judgement:
Appeal No. 2314 of 1966.
Appeal from the judgment and order dated October 7, 1966 of the Punjab High Court in Circuit Bench at Delhi in Civil Writ Petition No. 790 D of 1966.
M. C. Setalvad, Ravinder Narain, J. B. Dadachanji, for the appellants.
section V. Gupte, Solicitor General, R. Ganapathy.
Iyer, R. N. Sachthey, and R. H. Dhebar, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The Punjab Reorganisation Act, 1966 hereinafter called 'the Act ' was enacted with the object of reorganising the State of Punjab.
By the Act which came into force on November 1, 1966, the eastern hilly areas of the old State were transferred to the Union territory of Himachal Pradesh; the territory known as Chandigarh in Kharar tahsil was constituted into a Union territory; and the remaining territory was divided between the new State of Punjab and the Haryana State.
The old State of Punjab had a bi cameral Legislature with 154 members in the Legislative Assembly and 51 members in the Legislative Council.
Under section 13 of the Act as from November 1, 1966, the Legislative Assembly of the new State of Punjab consists of 87 members.
and the Haryana Legislative Assembly consists of 54 members.
The new State of Punjab has also a bi cameral Legislature.
Out of the original membership of 51.
16 members whose names are set out in the Seventh Schedule to the Act ceased to be members of the Legislative Council, and the remaining members continued to be members of the Legislative Council of the new State of Punjab.
Out of the 16 members who ceased to be members of the Legislative Council, 14 members, it is claimed by the appellants, belong to the Haryana area and 2 to the Himachal Pradesh Union territory.
The Act was challenged as "illegal and ultra vires of the Constitution" on diverse grounds in a writ petition filed by the two appellants in the High Court of Punjab.
The High Court rejected the petition.
111 In this Court two contentions were urged in support of the appeal: (1) Constitution of the Legislative Assembly of Haryana by section 1 3(1) of the , violates the mandatory provisions of article 170(1) of the Constitution; and (2) By enacting that.
8 members of the Legislative Council who are residents of the Union territory of Chandigarh shall continue to sit in the Legislative Council in the new State of Punjab, and by enacting that the members elected to the Legislative Council from the Haryana area shall be unseated, there is denial of equality.
By section 24 of the Act it is provided that the total number of seats in the Legislative Assembly of Haryana "to be constituted at any time after the appointed day i.e. November 1, 1966 to be filled by persons chosen by direct election from territorial constituencies, shall be eighty one.
" It is clear that section 13(1) which allocates fifty four sitting members out of the members elected to the Legislative Assembly of the old State of Punjab to the Haryana area Legislative Assembly on November 1, 1966, is a temporary provision.
Constitution of the Legislative Assembly of Haryana on November 1, 1966, is, it is contended, violative of article 170 of the Constitution.
In terms article 170 enacts that a Legislative Assembly shall be constituted by members chosen by direct elections from territorial constituencies, and that the Assembly shall consist of not more than five hundred and not less than sixty members.
But article 170 is not the only provision having a bearing on the constitution of a Legislative Assembly.
By article 2 the Parliament may by law admit into the Union or establish new States on such terms and conditions as it thinks fit; and article 3 provides that the Parliament may by law (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State.
Any law referred to in article 2 or article 3 shall, it is provided by article 4(1), contain such provision for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the 112 provisions of the law and may also contain such supplemental, incidental and consequential provisions (including Provisions as to representation in Parliament and in the Legislature or Legislatures ,of the State or States affected by such law) as Parliament may deem necessary.
BY cl.
(2) of article 4 it is provided: "No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of articles 368.
" The law referred to in articles 2 & 3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof 'and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament.
The law so made may also make supplemental, incidental and consequential provisions which would include provisions relating to the setting up of the legislative, executive and judicial organs of the State essential to the effective State administration under the Constitution, expenditure and distribution of revenue, apportionment of assets and liabilities, provisions as to services, application and adaptation of laws, transfer of proceedings and other related matters.
On the plain words of article 4, there is no warrant for the contention advanced by counsel for the appellants that the supplemental, incidental and consequential provisions, which by virtue of article 4 the Parliament is competent to make, must be supplemental, incidental or consequential to the amendment of the First or the Fourth Schedule.
The argument that if it be assumed that the Parliament is invested with this wide power it may conceivably exercise power to abolish the legislative and judicial organs of the State altogether is also without substance.
We do not think that any such power is contemplated by article 4.
Power with which the Parliament is invested by articles 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or for mation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme.
No State can therefore be formed, admitted or set up by law under article 4 by the Parliament which has not effective legislative, executive and judicial organs.
Power to reduce the total number of members of the Legis lative Assembly below the minimum prescribed by article 170(1) is, in our judgment, implicit in the authority to make laws under article 4.
Such a provision is undoubtedly an amendment of the Constitution, but by the express provision contained in cl.
(2) of article 4, no such law Which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be 113 deemed an amendment of the Constitution for the purposes of Art.368.
Our attention was invited to article 371A(2)(h) of, the Constitution which makes an express provision in derogation to article 170(1) relating to the constitution of a Legislative Assembly for the State of Nagaland, and fixes"notwithstanding anything in this Constitution for a period of ten years from the date of the formation of the State of Nagaland or for such further period as the Governor may, on the recommendations of the regional Coun cil, by public notification specify in this behalf" the membership of the Legislative Assembly at 46.
Power of the Parliament to make amendments in the Constitution by express enactment so 'as to reduce the number of members of a Legislative Assembly below the minimum prescribed having regard to the exigency of a special case may not be denied.
But the Constitution also contemplates by article 4 that in the enactment of laws for giving effect to the admission, establishment or formation of new States, or alteration of areas and the boundaries of those States, power to modify provisions of the Constitution in order to tide over a temporary difficulty may be exercised by the Parliament.
The High Court was, therefore, right in holding that section 13(1) was not invalid merely because it departed from, the minimum prescribed as the total membership of the Legislative Assembly for a State.
Sections 20 & 22 of the Act deal with the constitution of the Legislative Council.
By section 20 the Legislative Council of the new State of Punjab is to consist of 40 representatives and the Third Schedule to the Representation of the People Act, 1950, is to stand modified accordingly.
By section 22 it is provided: "(1) On the appointed day, the sitting members of the Legislative Council of Punjab specified in the Seventh Schedule shall cease to be members of that Council.
(2) On and from the appointed day, all sitting members of the Legislative Council of Punjab, other than those referred to in subsection (1), shall continue to be members of that Council.
By the Seventh Schedule, 16 members, of whom it is claimed 14 are from the territory which is now in Haryana State, have been untreated.
It was claimed by the appellants in their petition before the High Court that those 14 members of the Old Punjab Legislative Council "would cease to be members of the new Council" from November 1, 1966, whereas 8 members belonging to the newly constituted area of the Union territory of Chandigarh still continue to be members of the new Punjab Legislative Council, and that such discriminatory treatment of members from the Haryana region 114 amounted to denial of equality.
In the affidavit on behalf of the Union of India it was submittedthat because Chandigarh is to be the capital of the existing Stateof Punjab and will continue to be the seat of new Government of the Punjab, the members from Chandigarh were admitted as members of the Legislative Council of the new State of Punjab,that the provision was consequential and incidental to the main provision constituting the State of Punjab, and that in theevent, the appellants were not persons aggrieved by the so called discriminatory treatment.
By article 171(3) of the Constitution membership of the Legis lative Council is not from territorial constituencies: it is by nomination, indirect election or by election from teachers ' and graduates '.
constituencies.
