grant integrity certificate in favour of the appellant because of the adverse report in his confidential roll for the year 1966 67.
One of the reasons which evidently weighed with the Selection Committee in not putting the appellant 's name on the Select List was that the Chief Secretary had not issued the integrity certificate in his favour.
Thus, the non inclusion of appellant 's name in the Select List and the non issuance of the integrity certificate are closely linked, whether or not there was another reason also for which the Selection Committee kept him out from the Select List.
528 In so far as the non issuance of the integrity certificate is concerned, it is undisputed that its only justification is the adverse report in the confidential roll of the appellant for the year 1966 67.
The circumstances surrounding the adverse entry may therefore bear examination for seeing whether such preponderating importance could, on the facts to which we will immediately advert, be given to the particular entry.
The counter affidavit filed on behalf of the Government of Punjab by Shri Phuman Singh, Under Secretary in the services department, shows that after the adverse remarks were communicated to the appellant, he submitted a representation requesting that the remarks be expunged.
That representation was referred by the Government to Shri Sewa Singh, retired District and Sessions Judge, who had made the particular remarks.
Shri Sewa Singh desired that the reference which was made to him by the Government should be routed through the High Court.
The Government then made a reference to the High Court of Punjab and Haryana requesting it to obtain the comments of Shri Sewa Singh.
The High Court replied that it was not its practice to call for comments of District and Sessions Judges on the representation of an officer against whom adverse remarks were made.
The High Court was once again requested by the Government that the Chief Justice and the Judges may communicate their views to the Government on the representation made by the appellant.
As the High Court did not express its view, the Government asked the appellant to submit a detailed representation along with documentary evidence in order to show that the adverse entry was made mala fide as alleged by him.
The appellant submitted his representation again on December 19, 1971, as desired by the Government.
After a detailed examination of that representation, it was decided by the Government that since the comments of the Reporting Officer of the High Court on the representation made by the appellant were not available, which was necessary for the proper disposal of the representation, a suitable note may be placed on the appellant 's character roll alongwith the confidential report for the year 1966 67.
An attested copy of that note is annexed to Shri Phuman Singh 's affidavit as annexure 1.
After setting out the facts and circumstances narrated above, that note says that in the absence of necessary comments of the authority concerned, it was not possible for the Government to take any decision on the merits of the representation made by the appellant.
The principle is well settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be 529 acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report.
Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified.
In these circumstances, it is difficult to support the non issuance of the integrity certificate to the appellant.
The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified.
We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non issuance of an integrity certificate to him.
We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by clause 7 that "if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession".
While dealing with an identical provision in clause 5 of regulation 5 of the same Regulations as they stood then, this Court observed in Union of India vs Mohan Lal Capoor & Others(1) that "rubberstamp" reasons given for the supersession of each officer to the effect that the record of the officer concerned was not such as to justify his appointment "at this stage in preference to those selected", do not amount to "reasons for the proposed supersession" within the meaning of clause 5.
"Reasons", according to Beg J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions".
The Court accordingly held that the mandatory provisions of regulation 5(5) were not complied with by the Selection Committee.
That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him.
True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as 530 briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List.
In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List.
In matters of this nature, particularly when the Select Lists have to be prepared and reviewed from year to year, it becomes difficult to work out the logical consequences of holding that the case of any particular officer ought to be reconsidered.
But, inevitably, for reasons mentioned above, the case of the appellant shall have to be considered afresh by the Selection Committee.
How best to do it has to be left to its wise discretion in the matter of details, but in order to eliminate, in so far as one may, chance of yet another litigation we ought to indicate the broad frame work within which the Committee should act and the preliminary steps which the Government must take in order to facilitate the Committee 's task.
In the first place, the State Government shall consider and dispose of within two months from to day the representations made by the appellant on January 23, 1969 and December 19, 1971 in regard to the adverse report in his confidential roll, for the year 1966 67.
We are hopeful that the High Court will co operate with the Government in the disposal of the representations.
The Selection Committee will, within three months thereafter, decide whether the appellant should be included in the Select List as of May 11, 1973.
That question has to be decided in accordance with the relevant regulations by applying the test of merit and suitability cum seniority.
For deciding the question of appellant 's merit and suitability, the Selection Committee will take into consideration the Government 's decision on his representations and his service record up to date.
If the Committee decides that he is not suitable for inclusion in the Select List and should therefore be superseded, it shall record its reasons for the proposed supersession.
If, on the other hand, the Committee decides to include his name in the Select List, he will be entitled to rank in that list in accordance with his seniority as of May 11, 1973 unless, in the opinion of the Committee, there is a junior officer of exceptional merit and suitability who may be assigned a higher place.
The Selection Committee will review the list for 1973 in accordance with these directions.
The Union Public Service Commission will thereafter be consulted in accordance with the regulations.
The Select List as finally approved by the Commission will form the Select List of the members of the State Civil Service.
531 We may indicate that the Writ Petition filed by the appellant and his appeal to this Court cannot be considered to have become infructuous on the ground that the Union Public Service Commission has already approved of the Select List.
The learned Single Judge of the High Court had stayed the final publication of the list by his order dated September 24, 1973 and had directed by his order dated February 11, 1974 in C.M. 994 of 1974 that the publication of the Select List will be subject to the result of the Writ Petition.
With these modification, the appeal is allowed but there will be no order as to costs.
N.V.K. Appeal allowed.

summary:
The Indian Administrative Service (Appointment by Promotion) Regulations, 1955 formulates the procedure for selecting persons from the State Civil Service Cadre for the purpose of bringing them on the select list of the Indian Administrative Service.
Regulation 5 which deals with the preparation of the list of suitable officers provides by cl.
(2) that the selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority, while cl.
(5) provides that if it is proposed to supersede any member of the State Civil Service, the Selection Committee shall record its reasons for the proposed supersession.
