judgement:
minal Appeal No. 642 of 1991.
From the Judgment and Order dated 25.4.1991 of the Bombay High Court in Criminal Appeal No. 25 of 1990.
Lalit Chari, Peter D ' Souza and Mukul Mudgal for the Appellant.
J.S. Wad, and Ms. A. Subhashini for the Respondent.
340 The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The appellant, a German National, has been convicted by the trial court under Section 20(b)(ii) of the ( 'Act ' for short) and sentenced to undergo 10 years R.I. and to pay a fine of Rs. 1 lakh, in default of payment of which to further undergo six months ' R.I.
The appeal filed by the appellant was dismissed by the High Court.
Hence the present appeal.
In brief the prosecution case is that on 29.9.89 the Police Sub Inspector Gaonkar, P.W3 alongwith a police party was patrolling at Calangute Beach near Panjim and they came across the accused who was sitting on a wooden log.
On suspicion they went near him and noticed a chillum (smoking pipe) in front of him lying on the log.
He secured the presence of panch witnesses and searched the accused and recovered a polythene pouch from his pyjama pocket in which there were tobacco, one cigarette paper packet and two cylindrical pieces of 'Charas".
The two pieces of Charas were weighed and found to be 7 gms.
and 5 gms.
respectively.
They were seized under a panchnama and were separately sealed in two different envelopes.
One of the pieces weighing less than 5 gms.
was? sent for chemical analysis and the other piece weighing 7 gms.
was not sent nor part of it by way of sample was sent for chemical analysis.
Maria Caldeira, P.W.1, the Junior Scientific Officer in the Directorate of Health Services carried out the chemical analysis of the substance weighing 4.570 gms.
consisting of three cylindrical pieces sticking together and she deposed that the substance which was examined by her was found to have contained Charas.
P.W.2, a panch witness supported the prosecution case.
The accused when examined under Section 313 Cr.
P.C. denied being in possession of any Charas and said that he had only a pouch containing tobacco and that he was taken to Calangute Police Station and was falsely impli cated.
The trial court relying on the evidence of P.Ws 1 to 3 convicted the accused.
The submissions on behalf of the accused before the trial court as well as the High Court have been that the search conducted on the person of the accused was in contravention of Section 50 of the and that there have been contradictions between the evidence of P.Ws 2 and 3 and that at any rate even if the prosecution case is to be accepted, the 341 accused can be, at the most, held to be in possession of less than 5 gins.
of Charas which is a small quantity and, therefore, is entitled to the benefit of Section 27.
Before us more or less the same submissions are made.
So far as the contentions in respect of seizure and drafting of panchnama and weight are concerned, the question is whether the accused has been told that if he so desires he would be taken to a Magistrate before the search, as provided under Section 50.
Whether this has been complied with or not mostly depends on the evidence and they are only questions of fact.
Both the courts below have considered the entire evidence and have rejected these submissions.
Though these are questions of fact, yet we have also considered the relevant evidence on these aspects and we agree with the findings of the courts below.
The next and most important submission of Shri Lalit Chari, the leaned senior counsel appearing for the appellant is that both the courts below have erred in holding that the accused was found in possession of 12 gins.
of Charas.
According to the learned counsel, only a small quantity i.e. less than 5 gms. has been sent for analysis and the evidence of P.W.1, the Junior Scientific Officer would at the most establish that only that much of quantity which was less than 5 gms.
of Charas is alleged to have been found with the accused.
The remaining part of the substance which has not been sent for analysis can not be held to be also Charas in the absence of any expert evidence and the same could be any other material like tobacco or other intoxicating type which are not covered by the .
Therefore the submission of the learned counsel is that the quantity proved to have been in the possession of the accused would be small quantity as provided under Section 27 of the and the accused should have been given the benefit of that Section.
Shri Wad, learned senior counsel appearing for the State submitted that the other piece of 7 gms.
also was recovered from the possession of the accussed and there was no need to send the entire quantity for chemical analysis and the fact that one of the pieces which was sent for analysis has been found to contain Charas, the necessary inference would be that the other piece also contained Charas and that at any rate since the accused has totally denied, he can not get the benefit of Section 27 as he has not discharged the necessary burden as required under the said Section.
Before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable 342 doubt that the accused had in his possession two pieces of Charas weighing 7 gms.
and 5 gms.
respectively.
As already mentioned only one piece was sent for chemical analysis and P.W.1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms.
From this report alone it can not be presumed or inferred that the substance in the other piece weighing 7 gms.
also contained Charas.
It has to be borne in mind that the applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances.
In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms.
of Charas was recovered from the accused.
In view of the evidence of P.W.1 it must be held that the prosecution has proved posi tively that Charas weighing about 4.570 gms.
was recovered from the accused.
The failure to send the other piece has given rise to this inference.
We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized.
If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.
Section 27 of the reads thus: "27.
Punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance whoever, in contravention of any provision of this , or any rule or order made or permit issued thereunder, possesses in a small quantity any narcotic drug or psychotropic substance, which is proved to have been intended for his personal consumption and not for sale or distribution, or consumes any narcotic drug or psychotropic substance, shall, notwithstanding anything contained in this Chapter, be punishable (a) Where the narcotic drug or psychotropic substance possessed or consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic 343 substance as may be specified in this behalf by the Central Government, by notification i n the Official Gazette, with imprisonment for a term which may extend to one year or with fine or with both; and (b) Where the narcotic drug or psychotropic substance possessed or consumed is other than those specified in or under clause (a) with imprisonment for a term which may extend to six months or with fine or with both Explanation (1) For the purposes of this section "small quantity ' means such quantity as may be specified by the Central Government by the notification in the Official Gazette.
(2) Where a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, shall lie on such person." In general possession of any narcotic drug or psychotropic substance has been prohibited by Section 8 of the and any person found in possession of the same contrary to the provisions of the or any rule or order made or permit issued thereunder is liable to be punished as provided thereunder to imprisonment for a term which shall not be less than 10 years and shall also be fined which shall not be less than Rs.1 lakh.
Section 27 of the , however, is an exception whereby lesser punishment is provided for illegally possessing any "smaller quantity ' for personal consumption of any narcotic drug or psychotropic substance, Under this section the following ingredient should be fulfilled: "(a) The person has been found in possession of any narcotic drug or psychotropic substance in "small quantity '; (b) Such possession should be in contravention of any provision of the or any rule of order made or permit issued thereunder; and (c) The said possession of any narcotic drug or psycho 344 tropic substance was intended for his personal consumption and not for sale or distribution.
" The first explanation to this Section lays down that the small quantity means such quantity as may be specified by the Central Government by a notification.
By virtue of the notification issued on 14.11.85 for the purpose of this 5 gms.
or less quantity of Charas shall be the small quantity.
Explanation 2 further lays down that the burden of proof that the substance was intended for the personal consumption and not for sale or distribution, lies on such person from whose possession the same was recovered.
As held above in the instant case the prosecution has proved that the quantity seized from the accused was less than 5 gms.
Therefore, it is within the meaning of 'small quantity" for the purpose of Section 27.
Then the other ingredient that has to be satisfied is whether the substance found in possession of the appellant was intended for his personal consumption and not for sale or distribution.
No doubt as the Section lays down the burden is on the appellant to prove that the substance was intended for his personal consumption.
As to the nature of burden of proof that has to be discharged depends upon the facts and circumstances of each case.
Whether the substance was intended for personal consumption or not has to be examined in the context in which this exception is made.
In the instant case the accused though in general has taken a plea of denial but his examination under Section 313 Cr.
P.C. by the Magistrate reveals that there was such a plea namely that it was meant for his personal consumption.
In the judgment of the trial court it is noted that the accused made an, application on 23.3.90 stating that the piece said to have been recovered from him was less than 5 gms.
and not 12 gms.
as alleged and that the application was written and signed by the appellant himself.
The prosecution case itself shows that he was having this substance in a pouch alongwith a chillum (smoking pipe) and smoking material.
The averments made by the appellant in the application and as extracted by the trial court would themselves show that it was meant for his personal consumption.
The above surrounding circumstances under which it was seized also confirm the same.
The appellant is a foreigner and as a tourist appears to have carried this substance for his personal consumption.
We are aware that the menace of trafficking in narcotic drugs and psychotropic substance has to be dealt with severely but in view of the provisions of Section 27, we are unable to hold that the small quantity found with the appellant was not 345 meant for his personal consumption and that on the other hand it was meant for sale or distribution.
Therefore, the appellant is liable to be punished as provided under Section 27 of the .
From the records it appears that the appellant has been in jail for more than three years but that may not be relevant since the sentence prescribed under Section27 is only six months.
We are only just mentioning it as a fact.
In the result the conviction of the appellant under Section 20(b)(ii) of the and sentence of 10 years R.I. are set aside.
Instead he is convicted under.
Section 27 of the and is sentenced to undergo 6 monghs ' R.I. and to pay a fine of Rs. 1 lac in default of payment of which to further undergo 6 months ' R.I. Subject to the above modifications, the appeal is disposed of N.P.V. Appeal disposed of.

summary:
The appellant, a foreign national, was convicted by the trial court under Section 20(b)(ii) of the and sentenced to undergo ten years ' rigorous imprisonment and to pay a fine of one lakh rupees, and in default, to further undergo rigorous imprisonment for six months.
According to the prosecution, two cylindrical pieces of charas, weighing 7 gms.
and 5 gms.
respectively, were seized from the appellant by a Police Patrol Party and on chemical analysis of one of the pieces, it was found that the substance contained charas.
The trial court, relying on the evidence of PW 1, Junior Scientific Officer of the Director of Health Services, who examined the substance, PW 2, a panch witness and PW 3, the Police Inspector, who was heading the Patrol Party, convicted the appellant.
