judgement:
Appeal No. 637 of 1967.
Appeal from the judgment and order dated January 27, 1966 of the Bombay High Court in Misc.
Application No. 112 of 1963.
section T. Desai, G. L. Sanghi, B. Datta and O. C. Mathur, for the appellant.
R. M. Hazarnavis, section P. Nayar, and R. H. Dhebar, for the respondents.
The Judgment of the Court was delivered by Bhargava, J.
The Swastik Oil Mills Ltd., appellant, carries on business of manufacturing vegetable oils, soaps and other products and selling them in India as well as exporting them outside India.
It was registered as a dealer under the various Sales Tax Acts in force in Bombay.
The first of these Acts was the Bombay Sales Tax Act 5 of 1946, which was replaced by th Bombay Sales Tax Act 3 of 1953.
The third and the latest Act now in force in Bombay is the Bombay Sales Tax Act 51 of 1959.
, 'The appellant was assessed to sales tax on its turnover for the periods from 1st April, 1948 to 31st March, 1950, and from 1st April, 1950 to 31st March, 1951 on the basis of Returns of turnover submitted by it.
In these Returns, the appellant claimed exemption from tax in respect of the turnover representing the despatches or transfer of goods from its Head Office Bombay, to its various Depots or Branches in other States in India, and also exemption in respect of sales which were alleged to have taken place in the course of inter State trade after 26th January, 1950.
The Sales Tax Officer in his order of assessment dated 2nd January, 1954 rejected both these claims.
The appellant went up in appeal before the Assistant Collector of Sales Tax, who, in his appellate order dated 29th October, 1956, accepted the claim of the appellant in respect of the despatches to its various Depots or Branches in other States in India, but disallowed the claim in respect of the alleged inter State sales.
As a result of partially allowing the claim of the appellant, the Assistant Collector reduced the tax imposed by a sum of Rs. 19,240 15 6 for the period between 1st April, 1948 to 31st March, 1950, and Rs. 97,208/for the second period between 1st April, 1950 to 31st March, 1951, and directed refund of these amounts to the appellant.
The revisions filed by the appellant against the rejection of its claim in respect of inter State sales were still pending, when, on 7th January, 1963, a notice was issued by the Deputy Commissioner of Sales Tax, Bombay City Division, in Form XXIV under 495 section 31 of the Bombay Sales Tax Act, 1953, intimating the appellant that he proposed to revise suo motu the appellate orders passed by the Assistant Collector of Sales Tax insofar as he had allowed deduction, in respect of the entire goods despatched to its Branches in other States outside Maharashtra, because, in so doing, he had overlooked the provisions contained in proviso (b) to sub clause (ii) of Rule 1 under sub section (3) of section 6 of the Bombay Sales Tax Act, 1946 as amended by the Bombay Sales Tax Amendment Act 48 of 1949.
On receipt of this notice, the appellant put in appearance before the Deputy Commissioner, who is the respondent in this appeal, and raised several objections against the proposed revisional proceedings, making a request that the proceedings be dropped.
Since the respondent did not accept this request, the appellant filed a petition under Article 226 of the Constitution in the High Court of Bombay challenging the notice dated 7th January, 1963, with the prayer that the notice be quashed and the respondent be restrained from taking any action against the appellant in pursuance thereof.
The petition was dismissed by the High Court and, now, on certificate granted by that Court, the appellant has come up in this appeal to this Court.
In this appeal, Mr. section T. Desai, appearing on behalf of the appellant, urged the same objections against the notice which were the basis of the prayer for writ in the High Court, and we proceed to deal with them in the order in which he has put them forward before us in his submissions.
The first point urged by learned counsel was that, in exercise of the revisional powers, the Deputy Commissioner of Sales Tax, whether acting under the Sales Tax Act of 1946, or of 1953, or of 1959, could only proceed to take action on the basis of the material already present on the record and was not entitled to act on conjecture or to institute any enquiry so as to include additional material in order to judge the correctness of the order sought to be revised.
In support of this proposition, learned counsel referred us to a decision of the Andhra Pradesh High Court in State of Andhra Pradesh vs T. G. Lakshmaiah Setty & Sons.(1).
In that case, the Deputy Commissioner, in exercising the revisional jurisdiction, was found by the High Court to have based his assessment on guess work, and the Court held that "this conjecture could not be a _justification for seeking to revise the order of the assessing authority.
If the Deputy Commissioner could, on the material before him, find data for revising the assessment, it was open to him to do so.
It must be made clear that he has no jurisdiction to travel beyond the record that is available to the assessing authority and the basis should be found on the record already in existence.
" We are unable to accept this principle laid down, by that High Court as (1) 12 S.T.C. 663.
496 correct.
Whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it.
When exercising such powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material.
The proceedings for revision, if started suo motu, must not, of course, be based on a mere conjecture and there should be some ground for invoking the revisional powers.
Once those powers are invoked, the actual interference must be based on sufficient grounds and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding a further enquiry or directing such an enquiry to be held by some other appropriate authority.
This principle has been clearly recognised by this Court in The State of Kerala vs K. M. Cheria Abdulla and Company(1).
In that case, sub section (2) of section 12 of the Madras General Sales Tax Act, 1939, which came up for interpretation, empowered the Deputy Commissioner, suo motu or under certain circumstances on an application, to call for and examine the record of any order passed or proceeding recorded under the provisions of that Act by any officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of such order, or as to the regularity of such proceeding, and to pass such order with respect thereto as he thought fit.
This Court held : "There is no doubt that the revising authority may only call for the record of the order or the proceeding, and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding.
But there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceeding, be cannot make or direct any further enquiry.
" It was further held "It is, therefore, not right baldly to propound that, in passing an order in the exercise of his revisional jurisdiction, the ' Deputy Commissioner must, in all cases, be restricted to the record maintained by the officer subordinate to him, and can never make enquiry outside that record." (1) ; 497 While thus explaining the scope of the revisional power, the Court also indicated the limitations within which such power can be exercised, holding : " It would not invest the revising authority with power to launch upon enquiries at large so as either to trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore the limitations inherent in the exercise of those powers.
For instance, the power to reassess escaped turnover is primarily vested by rule 17 in the assessing officer and is to be exercised subject to certain limitations, and the revising authority will not be competent to make an enquiry for reassessing a taxpayer.
Similarly, the power to make a best judgment assessment is vested by section 9 (2) (b) in the assessing authority and has to be exercised in the manner provided.
It would not be open to the revising authority to assume that power." (p. 887).
In the present case, the notice issued by the Deputy Commis sioner of Sales Tax, on the face of it, discloses the reasons which led him to take proceedings for exercising his revisional powers suo motu, and it cannot be said on those facts that he was acting merely on conjecture.
The Deputy Commissioner has not yet proceeded further under the notice to make the assessment.