The "Government of India 's Decisions" under the regulations have been published by the Govt.
in the All India Services Manual, Part II.
Resolution 1.1 requires the Chief Secretary to the State Government who is the sponsoring authority to record a certificate in respect of every eligible officer whose case is placed before the Selection Committee, that the State Government certifies the integrity of the officer with reference to the entries in his annual confidential reports.
Resolution 1.2 provides that the Selection Committee should specifically record in its proceedings that it is satisfied from the remarks in the confidential reports of the officers selected by it for inclusion in the Select List that there was nothing against their integrity.
The appellant and respondents 8 to 15 were members of the Punjab Civil Service (Executive Branch), the respondents being junior to the appellant.
In 1966 67, an adverse entry was recorded in the confidential report of the appellant by the District and Sessions Judge.
No decision was taken by the Government as to whether the adverse entry was justified and whether the contentions raised by the appellant in his representation to the same were well founded.
After 1966 67, the appellant worked in various capacities, earned good reports and was allowed to cross the first and second efficiency bars.
However, respondents 8 to 15 were promoted to the selection grade of the service prior to the appellant.
His representation in this regard was rejected by the Government.
Respondents 2 to 7 who constituted the committee for selecting persons from the Punjab Civil Service cadre for the purpose of bringing them on the select list of the Indian Administrative Service, selected respondent No. 9.
The 519 Appellent 's name was not put on the select list, since respondent No. 2, the Chief Secretary to the State Govt.
had refused to give an 'integrity certificate ' to him.
His representation against the non inclusion having been rejected, he approached the High Court.
The High Court rejected the appellant 's contention that resolution 1.1 was ultra vires of regulations 4 and 5; but quashed the order of the State Government granting seniority to two junior officers over the appellant in the selection grade.
In appeal by the appellant, the High Court held that it is nowhere laid down that integrity certificate is the requirement for eligibility for promotion.
Integrity certificate is the requirement of resolution 1.1 which is only an executive instruction.
No criteria is mentioned, nor guidelines provided as to how the integrity certificate is to be issued.
The executive instruction, therefore, went beyond the scope of the statutory regulation, the provision requiring the production of the integrity certificate was unguided and was likely to lead to arbitrariness and unreasonableness and that therefore resolution 1.1 was ultra vires of regulations 4 and 5.
The High Court held further that the records of the Selection Committee reveal that the decision not to include the appellant 's name in the select list was not based solely on the ground of non availability of the integrity certificate and that the Committee had given another cogent reason, that the appellant was not suitable otherwise also Allowing the further appeal to this Court, ^ HELD: 1.
(i) The Letters Patent Bench of the High Court was in error in striking down, resolution 1.1 as being ultra vires of regulation 5.
Both resolutions 1.1 and 1.2 are within the regulations and are valid.
[527 C] (ii) Under cl.
(2) of Regulation 5 selection for inclusion in the select list has to be based on merit and suitability in all respects with due regard to seniority.
Neither the 1954 Rules nor the 1951 Act furnish any guidelines for assessing merit and suitability.
The Government would therefore, have the power to prescribe the criteria for determining whether the requirements of merit and suitability are fulfilled by any particular candidate, The Executive decision which is contained in resolution 1.1 and 1.2 effectuates the purpose of that prescription.
[526 C, F, G] (iii) The Government in the exercise of its executive authority cannot supersede a statutory rule or regulation but it can certainly effectuate the purpose of a rule or regulation by supplementing it.
These resolutions of the Government of India do not transgress the requirement of the Regulations but are in furtherance thereof.
It, therefore, cannot be stated that the Chief Secretary had been conferred with an unguided or unfettered discretion to assess the integrity of the officers by granting or refusing the integrity certificate at his sweet will.
[526 H, 527 B] (iv) Every Executive Authority is charged with the obligation of organising its services so as to ensure maximum efficiency.
The idea of maximum efficiency cannot be achieved unless persons who are selected for public offices possess integrity in as high a measure as ability.
Integrity is, therefore, the sine qua non of merit and suitability.
No person can be considered as possessing merit and suitability if he lacks in character and integrity.
[526 E] 520 2.
One of the reasons which evidently weighed with the Selection Committee in not putting the appellant 's name on the select list was that the Chief Secretary had not issued the integrity certificate in his favour.
The non inclusion of appellant 's name in the select list and the non issuance of the integrity certificate are thus closely linked, whether or not there was another reason also for which the Selection Committee kept him out from the select list.
[527 G H] 3.
An adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report.
Such an opportunity is not an empty formality, its object, partially, being to enable the supeurior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
[528 H 529 B] In the instant case for one reson or another not arising out of any fault on the part of the appellant though the adverse report was communicated to him the Government has not been able to consider his explanation and decide whether the report was justified.
In such circumstances it is difficult to support the non issuance of the integrity certificate to him.
The chain of reaction began with the advese report and the infirmity in the link of causation is that no one has yet decided whether that report was justified.
[529 C] 4.
In the absence of a proper pleading it cannot be speculated that the appellant was not found suitable for reasons other than those connected with the non issuance of an integrity certificate to him.
[529 D] 5.
The High Court saw the file and discovered that the appellant was not brought on the select list because he was 'not found suitable otherwise '.
Regulation 5(7) provides that the Committee shall record its reasons if it is proposed to supersede any member of the State Civil Service.
That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him.
In the absence of any reason, this Court cannot agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the select list.
[529 E, G, 530 A] [Directed that the case of the appellant be considered afresh by the Selection Committee indicating the broad frame work within which the Committee should act and the preliminary steps the Government should take in order to facilitate the Committee 's task.] Union of India vs Mohan Lal Capoor & Ors., ; referred to.


judgement:
: Criminal Appeal No. 57 of 1972.
Appeal by Special Leave from the Judgment and Order dated 5 3 1971 of the Calcutta High Court in Crl.
Revision No. 35/71.