Of the total number of members of the Legislative Council of a State, one third are to be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State, one twelfth are to be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in India ox possess equivalent qualifications, one twelfth are to be elected by electorates consisting of persons who have been engaged in teaching in educational institutions within the State, one third are, to be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly, and "the remainder" are to be nominated by the Governor in accordance with the provisions of cl. 5.
These constituencies are not territorial constituencies.
On the reorganisation of the old State of Punjab, adjustments had to be made in the membership of the Legislative Council.
No such adjustment as would strictly conform to the requirements of article 171(3) could however be made without fresh elections.
The Parliament therefore adopted an ad hoc test, and unseated members who were residents in the territory of Haryana and Himachal Pradesh.
It is true, as admitted in the affidavit on behalf of the Union of India, that members belonging to the Union territory of Chandigarh will be members of the new Punjab Legislative Council, and members from the Haryana State territory will be unseated.
Whether in unseating the members from Haryana area and allowing the members from the Chandigarh area to continue, a valid classification is made on the ground that Chandigarh is the capital of the two States need not detain us, because we are of the view that no discrimination by unseating members from the Haryana area can be deemed to be practised against the appellants of which they can complain.
The appellants were not sitting members of the Legislative Council of the old State of Punjab and no personal right of the appellants is infringed by unseating the members whose names are set out in the Seventh Schedule.
Again the new State of Punjab is a bi cameral Legislature.
The new State of Haryana is uni cameral.
It is not claimed,, 115 and cannot be claimed, that a resident of the State of Haryana is,.
merely because of that character, entitled to sit in the Punjab Legislative Council.
By allowing the members from the Chandigarh area to continue to remain members of the Legislative Council of the new State of Punjab, no right of the residents of Haryana is therefore violated.

summary:
The , carved out of the old State of Punjab two new States, Punjab and Haryana, transferred some areas to Himachal Pradesh and constituted Chandigarh, a territory of the old State, into a Union territory.
The old State had a bicameral Legislature and so also has the new State of Punjab; but that of Haryana is to be unicameral.
Under the Act the Legislative Assembly of Haryana is to consist of only 54 members; members of the Legislative Council of the old State belonging to Haryana area are unseated, while those members residing in the Union Territory of Chandigarh continue to be members of the Legislative Council of that new State of Punjab.
The appellants, none of whom was a sitting member of the Legislative Council of the old State, challenged the legality of the Act in a writ petition, which the High Court rejected.
In appeal to this Court, the appellants contended that (i) Constitution of the Legislative Assembly of Haryana by section 13(1) of the Act which departs from the minimum membership prescribed to the State Legislative Assembly violates the mandatory provisions of the Art 170(1) of the Constitution; and (ii) by enacting that members of the Legislative Council of the old State residing in the Union Territory of Chandigarh shall continue to sit in the Legislative Council in the new State of Punjab and by enacting that the members elected to the Legislative Council from the Haryana area shall be unseated, there was denial of equality.
HELD : The appeal must be dismissed.
(i) Power to reduce the total number of members of the Legislative Assembly below the minimum prescribed by article 170(1) is implicit in the authority to make laws under article 4 of Constitution.
Such a provision is undoubtedly an amendment of the Constitution, but by the express provision provided in article 4(2),no such law which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provision is to be deemed an amendment of the Constitution for, purposes of article 368.
The Constitution also contemplates by article 4 that in the enactment of laws for giving effect to the admission, establishment or formation of new States or alteration of areas and the boundaries of those States power to modify provisions of the Constitution in order to tide, over a temporary difficulty may be exercised by the Parliament.
[112,H] 1 13 C D] (ii) Parliament could not make adjustments as would strictly conform to the requirements of article 171(3) without fresh elections.
It, therefore, adopted an ad hoe test and unseated members of the Council who were 110 residents of the Haryana area.
There was, however, no discrimination in unseating members from the Haryana Area of which appellants could complain.
The appellants were not the sitting members of the Legislative Council of the old State and no personal right of the appellants was in fringed by unseating those members.
A resident of the State of Haryana merely because of that character, cannot claim to sit in the Punjab Legislative Council.
By allowing the members from the Chandigarh area to continue to remain members of the new State of Punjab no right of the residents of Haryana was violated.
[114 E H; 115 A]


judgement:
Appeal No. 1039 of 1963.
Appeal by special leave from the judgment and order dated June 24, 1959 of the Madhya Pradesh High Court in Civil Second Appeal No. 8 of 1957.
N. N. Keswani and Urmilla Kapur, for the appellant.
B. Sen, C. L. Sanghi and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court as delivered by: Subba Rao, J.
This appeal by special leave raises mainly the question whether a civil court had jurisdiction to entertain the 618 suit filed by the respondents for the recovery of possession of the plaint schedule land and mesne profits ' The relevant facts may be briefly stated: The respondents, claiming to be the khatedars of an extent of 57.07 acres of land in Mauza Bhanpur, Tahsil Huzur, Western District Bhopal, filed a suit against the appellant on the ground that the latter was in illegal possession thereof.
The appellant contested the suit mainly on the ground that he was the khatedar of the said land and that he was in possession thereof in that capacity.
He also pleaded that his title to the property was declared by the Tahsildar in an application for ejectment filed by him against the respondents under the Bhopal State Land Revenue Act, 1932 (Act No. IV of 1932), hereinafter called the Act, and that the said decision would be a bar to the maintainability of the suit in a civil court.
The learned Subordinate Judge, Bhopal, held that the res pondents were the khatedars of the suit land and that they had been in possession thereof in that capacity.
He held that the suit was maintainable in a civil court.
On appeal, the Additional District Judge agreed with the findings arrived at by the trial court.
On second appeal to the Madhya Pradesh High Court, Shiv Dayal, J., of that Court, after admitting certain notifications as evidence, came to the same conclusion both on the question of title and on the question of jurisdiction.
In the result he dismissed the second appeal.
Hence the present appeal by special leave.
Mr. Keswani, learned counsel for the appellant, raised before us a number of points; but his arguments may conveniently be crystallized into the following points: (1) whether the decision of the revenue court on the question of title to the suit land bars the jurisdiction of the civil court; (2) whether the concurrent finding given by the lower courts on the question of title was vitiated by an error of law by the courts wrongly throwing the burden of establishing title on the appellant notwithstanding the fact that in the Record of Rights the said land was entered in the name of the appellant; and (3) whether the suit was barred by limitation.
The other questions mooted by him were pure questions of fact and, therefore, they need not be noticed.
To appreciate the first question it is necessary to notice a few facts.
The appellant as khatedar of the land in dispute had filed a suit under section 71 of the Act in the court of the Tahsildar, Tahsil Huzur, Bhopal for the ejectment of the respondents on the ground that they were his shikmi tenants.
The said court held that the appellant was the khatedar of the land in dispute and the respon 619 dents were his shikmi tenants.
The present contention is that the said decree was given by a court of exclusive jurisdiction and, therefore, the respondents could not reagitate the same subjectmatter in a civil court.
Under section 9 of the Code of Civil Procedure, a civil court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred.
It is settled principle that it is for the party who seeks to oust the jurisdiction of a civil court to establish his contention.
It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed.
The question is whether a suit based on title of a khatedar and for possession is either expressly or by necessary implication barred by the provisions of the Act.
The relevant provisions of the Act may now be read: Section 200 (i) Except as otherwise provided in this Act, or in any other enactment for the time being in force no civil court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the Government or any revenue officer is, by this Act, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no civil court shall exercise jurisdiction over any of the following matters Cls.
(a) to (u) No reliance is placed on the matters described in cls.
(a) to (u) of ' this section.
But it is said that under the other provisions of the Act a revenue officer is empowered to determine, decide or dispose of a question of title of a person to a land as khatedar and, therefore, a suit in a civil court is barred in terms of section 200(1).