We have no doubt that, when the Deputy Commissioner does make an enquiry, if any, for the purpose of exercising his revisional powers, he will keep within the limitations indicated by this Court in the case cited above.
The notice cannot be quashed or the proceedings restrained merely on the ground that the Deputy Commissioner may have to hold some enquiries in order to properly exercise his revisional jurisdiction.
Mr. Desai on behalf of the appellant emphasised the circumstance that in section 12(2) of the Madras General Sales Tax Act, which was considered by this Court, the Deputy Commissioner 's power was expressed by stating that he may pass such order as he, thinks fit, while no such words occur in the corresponding provisions in the Bombay Sales Tax Acts with which we are concerned, but we do not think that this circumstance makes any difference.
A revising authority necessarily has the power to make such order as, in the opinion of that authority, the case calls for when the authority is satisfied that it is an appropriate case for interference in exercise of revisional powers.
In fact, in section 12(2) of the Madras General Sales Tax Act, the Deputy Commissioner, when exercising his powers, was to call for the record of the order or proceeding before passing any order which he thought fit, so that there was an expression used which could have been interpreted as limiting his powers to the examination of the record only without holding any further 498 enquiry, and, yet, this Court held that the, Deputy Commissioner could not be restricted to the record and was empowered to make an enquiry outside that record.
In the provisions relating to revisions in the three Bombay Sales Tax Acts, there are no such words indicating any limitation; and that would be an additional reason for holding that there can be no bar to an appropriate enquiry being held by the Deputy Commissioner when seeking to exercise his revisional powers suo motu.
The next point urged by learned counsel was that the notice in question was issued on the 7th January, 1963, when the Act of 1959 had already come into force and the Act of 1953 had been repealed, so that if any revisional jurisdiction could be exercised by the Deputy Commissioner, it could only be under the Act of 1959 and not under the Act of 1953.
On this basis, advantage was sought to be taken of the circumstance that, under the Act of 1959, the revisional powers conferred by section 57 can be exercised within five years from the date of the order sought to be revised and, at the relevant time in 1963, could only be exercised within two years from the date of that order.
The order sought to be revised was passed on 29th October, 1956, so that the notice to exercise revisional powers was being issued more than 6 years after that order had been passed.
It appears to us that this submission is adequately met by the provisions contained in section 77 of the Act of 1959.
The Act of 1953 was repealed by section 76 of the Act of 1959 and then section 77 lays down : "(1) Notwithstanding the repeal by section 76 of any of the laws referred to therein, (a) those laws (including any earlier law continued in force under any provisions thereof), and all rules, regulations, orders, notifications, forms and notices issued under those laws and in force immediately before the appointed day shall, subject to the provisions of section 42 continue to have effect for the purposes of the levy, assessment, reassessment, collection, refund or set off of any tax, or the granting of a draw back in respect thereof, or the imposition of any penalty, which levy, assessment, reassessment, collection, refund, setoff, draw back or penalty relates to any period before the appointed day, or for any other purpose whatsoever connected with or incidental to any of the purposes aforesaid; 499 (3) Without prejudice to the provisions contained in the foregoing sub sections and section thereto, section 7 of the Bombay General Clauses Act, 1904, shall apply in relation to the repeal of any of the laws referred to in section 76 as if the law so repealed had been an enactment within the meaning of section 7 of that Act." (We have only quoted the portions of section 77 with which we are concerned).
The effect of section 77 (1)(a) is to continue in force the Bombay Sales Tax Act of 1953 as well as the Bombay Sales Tax Act of 1946 to the extent to which they were in force when this Act of 1959 came into force for the purposes mentioned in that clause.
These purposes included levy, assessment, reassessment and collection of sales tax, so that the proceedings against the appellant, which had been initiated under the Act of 1946, continued to be governed by the provisions of that Act.
Section 7 of the Bombay General Clauses Act 1 of 1904, which was made applicable 'by section 77(3) to the repeal of the Act of 1953, includes the following provisions : " Where this Act, or any Bombay Act, or Maha rashtra Act, made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
" Very clearly, the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act of 1946 in respect of the turnover which became liable to sales tax under the Act of 1946.
The effect of clause (e) of section 7 of the Bombay General Clauses Act 500 further is that any legal proceeding in respect of levy, imposition or recovery of that tax is to continue and any fresh investigation, legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959.
Consequently, the repeal of the Act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been passed in exercise of his powers under the Act of 1946.
It is true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under section 31 of the Act of 1953, but under section 22 of the Act of 1946.
This is so, because when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946.
Section 48(2) and section 49(1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act.
Consequently, the Deputy Commissioner, in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under section 22 of the Act of 1946.
That, however, is not at all material, because the provisions of section 22 of the Act of 1946 are quite similar to those of section 31 of the Act of 1953.
The mere incorrect mention of section 31 of the Act of 1953 in the notice is immaterial.
The Deputy Commissioner has the jurisdiction and power to revise the order under section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction.
The last submission made by Mr. Desai was that, if it be held that the revisional powers are sought to be exercised under the Act of 1946, it should be held that the proceedings sought to be instituted are barred by time, because limitation of a reasonable time, within which the revisional powers are to be exercised, must be implied in the statute itself.
Section 22 of the Act of 1946 and section 31 of the Act of 1953 do not lay down any limitation for exercise of the power of revision by a Deputy Commissioner sue motu, and we are not prepared to accept that any such limitation must be necessarily read in the two Acts.
In support of his proposition that such a limitation must be read by us, Mr. Desai referred to the decision of this Court in the State of Orissa vs Debaki Debi and Others(1).
That case, however, has no relevance at all, because, in the Orissa Sales Tax Act, there was a proviso in general terms laying down that no order "assessing the (1) 15 S.T.C. 153.
501 amount of tax shall be passed after the lapse of 36 months from the expiry of the period", and it was held that this provision was, in substance, not a real proviso to the section in which it was placed, but was, in fact, a period of limitation prescribed for all orders of assessment made under any other provision of the Act.
In the Bombay Sales Tax Acts of 1946 and 1953, there is no such general provision prescribing a period of limitation for making an assessment and, even though the effect of the order of the Dy.
Commissioner passed in revision may be to bring about an assessment to tax of turnover which was set aside by the Assistant Collector in appeal.
, such an assessment does not come under any provision relating to limitation.
The decision of the Bombay High Court in Commissioner of Income tax, Bombay City 1 vs Narsee Nagsee & Co. (1) is also similarly inapplicable.
In that case, section 11 of the Business Profits Tax Act, 1947, which had no limitation prescribed for an order of assessment, was held to be governed by the 4 years ' period of limitation which was prescribed under section 14 for issue of a notice for reassessment.
The decision in that case turned on the fact that, if proceeding for reassessment could not be started after the expiry of four years from the end of the chargeable accounting period concerned, it would be totally unreasonable to hold that the first assessment of tax can be made after the expiry of that period.
The case before us relates to exercise of revisional powers and does not deal with the question of the first assessment to be made when the Return is initially filed by an assessee.