P. K. Chatterjee and G. section Chatterjee for the Appellant.
D. N. Mukherjee for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated March 5, 1971, of the High Court of Calcutta.
The facts are as follows: Abani Maity, respondent herein, and three other persons were tried by the Magistrate, First Class, Alipore, District 24 Parganas, in respect of a charge under Section 46(a) of the Bengal Excise Act, 1909 (hereinafter referred to as the Act).
On the night of July 29, 1963, at about 7.30 p.m., the Excise staff intercepted Motor Car No. WBD 8169 at village Rajpur, Police Station Sonarpur.
The car was searched and thereupon 199 kgs.
700 grams contraband Ganja was recovered from inside the car.
The respondent, Abani Maity, who was the registered owner of the car, and held a driving licence was himself on the steering wheel.
Abani Maity and the three other occupants of the car were arrested.
After completing the investigation, a charge sheet was submitted against Abani Maity and his companions in respect of an offence under Section 46(a) of the Act.
During the trial, out of the accused, Robin, died Kalipada absconded; and the case proceeded only against Abani Maity and his coaccused, Mihir Bose.
The Magistrate, ultimately, by his order dated August 21, 1970, convicted both the accused persons under Section 46(a) of the Act and sentenced each of them to pay a fine of Rs. 800/ , and, in default, to suffer six months ' rigorous imprisonment.
The Magistrate, however, failed to pass orders for the disposal of the contraband Ganja, and the confiscation of the seized car.
In the course of the trial, it was established by evidence that the respondent, Abani Maity, was the registered owner of the car and he was driving the vehicle at the time of its interception.
It was further 474 established that some packets of contraband Ganja were seized from underneath the driver 's seat and some from the luggage boot which was opened with a key produced by the respondent.
Thus, the evidence on record indubitably established that the car (Registered No. WBD 8169) was used for the transport of this contraband Ganja by its owner, Abani Maity, respondent.
After his conviction, on November 16, 1970, Abani Maity made an application to the Magistrate, praying for return of the car and the other articles seized by the Excise Staff.
On the same day, the Magistrate, without issuing any notice to the prosecution, passed an ex parte order directing return of the seized car and other articles to the accused respondent.
Against that order, dated November 16, 1970, of the Magistrate, the State preferred a Revision in the High Court, which was finally heard by a Division Bench, who, by an order dated March 5, 1971, affirmed the Magistrate 's order relating to the return of the car to the accused respondent, but directed confiscation of the Ganja.
Mr. Chatterjee, appearing for the appellant State, does not now request the Court to pass an order of confiscation of the aforesaid car, obviously because the passing of such an order after a lapse of about 16 years from the date of its seizure, will be an exercise in futility.
The learned counsel, however, submits that this Court should for the guidance of the courts below, clarify the law on the point so that the efficacy of the provisions contained in Sections 63 and 64 of the Act as an instrument for combating and preventing such anti social crime is not undermined due to misinterpretation or misunderstanding in regard to their import, nature and application.
It is contended that as soon as Abani Maity, the owner driver of this car was found guilty of using this car for transport of contraband Ganja, the Magistrate was bound in addition to the conviction of Abani Maity for that offence, to pass an order for confiscation of the car, or to give its owner, Abani Maity, an option to pay in lieu of confiscation a fine, as the Magistrate thought fit.
The point sought to be made out is that the words "shall be liable to confiscation" occurring in Section 63(1) read with sub section (1) of Section 64, make it obligatory on the Magistrate in the event of the conditions laid down in these provisions being satisfied, to adopt either of the two alternatives, namely, to confiscate the car, or, in lieu of confiscation, to impose a fine at the option of its owner.
In support of this contention, reliance has been placed upon certain observations of 475 this Court in Indo China Steam Navigation Co. Ltd. vs Jasjit Singh, Additional Collector of Customs & Ors(1).
As against this, learned counsel for the respondent, submits that the words "liable to" used in the context of "confiscation", in Section 63(1) of this Act or in some other penal statutes, do not convey an absolute imperative; they are merely directory and leave it to the discretion of the Magistrate to confiscate or not to confiscate the vehicle by means of which such offence has been committed.
Section 63 of the Act defines the things liable to confiscation, while Section 64 indicates when the order of confiscation is to be passed by the Magistrate or Collector.
Section 63 and 64 read as follows: "63 (1).
Whenever an offence has been committed which is punishable under this Act, the (intoxicant) materials, steel, utensils, implement and apparatus in respect of or by means of which such offence has been committed shall be liable to confiscation.
(2) Any (intoxicant) lawfully imported, transported, manufactured; had in possession or sold along with, or in addition to, any (intoxicant) which is liable to confiscation under sub section (1) and the receptacles, packages and coverings in which any such (intoxicant) as first aforesaid, or any such materials, steel, utensils, implement or apparatus as aforesaid, is found, and the other contents, if any, of such receptacles or packages, and the animals, carts, vessels, rafts or other conveyances used in carrying the same shall likewise be liable to confiscation: Provided that no animal, cart, vessel, raft or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence.
Explanation.
For purpose of this Section "owner" includes, in relation to any animal car, vessel, raft or other conveyance.
(a) which is the subject of a hire purchase agreement, the person in possession thereof under that agreement." "64(1).
When in any case tried by him, the Magistrate decides that anything is liable to confiscation under Section 476 63, he may either order confiscation or give the owner of such an option to pay, in lieu of confiscation, such fine as the Magistrate thinks fit: Provided that the Magistrate shall in cases order confiscation of the intoxicants decided by him to be liable to confiscation under Section 63.
(2) Whenever anything is liable to confiscation under Section 63, and the offender or the person entitled to possession is not known or cannot be found, the case shall be inquired into and determined by the Collector, who may order confiscation: Provided that no such order shall be made until the expiration of two months from the date of seizing the thing intended to be confiscated, or, without giving such person as may, before such expiration, claim any right thereto, an opportunity of being heard and of producing such evidence as he may like to produce in support of his claim: Provided further that if the thing in question is liable to speedy and natural decay, or if the Collector is of opinion that its sale would be for the benefit of its owner, the Collector may at any time direct it to be sold, and the provisions of this sub section shall, as early as may be practicable, apply to the net proceeds of the sale.