The first section relied upon in that context is section 71, which reads: "A shikmi may be ejected by order of the Tahsildar if he fails to vacate land on the termination of his lawful possession or does anything in contravention of his agree ment, if any, provided that no ejectment shall take effect before the commencement of the next agricultural year." ' "Shikmi" is defined under the Act to mean a person who holds land from an occupant and is or but for a contract, would be.
liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding land directly from Government.
"Occupant" is defined to mean "a person who holds land direct from Government or would do so but the right of collecting land revenue having been assigned or relinquished.
" Section 71, therefore, presupposes the existence of a legal relationship of landlord and tenant and enables the occupant to evict his shikmi if he does not comply with one or other of the conditions mentioned therein; it does not comprehend a decision on a question of 620 title.
The question of title is a matter foreign to the scope of section 71.
If so, a suit in a civil court for a declaration of title and possession by a khatadar against a trespasser falls outside the scope of section 200(1) of the Act.
The second limb of the contention turns upon a fasciculus of provisions relating to the preparation of the Record of Rights.
The relevant provisions are as follows: Section 89.
The Record of rights in each village shall comprise (1). . . . . . . (2) a register, to be called the "register of rights", showing all persons who are holders of land and the nature and extent of their interests and the conditions and liabilities, if any, attaching thereto.
Section 92.
No entry in the register of rights shall be contrary to the decree or order of a civil court.
Section 93.
(1) If any dispute arises about any entry to be made in any document of the record of rights, the Tahsildar or other officer preparing the record shall inquire into it summarily and shall pass such order as he thinks fit.
(2) Such order, if passed with reference to any entry in the register of rights, shall not be subject to appeal, but no such order shall debar any person from establishing any right to land in a civil court, and the civil court may direct that the entry relating to the land shall be altered in accordance with its decision.
(3) Any such order, if passed with reference to a record other than the register of rights shall be subject to appeal but shall not be called in question in a civil court, except in so far as any private right, is infringed and then only by a suit instituted within one year from the date on which the contents of the record were announced under section 88.
Section 95.
Any entry in the register of rights shall be presumed to be correct until the contrary is proved,.
and all other entries in the record of rights, subject to any change which may be ordered in appeal, revision or review only or by a civil court under sub section (3) of section 93, shall be conclusive evidence of the facts to which they relate.
On the basis of the said provisions it is argued that under the said provisions the right of a person to hold land shall be entered in the register of rights under section 89(2) of the Act and a dispute in respect thereof shall be decided by the Tahsildar under section 93(1) thereof and 621 that thereafter such an entry shall be rectified only by filing a suit in a civil court in the manner prescribed in section 93(2) of the Act and that, therefore, the Tahsildar, subject to the statutory suit, kw the exclusive jurisdiction to determine or decide the question in regard to the said matter within the meaning of section 200 of the Act.
This argument appears to be plausible, but a deeper scrutiny re veals a fallacy.
The scope of an entry in regard to the right to hold a land under section 89(2) of the Act and the decision under section 93 thereof is disclosed by section 95.
When such an entry is made in the register of rights and is not corrected in the manner prescribed in section 93, under section 95 it shall be presumed to be correct until the contrary is proved.
The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the court shall presume it to be correct unless the other party rebuts the presumption.
Not only section 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption.
Learned counsel for the appellant, in support of his contention, relied upon Gokhul Sahu vs Jodu Nundun Roy(1), and Jatindra Nath Chowdhury vs Azizur Rahaman 'Shanao.
Those decisions turned upon provisions which are not in pari materia with those with which we are now concerned.
They do not, therefore, throw any light on the construction of the relevant provisions of the Act.
It is, therefore, clear that section 200(1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on title.
Learned counsel for the appellant then contended that though the patta was granted in favour of the ancestors of the respondents in the year 1929 it was revoked later on, that under the new settlement of 1935 the appellant 's name was recorded in the register of rights, that in subsequent khasras up to 1953 his name continued to be shown as the owner of the suit land and that, therefore, the courts below should have held that the presumption raised by the register of rights in his favour was not rebutted and the plaintiff had failed to prove his title.
But a perusal of the judgments of the courts below shows that all the courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title.
Indeed, though the High Court rightly pointed out that the finding of fact given by the lower appellate court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over again and came (1) Cal.
MIlSup.
Cl/66 8 (2) A.I.R. 1923 Cal.
622 to the same conclusion.
It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ' ancestors was cancelled.
In our view, the High Court should have accepted the finding of the first appellate court and should not have reviewed the evidence over again.
The courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents.
We are not, therefore, justified in an appeal under article 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact.
The last argument raises a question of limitation.
If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act.
The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on july 24, 1954, praying for delivery of possession.
To such a suit article 142 of the Limitation Act applies.
The suit is, therefore, clearly not barred by limitation.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The suit of the appellant as khatedar of the land in dispute, for ejectment of the respondents on the ground that they were shikmi tenants, was decreed by the Tahsildar under section 71 of the Bhopal State Land Revenue Act, 1932.
Within 12 years of the date of their dispossession the respondents filed the suit against the appellant in the civil court, claiming to be the khatedars and for possession.
The lower courts and the High Court held that the decision of the revenue court did not bar the jurisdiction of the civil court on the question of title to the suit land and decreed the suit.
In appeal to this Court, HELD : Section 200(1) of the Act, read with sections 71, 89, 93 and 95, does not exclude the jurisdiction of the civil court to entertain a suit based on title.
[621 E F] Section, 200(1) bars the civil court from entertaining a suit with respect to any matter which a revenue officer is empowered by the Act to determine.
But the question of title is a matter foreign to the scope of section 71.
The Tahsildar is no doubt empowered under section 93 to decide on any dispute about any entry to be made in the Record of rights showing the persons who are holders of land, but, under section 95, the effect of such an entry is only to make it a presumptive piece of evidence in a collateral proceeding such as a suit based on title.
Therefore, it is assumed that such a suit could be filed in spite of a decision under section 93.
The suit was within time under article 142, Limitation Act, 1908, and since the High Court and the lower courts held that the presumption raised by the entry was rebutted by the oral and documentary evidence adduced by the res pondents, the correctness of the concurrent findings of fact could not be canvassed in the appeal under article 136.


judgement:
minal Appeal No. 194 of 1966.
Appeal by special leave from the judgment and order dated November 9, 1964 of the Punjab High Court in Circuit Bench at Delhi in Criminal Appeal No. 30 D of 1964.
H.R. Gokhale, K. K. Raizada and A. G. Ratnaparkhi, for the appellant.
Frank Anthony, Ghanshyam Dass, Jitendra Sharma and V. P. Chaudhari, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
The respondent, Ghisa Ram, is a Halwai dealing in milk and milk products, including Dahi, and holds a licence for running his shop in Defence Colony in New Delhi.
On September 20, 1961, the Food Inspector of the Municipal Corporation of Delhi visited the shop of the respondent and took a sample of curd of cow 's milk for the purpose of testing whether there was any adulteration.
The curd was churned and divided into three equal parts.
Each part was put in a separate bottle and sealed by the Food Inspector.
One of the bottles containing the sample of the curd taken was handed over to the respondent.
Out of the two remaining samples with the Food Inspector, one was sent to the Public Analyst who carried out the analysis on October 3, 1961.
He then gave a certificate on October 23, 1961, in which he noted that the fat content in the curd was 11.6% and the non fatty solids were 7.3%.
The standard prescribed by the Rules framed under the (No. 37 of 1954) (hereinafter referred to as "the Act") for curd of cow 's milk was.
that it must contain a minimum of 3.5% fat and 8.5% non fatty solids.
Since the analysis showed that the content of non fatty solids was 1.2 % below the prescribed standard, the respondent was prosecuted for committing an offence under section 16 of the Act for contravening section 7 of the Act.