In fact, when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this Court in K. M. Cheria Abdulla & Co 's(2) case.
These limitations are that the revising authority should not trench upon the powers which are expressly reserved by the Acts or by the Rules to other authority and should not ignore the limitations inherent in the exercise of those powers.
In the present case, the Deputy Commissioner, when seeking to exercise his revisional powers, is clearly not encroaching upon the powers reserved to other authorities.
Under the Act of 1946, the first assessment is made by the Sales Tax Officer under section 11.
If information comes into his possession that any turnover in respect of sales or supplies of any goods chargeable to tax has escaped assessment in any year or has been under assessed or assessed at a lower rate or any deductions have been wrongly made therefrom, proceedings can be taken afresh under section 11A.
On the face of it, if a first assessment order is made under section 11 and any turnover escapes assessment, the appropriate provision, under which action is to be taken for assessing that turnover to tax, is section 11A.
There is, however, no provision under which the power now sought to be exercised by (1) (2) ; 502 the Deputy Commissioner in the case before us could have been exercised by any other authority.
In this case, as we have indicated earlier, the first assessment of tax was made by the Sales Tax Officer, and the turnover now in question was assessed to tax by him.
Having once assessed that turnover to tax, he could .not initiate a fresh proceeding in respect of it under section 11A.
The ,assessment made by him was set aside in appeal by the Assistant Collector and it is this order of the Assistant Collector which is sought to be revised by the Deputy Commissioner.
This is, therefore, not a case where the powers are being exercised for the purpose of assessing or reassessing an escaped turnover.
The case is one where the revisional powers are sought to be exercised to correct what appears to be an incorrect order passed in appeal by the Assistant Collector, and, for such a purpose, proceedings could not possibly have been taken under section 11A.
In exercising his revisional powers, therefore, the Deputy Commissioner is not encroaching upon the jurisdiction of any other authority specially entrusted with taking such proceedings.
In this connection, Mr. Desai relied on a decision of the Bombay High Court in Manordas Kalidas vs V. V. Tatke(1).
The decision in that case also related to this very Act of 1946, but the point to be kept in view is that in that case, the revisional power was sought to be exercised in respect of the original assessment order passed by the Sales Tax Officer under section 11 of the Act.
It was in these circumstances that the Bombay High Court, after referring to its two decisions in Bisesar House vs State of Bombay (2 and Commr.
of Income tax vs Narsee Nagsee & Co. held : ,,In neither of those two cases, revisional powers were sought to be exercised, but the principle of those cases must, in our judgment, apply for the same reasons to the exercise of revisional jurisdiction, and that jurisdiction must be exercised w ithin a reasonable period, and the yard stick of reasonableness will be the period prescribed for re assessment." It appears that in view of the fact that proceedings for re assessment could have been taken under section 11A in that case and, instead, revisional powers were sought to be exercised, that Court held that the exercise of such revisional powers must be, governed by the same limitation which applied to the exercise of power of reassessment.
In fact, the correct principle that should have been applied in that case is the principle mentioned by us earlier laid down in K. M. Cheria Abdulla & Co.(4).
The revision should have been held to be incompetent on the ground that the power (1) 11 S.T.C. 87.
(2) 9 S.T.C. 654.
(3) (4) ; 503 was sought to be exercised for assessment of escaped turnover which had not 'been assessed at all at the initial stage of assessment under section 11 and proceedings under section 11A could have been competently initiated for bringing that turnover to tax.
Instead, the Court equated the proceeding in revision with the proceeding for reassessment and applied the 4 year period of limitation which was prescribed only for reassessment and not for exercise of revisional power.
In our opinion, the ultimate decision in that case was perfectly correct, but we are unable to affirm the vie,%, that the revisional power is governed by any period of limitation laid down in section 11A for proceedings for reassessment of escaped turn over.
Reference, in this connection, was also made to a decision of this Court in Maharaj Kumar Kamal Singh vs Commissioner of Income tax, Bihar and Orissa(1), in which the Court dealt with a case of an assessee whose income to the extent of Rs. 93,604/representing interest on arrears of rent was omitted to be brought to assessment by the Income tax Officer.
Subsequently, in another case, the Privy Council held that interest on arrears of rent payable in respect of agricultural land was not agricultural income and, consequently, the Income tax Officer initiated reassessment proceedings under section 34(1) (b) of the Income tax Act.
The circumstance relied upon by learned counsel for the appellant was that the omission by the Income tax Officer to bring to assessment that interest was part of an order made by him after his initial assessment order had been set aside by the Appellate Assistant Commissioner who directed a fresh assessment, allowing the appeal against that order.
In that case, it was held that the escaped income could be brought to tax under section 34 of the Income Tax Act; and, on the basis of this decision, it was urged that, similarly, in the present case, the turnover now sought to be brought to tax in exercise of revisional powers could be re assessed under section 11A.
This argument ignores the circumstance that, in that case, the last order, under which the income from interest had been exempted from tax, was an order made by the Income Tax Officer himself, though after the assessment proceedings had been remanded to him by the Appellate Assistant Commissioner.
Since the income had escaped assessment under an order passed by the Income tax Officer himself, he could competently take proceedings under section 34.
In the case before us, the turnover of the assessee now sought to be taxed in the revisional proceedings did not escape liability to tax under the orders of the Sales tax Officer and, on the other hand, was actually taxed by him, which imposition of tax was set aside in appeal.
Consequently, the Sales Tax Officer could not possibly take proceedings under section II A in respect of that turnover.
(1) 504 For these reasons, we hold that the proceedings initiated by the Deputy Commissioner of Sales Tax against the appellant are not incompetent and the High Court was right in refusing the writ sought by the appellant.
The appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.

summary/full:
The appellant was registered as a dealer under the various Sales Tax Acts in force in Bombay from time to time i.e. Bombay Acts 5 of 1946, 3 of 1953 and 51 of 1959.
In the course of its assessments to sales tax for the periods from 1st April, 1948 to 31st March, 1950, and from 1st April 1950 to 31st March, 1951, the appellant claimed exemption from tax, inter alia, in respect of certain despatches of goods from its head office in Bombay to its branches in other States.
The Sales Tax Officer rejected these claims but, in appeal, the Assistant Collector accepted the claim in respect of the despatches to various branches though he rejected all other claims for exemption.
He also directed a refund of the excess 'tax collected from the appellants.
While revision petitions filed by the appellant against these orders were pending, a notice was issued to him on January 7, 1963 by the Deputy Commissioner of Sales Tax in Form XXIV under section 31 of the Bombay Sales Tax Act, 1953, intimating the appellant that he proposed to revise suo motu the orders passed by the Assistant Collector in so far as he had allowed deduction in respect of the entire goods despatched to the appellants ' branches outside Maharashtra because, in so doing, he had overlooked certain provisions of law which were specified in the notice.