" It will be seen that the liability to confiscation of a conveyance, such as, a car or cart or vessel under Section 63 is incurred only if two conditions are established, namely: (a) that the conveyance was used in carrying the contraband intoxicant, (b) the owner of that conveyance is implicated in the commission of the offence.
In the instant case, both these conditions were established.
It has been found by all the courts below that the car in question (WBD 8169) was used in carrying and transporting contraband Ganja and it was being driven by its owner, Abani Maity, who was convicted of the offence of possessing and transporting the contraband Ganja in this car.
The liability to confiscation of the car had, therefore, been incurred.
It may be further marked that in sub section (2) of section 63 the Legislature has used the words "shall be" in the context of "liable to confiscation".
Even, in the proviso to sub section (2) the expression "shall be liable to confiscation" has been reiterated.
Once 477 the facts essential for incurring the liability to confiscation are established, the Magistrate has no option but to adopt any of the two alternative courses indicated in sub section (1) of Section 64, that is to say, he may either order confiscation of that conveyance; or give its owner an option to pay in lieu of confiscation, such fine as the Magistrate thinks fit.
The Magistrate cannot just ignore to adopt any of these alternatives.
Since sub section (1) of Section 64 talks of the imposition of fine in lieu of confiscation, it appears that such an order of confiscation or fine in lieu of confiscation, is to be passed at the conclusion of the trial, when after conviction, a sentence for the commission of the offence is awarded.
It is true that ordinarily, the word "liable" denotes: (1) "legally subject or amenable to", (2) "Exposed or subject to or likely to suffer from (something prejudicial)", (3) "Subject to the possibility of (doing or undergoing something undesirable)" (See Shorter Oxford Dictionary).
According to Webster 's New World Dictionary, also, the word "liable" denotes "something external which may befall us".
Accordingly, the word "liable" occurring in many statutes, has been held as not conveying the sense of an absolute obligation or penalty but merely importing a possibility of attracting such obligation, or penalty, even where this word is used along with the words "shall be".
Thus, where an American Revenue Statute declared that for the commission of a certain act, a vessel "shall be liable to forfeiture", it was held that these words do not effect a present absolute forfeiture but only give a right to have the vessel forfeited under due process of law.
(See Kate Haron, 14 Fed.
139, 141 6 Sawy.
106) quoted in Words and Phrases, Vol.
25 page 109.
Permanent Edition, West Publishing Co.) Similarly, it has been held that in Section 302, Indian Penal Code, the phrase "shall also be liable to fine" does not convey a mandate but leave it to the discretion of the Court convicting an accused of the offence of murder to impose or not to impose fine in addition to the sentence of death or transportation for life.
But a statute is not to be interpreted merely from the lexicographer 's angle.
The court must give effect to the will and inbuilt policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein.
Exposition ex visceribus actus is a long recognised rule of construction.
Words in a statute often take their meaning from the context of the statute as a whole.
They are therefore, not to be cons 478 trued in isolation.
For instance, the use of the word "may" would normally indicate that the provision was not mandatory.
But in the context of a particular statute, this word may connote a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, "of an ineffectual angel beating its wings in a luminous void in vain".
If the choice is between two interpretations", said Viscount Simon L.C. in Nokes vs Doncaster Amalgamated Collieries, Ltd,(1) "the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result".
The provisions of Sections 63 and 64 of the Act are to be interpreted in the light of this principle.
The language and scheme of the Excise Act, taken as a whole, show that the purpose of this legislation is not only to raise revenue but also to control and restrict the import, export, transport, manufacture and sale of intoxicants.
Free and unrestricted use of intoxicants and illicit trade in contraband intoxicants not only means a loss of revenue to the public exchequer but also has a harmful effect on public health and morals.
Moreover, illicit trade and smuggling of intoxicants is often committed in an organised and clandestine manner, and is difficult to detect.
We have, therefore, to adopt that construction of the expressions "shall be liable to confiscation" used in Section 3(2) and "may" in sub section (1) of Section 64, which will preserve the efficacy of the provisions as an instrument for combating these anti social activities, and reject the other which will render them ineffective.
Thus considered, it seems clear that the expressions "shall be liable to confiscation" and "may" in the aforesaid provisions were intended to have a compulsive force.
We need not dilate on the topic further.
We will close the discussion by noticing one decision of this Court which has been cited by the counsel for the appellant.
That case is: Indo China Steam Navigation Co. Ltd. vs Jasjit Singh, Additional Collector of Customs Ors.
(ibid), wherein this Court was considering the interpretation of certain provisions of the Sea Customs Act.
In dealing with an offence under Section 167(12A) of the , the Customs Officer has also to exercise his jurisdiction under Section 183 of that Act, which expressly requires 479 the adjudicating Officer to give an option to the owner of the offending vessel to pay fine in lieu of confiscation.
Question arose as to what was the nature of the responsibility prescribed by Section 167(12A).
Gajendragadkar, C.J., speaking for the Court elucidated the position, thus: "We have already seen that Section 167(12A) provides that if a vessel contravenes Section 52A, it shall be liable to confiscation and the master of such vessel shall be liable to a penalty not exceeding Rs. 1,000/ .
Can it be said that the penalty prescribed by Section 167(12A) may in any given case not be imposed against the ship on the ground that the contravention proved against it is of a very trivial character, or has been the result of an act on the part of a criminal who acted on his own contrary to the instructions of the master of the ship? The words used in the third column of Cl.
(12A) are that "such vessel shall be liable to confiscation".
The context seems to require that it is not open to the Customs Authority to refuse to confiscate the vessel on the ground that there are any extenuating circumstances surrounding the contravention of section 52A in a given case and that it would be unfair to impose the penalty of confiscation.