The complaint was filed before the Magistrate on behalf of the appellant, Municipal Corporation of Delhi, on May 23, 1962.
On October 4, 1963, the respondent applied that the sample, which had been given to him by the Food Inspector, be sent for examination by the Director of the Central Food Laboratory in accordance with the provisions of section 13 (2) of the Act.
When the sample was received by the Director, he reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible.
The case against the respondent had, therefore, to be tried in the absence of the report of the Director of the Central Food Laboratory.
At the trial, the respondent admitted the taking of the sample of curd from his shop by the Food Inspector, but he pleaded that he had prepared the curd from pure cow 's milk.
The counsel for the: 118 challenged the correctness of the analysis of the sample .made by the Public Analyst, and a further plea was taken that the having been denied his right of obtaining the report of ,the Director of the Central Food Laboratory because of the delay by the appellant in launching the prosecution, the respondent could not be validly convicted.
This defence was accepted by the Magistrate, and the respondent was acquitted.
The appellant filed an appeal against this order of acquittal before the Delhi Bench of the Punjab High Court, but that Court upheld the order of the Magistrate.
The appellant has now come up to this Court, by special leave, against that decision of the High Court.
In this appeal, the main contention on behalf of the appellant was that, though, under the Act, a certificate of the Director of the Central Food Laboratory has the effect of superseding the report of the Public Analyst, the absence of such a certificate for any reason whatsoever will not affect the value and efficacy of the certificate given by the Public Analyst.
The proposition put forward on behalf of the appellant appears to be correct.
Under, section 13(3) of the Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst. 'The proviso to sub section (5) of section 13 further lays down that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.
These provisions of the Act are, however, only attracted when, in fact, an analysis of the sample sent to the Director of the Central Food Laboratory is made by him on the :basis of which he issues a certificate.
If, for any reason, no certificate is issued, the report given by the Public Analyst does not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory.
Further, there being no certificate issued by the Director of the Central Food Laboratory, no question can arise of his certificate becoming final and conclusive evidence of the report contained in it.
This aspect, however, does not conclude the matter so far as the question of the validity of the acquittal of the respondent is concerned.
There can be no doubt that sub section
(2) of section 13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample.
It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst.
If, in any case, the accused does not choose to exercise this right, the case against him can be decided on the basis of the report of the Public Analyst.
Difficulty, however, arises in 119 a case where the accused does exercise the right by making a request to the Court to send 'his sample for analysis to the Director of the Central Food Laboratory and the Director is unable to issue a certificate because of some reason, including the reason that the sample of the food article has so deteriorated and become decomposed that no analysis is possible.
In the present case, we find *that the decomposition of the sample, which the respondent desired should be analysed by the Director of the Central Food Laboratory, took place because of the long delay that had occurred in sending the sample to the Director ' The sample was taken on September 20, 1961, while it was sent to the Director after October 4, 1963, when the respondent made his application in that behalf.
The submission on behalf of the respondent was that the appellant instituted the prosecution of the respondent on May 23, 1962, and consequently, under section 13(2) of the Act, the right accrued to the respondent to have the sample sent for analysis only thereafter.
Section 13(2) specifically mentions that the accused vendor may make the application "after the institution of a prosecution under the Act." No right vested in the respondent to have the sample analysed in this case until the prosecution was launched on May 23, 1962.
The opinion of one of the experts, Dr. Sat Parkash, given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a week, if kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter.
On the other hand, if the sample is kept in a refrigerator, it will preserve its fat and non fatty solid contents for purposes of analysis for a total period of four weeks.
If a preservative is added and the sample is kept at room temperature, the percentage of fat and non fatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months.
In this case, when the Food Inspector handed over the sample to the respondent, the respondent was not expected to keep it in a refrigerator.
Consequently, without any preservative, the sample kept with him could have been analysed successfully during the next 17, days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months.
It appears to us that when a valuable right is conferred by section 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him.
The right is a valuable one, because the 120 certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents.
Obviously, the right has been given to the vendor in order that, for his, satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.
We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst.
We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right.
Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.
In the present case, the sample was taken on the 20th September, 1961.
Ordinarily, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample.
It, however, appears that delay took place even in obtaining the report of the Public Analyst, because the Public Analyst actually analysed the sample on 3rd October, 1961 and sent his report on 23rd October, 1961.
It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prose cution is bound to occur.
Such delay could always be envisaged by the prosecution, and consequently, the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector.
If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January, 1962.
The report of the Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to enable the respondent to exercise his right under section 13(2) of the Act without being handicapped by the deterioration of his sample.
The prosecution, on the other hand, committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May, 1962, and no explanation is forthcoming why the complaint in Court was filed about seven months after ' the report of the Public Analyst had been issued by him 121 This, is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution.
In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution.
Learned counsel for the appellant drew our attention to a decision reported in Suckling vs Parker(1).
That case was concerned with similar law in England, but, there, the provision relating to the testing of the sample kept with the vendor was quite different.
In England, there was no restriction that the vendor could not have his sample tested until after the prosecution was launched, nor did the subsequent report have the effect of completely superseding the earlier report of the Analyst.
In Municipal, Corporation, Gwalior, vs Kishan Swaroop,(2) it was held that, where there was delay in launching the prosecution, it deprived the accused of the valuable right to challenge the report of the Analyst in the manner prescribed by section 13(2) of the Act, and when this right was denied to the accused for no fault of Ms, but wholly due to the inordinate laches of the prosecution, no weight could be given to the report of the Public Analyst.
That decision proceeded on the basis of the value of the report of the Public Analyst being affected by the fact that the accused had been deprived of his right to challenge that report by obtaining a certificate from the Director of the Central Food Laboratory.
The report of the Public Analyst, as we have said earlier, does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained.
The reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution.
In these circumstances, the acquittal of the respondent was justified, and the appeal is dismissed.
V.P.S. Appeal dismissed (1) [1906]1 K.B.527.
(2) AJ.R. 1965 M.P. 180.

summary:
The Food Inspectorof the appellant Municipality took a sample of curd from the respondent 's shop for the purpose of testing whether there was any adulteration.
The sample was divided into three equal parts, put in separate bottles and sealed.
One bottle was handed over to the respondent and one was sent to the Public Analyst who analysed it and sent his report.
On the basis of that report a complaint was filed, seven months after receipt of the report, against the respondent, for an offence under sections 7 and 16 of the .
During the trail, the respondent applied to have the sample given to him analysed by the Director of the Central Food Laboratory in accordance with section 13(2) of the Act.
The Director reported that the sample had become highly decomposed and could not be analysed.
The trial Court acquitted the respondent accepting his contention that he could not be convicted after having been denied his right of obtaining the Director 's certificate by the delay in launching the prosecution.
On the question whether he should have been convicted on the basis of the Public Analyst 's report.
HELD : A right is conferred by section 13 (2) on the accused vendor to have the sample, given to him by the Food Inspector, analysed by the Director after the prosecution was launched against him.
It is a valuable right, because, he could for his proper defence, have that sample analysed by a more competent expert, whose certificate supersedes the report of the Public Analyst under section 13(3), and is to be accepted by the Court as conclusive evidence of its contents under the proviso to section 13(5).
However, if for any reason, no certificate is issued by the Director, the report of the Public Analyst does not cease to be evidence of the facts contained in it.
But, in a case where there is denial of this right on account of the deliberate conduct of the prosecution, the accused vendor would be seriously prejudiced in his trial, and could not be convicted on 'the report of the Public Analyst, even though that report may be evidence in the case, of the facts stated therein.