Tile appellant filed a petition under article 226 of the Institution seeking to quash the notice dated 7th January, 1963 but his petition was dismissed by the High Court.
In the appeal to this Court it was contended on behalf of the appellant, inter alia (i) that in exercise of the revisional powers, the Deputy Commissioner, whether acting under the Sales Tax Act of 1946, or of 1953, or of 1959, could only proceed to take action on the basis of the material already present on the record and was not entitled to act on conjecture or to institute any enquiry so as to include additional material nor to judge the correctness of the order sought to be revised; (ii) that the notice in question was issued on 7th January, 1963, when the Act of 1959 had already come into force and the Act of 1953 had been repealed; so that any revisional jurisdiction could only be exercised by the Deputy Commissioner under the Act of 1959 and not under the Act of 1953 , as the power under section 57 of the Act of 1959 could only be exercised within five years from the date of the order sought to be revised; the notice issued by the Deputy Commissioner was time barred; and (iii) that the proceedings to be instituted were barred by time, because limitation of a reasonable time; within which the revisional Powers are to be exercised must be implied in the statute itself.
493 HELD : The proceedings initiated by the Deputy Commissioner of Sales Tax against the appellant were not incompetent and the High Court was right in refusing the writ sought by the appellant.
(i) Whenever a power is conferred on an authority to revise an order, it is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as it may think fit in the circumstances of the particular case.
The proceedings for revision, if started suo motu, must not be based on a mere conjecture and there should be some ground for invoking the revisional powers.
Once these powers are invoked, the actual interference must be based on sufficient grounds and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding or directing a further enquiry and thereafter admitting additional material.
[496 A C] The State of Kerala vs K. M. Cheria Ahdulla and Company, ; , explained and followed.
State of Andhra Pradesh vs T. G. Lakshmnaiah Setty & Sons, 12 S.T.C. 663; disapproves.
In the present case,.
the notice issued by the Deputy Commissioner, on the face of it, disclosed the reasons which led him to take proceedings for exercising his revisional powers suo motu, and it could not be said on those facts that he was acting merely on conjecture.
There was no reason to think that, when proceeding with his inquiry, he would not keep within the limitations indicated by this Court in K. M. Cheria Abdullas case.
(ii) The effect of section 77(1) (a) of the Act of 1959 is to continue in force the Act of 1953 as well as: the Act of 1946 to the extent to which they were in force when the Act of 1959 came into force for the purposes of levy, assessment, reassessment and collection of sales tax.
Fur thermore, by virtue of section 7(e) of the Bombay General Clauses Act, 1904, which was made applicable to the repeal of the Act of 1953 by section 77(3) of the 1959 Act, any legal proceeding in respect of levy, imposition or recovery of tax is to continue and any fresh investigation, legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959.
Consequently, the repeal of the Act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been Passed in exercise of his power under the Act of 1946.
[499 C 500 B] Although the Deputy Commissioner, in seeking to exercise revisional powers should have proceeded under section 22 of the Act of 1946 and not under section 31 of the 1953 Act, this fact was immaterial as the provisions of the two Sections were similar.
[500 D E] (iii) Section 22 of the Act of 1946 and section 31 of the Act of 1953 do not lay down any period of limitation for the exercise of the power of revision by a Deputy Commissioner suo motu and no such limitation could be read in the two Acts.
[500 G] The State of Orissa vs Debaki Debi and Others, 15 S.T.C. 153.
Commissioner of Income tax, Bombay City 1 vs Narsee Nagsee & Co., , Manordas Kalidas vs V. V. Tatke, 11 S.T.C, 87.
Disesar House vs State of Bombay, 9 S.T.C. 654, distinguished.
494 Maharaj Kumar Kamal Singh vs C.I.T., Bihar and Orissa, , referred to.


judgement:
minal Appeal No. 50 of 1965.
Appeal by special leave from the judgment and order dated February 15, 1965 of the Bombay High Court in Criminal Revi sion Application No. 917 of 1964.
A. section R. Chari, O. P. Malhotra, V. N. Ganpule, P. C. Bhartari, and O. C. Mathur, for the appellants.
M. section K. Sastri and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
In this appeal by special leave against the judg ment of the High Court of Bombay in criminal revision application No. 917/64, the question that arises for decision is whether on the facts found by the courts below, the appellants were properly held to be guilty of all or any of the offences for which they have been convicted.
In the trial court there were as many as nine accused.
All the accused excepting accused Nos. 1 and 2 who are appellants 1 and 2 respectively in this Court, were, acquitted.
The prosecution case is as follows : The acquitted third ac cused was the owner of the jeep bearing registration No. BYF 5448.
Accused ,No. 2 is his father.
They are the residents of Malshiras.
On October 27, 1962, the appellants along with PW Rambhau Bhombe and one other, went in the jeep in question first to Phaltan which is about 33 miles away from Malshiras, from there to Rajale about seven miles away from Phaltan.
From Rajale they returned to Phaltan and from there to Malegaon.
They stayed for the night at Malegaon.
Next day they returned to Phaltan and finally to Malshiras.
During all this time, appellant No. 1 was driving the jeep.
On the way from Phaltan to Malshiras, about a mile and a half from Phaltan, the jeep struck one Bapu Babaji Bhiwarkar, as a result of which he sustained serious injuries.
The appellants put the injured person in the jeep and brought back the jeep to Phaltan where they approached PW Dr. Karwa for medical aid, but Dr. Karwa refused to treat the injured as it was a medico legal case.
He asked them to go to Government Dispensary.
The appellants instead of going to the Government Dispensary, drove straight to Malshiras.
On the way the injured died.
At Malshiras the appellants cremated his dead body.
At the time of the incident, the first appellant had 517 only a learner 's licence and no person having a valid licence for driving was by his side.
The courts below have accepted the above facts and on the basis of those facts, the trial court convicted the appellant No. 1 under section 304A IPC, section 3 read with section 112 of the Motor Vehicles Act and under section 89 of the same Act.
It convicted the second appellant under section 201 IPC, section 5 as well as under section 89 of the Motor Vehicles Act.
These convictions were affirmed by the learned Sessions Judge of Satara in appeal and by the High Court in revision.
The conviction of the first appellant under the provisions of the Motor Vehicles Act was not challenged before us, but we fail to see how the second appellant could have been convicted either under section 5 or under section 89 of the Motor Vehicles Act.
In convicting him under those provisions, the courts below appear to have overlooked the fact that he was not the owner of the jeep.
Nor was there any proof that he was in charge of the jeep.
Hence, his convictions under those provisions cannot be sustained.
The conviction of the appellant No. 2 under section 201 IPC de pends on the sustainability of the conviction of appellant No. 1 under section 304A IPC.
If appellant No. 1 was rightly convicted under that provision, the conviction of appellant No. 2 under section 201 IPC on the facts found cannot be challenged.