The High Court dismissed the appellants appeal.
In the appeal before this Court, on behalf of the appellant it was contended that both the courts below had erred in holding that the accused was found in possession of 12 gins.
of Charas; since only a small quantity i.e. less than 5 gms. had been sent for analysis the remaining part of the substance, which had not been sent for analysis, could not be held to be also Charas and, therefore, the quantity proved to have been in the 338 possession of the accused would be small quantity, as provided under Section 27 of the Act and the accused should have been given the benefit of that Section.
On behalf of the State, it was submitted that there was no need to send the entire quantity for chemical analysis, and the fact that one of the pieces which was sent for analysis had been found to contain Charas, the necessary inference would be that the other piece also contained Charas and that, at any rate, since the accused had totally denied, he could not get the benefit of Section 27, as he had not discharged the necessary burden as required under the section.
Disposing of the appeal, this Court, HELD:1.1.
In the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms.
of Charas was recovered from the accused.
In view of the evidence of P.W. 1, the prosecution has proved positively that Charas weighing about 4.570 gms.
was recovered from the accused.
[342C] 1.2.In general, possession of any narcotic drug or psychotropic substance has been prohibited by Section 8 of the and any person found in possession of the same contrary to the provisions of the Act or any rule or order made or permit issued thereunder is liable to be punished as provided thereunder to imprisonment for a term not less than 10 years and a fine not less than Rs. 1 lakh.
However, Section 27 is an exception, whereby lesser punishment is provided for illegally possessing any 'smaller quantity ' for personal consumption of any narcotic drug or psychotropic substance.
By virtue of the notification issued on 14.11.85 under Explanation (1) of the Section, 5 gms or less quantity of Charas has been specified by the Central Government to be the small quantity.
[343E F, 344B] 1.3.
In the instance case, the prosecution has proved that the quantity seized from the accused was less than 5 gms.
Therefore, it is within the meaning of"small quantity ' for the purpose of Section 27.
[344C] 1.4.
No doubt, as Section 27 lays down, the burden is on the appellant to prove that the substance was intended for his personal consumption As to the nature of burden of proof that has to be discharged 339 depends upon the facts and circumstances of each case.
Whether the substance was intended for personal consumption or not has to be examined in the context in which this exception is made.
[344D] 1.5.
The accused though in general has taken a plea of denial,but his examination under Section 313 Cr.
P.C. by the Magistrate reveals that there was a plea that it was meant for his personal consumption.
The trial court has also noted in its judgment that the accused had made an application stating that the piece said to have been recovered from him was less than 5 gms., and not 12 gms.
as alleged.
The prosecution case itself shows that he was having this substance in a pouch alongwith a chillum (smoking pipe) and smoking material.
The averments made by the appellant in the application and as extracted by the trial court would themselves show that it was meant for his personal consumption.
The surrounding circumstances under which it was seized also confirm the same.
[344E G] 1.6.The appellant is a foreigner and as a tourist appears to have carried this substance for his personal consumption.
No doubt, the menace of trafficking in narcotic drugs and psychotropic substance has to be dealt with severely, but in view of the provisions of Section 27, it cannot be held that the small quantity found with the appellant was not meant for his personal consumption.
Therefore, the appellant is liable to be punished as provided under Section 27 of the Act.
[344G H, 345A] 1.7.Accordingly, the conviction of the appellant under Section 20(b)(ii) of the Act and sentence of 10 years ' R.I. are set aside, and he is convicted under Section 27 of the Act and sentenced to undergo 6, months ' R.I. and to pay a fine of Rs. 1 lakh, in default of payment of which to further undergo 6 months ' R.I. [345C]


judgement:
minal Appeal No. 277 of 1993.
From the Judgment and Order dated 14.10.1991 of the Bombay High Court in Crl.
Application No. 2260/91 in Crl.
Revision Application No. 123 of 1991.
Altaf Ahmed, Addl.
Solicitor General, B.R. Handa, Mrs. Manjula Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar for the Appellant.
Dr. B. Subha Rao Respondent in person.
The Judgment of the Court was delivered by R.M. SAHAI, J.
The short question that arises for consideration in this appeal is if the High Court was justified in allowing the application filed by the accused for declaring that the charges framed by the Additional Sessions Judge by order dated 24/27th July, 1990 were null and void as they were obtained by fraud, practised by the State.
Merits or otherwise of the application, alleging fraud against the State, apart, what has left us completely surprised is not so much the entertaining of the application filed by the accused, for declaration that the charges framed against him were nullity having been procured by fraud as the procedure adopted by the learned Single Judge of granting the prayer 332 merely for failure of the State to file any reply by way of counter affidavit than by recording any finding that the State was guilty of procuring the order framing the charges by fraud.
One of the objections raised by the State was that since the High Court by its order passed on 25/26th March 1991 in Criminal Writ Petition No. 966 of 1990 had specifically held that the question of framing charge had become final, therefore, it could not be re opened, cannot be said to be without substance as the Division Bench had clearly held that it was not open to go behind the order passed by the learned Single Judge on 3rd/4th April 1990 directing that the charges be framed against the accused not only under Section 3 but under Section 5 as well.
Nor can any exception be taken to the finding of the Bench that the said order could not be said to have been passed without jurisdiction in as much as the learned Single Judge had jurisdiction to decide the revision application preferred under the provisions of the Code.
Even the question of fraud raised by the accused was negatived by the Division Bench and it was held that it was not capable of being gone into as it did not form part of the substratum of the case of the prosecution and was not germane to the question of deciding as to whether he was entitled to be discharged or not.
However, it is not necessary to rest the decision on this ground as the learned Single Judge having allowed the application as being vitiated by fraud it appears necessary to examine if the pleading on fraud in the application filed by the accused was sufficient in law to empower the High Court to take cognizance of it and even if it was, did the accuse succeed in proving it as even if the State did not file any counter affidavit the application could not be allowed unless it was found as a fact that the State by its acts or omissions acted ,deceitfully or it misled the court. 'Fraud ' is false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon.
it to his prejudice and to the advantage of the representor.
It is defined in Oxford Dictionary as, ` using of false representations to obtain an unjust advantage or to injure the rights or interests of another '.
In Webster it is defined as, 'deception in order to gain by another 's loss; craft; trickery , guile; any artifice or deception practiced to cheat, deceive, or circumvent another to his injury.
It has been defined statutorily in Section 17 of the Contract Act as including certain acts committed with connivance or with intent to deceive another.
In Administrative Law it has been extended to failure to disclose 333 all relevant and material facts which one has a positive duty to disclose.
It is thus understood as deliberate act or omission to mislead other to gain undue advantage. 'It consists of some deceitful practice of wilful device, resorted to with intent to deprive another of his right or in some manner to do him an injury ' (Black 's Law Dictionary).
Effect of fraud on any proceeding, or transaction is that it becomes nullity.
Even the most solemn proceedings stand vitiated if they are actuated by fraud.
Such being the nature and consequence of it the law requires not only strict pleading of it but strict proof as well.
Did the averments in the application made out case of fraud ? Were the statements of fact capable of giving rise to an inference in law that the State was guilty of misleading the court ? From the charge sheet it is clear that it complied with the requirements of law and mentions not only the offence and the section but the particulars as to time, place and person.
Whether prosecution was possessed of sufficient evidence to prove each of the charges is different matter, but they were framed on basis of documents seized from possession of the accused at the airport, search of his residence, on the next day, interrogations of the accused and examination of prosecution witnesses.
In the connected appeal No. 276 of 1993 [Arising out of S.L.P. (Crl.) No. 986 of 1992] directed against the discharge of the accused for failure to obtain sanction a very brief summary has been given of various attempts made by the accused to get an order of discharge, on merits, without success.
It is not necessary to recount all that here.
Ul timately when the accused was discharged for failure of the State to obtain sanction under Section 197 of the Criminal Procedure Code (in brief 'the Code ') and the State challenged the correctness of the order by way of revision the accused filed the application for the declaration that the charge sheet be declared null and void.
In paragraph 3 of the application it was stated that the charges were vitiated by fraud as the Punchnama dated 30th May 1988 was fabricated as it did not contain his signature and it was ante dated.
It was further averred that three months even the copies of the remand application filed by the police were denied to the applicant and the orders thereon were not supplied to him.
It was also claimed that the complaint was in contradiction with the statement of witnesses.
May or may not be so but that could be relevant when the merits were gone into.
It certainly, could not be taken as a ground for claiming that the framing of charge was fraudulent, especially, when these aspects had been thrashed out once before the learned Single Judge who by his order dated 3rd/4th 334 April 1990 held that the charges against the accused were made out not only under Section 3 but under Section 5 of the Act.
In the same paragraph the accused extracted certain observations made by a learned Single Judge, in one of the orders and claimed that they furnished guidelines to distinguish between offences under Sections 3 and 5 of the O.S. Act.
According to him if honest and fair answer to the question, if any charge was made out, Was given by the State it would have exonerated the applicant but the State committed fraud by keeping the Trial Judge in the dark of real facts and induced him to entertain erroneous opinion and pass order on 24th July framing charges against him.
In paragraphs 4 to 8 various sentences from one or the other judgment rendered for or against the accused by different courts at one or the other stage were extracted and it was claimed that the State either knowingly did not place correct facts to substantiate those observations or deliberately concealed the truth and made fraudulent submissions inducing the Trial Judge thereby to frame the charges.
Emphasis was laid on the submissions advanced by the State and it was stated that it was result of fraudulent submissions that the Trial court was induced to frame charges against the accused.
No foundation giving rise to fraud was laid.