In the present case, the prosecution should have anticipated that there would be some delay, in the analysis by the Public Analyst and in the sending of his report, and consequently, the elementary precaution of adding a preservative to the sample given to the respondent should have been taken by the Food Inspector.
If such a precaution had been taken, the sample given to the respondent would have been available for analysis by the Director, for a period of 'four months; and the prosecution could have been launched, after receiving the Public Analyst 's report, well within time to enable the respondent to exercise his right under section 13(2).
The respondent was therefore denied a valuable right in defending himself, due to the inordinate delay in launching the prosecution, ad was prejudiced in his defence.
[119 H; 120 A B, F H; 121 A] 117


judgement:
Appeal No. 242 of 1965.
Appeal from the judgment and order dated February 19, 1962 of the Madhya Pradesh High Court in Misc.
Petition No. 395 of 1958.
A. K. Sen, R. M. Hazarnavis, D. N. Verma, O. P. Malhotra, O. C. Mathur, J. B. Dadachanji and Ravinder Narain, for the appellant.
B. Sen and I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by certificate, from the judgment of the High Court of Madhya Pradesh dated February 19, 1962 in Miscellaneous Petition No. 395 of 1958.
The appellant is a firm carrying on the business of manufac turing and selling bidis.
During the period April 1, 1951 to September 6, 1955, the appellant was registered as a "dealer" under the Central Provinces & Berar Sales Tax Act, 1947 (C.P. & Berar Act 21 of 1947) (hereinafter called the 'Act ').
For the purposes of manufacture of bidis, the appellant imported from the State of Bombay large quantities of tobacco.
During the period from November 7, 1953 to October 26, 1954, the appellant imported from that State tobacco worth Rs. 84,29,580 15 0 and during the period from October 27, 1954 to November 14, 1955 the appellant imported tobacco worth Rs. 1,38,27,630 12 6.
In the usual course, the tobacco, after being imported into the State of Madhya Pradesh, was rolled into bidis which were largely exported to other States for sale and consumption in those States.
In respect of the imports of tobacco the Sales Tax authorities required the appellant to file returns in Part B of Form IV clause 2 of which stated as follows: M19Sup.
CI/66 7 90 "2.
Purchase price of goods other than those mentioned in Schedule 11 purchased on declaration under rule 26 as being goods specified in the registration certificate as intended for use as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose; such as one 's own consumption or for export outside the State for which deduction is claimed under section 27 A or for use in the manufacture of goods exported outside the State for which deduction is claimed under section 27 A, etc.
" The appellant filed a return for the quarter from May 3, 1954 to July 29, 1954 showing the amount of Rs. 16,47,567 3 3 as the purchase price of goods purchased on declaration as being goods specified in the registration certificate as intended for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose.
In the return which was filed for the quarter beginning from July 27, 1954 and ending with October 26, 1954, the appellant did not fill in any figure but showed the above item as blank contending that the Sales Tax authorities were not entitled to levy any purchase tax against it in respect of the same. 'Me appellant thereafter moved this Court under article 32 of the Constitution for the issue of a writ of mandamus or any other suitable writ to restrain the respondents from enforcing the provisions of the Act and for other consequential reliefs.
In Writ Peti tion No. 67 of 1955 decided on September 20, 1955 M/s Mohanlal Hargovind Das vs The State of Madhya Pradesh(1) this court observed in the course of its judgment as follows: "All the transactions entered into by a registered dealer, however, do not necessarily import a liability to pay tax under the Act because, whenever the question arises in regard to his liability to pay any tax under the Act, such liability would have to be determined in spite of his being a registered dealer with reference, inter alia, to the provisions of Section 27 A of the Act which incorporates within its terms the bans which have been imposed on the powers of the State Legislatures to tax under Article 286(1) (a) and (2) of the Constitution.
If, therefore, a dealer who has got himself registered as dealer under the provisions of Section 8(1) of the Act is sought to be made liable in respect of transactions of sale effected by him he could claim exemption from such liability if the transactions of sale or purchase took place in the course of inter State trade or commerce after the 31st March, 1951, except in so far (1) ; 91 as Parliament may by law otherwise provide.
In the case before us there was no such provision made by Parliament and the transactions in question were all after the 31st.
March, 1951, with the result that the ban imposed by Article 286(2) was in operation and if the transactions took place in the course of inter State trade or commerce not only were Shri Chhaganlal Ugarchand Nipani and Shri Maniklal Chunanlal Baroda exempt from the liability to pay the tax on these transactions but the petitioners also were similarly exempt.
No liability, therefore, could be imposed either for Sales Tax or for Purchase Tax within the terms of the Act on these transactions which as above stated took place in the course of inter State trade or commerce." This Court accordingly granted a writ to the following effect: "The respondents will be restrained from enforcing the Central Provinces and Berar Sales Tax Act, 1947, and its provisions against the petitioners and from imposing a tax in respect of the transactions in question and in particular from imposing a tax on the purchase price of goods purchased on the declarations under Rule 26 being goods specified in the registration certificate as intended for use as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State but utilised for any other purpose under the provisions of Section 4(6) of the Act.
" In view of this writ the Assistant Commissioner of Sales Tax, Jabalpur, by his two orders dated September 9, 1956 and September 10, 1956, exempted the appellant from tax on the purchases of tobacco made in the State of Bombay, which, after being imported into the State of Madhya Pradesh, was used as raw material for manufacturing bidis exported to other States.
The appellant preferred appeals to the Deputy Commissioner or Sales Tax against the two orders dated September 9, 1956 and September 10, 1956.
In the meantime, on March 21, 1956, the Sales Tax Laws Validation Act, 1956 (Act 7 of 1956), which repealed the Sales Tax Validation Ordinance 3 of 1956, had come into force.
Thereupon, on December 5, 1958, the Deputy Commissioner of Sales Tax issued two notices to the appellant proposing to levy tax on purchases of tobacco during the period from November 7, 1953 to September 5, 1955 from non resident dealers under section 4(6) of the Act.
The appellant filed in the High Court of Madhya Pradesh Miscellaneous Petition No. 395 of 1953 praying for grant of a writ of certiorari to quash the notices dated December 5, 1958 issued by the Deputy Commissioner of Sales Tax and for a writ in the nature 92 of mandamus restraining the respondents from enforcing the provisions of the Act and of the Central Act 7 of 1956 and from imposing any tax on purchases of tobacco and other raw materials from non resident dealers.
By its judgment dated February 19, 1962, the High Court of Madhya Pradesh rejected the petition of the appellant.
By the Madhya Pradesh Sales Tax (Amendment) Act, 1953 (M.P. Act 20 of 1953) certain amendments were made in the Act.
The material provisions of the latter Act, as amended by the former Act, were as follows: "2.
(c) "dealer" means any person who whether as principal or agent, carries on in Madhya Pradesh the business of selling or supplying goods, whether for commission, remuneration or otherwise and includes a firm, a partnership. . . "2. (g) "sale" with all its grammatical variations and cognate expressions mean any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract. . and the word 'purchase ' shall be construed accordingly; Explanation (II). (Notwithstanding anything to the contrary in the Indian , but subject to the provision contained in the Explanation to clause (i) of Article 286 of the Constitution) the sale or purchase of any goods shall be deemed for the purposes of this Act, to have taken place in this State wherever the contract of sale or purchase might have been made (a) if the goods were actually in this State at the time when the contract of sale or purchase in respect thereof was made, or (b) in case the contract was for the sale or purchase of future goods by description, then, if the goods are actually produced or found in this State at any time after the contract of sale or purchase in respect thereof was made; Explanation (III).
Notwithstanding anything to the contrary in the Indian , the sale of any goods which have actually been delivered in the State of Madhya Pradesh as a direct result of such sale for the purpose of consumption in the said State, shall be deemed, 93 for the purpose of this Act, to have taken place in the said State, irrespective of the fact that the property in the goods has, by reason of such sale passed in another State." "2.