But on the other hand, if the conviction of appellant No. 1 under section 304A IPC cannot be sustained, then, the second appellant 's conviction under section 201 IPC will have to be set aside, because to establish the charge under section 201, the prosecution must first prove that an offence had been committed not merely a suspicion that it might have been committed and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear.
The proof of the commission of an offence is an essential requisite for bringing home the offence under section 201 IPC see the decision of this Court in Palvinder Kaur vs State of Punjab (1).
Therefore the principal question for decision is whether on the facts found, appellant No. 1 was rightly convicted under section 304A IPC.
On the material on record it is not possible to find out under what circumstances the accident took place.
The High Court in its judgment specifically says that "There are no witnesses whose evidence can establish rash and negligent driving on the part of accused No. 1.
" We may go further and say that there is absolutely no evidence to show that the accused was responsible for the accident.
The prosecution has not produced any evidence to show as to how the accident took place.
The High Court observed: (1) 518 'It is however, a fact conclusively established and not disputed before me that the accused No. 1 had only a learner 's licence at the material time.
It is not even suggested before me that accused No. 2 held a driving licence so that he could act as a trainer for accused No. 1.
In fact, there is no suggestion by the defence that there was a trainer by the side of accused No. 1.
Thus on the facts established, it is quite clear that at the material time, the jeep was driven by accused No. 1, who not only did not have a valid driving licence, but had only a learner 's licence.
The question for consi deration, therefore, is whether driving a jeep on a public road by a person, who does not know driving and is consequently unable to control the vehicle, is a rash and negligent act as contemplated by Section 304A IPC." The court answered that question in these words "The very fact that the person concerned holds only a learner 's licence, in my opinion, necessarily implies that he does not know driving and must be assumed to be incapable of controlling the vehicle.
If a person who does not know driving and is a consequently not able to control a car or a vehicle, chooses to drive a car or a vehicle on a public road without complying with the requirements of Rule 16 of Bombay Motor Vehicles Rules, he obviously does an act, which can be said to be rash and negligent, as contemplated by Sec.
304A IPC.
It is negligent because he does not take the necessary care of having a trainer by his side.
It is rash because it utterly disregards the public safety.
Prima facie it appears to me that driving a vehicle like a jeep or motor car on a public road without being qualified to drive, particularly in the absence of any evidence to show that the person concerned had the necessary experience and good control over the vehicle would amount to a rash and negligent act, as contemplated by Sec.
304A IPC.
" Assuming that the High Court was right in its conclusion that appellant No. 1 had not acquired sufficient proficiency in driving therefore he was guilty of a rash or negligent act in driving the jeep that by itself is not sufficient to convict him under section 304A IPC.
The, prosecution must go further and prove that it was that rash or negligent act of his that caused the death of the deceased.
Section 304A says "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable 519 homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act.
In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death.
There must be direct nexus between the death of a person and the rash or negligent act of the accused.
As mentioned earlier there is no evidence to show that it was rash or the negligent act of the accused that caused the death of the deceased.
Before referring to the decided cases, we would like to revert to prosecution evidence for finding out whether the High Court was right in its inference that the accused was novice in the matter of driving.
From the prosecution evidence itself it is clear that he drove the jeep to various places on October 27, 1962.
Then there was the evidence of PW Shankar Burmule, showing that he had seen accused No. 1 driving for about six months to a year.
The learned Judge of the High Court discarded his evidence with these observations : "In the present case, Mr. Jahagirdar relies on the evidence of Shankar Burmule, which is at Exh. 39, to contend that accused No. 1 had considerable driving experience.
Unfortunately the English notes of evi dence by the learned trial Magistrate do not indicate that the witness stated that accused No. 1 had driving experience, but the evidence recorded in Marathi undoubtedly indicates that the witness claims to have seen accused No. 1 driving for about six months to a year.
The witness seems to be a relation of accused No. 2, though not a near relation, and his word cannot be taken at par.
Moreover the admitted fact that at the material time accused No. 1 held only a learner 's licence itself indicates that no importance can be attached to the abovesaid statement of Shankar Burmule.
It is also urged that accused No. 1 did take the jeep from Malshiras to Phaltan and to some other places and that also would bear out the statement of Shankar Burmule.
All that I can say is that it was a sheer stroke of good fortune that accused No. 1 did not meet with any accident during his trip from Malshiras to Phaltan and some other places." With respect to the learned Judge we think this was not the proper way of appreciating evidence.
Conclusions must be based on the evidence on record.
PW Shankar Burmule has given material 520 evidence against the accused.
His evidence establishes an important link in the prosecution case.
He could not have been compelled to give that evidence if he was not a truthful witness.
The learned public prosecutor did not make any attempt in his reexamination to show that any portion of his evidence was untrue.
There is no presumption in law that a person who possesses only a learner 's licence or possesses no licence at all does not know driving.
For various reasons, not excluding sheer indifference, he might not have taken a regular licence.
The prosecution evidence that appellant No. 1 had driven the jeep to various places on the day previous to the occurrence is a proof of the fact that he knew driving.
There was no basis for the conclusion that it, was a sheer stroke of good fortune that he did not meet with any accident on that day.
Now let us turn to the decided cases.
Dealing with the scope of section 304A IPC, Sir Lawrence Jenkins observed in Emperor vs Omkar Rampratap(1) : "To impose criminal liability under section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another 's negligence.
It must be the cause causans, it is not enough that it may have been the cause sine qua non.
" That, in our opinion is the true legal position.
The scope of section 304A IPC came to be considered by this Court in Kurban Hussein Mohammedali Rangwalla vs State of Maharashtra(2).
In our opinion, the ratio of that decision governs the facts of the present case.
The facts of that case were : The appellant was the manager and working partner of a firm which manufactured paints and varnish.
The factory was licensed by the Bombay Municipality on certain conditions to manufacture paints involving a cold process and to store certain Specified quantities of turpentine, varnish and paint.
The factory did not have a licence for manufacturing wet paints but nevertheless manu factured them.
Four burners were used in the factory for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree.
While this unlicensed process was going on froth overflowed out of the barrel and because of heat varnish and turpentine, which were stored at a short distance caught fire, as a result of which seven workmen died.
The appellant was prosecuted and convicted under section 304A and section 285, IPC.
Hi, , appeal was summarily dismissed by the Bombay High Court.
This Court set aside the conviction under section 304A IPC, holding that (1) 4B.L.R. 679.
(2) ; 521 the mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the appellant responsible for the fire which broke out.
In the course of the judgment this Court observed that the cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though that circumstance was indirectly responsible for the fire which broke out; what section 304A requires is causing of death by doing any rash or negligent act and this means that death must be the direct or proximate result of the rash or negligent act.
On the basis of the facts of that case, this Court held that the direct and proximate cause of the fire which resulted in seven deaths was the act of one of the workmen in pouring the turpentine too early and not the appellant 's act in allowing the burners to burn in the particular room.