Facts which could be fished out from paragraphs averring fraudulent submissions could not in our opinion be said to be relevant for alleging fraud.
For instance in paragraph 4 it was stated, "the Ld. Addl.
Session Judge was deceived by the aforesaid fraudulent and false submission of the Respondent in February 1989 during the judicial proceedings and the Ld. Addl.
Session Judge was induced to believe that the applicant was also found and caught carrying books on 30 5 1988 at the Sahar Airport Bombay which books, as alleged by the Respondent, could not have come into possession of the Applicant even in the ordinary course, when the applicant was holding the office of the Captain of Navy.
The respondent knew very well that in the record of the Sessions Case No. 1084/88 there were no books as alleged by the Respondent and moreover the disputed documents were not deposited in the Sessions Court in February 1989 when the Learned Addl.
Session Judge was induced to believe the fraudulent submissions of the 335 Respondent in February 1989.
The above mentioned fraudulent submissions of the Respondent were clearly meant to deceive the Session Court in February 1989 and to see that the applicant was not discharged under Section 227 Cr.
P.C. ' Similarly in paragraph 5 it was stated, "It is significant to note that in February 1989 the documents were not deposited in the Session Court though it was mandatory under Section 209(c) Cr.
P.C. to deposit the documents in the Session Court after the Case was committed to the Sessions on 22.9.1988 by the Ld Magistrate.
Thus in actual position , there were no documents in February 1989 for 'consideration ' of the Ld. Addl.
Session Judge as prescribed under the provisions of Sec.
227 Cr.
P.C. and the Respondent took advantage of that situation and intentionally made the aforesaid fraudulent submissions in Feb. 1989 during the judicial proceedings before the Ld. Addl.
Session Judge Shri Patel and caused circumstances to induce the Ld.
Session Judge Shri Patel to entertain erroneous opinions and pass orders resulting in miscarriage of justice '.
In paragraph 7 it was stated as under "The Ld. Addl.
Session Judge Shri Patel passed two orders dated 11 9 1989 and 11 10 1989 to compel the Respondent to deposit the documents in the Session Court and accordingly the Documents were deposited in the Session Court only on 11 10 1989; which conclusively establishes that in February 1989 when "Charges" were framed the "Documents" were not with the Session Court and the fraudulent and false evidence advanced in February 1989 by the Respondent alone became the basis to frame 'Charges ' in February 1989.
" We must confess our inability to appreciate the worth of such averments to establish fraud.
Legal submissions cannot be equated to misrepresentation.
In our opinion the pleadings fell short of legal requirements 336 to establish fraud.
Various sentences extracted from different judgments between the accused and State in various proceedings could not give rise to an inference either in law or fact that the state was guilty of fraud.
Suffice it to say that it was complete misapprehension under which the accused was labouring and it was indeed unfortunate that the High Court not only entertained such application but adopted a course which amounted to reviewing and setting aside orders of his predecessor without sufficient material and accept the claim that all earlier judgments were, liable to be ignored under Section 44 of the Evidence Act as the proceedings were vitiated by fraud.
We are constrained to say that the learned Judge not only committed an error of procedure but misapplied the law.
In the result, this appeal succeeds and is allowed.
The order dated 14th October 1991 in Criminal Miscellaneous Application No. 2260 of 1991 is set aside and the application of the accused for declaring the order dated 24/27th February 1990 framing the charges against him as vitiated by fraud, is dismissed.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent, an ex Naval Officer and Computer Science graduate was accused of leaking Atomic Energy Secrets and charged for violating the provisions of the and the official Secrets Act.
Ultimately when he was discharged for failure of the State to obtain the necessary sanction under Section 197 Cr. P.C., and the State challenged the correctness of the order by way of revision, the respondent filed an application for the declaration that the charge sheet be declared null and void.
In para 3 thereof it was stated that the charges were vitiated by fraud as the Panchnama dated May 30, 1988 was fabricated as it did not contain his signature and it was ante dated.
It was further averred that for three months even the copies of the remand application filed by the police were denied to him, and that orders thereon were not supplied to him, and that the complaint was in contra on wit the statement of witnesses.
The High Court allowed this application.
In the State 's appeal to this Court on the question whether the High Court was justified in allowing the application flied by the respondent for declaring that the charges framed by the Additional Sessions Judge by his order dated 24/27th July, 1990 were null and void as they were obtained by fraud, practised by the state.
330 Allowing the appeal, setting aside the order of the High Court dated 14th October, 1991, and dismissing the application of the accused for declaring the order of the Additional Sessions Judge framing the charges against him as vitiated by fraud, this Court, HELD:1.
The High Court by its order passed on 25/26th March, 1991 in Criminal Writ Petition No. 966 of 1990 had specifically held that the question of framing charge had become final.
It could not be, therefore, re opened.
The Division Bench had clearly held that it was not open to go behind the order passed by the Single Judge on 3.4.1990 directing that the charges being framed against the accused not only under Section 3 but under Section 5 as well.
Nor can any exception be taken to the finding of the Bench that the said order could not be said to have been passed without jurisdiction in as much as the Single Judge had jurisdiction to decide the revision application preferred under the provisions of the Code.
[332B C] 2.
The question of fraud raised by the accused was negatived by the, Division Bench and it was held that it was not capable of being gone into as it did not form part of the substratum of the case of the prosecution and was not germane to the question of deciding as to whether he was entitled to be discharged or not.
[332D] 3. 'Fraud ' is false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon it to his prejudice and to the advantage of the representor.
It has been defined statutorily in Section 17 of the Contract Act as including certain acts committed with connivance or with intent to deceive another.
In Ad ministrative Law it has been extended to failure to disclose all relevant and material facts which one has a positive duty to disclose.
[332G H] 4.
Even the most solemn proceedings stand vitiated if they are actuated by fraud.
Such being the nature and consequence of it the law requires not only strict pleading of it but strict proof as well.
[333B] 5.
Facts which could be fished out from paragraphs averring fraudulent submissions could not be said to be relevant for alleging fraud.
[334E] 6.
Legal submissions cannot be equated to misrepresentation.
The pleadings in the instant case fall short of the legal requirements to estab 331 lish fraud.
Various sentences extracted from different judgments between the accussed and State in various proceedings could not give rise to an inference either in law or fact that the State was guilty of fraud.
[335H, 336A] In the instant case the averments in paragraphs 3 and 4 to 8 of the application do not establish fraud.
No foundation giving rise to fraud was laid.
It was complete misapprehension under which the accused was labouring and it was indeed unfortunate that the Single Judge of the High Court not only entertained the respondent 's application but adopted a course which amounted to reviewing and setting aside orders of his predecessor without sufficient material and accepting the claim that all earlier judgments were liable to be ignored under Section 44 of the Evidence Act as the proceedings were vitiated by fraud.
The Single Judge not only committed an error of procedure but misapplied the law.
[336B]


judgement:
on (Civil) No.3 of 1990 etc.
(Under Article 32 of the Constitution of India).
K.T.S. Tulsi, Addl.
Solicitor General, M.K. Ramamurthy, Govinda Mukhoty and N. Santosh Hegde, Ms. C. Ramamurthi, M.A. Krishna Moorthy, M.A. Chinnaswamy, H. Subramaniam, Ms. C.M. Chopra, A Bhattacharjee, G.S. Chatterjee, H.K. Puri, M.P. Jha, Serva Mitter, R.K. Maheshwari, Vineet Maheshwari, Ms. Niranjan Singh, B.D. Prasad, K. Swamy and B.K. Prasad for the appearing parties.
The Judgment of the Court was delivered by KASLIWAL, J.
All these cases are an upshot of the case R.D. Gupta & Ors.
vs Lt. Governor, Delhi Administration & Ors.
; , It is not necessary for us to give the background and history of the constitution of the two main civic bodies namely, New Delhi Municipal Committee (in short 'MDMC ') and the Municipal Corporation of Delhi (in short 'MCD '), in the Union Territory of Delhi as the same has already been mentioned in detail in the above R.D. Gupta 's case (supra).
We would thus mention only such details which are relevant and necessary for the purpose of deciding the above cases.
All the above cages relate to the employees of the NDMC who are claiming the benefit of the report of Shiv Shankar Committee (in short 'SSC ') in respect of the grant of pay scales 416 as allowed to other employees of NDMC in R.D. Gupta 's case.
The Government accepted the report of the Third Pay Commission and granted pay scales as recommended to the employees of NDMC as well as to the MCD.
The technical staff of the Delhi Electricity Supply Undertaking (in short 'DESU ') claimed higher scales of pay as they were not satisfied with the pay scales recommended by the Third Pay Commission.
The Government therefore constituted Shiv Shankar Committee to go into the question of revision of pay scales of the technical staff of DESU.
The SCC submitted its report in 1973 according to which higher pay scales were allowed to the technical staff of DESU.
The non technical/ministerial staff of DESU who were not covered by the report of the SSC demanded that they should also be granted pay scales as recommended by the SSC.
The DESU considered the demand of the ministerial staff at its meeting held in May 1973 and decided to revise the pay scales of the non technical staff also working in DESU.
Since the technical as well as the ministerial staff working in the DESU were granted the pay scales recommended by SSC, the NDMC also.
by its resolution No.154 dated 19.10.1973 allowed the benefits of pay scales as recommended by SSC to its staff working in the electricity wing.
In view of the fact that the benefit of the SSC pay scales was granted by the NDMC to the ministerial staff working in the electricity wing only, the employees working in the general wing of the NDMC also raised a demand for granting them also the benefit o f the pay scales recommended by SSC.