Two penalties are prescribed, one is the confiscation of the ship, and the other is a fine against the master.
In regard to the later penalty, it is within the discretion of the Customs Authority to decide what amount of penalty should be imposed; just as in the case of the first penalty it is not open to it to say that it would not impose the penalty of confiscation against the offending ship, so in the case of the second penalty it is not open to it to say that it will not levy any penalty against the master.
In its discretion, it may impose a very small fine against the master if it is satisfied that the master was innocent and despite his best efforts, he could not prevent the contravention of section 52A.
If the two penalties prescribed by cl.
(12A) had been alternative, the position may have been different, but they are independent penalties, one is against the ship and the other is against the master; and so, there is no scope for contending that the Customs Authority may refuse to impose one penalty and impose the other, or may refuse to impose either of the two penalties.
It must be regarded as an elementary requirement of clause 12A that as soon as the offence referred to in column 1 of the said clause is 480 proved, some penalty has to be imposed and cl.
(12A) indicates that two penalties have to be imposed and not one, there being discretion in regard to the penalty imposable against the master as regards the amount of the said penalty.
Therefore, we do not think it would be possible to take the view that if there are extenuating circumstances attending the contravention of section 52A in a given case the Customs Authority can refrain from confiscating the vessel.
Confiscation of the vessel is the immediate statutory consequence of the finding that an offence under cl.
12A is established, just as the imposition of some penalty against the master is another statutory consequence of the same contravention.
" The language of Section 167(12A) and 183 of the , is not in pari materia with those of Sections 63 and 64 of the Bengal Excise Act.
It was on the language of these provisions, as they then stood, it was held that the penalties prescribed under Sections 167(12A) and 183 are independent and not alternative.
The observations, extracted above therefore, are not applicable in their entirety.
Nevertheless, they are a useful guide inasmuch as the expression "shall be liable to confiscation" used in Section 167(12A) in the context of a vessel found in the Customs waters in circumstances that amounted to a contravention of Section 52A, was held to cast on the Customs Authority an imperative duty to confiscate such vessel.
For all that has been said above and keeping in view the purpose, the scheme and the language of the provisions in question, we are of opinion that as soon as on proof of the conditions necessary under Section 63, a conveyance incurs the liability to confiscation, the word "may" used in Section 64(1) acquires the force of "must", and the Magistrate is bound to abide by either of the two alternatives viz., confiscation of the conveyance or imposition of the fine in lieu thereof in accordance with that Section.
Thus, the discretion of the Magistrate is restricted to choice between these two alternatives.
This limited discretion, also, is not to be exercised whimsically, but judicially, in a manner which will not emasculate these provisions or debilitate their potency as an instrument for suppressing the mischief which the Legislature had in view.
In the circumstances of this case therefore, it was imperative for the Magistrate, to pass, at the 481 conclusion of the trial, in addition to the conviction of the accused respondent, an order of confiscation of the car by means of which the offence was committed.
With this clarification of the law on the point, the appeal stands disposed of.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
Section 63(1) of the Bengal Excise Act, 1909 provides that whenever an offence punishable under the Act had been committed, the intoxicant material and the means by which such offence had been committed "shall be liable to confiscation '.
Section 64(1) provides that when the Magistrate decides that anything is liable to confiscation under section 63 he may either order confiscation or give the owner an option to pay in lieu of confiscation such fine as he thinks fit.
The respondent was found carrying contraband ganja in a car of which he was the owner.
The Magistrate passing the order of conviction and sentence against him, did not pass orders for the disposal of the contraband goods and confiscation of the car which was seized.
On the question whether the words "liable to" used in the context of "confiscation" in section 63(1) convey an absolute imperative or merely leave it to the discretion of the Magistrate to confiscate or not to confiscate the vehicle by means of which such offence had been committed.
Allowing the appeal, ^ HELD: 1.
It is imperative for the Magistrate to pass, at the conclusion of the trial, in addition to the conviction and sentence, an order of confiscation of the car by means of which the offence was committed.
[481 A] 2.
The expressions "shall be liable to confiscation" and "may" in the sections were intended to have a compulsive force.
As soon as the conditions of section 63, namely, that the conveyance had been used for carrying the contraband intoxicant and that the owner of that conveyance was implicated in the commission of the offences are established the word "may" in section 64(1) acquires the force of "must".
The discretion of the Magistrate is restricted to a choice between the two alternatives mentioned in section 64(1) namely, confiscation of the conveyance or imposition of fine in lieu thereof.
G H] 3.
Ordinarily the word "liable" has been held as conveying not an absolute obligation or penalty but as merely importing a possibility of attracting such obligation or penalty even where it is used with the words "shall be.
" But a statute is not to be interpreted merely from the lexicographer 's angle.
Exposition ex visceribus actus is a long recognised rule of construction.
Words in a statute often take their meaning from the context of the statute as a whole; they are not to be construed in isolation.
The purpose of the Excise Act is not merely to raise revenue but also to stop free use of intoxicants and illegal 473 trade in them which has a deleterious effect on public health and morals.
Thus considered both the expressions are intended to have a compulsive force.
[477 E H] Indo China Steam Navigation Co. Ltd. vs Jasjit Singh, Addl.
Collector of Customs & Ors., ; ; held in applicable.


judgement:
No. XVI of 1950.
Appli cation under article 32 of the Constitution for a writ of prohibition and certiorari.
The facts are set out in the judgment.
C.R.Pattabhi Raman, for the petitioner.
K. Rajah Ayyar, Advocate General of MadraS, (Ganapathi Ayyar, with him) for the opposite party.
May 26.
The Judgment of Kania C.J., Mehr Chand Mahajan, Mukherjea and Das JJ.
was delivered by Patanjali Sastri J. Fazl Ali J. delivered a separate judgment.
PATANJALI SASTRI J.