In the present case, we do not know what was the proximate cause of the accident.
We cannot rule Out the possibility of the accident having been caused due to the fault of the deceased.
The question whether appellant No. 1 was proficient in driving a jeep or not does not conclude the issue.
His proficiency in driving might furnish a defence, which a learner could not have, but the absence of proficiency did not make him guilty.
The only question was whether, in point of fact he was not competent to drive and his incompetence was the cause of death of the person concerned.
On behalf of the prosecution reliance was placed on the de cision of this Court in Juggankhan vs State of Madhya Pradesh (1), to which one of us was a party (Sikri, J).
The ratio of that decision does not apply to the facts of the present case.
In that ,case, it had been conclusively proved that the rash or negligent act ,of the accused was the cause of the death of the person concerned.
For the reasons mentioned above, we are unable to agree 'with the courts below that on the basis of the facts found by them the first appellant could have been held guilty under section 304A IPC.
We accordingly allow his appeal and acquit him of that offence.
From that finding, it follows that the second appellant could not have been convicted under section 201 IPC.
In the result, the second appellant 's appeal is allowed in full and he is acquitted of all the charges.
The first appellant 's appeal is allowed in part and his conviction under section 304A is set aside.
But his other convictions are sustained, namely, his convictions under section 3 read with section 112 of the Motor Vehicles Act and section 89 of the same Act, for which offences only a sentence of fine had been imposed upon him.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The first appellant holding only a learner 's licence was driving a jeep without a trainer by his side and injured a person.
The first appellant and his companion in the journey the second appellant put the injured in the jeep for getting medical aid, but the injured died on the way.
They cremated the dead body.
The first appellant was convicted under section 304 A I.P.C. and sections 3, 89 and 112 of the Motor Vehicles Act and the second appellant under section 201 I.P.C., and sections 5 and 89 of the Motor Vehicles Act.
HELD : There was no evidence to show that the first appellant was responsible for the incident so his conviction under section 304 A could not be sustained.
[517 H] The requirements of section 304 A I.P.C. are that the death of any person must have been caused by the accused by doing any rash or negligent act.
In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death.
There must be direct nexus between the death of a person and the rash or negligent act of the accused.
There is no presumption in law that a person who possesses only a learner 's licence or possesses no licence at all does not know driving.
For various reasons, not excluding sheer indifference, he might not have taken a regular licence.
The prosecution evidence that first appellant had driven the jeep to various places on the day previous to the occurrence war.
a proof of the fact that he knew driving.
[519 B C; 520 B C] The question whether first appellant was proficient in driving a jeep or not does not conclude the issue.
His proficiency in driving might furnish a defence.
which a learner could not have, but the absence of proficiency did not make him guilty.
[521 D E] As the conviction of the first appellant under section 304 A I.P.C. could not be sustained, the conviction of second appellant under section 201 I.P.C. had to be set aside.
Because to, establish the charge under section 201, the prosecution must first prove that an offence had been committed not merely a suspicion that it might have been committed and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear.
The proof of the commission of an offence is an essential requisite for bringing home the offence under section 201 I.P.C. [517 D G; 521 F G] Palvinder Kaur vs State of Punjab, , and Kurban Hussein Mohammedan Rangwalla vs State of Maharashtra ; , followed.
Emperor vs Omkar Rampratap 4 B.L.R. 679, approved.
516 Juggankhan vs State of Madhya Pradesh, ; distinguished.
The 'second appellant could not be convicted either under section 5 or section 89 of the Motor Vehicles Act.
In convicting him under those provisions, the fact that he was not the owner of the jeep had been overlooked.
Nor was there any proof that he was in charge of the jeep.


judgement:
minal Appeal No. 183 of 1967.
Appeal by special leave from the judgment and order dated August 9, 1967 of the Patna High Court in Criminal Writ Jurisdiction Case No. 31 of 1967.
M. C. Setalvad, R. L. Kohli and J. C. Talwar, for the appellant.
B.P. Jha, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
The appellant (Rameshwar Lal Patwari) applied under article 226 of the Constitution and section 491 of the Code of Criminal Procedure for a writ or order in the nature of habeas corpus for his release from detention in Bhagalpur Central Jail in pursuance of an order of detention passed by the Governor of Bihar on July 4, 1967 under section 3(1)(a)(iii) of the .
He was arrested under the order on July 11, 1967 and was served on July 13, 1967 with a copy of the grounds on which his detention was based to enable him to make a representation.
He made a representation but his release was not recommended.
His application in the High Court was also dismissed.
He now appeals by special leave.
The order of the Governor recites that it is necessary to make an order for his detention to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
The grounds which were furnished to him were as follows : (1) He is a prominent businessman of Dumka and with the association of Sarvashri Mulchand Choudhury, Kanhaiaya Choudhury, Fulchand Modi, Pir Mohammad (Bengaria P.S.) Shikaripara and others he indulges in black marketing of foodgrains.
He has four trucks, one jeep and a car which have been registered in the names of his relatives Truck No. BRL 1331 which is registered in the name of his brother in law (sala).
Sri Harichandra Agarwala was caught on 29th December, 1966 at Ranibabal near Mashanjor while carrying 95 bags of peddy for illegal trade.
In this connection a case under the Essential Commodities Act has been instituted.
He is on bail in this case.
(2) His trucks always take to wicked routes to Saithia (West Bengal) and he himself pilots them.
(3) A businessman of Barahiya disclosed that he (Rameshwar Lal Patwari) visited Barahaiya on several occasions and purchased gram, gramdal under various names and smuggled them to West Bengal.
507 (4) On the night of 2 2 66, Sri R. section Singh, 1st Class Magistrate along with Sub Divisional Officer Sadar, other Magistrate and police officers, raided the house of Sri Rameshwar Lal Patwari and found aft kinds of foodgrains in huge quantity.
His stock register was maintained in irregular way.
fie could not produce the sale register and took the plea that it was produced before the Income Tax Officer.
It was found that he has been dealing in foodgrains without any licence.
A case has been instituted in this connection in which he is on bail.
(5) Shri Babu Ram Bikaneria, owner of a Rice Mill at Saitha District Birbhum (West Bengal) visited Dumka on 26 11 66 and told him (Sri Rameshwar Lal Patwari) to supply gram and gramdal.
He (Sri Rameshwar Lal Patwari) promised to supply gram and gramdal.
On 7/8 12 66 Sri Mulchand Choudhury of Rameshwar, who is his agent sent his truck No. BRJ 2029 load ed with gram and gramdal to Saitha through Mahesh Kola Check post.
His truck No. BRL 1366 and van BRL 2005 were found at Rameshwar on 7 12 1966 wherefrom he smuggles foodgrains to West Bengal.
He purchases gram and gramdal through Gopal Mandal of Lakhisarai (District Monghyr) and smuggles them to West Bengal.