Many orders were passed from time to time and writ petitions Were also filed by the concerned parties, but we do not think it necessary to give the details as the same have been narrated in R.D. Gupta 's case and we come to the resolution of the NDMC dated 27.6.1978 constituting the electricity wing with effect from 1.5.1978 or such subsequent date as may be fixed composed of 28 posts of pump drivers, two posts of welders, three posts of carpenters and one post of pump.
mechanic and 496 posts of ministerial staff and to give all of them scales of pay as per SS Committee Report.
Three petitions under Article 226 of the Constitution viz. CW Nos.
1231, 557 and 280 of 1978 were filed in the Delhi High Court.
We are only concerned with the grievance of the ministerial staff who were claiming to be treated at par with the ministerial staff of the electricity win in the matter of pay and allowances.
The ministerial staff in the general wing having not received the full relief in the High Court filed C.A. 2969 of 1973 417 before this Court.
It was claimed in the said appeal that instead of restricting the payment of SS Committee pay scales to the 496 ex cadre posts in the electricity wing and directing the NDMC to fill up those posts on the basis of seniority cum option, the High Court should have directed the NDMC to give the SS Committee pay scales to all the members of the ministerial staff.
In R.D. Gupta 's case, this Court decided many appeals by a common order, but we are only concerned with the C.A. No. 2969 of 1983 which relates to the ministerial staff in the general wing of the NDMC.
It was contended by the appellants in the said appeal that the electricity wing of the NDMC was not a distinct and independent unit entitled to have its own scales of pay and secondly the ministerial staff of the NDMC belonged to a unified cadre and the staff members were liable to transfer from one branch of the NDMC to another and as such the NDMC cannot create a cadre within a cadre and fix different scales of pay for those in the carved out cadre.
It was also urged that the nature of the duties performed by the ministerial staff in all the three wings of the NDMC is more or less similar, if not identical, and hence the well established rule of 'equal pay for equal work ' should govern the staff members.
This Court in R.D. Gupta 's case held that the grievance of the ministerial staff of the general wing was well founded.
The ministerial staff in the NDMC constituted a unified cadre.
The recruitment policy for the selection of the ministerial staff is a common one and the recruitment is also done by a common agency.
They are governed by a common seniority list.
The ministerial posts in three wings of the NDMC, viz. the general wing, the electricity wing and the water works wing are interchangeable posts and the postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications.
It was held that it would be futile to say that merely because a member of the ministerial staff had been given a posting in the electricity wing, either due to force of circumstances or due to voluntary, preferment, he stands on a better or higher footing or in a more advantageous position than its counterparts in the general wing.
It was thus held that all sections of the ministerial staff should be treated alike and all of them were entitled to the same scales of pay for the work of equal nature done by them.
After the above decision in R.D. Gupta 's case, the employees of NDMC working in different departments have filed the above writ petitions under Article 32 of the Constitution or Civil Miscellaneous Petitions in 418 R.D. Gupta 's case which have been directed by this Court to be treated as Writ Petitions by order dated 17.11.1989.
In all these cases the employees have prayed for granting the same pay scales including the ex gratia benefits as was recommended by SSC.
Writ Petition No.1 of 1990 has been filed by NDMC Workship Employees Association on behalf of the employees of Auto Workship of NDMC.
In Writ Petition No.5 of 1990, the petitioners are Class IV employees of NDMC holding the posts of Duplicating Machine Operators and Gunmen/Dog Shooters.
In Writ Petition No.3 of 1990, the petitioners were initially appointed as Junior Clerks and subsequently promoted to the posts of Junior Technical Assistants (Hindi) also knows as Translator (Hindi).
In Writ Petition No.13 of 1990, the petitioner is working on the post of Assistant Store Keeper.
In Writ Petition No.292 of 1990, the petitioners are pump drivers in the water supply, horticulture and civil wings of NDMC.
In Writ Petition No.1109 of 1990, the petitioners are the employees of Junior Navyug School run by NDMC.
In Writ Petition No.409 of 1990, the petitioners are working as Telephone Operators under the NDMC.
The short controversy to be decided in the above cases is whether the petitioners fall within the cadre of ministerial staff or fall in similar cadres which have already been granted the benefit of SSC pay scales? It is no longer in controversy now that the ministerial staff working in all the wings are also entitled to the same benefit of SSC pay scales as has been given to the ministerial staff working in the electricity wing of the NDMC.
It has already been decided in R.D. Gupta 's case that the entire ministerial staff in the NDMC constitutes a unified cadre.
The ministerial post in the three wings of the NDMC viz., the General Wing, the Electricity Wing the the Water Works Wing are interchangeable posts and the postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications.
It may be further noted that the NDMC itself in order to extend the benefit of R.D. Gupta 's case in a meeting dated 9.6.1988 resolved as under: "IMPLEMENTATION OF BENEFIT OF S.S. SCALE SLP.
11270 OF 1982 SHRI R.D. GUPTA 419 AND OTHERS VERSUS LG.
DELHI AND OTHERS.
The Committee as per the advice of the Law Deptt.
and the opinion given by our counsel, justice V.D. Mishra on 26.2.1988 had decided that following categories of employees who constitutes 496 posts created by the.
NDMC while forming the Electricity Cell vide Reso.
passed on 27.6.1978 should be extended the benefits: 1.
Office Supdt.
HA/Accountant 3.
Personal Asstt.
Clear 5.
Stenographers 6.
Jr. Clerk 7.
Asstt.
Storekeepers 8.
Adrema Operators 9.
Asstt.
Adrema Operators 10.
Asstt.
Record Keepers 11.
Daftry 12.
Peon 13.
Bill Collector 14.
Sorter 15.
Ferro Printer 16.
Chowkidar 17.
Sewerman 18.
Sweeper Accordingly, the Committee passed orders to extend the benefits vide orders dated 26.2.1988 to all the above 420 categories.
These employees have already been paid a part of the arrears and salaries under S.S. Scale.
The CAP while checking the pay fixation have required a formal resolution of the Committee for processing the cases.
Accordingly, this is noted to the Committee for information in continuation of Reso.
No.26 dated 9.2.1988.
ADMINISTRATOR 'S DECISION Information noted.
" By another order dated 27.7.1988 the benefit of S.S. Committee 's scales was extended to the following cadre of employees: "NEW DELHI MUNICIPAL COMMITTEE DATED: 27.7.1988 OFFICE ORDER Under the orders of the Administrator dated 18.7.1988 the following allied categories of sweepers are extended the benefit of S.S. Scales in terms of Reso.
No.26 dated 9.2.1988 read with Reso.
No.52 dated 9.6.1988 as they form the common cadre of sweepers.
Lorry Belders 2.
Dumping ground beldars 3.
Bhisties 4.
Rat catchers 5.
Verandha Beldars 6.
Hawker Raid Van beldars 7.
Sweepers cum chockidars 8.
Dog catchers.
Sd/ Asstt.
(Health) 421 Copy to: 1.
All Estts.
: with the request to fix the pay of the above mentioned categories in the S.S. Scales.
DS (E) 3.
A.S. (AIC) 4.
P.A. to Secy.
NDMC 5.
C.A.0.
O.S. (CBS) 7.
Supdt.
A/Cs. 8.
File 9.
P.A. to F.A. 10.
OS (CE 1) The case is laid before the Committee of Officers presided over by the Administrator for consideration and decision if the benefit of Supreme Court Judgment dated 7.8.1987 be extended to all the Drivers in anticipation of the approval of the Lt. Governor, Delhi and in the anticipation of the confirmation of the Minutes of the Committee.
ADMINISTRATOR 'S DECISION Resolved by the Committee of Officers and decided by the Administrator that benefit of Supreme Court judgment dated 7th Aug. 87 is extended to all the Drivers of the Committee in the anticipation of the approval of the L.G. Delhi.
The action be taken in anticipation of confirmation of the minutes of the Committee. ' In Writ Petition No.1 of 1990, the contention of the petitioners is that they are employees working in the Auto Workshop of NDMC which is a part and parcel of the electricity establishment and their duties are mini , sterial in nature.
It has been further contended that the Auto Workshop ' 422 employees have to work throughout on the ground beneath the vehicles belonging to all departments whether it belongs to electricity, water or the administrative staff and they have to work for such time till a vehicle is fit for traffic and have to maintain the vehicle not only for administrative staff but also for the electrical, health, water etc.
It has been further urged that Auto Workshop employees are part and parcel of electrical wing and their appointments, promotions, pension, salaries, increments, transfers, main tenance of personal filing is done by the electricity establishment.
Moreover, their services are inter transferable such as drivers, cleaners, helper, peon, chowkidar, sweepers, fitters, khalasis working in the Auto Workshop can be and are transferred to other departments.
It has also been urged that a discriminatory treatment has been given in the case of the petitioners inasmuch as a fitter which is a promotional post from amongst peon or chowkidar or sweeper is getting less pay scale than the peon or chowkidar and likewise clearner which is a promotional post is getting less pay scale than a chowkidar, peon and sweeper.
We find force in the submission of the petitioners.
As already mentioned above the benefit of the pay scales recommended by the SSC has been allowed to the NDMC to the 18 categories of employees which includes, daftry, peon, chowkidar, sweeper etc.
and we find no valid justification for discriminating the employees of the Auto Workshop which forms a part and parcel of the electricity wing of the NDMC.
In Writ Petition No.5 of 1990, the petitioners are Class IV employees of NDMC holding posts of Duplicating Machine Operators and Gunmen/Dog Shooters.
Needless to say that NDMC has allowed the benefit of SS Committee 's scales to Rat Catchers and Dog Catchers vide order dated 27.7.1978 as already quoted above and we find to valid justification for denying such benefit to Duplicating Machine Operators and Gunmen/Dog Shooters.