(j) 'turnover ' means the aggregate of the amounts of sale prices and parts of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of sales or supply of goods in the carrying out of any contract affected or made during the prescribed period; and the expression 'taxable turnover ' means that part of a dealer 's turnover during such period which remains after deducting therefrom (a) his turnover during that period on (ii)sales to a registered dealer of goods declared by him in the prescribed form as being intended for resale by him by actual delivery in Madhya Pradesh for the purpose of consumption in that State or of goods specified in such dealer 's certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State, and of containers and other materials used in the packing of such goods;" "4.
(6) Where any goods are purchased by a registered dealer as being intended for resale by him by actual delivery in Madhya Pradesh for the purpose of consumption in that State, or as being goods specified in such dealer 's certificate of registration as intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and such goods are utilised by him for any other purpose, the price paid by him for such goods shall be included in his turnover and be liable to tax in accordance with the provisions of this Act." "27 A. (a) Notwithstanding anything contained in this Act (a) a tax on the sale or purchase of goods shall not be imposed under this Act (i) where such sale or purchase takes place outside the State of Madhya Pradesh; or (ii)where such sale or purchase takes place in the course of import of the goods into, or export of the goods out of, the territories of India; 94 (b) a tax on the sale or purchase of any goods shall not, after the 31st day of March 1951, be imposed where such sale or purchase takes place in the course of inter State trade or commerce except in so far as Parliament may by law otherwise provide.
(2) The Explanation to clause (1) of Article 286 of the Constitution shall apply for the interpretation of subclause (i) of clause (a) of sub section (1).
" Article 286(1) and (2) of the Constitution, as it stood at the material time, is reproduced below: "286(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place: (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
Explanation.
For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State.
(2)Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce.
Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty first day of March, 1951.
" In m/s Mohanlal Hargovind Das vs The State of Madhya Pradesh,(1) it was held by this Court that the transaction of purchase of tobacco by the appellant from dealers outside the territory of Madhya Pradesh were transactions in the course of inter State (1) ; 95 trade or commerce and since the ban imposed by article 286(2) was in operation, the appellant was exempt from liability to pay tax on those transactions.
On January 30, 1956, the President of India promulgated an Ordinance called 'The Sales Tax Laws Validation Ordinance, 1956 ' (Ordinance No. 3 of 1956) which was repealed and replaced by the Sales Tax Law Validation Act, 1956 (Act 7 of 1956) which came into force on March 21, 1956.
Section 2 of this Act states: "Notwithstanding any judgment, decree or order of any Court, no law of a State imposing or authorising the imposition of, a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter State trade or commerce during the period between the Ist day of April, 1951 and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce; and all such taxes levied or collected or purporting to have been validly levied or collected during the aforesaid period shall be deemed always to have been validly levied or collected in accordance with law.
Explanation.
In this section 'law of a State ' in relation to a State specified in Part C of the First Schedule to the Constitution, means any law made by the Legislative Assembly, if any, of that Sate or extended to that State by a notification issued under Section 2 of the Part C States (Laws) Act, 1950 (30 of 1950)".
It was argued by Mr. A. K. Sen on behalf of the appellant, in the first place, that section 27 A of the Act places a restriction on the power of the taxing authorities and so long as it stood unrepealed there was no pre existing law authorising the imposition of tax on sales made in the course of inter State trade or commerce and in consequence the Sales Tax Laws Validation Act, 1956 which merely lifted the ban and did not impose any tax, bad no application to the case of the appellant.
To put it differently, the contention of Mr. A. K. Sen was that before advantage could be taken of the Sales Tax Laws Validation Act, 1956 there had to be in existence a State Act imposing tax on such sales and section 27 A of the Act imposed no such tax on the sales.
We are unable to accept this argument as correct.
An identical question was the subject matter of consideration by this Court in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh & another(1) and it was held that section 22 of the Madras Sales Tax Act had a positive content and the Explanation in the context of section 22 authorised the State of (1) ; 96 Madras to impose tax on sales falling within its purview.
In the course of his judgment Venkatarama Aiyar, J., speaking for the Court, observed: "These considerations will clearly be inapposite in construing a taxing statute like the Madras Act, the object of which is primarily to confer power on the State to levy and collect tax.
When we find in such a statute a provision containing a prohibition followed by an Explanation which is positive in its terms, the true interpretation to be put on it is that while the prohibition is intended to prevent taxation of outside sales on the basis of the nexus doctrine, the explanation is intended to authorise taxation of sales falling within its purview, subject of course to the other provisions of the Constitution, such as article 286(2).
It should be remembered that unlike the Constitution, the law of a State can speak only within its own territories.
It cannot operate either to invest another State with a power which it does not possess, or divest it of a power which it does possess under the Constitution.
Its mandates can run only within its own borders.
That being the position, what purpose would the Explanation serve in section 22 of the Madras Act, if it merely meant that when goods are delivered under a contract of sale for consumption in the State of Madras, the outside State in which property in the goods passes has no power to tax the sale? That is not the concern of the State of Madras, and indeed, the Legislature of Madras would be incompetent to enact such a law.
In its context and setting, therefore, the Explanation to section 22 must mean that it authorises the State of Madras to impose a tax on sales falling within its purview.
Thus, while in the context of article 286(1) (a) the Explanation thereto could be construed as purely negative in character though positive in form, it cannot be so construed in its setting in section 22 of the Madras Act, where it must have a positive content.
" Section 22 of the Madras Act is couched in a similar language to section 27 A of the Act.
In our opinion, the principle of the decision in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh & another(1) therefore governs the present case.
We should also refer to the additional circumstance that in the present case the third Explanation to section 2(g)incorporates into the definition of 'sale ' the Explanation occurring in article 286 in contrast to the Madras Act where there is no such incorporation in the definition.of sale under section 2(h) of that Act.
We are accordingly of the opinion that the argument of the appellant must be rejected on this aspect of the case.
(1) ; 97 The next question to be considered in this appeal is whether the provisions of section 4(6) of the Act are attracted in the circumstances of the case.
It was submitted for the appellant that the section has no application because tobacco was not specified in the certificate of registration granted to the appellant "as intended for use by it as raw material in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State".
Section 2(j) of the Act, as it originally stood, was to the following effect : "Sales to a registered dealer of goods specified in such dealer 's certificate of registration as being intended for resale by him, or for use by him in the manufacture of any goods for sale or in the execution of any contract and on sales to a registered dealer of containers and other materials for the packing of such goods;" The section was amended from time to time until, with effect from December 1, 1953 it stood as follows: "Sales to a registered dealer of goods declared by him in the prescribed form as being intended for resale by him by actual delivery in Madhya Pradesh for the purpose of consumption in that State or of goods specified in such dealer 's certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State, and of containers and other materials used in the packing of such goods;" Section 4(6) of the Act was also inserted with effect from December 1, 1953 by the Madhya Pradesh Sales Tax (Amendment) Act 1953 (Act 20 of 1953).
In consequence of these amend ments it became necessary to amend the certificate of registration granted to the appellant before the amendment of the Act.
Therefore, on January 5, 1954, even before the relevant Rule was amended, the appellant applied for substitution of the words "raw materials" for the words "for the purpose of manufacture".
In allowing the application the Sales Tax Officer did not comply with the language of Form II but merely specified as raw materials "Tendu leaves, Tobacco, Yarn" The contention of the appellant is that the purchase of tobacco cannot be taxed because it was not "specified in the dealers ' certificate of registration as intended for use by him as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State" as required by section 4(6) of the Act.
We are unable to accept the argument of the appellant as correct.