The petitioner is the printer, publisher and editor of a recently started weekly journal in English called Cross Roads printed and published in Bombay.
The Government of Madras, the respondents herein, in exer cise of their powers under section 9 (1 A) of the Madras Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS.
1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State.
The order was published in the Fort St. George Gazette and the notification ran as follows : "In exercise of the powers conferred by section 9 (I A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay.
" The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of See the headnote to Brij Bhushan vs The State of Delhi, p. 605 infra.
596 speech and expression conferred on him by article 19 (1) (a) of the Constitution and he challenges the validity of section 9 (1 A) of the impugned Act as being void under article 13 (1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid.
The Advocate General of Madras appearing on be half of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resort ing to this Court directly for such relief in the first instance.
He contended that, as a matter of orderly proce dure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter.
He cited criminal revision petitions under section 435 of the Crimi nal Procedure Code, applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court.
He referred to Emperor vs Bisheswar Prasad Sinha (1) where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Urquhart vs Brown (2) and Hooney vs Kolohan (3) as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the appli cant in Federal and State Courts should be exhausted before the remedy in the Supreme Court be it habeas corpus or certiorari would be allowed.
We are of opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution.
That article does not merely confer power on this Court, as article 226 does on the (1) I.L.R. 56 All.
(2) ; (3) ; 597 High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction.
In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction.
Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II.
This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.
No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.
Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propa gation of ideas, and that freedom is ensured by the freedom of circulation.
"Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value ": Ex parte Jackson(1).
See also LoveIl vs City of Griffin(s).
It is therefore perfectly clear that the order of the Gov ernment of Madras would be a violation of the petitioner 's fundamental right under article 19 (1) (a), unless section 9 (1 A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any "existinglaw in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State.
" The question accord ingly arises whether, the impugned Act, in so far as it purports by section 9 (1 A) to authorise the Provincial Government "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into (1) ; (2) ; 598 or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State." The impugned Act was passed by the Provincial Legisla ture in exercise of the power conferred upon it by section 100 of the Government of India Act 1935, read with Entry 1 of List II of the Seventh Schedule to that Act, which com prises among other matters, "public order.
" Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regula tions enforced by the government which they have estab lished.
Although section 9 (I A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any 'matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety.
This indeed was not disputed on behalf of the respondents.
But it was urged that the expression "public safety" in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore, ' 'the security of the State" with the meaning of article 19 (2)as "the State" has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces.
Much reli ance was placed in support of this view on Rex vs Wormwood Scrubbs Prison(1) where it was held that the phrase "for securing the public safety and the ' defence of.
the realm" in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion.
The decision is not of much assistance to the respondents as the context in (1) 599 which the words "public safety" occurred in that Act showed unmistakably that the security of the State was the aim in view.
Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of article "Public safety" ordinarily means security of the public or their freedom from danger.
In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety.
The meaning of the expression must, however, vary according to the context.
In the classification of offenCes in the Indian Penal Code, for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and morals" and it includes rash driving or riding on a public way (section 279) and rash navigation of a vessel (section 280), among others, as offences against public safety, while Chapter VI lists waging war against the Queen (section 121), sedition (section 124 A) etc.
as "offences against the State", because they are calculated to undermine or affect the security of the State, and Chapter VIII defines "of fences against the public tranquillity" which include unlaw ful assembly (section 141) rioting (section 146), promot ing enmity between classes (section 153 A), affray (sec tion 159) etc.
Although in the context of a statute relat ing to law and order "securing public safety" may not in clude the securing of public health, it may well mean secur ing the public against rash driving on a public way and the like, and not necessarily the security of the State.
It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences like rash driving, or an affray.
But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the ab sence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to 600 endanger the security of the State.
Nor is there any guar antee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the State and those who do not.
The Government of India Act, 1935, nowhere used the expression" security of the State" though it made provision under section 57 for dealing with crimes of violence intend ed to overthrow the Government.
While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the Governor was entrusted with the responsibility of combating the operations of persons who "endangered the peace or tranquillity of the Province" by committing or attempting to commit "crimes of violence intended to overthrow the Govern ment.
" Similarly, article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external ag gression or by internal disturbance.
" These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the securi ty of the State.
As Stephen in his 'Criminal Law of England(1) observes: ' ' Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries.
All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.
" Though all these offences thus involve disturbances of public tranquil lity and are in theory offences against public order, the difference between them being only a difference ' of degree, yet for the purpose of grading the punishment to be inflict ed in respect of them they may be classified into different minor categories as has been done by (1) Vol.
II, p. 242.
601 the Indian Penal Code.
Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridge ment of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub clause (b)" and the right of association "sub clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of" public order," which in those clauses includes the security of the State.
The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Sched ule, which refers to the "security of a State" and "mainte nance of public order" as distinct subjects of.legislation.
The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differ ences in kind.
It is also worthy of note that the word "sedition" which occurred in article 13 (2) of the Draft Constitution pre pared by the Drafting Committee was deleted before the article was finally.
passed as article 19 (2).
In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar vs The King Emperor (1), held that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency", but the Privy Council overruled that 602 decision and emphatically reaffirmed the view expressed in Tilak 's case (1) to the effect that "the offence "consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small " King Emperor vs Sada shiv Narayan Bhalerao (2) Deletion of the word "sedition" from the draft article 13 (2), therefore, shows that criticism of Government exciting disaffection or bad feel ings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State.
It is also significant that the corre sponding Irish formula of "undermining the public order or the authority of the State" article 40 (6) (i) of the Constitution of Eire, [1937] did not apparently find favour with the framers of the Indian Constitution.
Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the founda tion of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular govern ment, is possible.
A freedom of such amplitude might involve risks of abuse.
But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.": [Quoted in Near vs Minnesotta (3)].
We are therefore of opinion 'that unless a law restrict ing freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the (1) (21 L.R. 74, I A. 89.