When such benefit has been allowed to Rat Catchers and Dog Catchers, there is no essential difference in the job work done by Genmen/Dog Shooters.
The Duplicating Machine Operators are also Class IV employees and such post is transferable and interchangeable from other Class IV employees of the NDMC who have already been granted the benefit of SSC 's pay scales vide order dated 9.6.1988 already mentioned above.
In Writ Petitoin No.3 of 1990, the petitioners are working as Junior 423 Technical Assistants (Hindi) and are also known as Translator (Hindi).
In Writ Petition No.13 of 1990, the petitioner is working on the post of Assistant Store Keeper.
Both the above posts of Junior technical Assistants (Hindi) and Assistant Store Keeper are such posts which clearly fall within the ministerial cadre.
Learned counsel appearing for the NDMC was unable to show any material on record for taking a contrary view.
In Writ Petition No.292 of 1990, the petitioners are pump drivers employed in the water supply, horticulture and civil wings of NDMC.
The benefit of SSC pay scales has already been extended to the pump drivers in the electricity wing and there in no valid ground or justification to deny such benefit to the pump drivers working in the water supply, horticulture and civil wings of NDMC.
In Writ Petition No.1109 of 1990, the petitioners are the employees of Junior Navyug School run by NDMC.
In our view, the employees of the school though run by NDMC fall in a different cadre altogether and as such cannot claim the benefit of SSC pay scales on the basis of R.D. Gupta 's Judgment.
It is not their case that their posts are interchangeable or transferable from any other post under NDMC.
The nature and the duties performed by the petitioners are totally different and they cannot be granted the benefit of the SSC pay scales on the basis of any equality with the other employees of NDMC who have been granted such benefit.
In Writ Petition No.409 of 1990, the petitioners are working as Telephone Operators.
The Telephone Operators fall in a separate cadre and their posts are neither interchangeable nor transferable with the other members of the service in NDMC.
That apart the petitioners are Trained Telephone Operators and Senior Telephone Operators and as such do not fall within the category of ministerial staff and ' as such are not entitled to the benefit of SSC pay scales on the basis of R.D. Gupta 's case.
In the above cases we are only concerned with the granting of benefit of SSC pay scales on the basis of R.D. Gupta 's case and as such we are holding that the petitioners working in the Navyug School in Writ Petition No.1109 of 1990 and Telephone Operators in Writ Petition No. 409 of 1990 are not entitled to the benefit of the SSC pay scales.
These petitioners are free to make their claim if any, for the revision of their pay scales to the competent authorities.
424 In the result, we allow Writ Petition Nos. 1, 3, 5, 13, and 292 of 1990 and grant them the benefit of SSC pay scales in the same manner as granted to other employees vide Resolution No.26 dated 9.2.1988 read with Resolution No.52 dated 9.6.1988.
The respondent Delhi Administration and NDMC shall take appropriate steps within three months of the notice of this order and make payment of the entire arrears and grant future benefit in the pay scales as recommended by SS Committee.
The Writ Petition Nos.1109 of 1990 and 409 of 1990 are dismissed.
No order as to costs.

summary:
The New Delhi Municipal Committee by its resolution dated 19.10.
1973 extended the benefit of higher pay scales recommended in the Shiv Shankar Committee Report, to its staff working in the electricity wing.
Following this, the employees working in the general wing of the NDMC also raised demand for granting them the benefit of those pay scales.
In the meantime, by its resolution dated 27.6.1978 the NDMC constituted, with effect from 1.5.1978, the electricity wing composed of 28 technical and 496 ministerial posts and decided to give all of them scales of pay as per S.S. Committee 's Report.
In the writ petitions filed in the High Court the ministerial staff failed to receive full relief.
This Court in R.D. Gupta & Ors. etc.
vs Lt. Governor, Delhi Administration & Ors.
; , found that the entire ministerial staff in the NDMC constitutes a unified cadre.
The ministerial posts in the general wing, the electricity wing and the water works wing are interchan geable posts and postings are made from the common pool according to administrative convenience and exigencies of service and not on the basis of any distinct policy or special qualifications.
It was thus held that all sections of the ministerial staff should be treated alike and all of them were entitled to the same scales of pay for the work of equal nature done by them.
In order to extend the benefit of R.D. Gupta 's case, the NDMC by its order dated 9.6.1988, revised the pay scales of ' 18 categories of employees who constituted 496 posts forming the electricity cell.
By another order 414 dated 27.7.1988 the NDMC extended the benefit of S.S. Committee 's scales to eight allied categories of sweepers, subsequently, all the drivers of the NDMC were extended benefit of R.D. Gupta 's case.
On the question: whether the petitioners fall within the cadre of ministerial staff or fall in similar cadres which have already been granted the benefit of S.S. Committee 's pay scales.
Disposing of the writ petitions, the Court, HELD: 1.
There is no valid justification for discriminating the employees of the Auto Workshop which forms a part and parcel of the electricity wing of the NDMC, since the benefit of the pay scales recommended by the S.S. Committee has been allowed by the NDMC to the 18 categories of employees which include daftry, peon, chowkidar, sweeper etc.
[422D E] 2.
The NDMC having allowed the benefit of S.S. Committee 's scales to rat catchers and dog catchers vide order dated 27.7.1988, there is no valid justification for denying such benefit to duplicating machine operators and gunmen/dog shooters.
There is no essential difference in the job work done by gunmen/dog shooters.
The post of duplicating machine operators in transferable and interchangeable from other class IV employees of the NDMC who have already been granted benefit of S.S. Committee 's pay scales vide order dated 9.6.1988.
[422E] 3.
Both the posts of Junior Technical Assistant (Hindi) and Assistant Store Keeper are such posts which clearly fall within the ministerial cadre.
They are thus entitled to the benefit of S.S. Committee 's scales.
[423B] 4.
The benefit of S.S. Committee 's pay scales having already been extended to the pump drivers in the electricity wing, there is no valid ground or justification to deny such benefit to the pump drivers working in the water supply, horticulture and civil wings of NDMC.
[423C] 5.
The employees of Junior Navyug School run by NDMC fall in a different cadre altogether and as such cannot claim the benefit of S.S. Committee 's pay scales on the basis of R.D. Gupta 's judgment.
Their posts are not interchangeable or transferable from any other post under the NDMC.
The nature and the duties performed by them are totally different and they cannot be granted the benefit of the S.S. Committee 's pay scales 415 on the basis of any equality with the other employees of NDMC who have been granted such benefit.
[423D E] 6.
The telephone operators working in the NDMC fall in a separate cadre and their posts are neither interchangeable nor transferable with the other members of the service in the NDMC.
That apart, the petitioners are trained Telephone Operators and Senior Telephone Operators and as such do not fall within the category of ministerial staff and are not entitled to the benefit of S.S. Committee 's pay scales on the basis of R.D. Gupta 's case.
[423F] 7.
The respondent Delhi Administration and NDMC are directed to take appropriate steps within three months and make payment of the entire arrears and grant future benefit in the pay scales as recommended by S.S. Committee.
[424B]


judgement:
Appeal Nos.
1334 43 of 1993.
From the Judgments and Orders dated 29.10.1991 of the Andhra Pradesh High Court in W.P. Nos.
9133, 8920, 8074, 7932 and 11119/90 8113/91 (dt.
31.10.91), 8201/90, 8987/91 (dt.
30.10.91), 9165 & 7656 of 1990 K.K. Venugopal,C.S. Vaidyanathan, Vijayanarayana and Ms. Vijayalakshmi Menon for the Appellants.
K. Swamy and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted in all the petitions.
The appellants petitioners challenged the constitutional validity of Clause 16 of the Textile (Control) Order, 1986 [the 1986 Order] and the notification, issued thereunder, dated March 29, 1990 as amended on May 11, 1990 and May 17, 1990 (the notification) by the Textile Commissioner before the Andhra Pradesh High Court by way of writ petitions under Article 226 of the Constitution of India.
The High Court by its judgment dated October 29, 1991 dismissed the writ petitions.
These appeals by way of special leave are against the judgment of the High Court The appellants are the Spinning and Weaving Mills in the State of Andhra Pradesh.
The cotton yarn manufactured by the mills is of different 406 varieties.
It is classified on the basis of counts.
Yarn with 1 to 40 counts is coarse, 40 to 60 medium, between 60 and 100 fine and anything above 100 counts is described as very fine.
There are two methods of packing the yarn.
One is the cone form packing which is used in power loom and hosiery industry.
The other is hank form packing which is exclusively consumed by the handloom industry.
Spinning and packing are the two stages of manufacturing yarn.
Raw cotton has to pass through the process of blow room, carding, drawing, simplex and finally the ring frame to complete the process of spinning.
The process of packing starts thereafter.
For the cone form packing the ring frame cops are fed to the winding machines and for the hank form packing the cops are fed to the reeling machines.
According to the appellants they are packing the yarn in cone form.
They have not installed the reeling machines and as such it is not possible for them to pack the yarn in hank form.
The 1986 Order was issued by the Government of India in exercise of its powers under section 3 of the .
Clause 16 of the 1986 Order is as under : "16 (1) The Textile Commissioner, may from time to time, issue directions in writing to any manufacturer or class of manufacturers or manufacturers generally, regarding, (a) the clauses or specifications of cloth or yarn which each manufacturer or class of manufacturers of or manufacturers generally shall or shall not manufacture; (b) the maximum or minimum quantities of cloth or yarn which such manufacture or class of manufacturers or manufacturers generally shall manufacture during such period as may be specified in the Order; (c) the maximum price ex factory, wholesale or retail at which any class or specification of cloth or yarn may be sold; or (d) the principles on which and the manner in which such maximum prices may be determined by a manufacturer; and (e) the manner of packing of yarn in hanks, cones or in 407 any other form and in such proportion as he may consider necessary or expedient: Provided that in issuing any direction under this clause, the Textile Commissioner shall have regard to: (i) the demand for cloth or yarn; (ii) the needs of the general public; (iii)the special requirements of the industry for such cloth or yarn; (iv) the capacity of the manufacturer or class of manufacturers or manufacturers generally, to manufacture or pack different descriptions or specifications of cloth or yarn; and (v) the necessity to make available to the general public cloth of mass consumption.