In the circumstances, the State Government are satisfied that if Shree Rameshwar Lal Patwari is allowed to remain at large, he, will indulge in activities prejudicial to the maintenance of supplies and services essential to the community.
For prevention of such activities, the State Government consider his detention necessary.
Shri Rameshwar Lal Patwari is informed that he may make a representation in writing against the order under which he is detained.
His representation, if any, may be addressed to the Under Secretary to Government, Poli tical (Special) Department, Bihar, Patna and for warded through the Superintendent of the Jail as soon as possible.
By order of the Governor of Bihar.
" These grounds were challenged by the appellant in the High Court.
According to him some of them did not exist in fact and others were vague or irrelevant.
The High Court scrutinised them and came to the conclusion that his complaint had no substance.
In this appeal he urges the same contentions and submits that the High Court was in error in its conclusion.
508 Before we consider these grounds in the light of arguments before us, we may say a few words about the and the extent to which the exercise of powers under that Act can be questioned before courts.
Article 22(1) and (2) of the Constitution lay down that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest, nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice and further that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours and no person shall be detained beyond that period (excluding the time necessary for the journey to the court of the Magistrate) without the authority of the Magistrate.
To this there is an exception in sub cl.
(b) of cl.
(3) of the article.
It says that these provisions shall not apply to any person who is arrested or detained under any law providing for preventive detention.
There are, however, other safeguards.
Clause (4) of the article provides that no law providing for preventive detention shall authorise the ,detention of a person for a longer period than three months unless an Advisory Board has reported before the expiration of that period of three months that there is in its opinion sufficient cause for such detention.
There are other provisions prescribing other checks with which we are not presently concerned.
In pursuance of this power Parliament has enacted the .
The by its third section enables the Central Government or the State Government, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, to make an order that such person be detained.
There are other grounds on which the power to detain may also be exercised but they do not apply here.
This power is also conferred on some officers named in the section.
When an officer makes an order he has to report to the State Government together with the grounds on which the order is based and in the like manner the State Government has to report to the Central Government.
Section 11 then provides that where an Advisory Board reports sufficient cause for the detention of a person, Government may confirm the detention and continue it for such period as it thinks fit.
If the Advisory Board reports that there is no sufficient cause Government must revoke the order and release the detenu.
Section 11 A pow prescribes the maximum period of detention.
It will thus be seen that the report of the Advisory Board plays ,in important part.
In the present case the report of the Advisory Board has been produced.
It reads "In our opinion, the grounds of detention served on the detenu also are fairly particular and generally well 509 founded.
It cannot, therefore, be said that there is no material for his detention in the way in which he had been indulging in the transport of foodgrains from Bihar to West Bengal frequently.
It cannot be held that the order of detention passed upon him is unreasonable.
The order in his case also cannot be disturbed.
Sd/ section C. Mishra 25 8 67.
Sd/ R. K. Choudhury.
Sd/ U. N. Sinha.
" The appellant contends that the Advisory Board has failed to notice also that the grounds furnished to him were vague and irrelevant and some of them did not exist in law.
Now the law on the subject of, Preventive, Detention has been stated over and over again and it is not necessary to refer to all that has been decided by this Court on numerous occasions.
We ,shall refer to what concerns this case.
The formation of the opinion about detention rests with the Government or the officer authorised.
Their satisfaction is all that the law speaks of and the courts are not constituted an appellate authority.
Thus the sufficiency of the rounds cannot be agitated before the court.
However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter.
It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors.
The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others.
Since the detenu is not placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention.
Similarly, if a vital ground is shown to be non existing so that it could not have and ought not to have played a part in the material for consideration, the court may attach some importance to this fact.
Thus it was in Shibban Lal Saksena vs U.P. (1) that when Government itself confirmed the order on one ground rejecting the other, the order was held unsustainable.
This Court applied the case of the Federal Court in Keshav Talpade vs The King Emperor(2) and held that the detention on the ground which survived could not be .allowed to stand.
The following observations may be quoted .
The detaining authority gave here two grounds for detaining the petitioner.
We can neither decide whether these grounds are good or bad, nor can we attempt (1) (1954] 1 S.C.R. 418.
(2) 510 to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.
To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.
In such cases, we think, the position would be the same as if one of these, two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.
" This case is strongly relied upon by Mr. Setalvad for reasons which will soon appear.
The other side relies upon observations in Bhim Sen vs State of Punjab(1) where blackmarketing was considered a sufficient ground for detention.
No doubt blackmarketing has at its base a shortening of supplies because blackmarket flourishes best when the availability of commodities is rendered difficult.
It has a definite tendency to disrupt supplies when scarcity exists or scarcity is created artificially by hoarding to attain illegitimate profits.
Indulging in blackmarketing is conduct which is prejudicial to the maintenance of supplies.
It is hardly necessary to read supplies conjunctively with services as was contended although cases may exist where supplies and services may both be affected.
The word 'and ' is not used conjunctively but disjunctively.
If sweepers strike, no question of disrupting supplies arises but ser vices essential to the life of the community will certainly be disrupted.
Looked at from this angle, can we say that the detenu was supplied grounds which were not vague or indefinite or irrelevant or non existing '? The grounds are five in number.
Putting aside the first and fifth rounds for the time, we may refer to the second, third and fourth grounds first.
The second ground says that "his trucks always take to wicked routes to Saithia (West Bengal) and he himself pilots them." This ground is extremely vague.
It does not mention a single instance of a truck taking a particular route so that the detenu could prove to the satisfaction of the Advisory Board that the statement was false.
Bhim Sen 's case the conduct of the black marketer was shown in an appendix.
Here no particulars are furnished and beyond denying the allegation, the detenu cannot make effective representation.
The details could not be such as were required to be concealed in the public interest under section 7(2) of the Act.
The third ground that "a businessman of Barahiya disclosed that he (Rameshwarlal Patwari) visited Barahiya on several occasions and purchased gram, gramdal under various (1) ; 511 names and smuggled them to West Bengal" is equally vague.
Learned counsel for the State admitted that some details were necessary to give the detenu an opportunity.
It is obvious that without the names of shops, dates of purchase, etc.
it is next to impossible to controvert such an allegation.
The fourth ground speaks of a pending case in which the appellant is said to be on bail.
The grounds were furnished in July 1967.
The appellant was tried for the offence and acquitted as far back as February 1967.
This ground discloses carelessness which is extremely disturbing.
That the detaining authority does not know that the appellant was tried and acquitted months before, and considers the pendency of the case against him as one of the grounds of detention shows that due care and attention is not being paid to such serious matters as detention without trial.
If the appellant was tried and acquitted, Government was required to study the judgment of acquittal to discover whether all these allegations had any basis in fact or not.
One can understand the use of the case if the acquittal was technical but not when the case was held to be false.
In any event, even if there was no need to consider the result of the case the case could not be referred to as a pending case.