It is true that there is a technical omission in the order of the Sales Tax Officer amending the certificate of registration, but the certificate must be fairly construed in the light of the language 98 of section 8 and other relevant provisions of the Act.
Before the amendment made by Act XX of 1953 section 8(3) read as follows: "8.
(3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which, in the case of a registered dealer who himself manufactures any goods for purposes of sale shall specify the class or classes of goods which are intended to be used by him in the manufacture of such goods." After the amendment the sub section was to the following effect: "8.
(3) If the said authority is satisfied that an application for registration is in order, it shall in accordance with such rules as may be made under this Act, register the applicant and grant him a certificate of registration in the prescribed form which, in the case of a registered dealer who manufac tures any goods for purposes of sale by 'actual delivery in Madhya Pradesh for the purpose of consumption in that State shall specify the raw materials which are intended to be used by him in the manufacture of such goods.
" In this connection reference may be made to section 2(j) (a) (ii) Which states that a selling dealer is entitled to deduct from his turnover sales to a registered dealer of goods "specified in such dealer 's certificate of registration as being intended for use by him as raw materials in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State".
It is manifest that the only legitimate object which the purchasing dealer seeks in having a class of good specified in the certificate of registration as "raw materials" is to purchase the goods tax free in the sense contemplated by the Act.
By asking for such specification the dealer represents that he intends to use the goods specified in the manufacture of other goods for the purpose of sale by actual delivery in the State of Madhya Pradesh for the purpose of consumption in that State.
In this context reference should be made to declarations made by the appellant to the Bombay dealers printed at page 88 of the Paper Book.
In these declarations the appellant stated that it was purchasing tobacco for use as raw materials in the manufacture of goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State and that tobacco was so specified in its certificate of registration.
As we have already said, the certificate of registration granted to the .appellant must be construed in the context of section 8 as it stood after ,its amendment and the declarations of the appellant made to the Bombay dealers.
If the language of the certificate is so construed 99 in the context of the amended section 8 of the Act and along with the declarations of the appellant, it is manifest that the appellant is liable to pay tax on tobacco imported from Bombay dealers for the relevant periods and that the requirements of section 4 (6) of the Act are satisfied in this case.
The view that we have taken is borne out by the decision of this Court in Modi Spinning & Weaving Mills Co. Ltd. vs Commissioner of Sales Tax Punjab, and another(1) in which it was held that the registration certificate was only evidence that the assessee was a registered dealer for purposes of certain commodities to be used in manufacture and any formal defect in the registration certificate was not material.
We therefore hold that the technical omission of the Sales Tax Officer to make a specific entry in the certificate will not confer any benefit on the appellant if there is other incontrovertible evidence in the case to show that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State.
We, therefore, hold that Mr. A. K. Sen has not been able to make good his argument on this aspect of the case.
For these reasons this appeal fails and must be dismissed with costs.
G.C. (1) 16 section T. C. 310.
Appeal dismissed.

summary:
The appellant was a firm in Madhya Pradesh and was registered as a dealer ' under the Central Provinces and Berar Sales Tax Act, 1947 as amended by the Madhya Pradesh Sales Tax (Amendment) Act, 1953.
During 1951 and 1955 the firm imported tobacco from the State of Bombay on the declaration that it would be used as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for consumption in that State.
Tobacco was mentioned as one of the raw materials in the firm 's registration certificate issued under section 8 of the Act.
However the goods manufactured by the firm were utilised for a different purposes i.e. for export outside the State.
Under section 4(6) of the Act when goods were used for a different purpose other than the one declared and mentioned in the registration certificate the price paid by the dealer for such goods would be included in his taxable turnover.
However in a writ petition before the High Court the appellant firm contended that the goods exempt as interstate sales were exempted from levy of sales ,,tax under section 27A of the Act which incorporated the bans in article 286 of ,the Constitution.
The writ petition was allowed in September 1955.
However in '1956 the Sales tax Validation Ordinance and thereafter the Sales Tax Laws Validation Act were passed.
Accordingly the Sales Tax ,Authorities issued notices to the appellant firm proposing to levy purchase ,tax on the tobacco purchased by it from non resident dealers during the period November 7, 1953 to September 5, 1955.
The appellant thereupon filed another writ petition before the High Court challenging the levy but it was dismissed.
With certificate the appellant came to this "court.
It was urged on behalf of the appellant that (i) before advantage could be taken of the Sales Tax Laws Validation Act.
1956 there had to be in existence a State Act imposing tax on inter State.sales and section 27A of the Act imposed no such tax, (ii) section 4(6) had no application because tobacco was not specified in the certificate of registration granted to the appellant as intended for use by it as raw material in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State.
" HELD : (i) Read with the third explanation to section 2(g)of the Act section 27 A had a positive and not merely a negative content.
It gave power to the State of Madhya Pradesh, to impose a tax on a transaction falling 'Within its purview.
It was therefore a pre existing law validated by the Sales Tax Laws Validation Act, 1956 and the appellant could be taxed under it in respect,of inter State sales only during the relevant period.
[95 H; 96 G H] 89 M.P.V. Sundararamier & Co. vs The State of Andhra Pradesh, ; , relied on.
(ii)The declaration made by the appellant to the Bombay dealers was for the purpose of obtaining exemption from purchase tax.
The same was the purpose of the mention of tobacco in the registration certificate under section 8.
If the language of the certificate were construed in the context of the section 8.
of the Act (as amended) and along with the declaration of the appellant, it was manifest that the appellant was liable to pay tax on tobacco imported from Bombay dealers and that the requirements of a. 4(6) were satisfied.
The technical omission of the Sales Tax Officer to make a specific entry in the certificate would not confer any benefit on the appellant when there was other incontrovertible evidence to show that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State.
[98 F H; 99 A] Modi Spinning & Weaving Mills Co. Ltd. vs Commissioner of Sales Tax, Punjab & Anr.
16 S.T.C. 310, relied on.


judgement:
minal Appeal No. 136 of 1966.
Appeal by special leave from the judgment and order dated January 18, 1966 of the Madras High Court in Criminal Appeal No. 697 of 1965 and referred trial No. 90 of 1965.
B. D. Sharma, for the appellant.
V. P. Raman and A. V. Rangam, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
This is an appeal by special leave against the judgment of the High Court of Judicature at Madras, January 18, 1962, by which the High Court confirmed the conviction of the appellant Periyasamy under section 302, Indian Penal Code, and the 12 3 sentence of death imposed on him.
The facts of the case are as follows: Periyasamy was charged with the murder of his wife Kaveri Ammal on the morning of May 11, 1965, at 6 a.m., at a place in Kirambur where they were residing in what is called a shed.
Opposite to this shed was another shed in which Periyasamy 's brother with his wife Pappayee (P. W. 1) was residing.
Periyasamy and Kaveri Ammal had been married for a period of two years during which time Kaveri Ammal used to go away frequently to her parents ' place, and the motive suggested is that it used to enrage the appellant Periyasamy.
On the morning of the day of occurrence, Pappayee heard the cry "Ayyo, ayyo", and she states that she saw Periyasamy striking his wife with a koduval.
Pappayee raised an alarm.
Periyasamy thereupon threw the koduval away and retired to his shed and taking hold of a rope climbed a tree.
He tied one end of the rope to a limb of the tree and another round his neck and jumped, but meanwhile the neighbours had assembled there and they caught him and cut him down from the tree and laid him on a cot.
Periyasamy did not die though there is evidence to show that he had some bruises round his neck.
Meanwhile a brother of Periyasamy by name Chinna ran to their father and informed him about the occurrence.
The father,.
without going to verify what he had heard, went over to the police station House and lodged a report, saying that his younger son had informed him that Periyasamy had cut down his wife with a koduval and attempted to hang himself and that he was making the report.