(2) While issuing any direction under sub clause (1), the Textile Commissioner may also provide that such direction shall be with reference to the quantity of cloth or yarn packed by the manufacturer or class of manufacturers or manufacturers generally during the period specified in the direction.
(3) Every manufacturer, or class of manufacturers or manufacturers generally, to whom a direction has been issued shall comply with it.
(4) Where, on an application made by any manufacturer or class or manufacturers or otherwise the Textile Commissioner is satisfied that any direction issued by him under this clause causes undue hardship or difficulty to any such manufacturer or class of manufacturers, he may, by order and for reasons, to be recorded in writing, direct that the direction shall not apply, or shall apply subject to such modification as may be specified in the order to such manufacturer or class of manufacturers.
" 408 In exercise of the powers under Clause 16 of the 1986 Order the Textile Commissioner issued the notification.
The operative part of the notification is re produced hereunder : "2.
Every producer of yarn shall pack yarn for civil consumption in hank form in each half yearly period commencing from April September, 1990, period and in every subsequent half yearly period in proportion of not less than fifty percent of total yarn packed by him during each half yearly period for civil consumption: Provided that not less than eighty percent of the yarn required to be packed in hank form shall be of counts 40s and below in regard to category 1 at Annexure I to this Notification : Provided further that the obligation to pack hank yarn pertaining to a particular half yearly period can be fulfilled before the end of the month succeeding such period to which the obligation pertains.
" At this stage we may briefly notice the earlier litigation which ended with the judgment of the Madras High Court in Sri Rani Lakshmi G.S. & W. Mills Pvt. Ltd. & Others vs Textile Commissioner, Bombay & Ors., AIR 1986 Madras 66.
In Rani Lakshmi Mills ' case the constitutional validity of Clause 21(5) of the cotton textile (Control) Order, 1948 [1948 Order] and the notification dated June 29, 1979 issued thereunder were challenged.
The said Notification was in similar terms as the notification before us in these appeals.
Clause 21(5) of the 1948 Order was as under : "(5) The Textile Commissioner may, by General or Special Order, direct any manufacturer or class of manufacturers to pack yarn in hanks, cones or in any other form and in such proportion as he may consider necessary or ex pedient: and thereupon such manufacturers or class of manufacturers shall be bound to comply with such directions".
It was argued before the Madras High Court that Clause 21(5) of the 1948 Order did not provide any guidelines for the exercise of power by the 409 Textile Commissioner and as such was arbitrary and violative of Article 14 of the Constitution of India.
The High Court accepted the argument and struce down Clause 21(5) of the 1948 Order on the following reasoning "A bare reading of the provision of clause 21(5) would therefore show that the proviso under that clause gives completely uncontrolled and uncanalized power which can only be described as an arbitrary power depending upon what he considers is necessary or expedient." Special leave petitions 12569 92/84 against the judgment of the Madras High Court were dismissed by this Court on February 21, 1991.
Because of the judgment of the Madras High Court in Rani Lakshmi Mills case the 1948 Order was repealed and the 1986 Order was promulgated.
Clause 16(1) of the 1986 Order gives power to the Textile Commissioner to issue directions providing the manner of packing of yarn in hanks, cones or in any other form and in such proportion as he may consider necessary or expedient.
Proviso to Clause 16(1) lays down complete guidelines for the exercise of power by the Textile Commissioner.
Relying upon Rani Lakshmi Mills ' case the learned counsel for the appellants have contended that identical notification having been struck down by the Madras High Court and the judgment upheld by this Court, the respondents are bound by the same and the Textile Commissioner had no authority to issue fresh notification in similar terms.
In any case according to the learned counsel the impugned notification is liable to be struck down on the same grounds.
We do not agree with the learned counsel.
The notification struck down by the Madras High Court was issued under Clause 21(5) of the 1948 Order.
The High Court held Clause 21(5) of the 1948 Order unconstitutional and as a consequence struck down the notification dated June 29, 1979.
The present notification has been issued under Clause 16(1) of the 1986 Order.
Unlike Clause 21(5) of the 1948 Order proviso to Clause 16(1) of the 1986 Order provides complete guidelines to the Textile Commissioner to issue the directions envisaged thereunder.
As such the ground of attack which was available to the petitioners before the Madras High Court is not available to the appellants before us.
We, therefore, reject the contention based on the judgment of the Madras High Court in Rani Lakshmi Mills ' case.
410 Mr. Venogopal and Mr. Vaidyanathan learned counsel for the appellants have then contended that the appellants do not manufacture hank yarn.
The contention is that the respondents cannot compel the appellants to manufacture something for which the appellants have not installed the necessary machinery and other superstructure.
The notification according to the learned counsel infracts their fundamental right under Article 19(1)(g) of the Constitution of India.
We see no force in the contention.
The Textile Industry in this country is the second largest industry, next to agriculture, providing employment to millions of people.
This industry is accounting for 20% of the total industrial output.
The appellant mills are part of the textile industry in the State of Andhra Pradesh.
The respondents, in their written statement before the High Court, have elaborately explained the spinning and the packing processes undertaken by the appellant mills.
According to the respondents it is not correct that the appellants are being forced to manufacture something which they are not manufacturing already.
The five stages of spinning (blow room, carding, drawing, simplex and ring frame) are common and only thereafter the ring frame cops are either packed in hank form or in cone form.
The respon dents have given cogent reasons for issuing the impugned notification.
We may briefly state the same.
The textile industry consists of three sectors namely, Mill Sector, Powerloom Sector and Handloom Sector.
The primary product in the industry is yarn.
It is produced only by the Mill sector.
The Powerloom and Handloom Sectors manufacture fabrics and they depend upon the Mill Sector for yarn.
The yarn is packed in two forms namely, cone form and hank form.
The cone form is consumed entirely by the Powerloom Sector and the hank form by the Handloom Sector.
The handloom industry is the largest cottage industry in India.
Nearly one third of the country 's requirement of cloth is met by this Sector.
As per the National Handloom Census, 1987 88 there were 3.9 million handlooms spread all over the country out of which three million were engaged in production of cotton cloth.
The Handloom Sector provided direct employment to 8.4 million during 198889 and indirect employment to millions of people.
The production target for Handloom Sector for the Seventh Plan was 4600 million mts.
In order to achieve the said production target a minimum of 460 million kgs. of hank was required.
The employment generated in the three sectors during the year 1988 was 84.22, 50.95 and 11.81 lakh persons in Handloom Sector, Powerloom Sector and Mill Sector respectively.
The production of cloth 411 for Handloom Sector during the Eighth Plan has been targeted at 7000 million mts.
out of which cotton cloth is 5610 million mts.
In order to achieve this target 561 million kgs. of hank yarn is required.
Against the said requirement only 355 million kgs.
of cotton yarn is being packed in hank form.
According to the respondents there is a big gap between the demand and supply.
This causes scarcity of yarn in the market and results in spiralling of prices.
It further results in unemployment in Handloom Sector.
In order to make available sufficient quality of hank yarn at reasonable prices and also for the sustenance of Handloom workers, it became necessary to reserve hank yarn for Handloom Sector by making it obligatory on the part of the manufacturers of yarn to pack a certain percentage of their production packet for civil consumption in the form of hanks.
We are satisfied that impugned notification has been issued in the interest of the general public and also for the larger interest of the textile industry.
It is not disputed that under Clause 4 of the Industrial Licence granted to the appellants one of the conditions is as under : "the packing of yarn in hank form and count wise production shall be in accordance with the policy in force and the directions issued by the Textile Commissioner in this regard from time to time.
" The appellants, having accepted the above condition while taking the licence, cannot now turn round and say that they are not bound by the same.
Mr. Vaidhyanathan further contended that under the impugned notification unequals have been treated as equals.
According to him different mills have installed different machinery and have different equipments.
The contention is that the impugned notification is violative of Article 14 as it has been made uniformly applicable to mills which do not have the same capacity to produce hank yarn.
We see no force in the contention.
The impugned notification has been made applicable uniformly to all the producers of yearn.
The appellants are required to pack yarn in hank form in the proportion as provided in the notification keeping in view the total yarn packed by the mill concerned.
In any case the grievance of 412 the appellants has been substantially mitigated by the press note dated May 11, 1990 issued by the Textile Commissioner, Bombay.
The relevant part is re produced hereunder : "2.
The Government have now reinstituted the erstwhile relaxation of getting hank yarn obligation fulfilled by transfer of surplus hank yarn packing of another producer.
Secondly, the Government have also allowed a producer to get Hank yarn reeled through another producer having extra relying capacity with the permission of the Central Excise Authorities and with the arrangements through the State Handloom Corporations and Apex.
Handloom Cooperative Organisations in the areas having concentration of handloom weavers.
" We, see no ground to interfere with the judgment of the High Court.
We, therefore, dismiss the appeals with costs.
We assess the costs as Rs. 5000 to be paid by each of the appellants.
G.N. Appeals dismissed.

summary:
Different varieties of cotton yarn were manufactured by the appellant Mills.
Packing of the yarn was done in two forms, viz. cone form which was used in powerloom and hosiery industry and hank form which was exclusively consumed by the handloom industry.