(8) 282U.S, 607, 717 8.
603 restrictions which it seeks to impose may have been con ceived generally in the interests of public order.
It fol lows that section 9 (1 A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is there fore void and unconstitutional.
It was, however, argued that section 9 (1 A) could not be considered wholly void, as, under article 13 (1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more.
In so far as the securing of the public safety or the maintenance of public order would include the ' security of the State, the impugned provision, as applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid.
We are unable to accede to this contention.
Where a law purports to authorise the imposi tion of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional lim its, as it is not severable.
So long as the possibility of its being applied for purposes not sanctioned by the Consti tution cannot be ruled out, it must be held to be wholly unconstitutional and void.
In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.
The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner 's journal in the State of Madras is hereby quashed.
FAZL ALI J.
For the reasons given by me in Brij Bhushan and Another vs The State(1) , which practically 605.
604 involves the same question as is involved in this case, I hold that the reliefs sought by the petitioner cannot be granted.
In this view, I would dismiss this petition, but I should like to add a few observations to supplement what I have said in the other case.
It appears to me that in the ultimate analysis the real question to be decided in this case is whether "disorders involving menace to the peace and tranquillity of the Prov ince" and affecting "public safety" will be a matter which undermines the security of the State or not.
I have bor rowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the, validity of the Act must be formulated in the manner I have suggested.
If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of "any document or class of documents" for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 (2)of the Constitution.
From the trend of the arguments addressed to us, it would appear that if a docu ment is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the State; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State.
Speaking for myself, I cannot understand this argument.
In Brij Bhushan and Another vs The State(1), I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir James Stephen has classed sedition as an of fence against public tranquillity.
If so, how could sedi tion be a matter which would undermine the security of the State and public disorders and disturbance of public safety will not be such a matter? It was argued that a small riot or an affray will not (1) ; 605 undermine the security of the State, but to this line of argument there is a two fold answer : (1) The Act, as its preamble shows, is not intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province, (2) There are de grees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may not also, from the layman 's point of view, be a matter which undermines the security of the State, but that would not affect the law which aims at checking sedition.
It was also said that the law as it stands may be misused by the State executive, but misuse of the law is one thing and its being unconstitutional is another.
We are here concerned with the latter aspect only.
I shall not pursue the matter further as I have said enough on the subject in the connected case.
Petition allowed.
Agent for the petitioner: K. J. Kale.
Agent for the opposite party : P. A. Mehta.

summary:
Held, by the Full Court (i) (overruling a preliminary objection) Under the Constitution the Supreme Court is constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights, although such applications are made to the Court in the first in stance without resort to a High Court having concurrent jurisdiction in the matter.
Urquhart vs Brown ; and Hooney vs Kolohan ; distinguished.
(ii) Freedom of speech and expression includes freedom propagation of ideas and that freedom is ensured by the freedom of circulation.
Ex parte Jackson ; and Lovell vs City of Griffin ; referred to.
Held per KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting): (i) Apart from libel, slander etc.
unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the over throw of it, such law cannot fall within the reservation under cl.
(2) of article 19 of the Constitution, although the restrictions which it seeks to impose may have been con ceived generally in the interests of public order.
Section 9 (1 A) of the Madras Maintenance of Public Order Act, XXXIII of 1949, which authorises impositions of restrictions for the wider purpose of securing public safety or the mainte nance of public order falls outside the scope of authorised restrictions under cl.
(2) and is therefore void and uncon stitutional; (ii) Where a law purports to authorise the imposition of restrictions on a fundamental right in lan guage wide enough to cover restrictions both within and without the limits of constitutionally permissible legisla tive action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.
So long as the possibilitY of its being applied for purposes not sanc tioned by the Constitution cannot be ruled out 595 must be held to be wholly unconstitutional and void.
Section 9 (1 A) is therefore wholly unconstitutional and void.
Per FAZL ALI J. Restrictions which section 9 (1 A) autho rised are within the provisions of cl.
(2) of article 19 of the Constitution and section 9 (1 A)is not therefore unconstitutional or void.(1) Brij Bhushan and Another vs The State ; referred to.


judgement:
Criminal Appeal No. 17 of 1951.
Appeal against a Judgment and.
Order dated 22nd January, 1951, of the High Court of Judicature at Patna (Imam J.) in Criminal Revision No. 1533 of 1950 677 S.P. Sinha (P.S. Safeer and K.N. Aggarwal, with him) for the appellants.
The respondent did not appear.
May 24.
The Judgment of the Court was delivered by PATANJALI SASTRI J.
This is an appeal by special leave from an order of the High Court of Judicature at Patna setting aside an order of acquittal of the appellants by the Sessions Judge, Purnea, and directing their retrial.
The appellants were prosecuted for alleged offences under sections 147, 148, 323, 324, 326, 302 and 302/149 of the Indian Penal Code at the instance of one Polai Lal Biswas who lodged a complaint against them before the po lice.
The prosecution case was that, while the complainant was harvesting the paddy crop on his field at about 10 a.m. on 29th November, 1949, a mob of about fifty persons came on to the field armed with ballams, lathis and other weapons and that the first appellant Logendranath Jha, who was leading the mob, demanded a settlement of all outstanding disputes with the complainant and ,said he would not allow the paddy to be removed unless the disputes were settled.
An altercation followed as a result of which Logendra or dered an assault by his men.
Then Logendra and one of his men, Harihar, gave ballam blows to one of the labourers, Kangali, who fell down and died on the spot.
Information was given to the police who investigated the case and submitted the charge sheet.
The committing Magistrate found that a prima facie case was made out and committed the appellants to the Court of Sessions for trial.
The appellants pleaded not guilty alleging inter alia, that Mohender and Debender, the brothers of Logendra (appel lants 2 and 3) were not present in the village of Dandkhora with which they had no concern, as all the lands in that village had been allotted to Logendra at a previous parti tion, that Logendra himself was not in the village at the time of the occurrence but arrived 678 soon after and was dragged to the place at the instance of his enemies in the village and was placed under arrest by the Assistant Sub Inspector of Police who had arrived there previously.