In the last sentence of this report, it was mentioned that Pappayee had witnessed the occurrence.
The prosecution examined a number of witnesses but we are concerned only with one, namely, Pappayee, P. W. 1, who is the solitary eye witness in the case.
It appears that Pappayee changed her statement in the Court of Session by leaving out the name of Periyasamy as the assailant of Kaveri Ammal.
She was, therefore, declared hostile by the court and was allowed to be cross examined under section 145 of the Indian Evidence Act.
Her previous statement was also brought on the record of the case.
This statement of Pappayee forms the foundation of the case against Periyasamy, corroborated by the other evidence about his conduct and the motive for the commission of the offence.
The High Court and the court below have acted upon the statement of Pappayee made in the committal court in preference to the statement she made in the Court of Session, and have based the conviction by accepting her previous version.
In this appeal, Mr. B. D. Sharma naturally attacked the evidence of Pappayee from various angles and also, tried to establish that the judgment of the 124 High Court did not satisfy the standards for an appellate judgment as laid down by this Court, particularly in a case dealing with the confirmation of a death sentence.
We shall, therefore, examine these contentions in detail.
The first contention raised by Mr. Sharma is that the Sessions Judge did not comply with the provisions of section 288 of the Code of Criminal Procedure inasmuch as he did not pass any order transferring the earlier statement to the record of the Sessions trial.
We have not been able to find in the original record of the case, which was brought to our notice, any order specifying the transfer of the earlier deposition to the record of the Sessions Court under section 288.
It appears, however, that the practice of this Court is to ,contradict a witness with the earlier statement and parts there of, after declaring him hostile and then to use the record of the earlier statement as substantive evidence.
It may be stated that it is highly desirable that the court should, before the transfer of the earlier statement to the record of the Sessions case under section 288, indicate in ,a brief order why the earlier deposition was being transferred to the record of the trial.
This will make it quite clear to the accused that the earlier statement is likely to be used as substantive evidence against him.
If the matter had rested with the use of the earlier statement without this notice to the accused, we would have found it difficult to rely upon the earlier deposition.
We find, however, that Periyasamy was questioned with reference to the statement of Pappayee made before the Committing Magistrate which, the Judge informed him, was marked under section 288 of the Code of Criminal Procedure, and he was asked what he had to say about it.
Therefore, although the technical requirement of the section, namely, that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence, was not complied with, there does not appear to be any substantial departure from the requirements of the law.
There is also no likelihood of any prejudice to Periyasamy since he was informed.
while he was being examined that the statement was being used under section 288, Criminal Procedure Code, and was invited to say what he wished to say in defence.
We are, therefore, of the opinion that the High Court and the court below were right in using the statement as substantive evidence which undoubtedly the Code of Criminal Procedure does allow.
Mr. Sharma next contended that it has been laid down in a series of cases that when the solitary witness in a case has made ,conflicting statements, it is very risky to rely upon any of the versions and has drawn our attention to a case reported in re Muruga Goundan(1) decided by a Division Bench in which the present Chief Justice of this Court delivered the judgment.
We entirely agree.
(1) A.I.R 1949 Mad.
125 But there are cases and cases.
If the matter rests upon the statement of a witness, who has changed the version and there is nothing further to connect the accused with the offence with which he is charged, there is good ground for acquitting him.
We do not think that this is such a case.
The facts here go further.
Pappayee 's two statements, when they are compared, disclose that the whole of her testimony as given in the court of the Committing Magistrate was again repeated in the Court of Session, except that she left out the name of Periyasamy as the assailant.
This appears to have been the result of some pressure upon her.
Although she was induced to say in the Court of Session that she had made the earlier statement under pressure of the police and the police threatened to involve her in the murder, we find other clear circumstances from which we can say that the statement made earlier by Pappayee, is definitely to be preferred in the circumstances of this case.
We proceed now, to enumerate what those circumstances are.
The two sheds are situated opposite to each other and the door of the shed in which Kaveri Ammal was done to death is a kind of matting which Pappayee had stated was then open.
This would be so in May, which, being a hot month, makes the people open their doors early in the morning.
Therefore, whatever happened inside the shed would be visible to persons living in a shed across the road and Pappayee states in both the statements that she was able to see the occurrence.
The fact that she is a close relation must weigh considerably against Periyasamy and we must turn, therefore, to see whether he gave any reasonable explanation why Pappayee should have given the evidence at all against him.
His version is that he had gone to fetch some kerosene oil for working a pump and when he came back he found that his wife had been cut to pieces, apparently by some one in his absence.
He further added in answer to a question that he was "on talking terms" with Pappayee before he married, suggesting thereby that Pappayee was enraged on being neglected by him after he married Kaveri Ammal.
This motive and the explanation about his absence are his explanations to avoid the implications of Pappayee 's incriminating statement.
In our opinion, neither of these circumstances is clear enough to make us discard the evidence of Pappayee brought on the record under section 288 of the Code of Criminal Procedure.
It seems too much of a coincidence that an unknown murderer lay in wait to kill Kaveri Ammal during the short time her husband was away to buy kerosene oil.
Further, it seems difficult to believe that Pappayee was making this statement because she was jilted in some manner by Periyasamy.
There is nothing to show that what Periyasamy alleged was at all the truth, and looking to the circumstances of the case, we feel that this is just something which he has thought out in defence without being true.
This conclusion is further streng 126 thened by his subsequent conduct on the discovery by him of the murder.
What did Periyasamy do? He does not seem to have questioned any one as to how this happened during the short time he was away.
On the other hand, he snatched up a rope, tied it to the limb of a tree and tying the other end to his neck jumped down in an attempt to commit suicide.
He was fortunate (but not quite so) that some neighbours arrived at the critical moment and saved him from hanging himself.
This conduct clearly indicates a feeling of fear or, may be, of remorse.
It induced him to attempt to take his own life after he had taken that of his wife.
Mr. B. D. Sharma suggested a number of persons who might be the likely assailants of Kaveri Ammal, suggesting the father of Periyasamy or the uncles of the girl and even Pappayee herself.
But these suggestions cannot be accepted in the light of the circumstances.
If they had been true, the husband would have stood his ground and attempted to see that the right offender was brought to book and not attempted to commit suicide at the first sight of his wife lying murdered at the hands of some one else.
Mr. B. D. Sharma argued that the judgment of the High Court had not taken into account all these circumstances.
Per haps, the High Court thought that the case was clear enough and did not embark on a detailed judgment.
After looking into the record of the appeal case and considering every aspect of the argument which has been advanced before us, we are satisfied that no other conclusion was possible and that the charge had been completely proved against Periyasamy.
We, accordingly, order the appeal to be dismissed.
R.K.P.S. Appeal dismissed.

summary:
In a prosecution for murder the only eye witness having named the appellant as the assailant in her deposition in the committal court, left out his name in her evidence in the Sessions Court.
She was declared hostile and was allowed to be cross examined.
The Sessions Judge questioned the appellant with reference to the statement of the witness in the committal proceedings and informed him, that it was marked under section 288, Cr.
P.C. He however did not pass an order transferring the earlier deposition to the record of the Sessions Court.
Treating the previous statement as substantive evidence and relying upon the other circumstances in the case, the Sessions Court and the High Court on appeal convicted the appellant.
On appeal to this Court, HELD : The High Court and the Sessions Court were right in convicting the appellant.
Although the technical requirement of section 288, namely, that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence, was not complied with there was no substantial departure from the requirements of the law and no prejudice was caused to the appellant since he was informed that the statement was being used under section 288.
[124 E G] [Desirability of an order indicating why the earlier deposition was being transferred to the record of the trial court, pointed out.
[124 C D]