For the cone form of packing the ring frame cops were fed to the winding machines and for the hank form of packing the cops were fed to the reeling machines.
The appellants were packing the yarn in cone form only.
Since they had not installed the reeling machines, they could not pack the yarn in hank form.
In exercise of powers under S.3 of the , Textile (Control) Order, 1986 was issued by the Government.
Clause 16 of the said order gave power to the Textile Commissioner to issue directions providing the manner of packing of yarn in hanks, cones or in any other form and in such proportion as he deemed necessary or ex pedient.
It also laid down the complete guidelines for exercise of the powers by the Textile Commissioner.
Exercising his powers under clause 16 of the 1986 Order, the Textile Commissioner issued a notification on 293.90, which was amended on 11.5.90 and 17.5.90.
According to the Notification every producer of yarn should pack in hank form at least 50% 404 of the total yarn packed by him during each half yearly period for civil consumption.
The appellants challenged the constitutional validity of clause 16 of the Textile (Control) Order, 1986 and the Notification issued thereunder, by filing Writ Petitions before the High Court.
The Writ Petitions were dismissed and the appellant Mills preferred the present appeals.
The appellants contended that an identical notification dated 29.6.1979 issued under the Textile (Control) Order, 1948 was struck down by the High Court and the said judgment having been upheld by this Court, the respondents were bound by the same and the Textile Commissioner had no authority to issue a fresh notification in similar terms; and that the appellants could not be compelled to manufacture something for which the appellants have not installed necessary machinery and other super structure.
It was further contended that the Notification was violative of Articles 14 and 19(1)(g) of the Constitution of India.
Dismissing the appeals, this Court, HELD: 1.
The present notification under challenge has been issued under Clause 16(1) of the Textile (Control) Order, 1986.
Unlike Clause 21(5) of the 1948 Order, proviso to Clause 16(1) of the 1986 Order provides complete guidelines to the Textile Commissioner to issue the directions envisaged thereunder.
[409G H] Sri Rani Lakshmi G.S. & W. Mills Pvt. Ltd. & Others vs Textile Commissioner, Bombay & Ors., AIR 1986 Madras 66, distinguished.
In order to make available sufficient quantity of hank yarn at reasonable price and also for the sustenance of Handloom workers engaged in the largest cottage industry in India, it became necessary to reserve hank yarn for Handloom sector by making it obligatory on the part of the manufacturers of yarn to pack a certain percentage of their production packet for civil consumption in the form of hanks.
Thus the notification has been issued in the interest of the general public and also for the larger interest of the textile industry, and is not violative of article 19(1)(g) of the Constitution of India.
[411B C] 3.
Having accepted the condition regarding packing of yarn in hank form, while taking the licence, under clause 4 of the Industrial Licence, the 405 appellants cannot now turn round and say that they are not bound by the same.
[411F] 4.
There is no violation of article 14 of the Constitution since the notification has been made applicable uniformly to all the producers of yarn.
The appellants are required to pack yarn in hank form in the proportion as provided in the notification keeping in view the total yarn packed by the mill concerned.
In any case the grievance of the appellants has been substantially mitigated by the press note dated May 11, 1990 issued by the Textile Commissioner, reinstituting the erstwhile relaxation getting yarn obligation fulfilled by transfer of surplus yarn packing of another producer, and allowing a producer to get hank yarn reeled through another producer having extra relying capacity.
[411G H; 412A]


judgement:
ivil Appeal No. 1210 of 1984.
From the Judgment and Order dated 28.8.1980 of the Madras High Court in Appeal No. 213 of 1978.
K. Ram kumar for the Appellant.
R. Mohan, T. Raja and R. Nedumaran for the Respondent. 891 The following Order of the Court was delivered: Ten acres of land belonging to the appellant had been acquired under the Land Acquisition Act.
The Land Acquisition Officer awarded compensation at the rate of one rupee one paise per sq.
On a reference under section 18 of the Act, the Court enhanced the rate of compensation to Rs. 2.25 per sq.
On appeal by the State, the High Court by the impugned judgment reduced the compensation to Rs. 2.00 per sq.
The reason stated by the High Court for so reducing the rate of compensation was that the acquired area was a compact plot of 10 acres which was laid out as building sites with fully formed roads and drainage.
The High Court held that since the roads and drainage occupied a part of the area acquired, proportionate deduction in compensation ought to be made.
Counsel for the appellant submits that what was acquired was a compact area of 10 acres.
The fact that roads and drainage had been laid out does not reduce the value of the land acquired.
In fact the appellant had incurred expenditure in preparing the land as building sites, and the High Court ought to have accepted his contention that he was entitled to higher compensation.
We see no reason why the High Court should have reduced the compensation awarded by the Reference Court on the ground that roads and drainage had been laid out.
The fact that these improvements had been made on the land shows that what was acquired was more valuable than what it would have been without the improvements.
The reason given by the High Court for reducing the compensation awarded by the Reference Court was wrong in principle.
Accordingly, we set aside the impugned judgment of the High Court and restore that of the Reference Court.
The appeal is allowed in the above terms.
No Costs.
R.P. Appeal allowed.

summary:
On State 's appeal against enhancement of compensation for a compact area of 10 acres of land laid out as building sites with fully formed roads and drainage, and acquired under the Land Acquisition Act, 1894, the High Court reduced the compensation holding that since the roads and drainage occupied a part of the area acquired, proportionate deduction in compensation ought to be made.
The claimant filed appeal by special leave to this Court.
Allowing the appeal, this Court, Held: 1.1.
The High Court was wrong in principle in reducing the compensation on account of roads and drainage.
The fact that these improvements had been made on the land acquired shows that what was acquired was more valuable than what it would have been without the improvements.
[p. 891E F] 1.2.
Accordingly, the judgment of the High Court is set aside and that of the Reference Court is restored.
[p.891F]


judgement:
minal Appeal No. 757 of 1985.
From the Judgment and Order dated 6.11.1984 of the Gauhati High Court in Criminal Appeal No. 11 of 1979.
Sunil Kumar Jain, P.D. Tyagi and Vijay Hansaria for the Appellant.
S.K. Nandy for the Respondent.
ANAND, J. Anil Phukan and his brothers Mahendra Phukan and Jojneswar Phukan were tried for an offence under Section 302/34 IPC for the murder of one Trinavan Chandra Baruah on 21.3.1976 at about 8 p.m.
The learned Sessions Judge convicted all the three brothers for the said offence and sentenced each one of them to suffer imprisonment for life 392 An appeal was preferred by all the three brothers against their conviction and sentence in the Gauhati High Court.
A Division Bench of that court vide judgment dated 6.11.1984 upheld the conviction and sentence of all the three.
A Special Leave Petition (Crl.) No. 561/85, was preferred by Mahendra Nath Phukan, and Anil Phukan, the third brother Jojneswar, however, did not file any special leave petition.
On 2.9.1985, the special leave petition as regards Mahendra Nath Phukan was dismissed while notice was issued in the petition as regards Anil Phukan.
Subsequently, on 29.10.1985, special leave was granted to Anil Phukan and on 29.4.1986, he was also directed to be released on bail to the satisfaction of the Chief Judl.
Magistrate, Golaghat, ' Assam.
We are, therefore, at this stage concerned only with the criminal appeal by special leave, of Anil Phukan.
In brief, the prosecution case is that the appellant, Anil Phukan had borrowed a sum of Rs. 450 from Trinayan Chandra Baruah, deceased and had executed two hand notes exhibit 7 and exhibit 8, promising to repay the amount on 21.3.1976.
However, he did not repay the amount, On 21.3.1976, the deceased accompanied by his nephew, Ajoy Baruah PW3, proceeded to the village of the appellant and as he was getting late, Ajoy Baruah PW3 carried with him a torch light.
The distance of the house of the deceased from that of the appellant is about one furlong.
Anil appellant was present in the fields in front of his house and on being asked as to why he had not come to return the money, he asked them to wait there and proceeded towards his house.
Later on, when Anil did not return for some time, the deceased alongwith Ajoy PW3 proceeded towards the house of the appellant when they found all the three brothers coming towards them variously armed.
Mahendra had a crowbar while jojneswar had a crooked dao and Anil a kupi dao.
Ajoy PW3 apprehended some danger from the appellant and his brothers but his uncle told him that since they had done no wrong, they need not be afraid of any assault.
On coming near the deceased and Ajoy PW3, Mahendra, who came first, gave a blow to Trinayan on his head with the crowbar, the other two brothers also allegedly assaulted the deceased thereafter.
Ajoy PW3 pulled the deceased towards his house and implored the accused not to assault him.
At the asking of his uncle, Ajoy PW3 ran away to his house and gave the information to the wife of the deceased PW5 Debayani Baruah, about the occurrence.
He also narrated the occurrence to PW4, Bijoy Baruah.
the wife of the deceased went to PW6, Punaram Gogoi, and after telling him as to what had been told to her by Ajoy PW3, she requested him to accompany her to the place of 393 occurrence.
On reaching the place of occurrence, they found Trinayan lying on the spot with injuries on his person but he was still alive.
Pws Bijoy and Ajoy brought a bullock cart from Sabharam Bora PW7 and after lifting the body of Trinayan with some difficulty brought it to his house and kept it in the verandah.
However, before any medical aid could be provided, the deceased succumbed to the injuries at night.
The first information report was lodged at Golaghat Police Station the next day in the afternoon at 12.30 p.m. by Surendra Nath Gogoi PW2.
During the investigation, some weapons including an axe were seized from the house of Mahendra accused.
On the same day, Mahendra was arrested at about 6.45 p.m.
The other two brothers Anil and Jojneswar surrendered subsequently in the court.
The I.O. prepared the sketch plan of the place of occurrence and sent the body for postmortem examination.