It was also alleged that there were two factions in the village, one of which was led by one Harimohan, a relation of the complainant, and the other by Logendra and there had been numerous revenue and criminal proceedings and long standing enmity between the families of these leaders as a result of which this false case was foisted upon the appellants.
The learned Sessions Judge examined the evidence in great detail and found that the existence of factions as alleged by the appellants was true.
He found, however, that the appellants ' plea of alibi was not satisfactorily made out, "but the truth of the prosecution", he proceeded to observe, "cannot be judged by the falsehood of the defence nor can the prosecution derive its strength from the weak ness of the defence.
Prosecution must stand on its own legs and must prove the story told by it at the very first stage.
The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused persons can be convicted".
Approaching the case in this manner and seeing that the basis of the prosecution case was that Polai had batai settlement of the disputed land and had raised the paddy crop which he was harvesting when the occurrence took place, the learned Sessions Judge examined the evidence of the prosecution witnesses who belonged to the opposite faction critically and found that the story of the prosecu tion was not acceptable.
Polai, who was alleged to have taken the land on batai settlement from his own maternal grandmother Parasmani who brought him up from his childhood, was only 19 years old and unmarried and was still living with his grandmother.
He did not claim to be a bataidar of any other person.
"In these circumstances", said the learned Judge, "it does not appear to me to be probable that Polai would have been allowed to maintain himself by running adhi cultivation of his mamu 's land in the lifetime of 679 his nani who has brought him up from his infancy like her own child.
Nor does it appeal to me that the unmarried boy Polai would have undertaken upon himself the task of run ning batai cultivation of the lands of his mamu where he has been living since his childhood without any trouble, more particularly in view of the heavy expenses of cultivation brought out by the evidence of Tirthanand (P.W. 14)".
He, therefore, disbelieved the whole story that Polai had taken the lands of his grandmother or his uncles as bataidar for cultivation and that he was engaged in harvesting the paddy crop on the lands at the time of the occurrence.
This false story, in his opinion, "vitally affected the prosecution case regarding the alleged manner of the occurrence".
He also found a number of discrepancies and contradictions in the evidence of the prosecution witnesses, which, in his view, tended to show that the prosecution was guilty of concealment of the real facts. ' 'In view of such conceal ment of real facts," the learned Judge concluded, "it does not appear to me to be possible to apportion liability and to decide which of the two parties commenced the fight and which acted in self defence.
Such being the position, it is not possible at all to hold either party responsible for what took place.
In such a view of the matter coupled with the fact that the manner of occurrence alleged by the prose cution has not been established to be true beyond doubt, I think that the accused persons cannot be safely convicted of any of the offences for which they have been charged.
" The learned Judge accordingly acquitted the appellants of all the charges framed against them.
Against that order the complainant Polai preferred a revision petition to the High Court under section 439 of the Criminal Procedure Code., The learned Judge who heard the petition reviewed the evidence at some length and came to the conclusion that the judgment of the learned Sessions Judge could not be allowed to stand as the acquittal of the appellants was "perverse ' '.
In his opinion, "the entire judgment displays a lack 680 of true perspective in a case of this kind.
The Sessions Judge had completely misdirected himself in looking to the minor discrepancies in the case and ignoring the essential matters so far as the case is concerned," and there was no justifiable ground for rejecting the prosecution evidence regarding the cultivation and harvesting by Polai.
And he concluded with the warning "I would, however, make it per fectly clear that when the case is re tried, which I am now going to order, the Judge proceeding with the trial will not be in the least influenced by any expression of opinion which I may have given in this judgment.
" On behalf of the appellants Mr. Sinha raised two conten tions.
In the first place, he submitted that having regard to section 417 of the Criminal Procedure Code which provides for an appeal to the High Court from an order of acquittal only at the instance of the Government, a revision petition under section 439 at the instance of a private party was incompetent, and, secondly, that sub section (4) of section 439 clearly showed that the High Court exceeded its powers of revision in the present case in upsetting the findings of fact of the trial Judge. ' We think it is unnecessary to express any opinion on the first contention of Mr. Sinha especially as the respondent is unrepresented, as we are of opinion that his second and alternative contention must prevail.
It will be seen from the judgment summarised above that the learned Judge in the High Court re appraised the evi dence in the case and disagreed with the Sessions Judge 's findings of fact on the ground that they were perverse and displayed a lack of true perspective.
He went further and, by way of "expressing in very clear terms as to how perverse the judgment of the court below is", he indicated that the discrepancies in the prosecution evidence and the circum stances of the case which led the Sessions Judge to discred it the prosecution story afforded no justifiable ground for the conclusion that the prosecution failed to establish their case.
We are of opinion that the learned Judge in the High Court did not properly appreciate the 681 scope of inquiry in revision against an order of acquittal.
Though sub section(1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub section (4) specifically excludes the power to "convert a finding of acquittal into one.
of conviction".
This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law re appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him.
By merely characterising the judgment of the trial Court as "perverse" and ' lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court 's appreciation of the evidence in the case.
That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal.
No doubt, the learned Judge formally complied with sub section (4) by directing only a retrial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion con tained in his judgment.
But there can be little doubt that he loaded the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.
We are of opinion that the learned Judge in the High Court exceeded his powers of revision in dealing with the case in the manner he did, and we set aside his order for retrial of the appellants and restore the order of acquittal passed by the Sessions Judge.
Appeal allowed.

summary:
Though sub section
(1) of section 439 of the.
Criminal Procedure Code authorises the High Court to exercise in Its discretion any of the powers conferred on a court of appeal by section 423, yet sub section
(4) specifically excludes the power to "convert a finding of acquittal into one of conviction.
" This. does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law re ap praise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing sentence on him, by ordering a re trial.