The autopsy revealed that the deceased had two incised injuries on the head besides one swelling and an injury on the inner part of his thigh.
The prosecution in all examined 12 witnesses to connect 'the accused with the crime.
This case primarly hinges on the testimony of a single eye witness Ajoy PW3.
Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability.
So long as the single eye witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then, the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction.
It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
It is in the light of these settled principles that we shall examine the testimony of PW3 Ajoy.
Ajoy PW3, on his own showing, is the nephew of the deceased.
He had accompanied the deceased to the place of occurrence when the later went to recover the loan from Anil appellant.
This witness, therefore, is a relative of the deceased and an interested witness.
Of course, mere relationship with the deceased is no ground to discard his testimony if it is otherwise found to be reliable and trustworthy.
In the normal course of events, a close relation would be the last person to spare the real assailant 394 of his uncle and implicate a false person.
However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime.
Since, there are some doubtful aspects in the conduct of Ajoy PW3, it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial.
The unnatural conduct of Ajoy PW3 which has come to our notice from the record is that though he was present alongwith the deceased at the time of occurrence, on 21.3.1976, at about 8 p.m., he made no attempt to save his uncle from the assault.
He did not even continue to stay there, though of course according to him, he ran for his life on being advised so by his uncle.
He was not assaulted though both he and his uncle were unarmed.
Even if Mahendra was engaged in assaulting the deceased, Anil, who was also allegedly armed neither made an attempt to assault Ajoy PW3 nor even chased him.
PW3 Ajoy did not himself lodge the FIR.
Of course, he gave information about the occurrence to PW4, PW5, PW7 and others immediately after the occurrence describing the manner of assault and the names of the assailants but why he did not lodge the FIR has not been explained by him.
In his testimony in the court he deposed that after Mahendra accused gave blow with the crowbar on the head of the deceased "other accused also assaulted him".
He did not describe as to on which part of the body of the deceased, had Anil and Jojneswar caused the injuries and made a general vague statement without assigning any particular injury to either of them.
When we look to the medical evidence, we find that the deceased had suffered two injuries on his head and no other injury on any other part of the body.
In all, four injuries were recorded in the post mortem report.
The other two injuries, according to the doctor, could have been the result of a fall and indeed looking to the nature of those injuries, which are in the nature of a swelling on the back of the interscapular region and a lacerated wound on the interior aspect of the right thigh, it is possible to agree with the medical witness PWl Dr. Ganesh Ch.
Buragohain, that those injuries could have been caused by a fall and were not the result of any direct impact with a weapon of assault.
Both the head injuries are almost of the same dimensions.
The possibility, therefore, that both the injuries had been caused to the deceased by Mahendra with the crowbar, who according to PW3 had hit the deceased on the head cannot be ruled 395 out.
In this connection, it would also be relevant to not that according to the testimony of the Investigating Officer, PW11 Abhiram Taye, all the weapons like the crowbar Ex.M5, a dao, an axe and a hand dag were recovered only from the house of Mahendra.
We have it from the testimony of PW3 and the first informant PW2 that all the three brothers lived separately.
No recovery was affected from the house of the appellant Anil at all.
All that was seized from his house were two bonds Ex.7 and Ex.8, undertaking to repay the loan to the deceased.
Unlike Mahendra accused he was not even arrested on the date of the occurrence and the mere ipse dixit of the investigating officer, that Anil had absconded is not acceptable, particularly when the investigating officer is totally silent as to where all he had made the search for the appellant and when.
He was not questioned under Section 313 Cr.
PC about the allegation of absconding either.
The deceased was still alive when his wife and the other co villagers, who have appeared as witness reached the place of occurrence.
The deceased did not name the appellant as his assailant before anyone.
The crowbar exhibit 5 was recovered from the house of Mahendra and according to the testimony of PW3, it was the same weapon with which Mahendra had hit deceased on his head which position also receives corroboration from medical evidence.
The deposition of PW4, who is the sister of PW3 Ajoy to the effect that when Ajoy PW3 came running to the house, he told her that her uncle had been killed by Anil and his brothers does not stand scrutiny because admittedly according to PW3 himself, when he ran from the place of occurrence, the deceased was still alive and as a matter of fact he was alive even when the wife of the deceased and other neighbours reached there and brought him to the house.
It was only at the house while the deceased was kept in the verandah that he succumbed to the injuries.
There could have been, therefore, no occasion for Ajoy PW3 to have told his sister PW4, that her uncle had been 'killed ' by Anil and his brothers.
This also shows that Ajoy PW3 has the tendency to exaggerate matters.
The medical evidence is consistent with the theory that the deceased had been assualted only by one person and not by all the three brothers as alleged by the prosecution.
The possibility, therefore, that Mahendra accused alone had caused injuries on the deceased cannot be ruled out.
May be on account of the recovery of the two bonds Ex.7 and Ex.8 from the house of Anil, he was also implicated.
We cannot be sure.
The origin of the fight is totally in obscure and the prosecution has not explained the genesis of the origin of the fight either.
It is not even the case of the prosecution that Anil had refused to repay the loan or that any hot words 396 or abuses had exchanged between Anil and the deceased when the later had demanded from him the repayment of the loan.
In view of the infirmities pointed out above, it would not be safe to rely upon the testimony of Ajoy PW3, the sole eye witness, without looking for independent corroboration and as already noticed, the corroboration furnished by the prosecution unlike in the case of Mahendra, is negative in character in so far as the involvement of Anil appellant is concerned.
In our considered opinion, therefore, it would not be safe to hold that the prosecution has established its case against Anil appellant beyond a reasonable doubt.
The appellant in our opinion, is entitled to the benefit of doubt and granting him that benefit, we set aside his conviction and sentence for the offence under Section 302/34 IPC and consequently the judgment of the High Court in so far as Anil appellant is concerned, is set aside and he is hereby acquitted.
Anil appellant is on bail.
His bail bonds shall stand discharged.
N.V.K. Appeal allowed.

summary:
The prosecution alleged that the appellant borrowed a sum of Rs. 450 from the deceased and had executed two hand notes exhibit 7 and exhibit 8, promising to repay the amount on 21.3.1976.
On the said date the deceased accompanied by his nephew, PW.3 proceeded to the village of the appellant and as he was getting late, PW.3 carried with him a torch light.
The distance of the house of the deceased from that of the appellant was about one furlong.
The appellant was present in the fields in front of his house and on being asked as to why he had not come to return the money, he asked them to wait there and proceeded towards his house When the appellant did not return for some time, the deceased alongwith PW.3 proceeded towards the house of the appellant when they found him and his two brothers coming towards them variously armed, one had a crowbar while the others had a crooked dao and a kupi dao with them.
PW.3 apprehended some danger from the appellant and his brothers, but his uncle told him that since they had done no wrong, they need not be afraid of any assault.
On coming near the deceased and PW.3, one of the brothers gave a blow with a crowbar, while the other two brothers assaulted the deceased thereafter.
PW.3 pulled the deceased towards his house and implored the accused not to assault him.
At the asking of his uncle PW3 ran away to his house and gave the information to the wife of the deceased and also narrated the occurrence to PW.4.
The wife of the deceased went to PW.6, and after telling him as to what had been told to 390 her by PW3 she requested him to accompany her to the place of occurrence.
On reaching the place of occurrence, they found him lying on the spot with injuries on his person but he was still alive.
Two of the PWs brought a bullock cart and PW.7 after lifting the body with some difficulty brought it to his house and kept it in the verandah.
However, before any medical aid could be provided, the deceased succumbed to the injuries at night.
The first information report was lodged at the police station at 12.30 p.m. by PW.2.
During the investigation, some weapons including an axe were seized from the house of the accused and on the same day one of the brothers was arrested at 6.45 p.m. and the other two brothers surrendered subsequently in the court.
The Investigation Officer prepared a sketch of the place of occurrence and sent the body for postmortem examination.
The appellant alongwith his brothers were tried for offences under section 302/34 IPC for the murder of the deceased, and the Sessions Judge convicted all the three brothers for the said offence and sentenced them for life.
On appeal by the three brothers the Division Bench of the High Court upheld the conviction and sentence of all the three.
The instant SLP was admitted as regards one petitioner only and notice was issued.
The S.L.P. of the second petitioner was dismissed while the third brother did not file any appeal.
Allowing the appeal and acquitting the appellant, this court, HELD: 1.
Conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passes the test of reliability.
So long as the single eye witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, In material particulars, before recording conviction.
It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
[393E F] 391 2.
The instant case, the medical evidence is consistent with the theory that the deceased had been assaulted only by one person and not by all the three brothers as alleged by the prosecution.
The possibility, therefore, that Mahendra accused alone had caused injuries on the deceased cannot be ruled 'Out.
May be on account of the recovery of the two bonds Ext.
7 and Ext 8, from the house of Anil, he was also implicated.
[395G] 3.
The origin of the fight is totally obscure, and the prosecution has not explained the genesis of the origin of the fight either.
It is not even the case of the prosecution that Anil had refused to repay the loan or that any hot words or abuses had been exchanged between Anil and the deceased when the later had demanded from him the repayment of the loan.
[395H, 396A] 4.
In view of the infirmities of the prosecution evidence it would not be safe to rely upon the testimony of Ajoy PW.3, the sole eye witness, without looking for independent corroboration and as already noticed, the corroboration furnished by the prosecution, unlike in the case of Mahendra the appellant 's brother, is negative in character in so far as the involvement of Anil appellant is concerned.
[396B] 5.
The appellant, was held entitled to the benefit of doubt and granting him that benefit, his conviction and sentence for the offence under Section 302/34 IPC were set aside.
[396C]