What is still more disquieting is the attempt to avoid admitting frankly that there has been a mistake in including this ground.
in the return this is what is said : "That the facts stated in paragraph 4 of the ground of detention are not non est.
Those facts stated in paragraph 4 even existed after acquittal.
In regard to the facts stated in paragraph 4 the prosecution failed to prove the prosecution case and, therefore, he was acquitted.
The detenu had full knowledge of the facts that he was acquitted by the Court in regard to the facts stated in paragraph 4 of the grounds of detention and, therefore, he was not handicapped in making a representation to the Advisory Board.
" This means that anything wrong or even false may be stated in the grounds leaving the detenu to deny it and prove his version.
The attempt to cover up the mistake is as futile as it is disingenuous.
This leaves over the first and fifth grounds ' The first charges the appellant with blackmarketing of foodgrains in conjunction with certain named persons.
No facts are mentioned and this part of the ground is equally vague.
No incident is cited except one.
The ground goes on to say that his trucks, jeep and car Ire registered in the names of his relatives.
One such truck is mentioned, namely, truck No. BRL 1331.
It is said to be registered in the name of his brother in law and it is further stated that it was 512 caught on December 29, 1966 at Ranibahal (near Mashanjor) while carrying 95 bags of paddy for 'illegal trade ' and that in this connection a case under the Essential Commodities Act has been instituted against 'him '.
It is hot clear who is meant the appellant or his brother in law.
In a notice from the District Supply Officer, Dumka it was stated : "It was learnt from your driver that on 29 11 66 (sic) at 3.50 a.m., ninety five bags of paddy (190 mds.) was coming from Ranibahal to Dumka in your truck BRL 1331 belonged to you.
" The appellant has denied that the paddy belonged to him.
He pointed out that in the notice it was admitted that the paddy was being taken to Dumka in Bihar, while in the grounds it was stated that it was on its way to West Bengal and that carrying of goods from Ranibahal to Dumka (both in Bihar) was no offence.
In his reply to the District Supply Officer the appellant had stated : "1.
I am a retail dealer in food grains holding foodgrain License No. 204 of 1966.
The truck bearing No. BRL 1331 does not belong to me.
The said 95 bags of paddy loaded on the said truck No. BRL 1331 does not belong to me.
The fact is that the said 95 bags of paddy belong to Shri Prahlad Rai Giluka of village Banskuli, P. section Ranishwar who is a cultivator which he had agreed to sell to me on condition that the delivery of the said paddy will be made to me at Dumka.
I therefore, request that the cause shown above be accepted and the proceedings, if any, may kindly be dropped.
" It appears that Prahlad Rai Giluka of Mouza Banskuli, P. section Ranishwar confirmed this before the District Supply Officer by stating as follows : "1.
That your petitioner is a cultivator and owns more than 100 bighas of Dhani lands at Mouza Murgani Ranibahal and Kumnirdaha and other villages which are contiguous villages.
That the petitioner 's son Prabhudayal Giluka is to start a business and as such there was necessary (sic) of fund and the petitioner proposed to sell 95 bags of paddy to one Rameshwar Lal Patwari of Dumka from his Murgani and Ranibahal land.
513 4.
That it was agreed that the paddy will be delivered at Dumka where the price will be paid.
That the petitioner accordingly engaged the truck of one Haris Chandar Agarwala, his BRL 1331 and asked his Munshi Mahadev Pal to load 95 bags of paddy in the truck.
That when the paddy in question was in the process of loading at Ranibahal the paddy was seized by the District Supply Officer on 29 12 66. 8. 9. 10.
That the paddy in question is not involved in any offence the same should be released forthwith.
" When these documents came to be filed, the return of the State Government made the following reply and avoided the issue: "4 It appears that the notice was issued on the statement of the driver of the truck who stated that he was bringing 95 bags of paddy from Ranibahal to Dumka in the truck belonging to the appellant.
The statement of the driver clearly shows that the truck belonged to the appellant.
The driver did not ' tell anything about the facts stated in annexure 'D ' to special leave paper book (Page 49 to 51).
" This shows that there was no inquiry at all.
The alleged statement of the driver was accepted and it was assumed that the paddy was being taken to West Bengal.
At least the explanation of the persons concerned could have been obtained.
This is clearly a case of jumping to a conclusion which is being lamely justified, when it is questioned with written record.
In these circumstances there is much reason to think that this ground probably did not exist although we are not in a position to say that it is non existing.
The fifth ground mentions that one Babu Ram Bikanaria wanted gram and gramdal at his Rice Mill at Saitha District Birbhum (West Bengal) and visiting Dumka contacted the appellant.
The latter promised to supply gram and gramdal.
On 7/8 December 1966 one Mulchand Choudhury sent truck No. BRJ 2029 loaded with gram and gramdal to Saitha through Mahesh Kola checkpost.
Further Mulchand 's truck No. BRL 1366 and van BRL 2005 were found at Raneshwar on December 7, 1966 from where 'he ' smuggles foodgrains to West Bengal. 'He ' pur chases ram and gramdal through Gopal Mandal of Lakhisarai (Dist.
Monghyr) and smuggles them to West Bengal.
It is again Sup.
C1/68 2 514 not clear who this 'he ' is.
The appellant has denied that he does in gram and gramdal and has any connection with Gopal Mandal of Lakhisarai or knows him.
He has denied all contact with such persons.
No reply to this was given in the return filed in this Court.
It appears that there may be suspicion that the appellant may be connected with some blackmarketing.
We are not concerned with the sufficiency or the reasonableness of the grounds.
In this case at least two grounds are vague, one ground is found to be false and of the remaining in one there is no explanation and in the other there is a lame excuse that the driver of the truck did not furnish the full information.
The case is thus covered by our rulings that where some grounds are found to be non existing or are cancelled or given up, the detention cannot be justified.
It is further covered by our decisions that if the grounds are not sufficiently precise and do not furnish details for the purpose of making effective representation the detention can be questioned.
This case displays both these defects and it is a matter of great regret that powers of detention without a trial, which should be ,exercised with the greatest care and attention have been exercised in this case with such disregard for truth and accuracy.
We accordingly allow the appeal and hold the detention of the appellant to be illegal and order his release.
G.C. Appeal allowed.

summary/full:
The appellant was detained under an order of the Governor of Bihar State under section 3(1)(a)(iii) of the .
The grounds of detention supplied to him mentioned that he was engaged in the black marketing of food grains.
He made a representation before the Advisory Board but his release was not recommended.
In a writ petition before the High Court he urged that the grounds of detention supplied to him were either vague or non existent.
The petition having been dismissed by High Court the appellant by special leave, came to this Court.
HELD:(i) The formation of the opinion about detention rests with the Government or the officer authorised.
Their satisfaction is all that the law speaks of and the courts are not constituted an appellate authority.
Thus the sufficiency of the grounds cannot be agitated before the court.
However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter.
it must require the closest scrutiny of the material on which the decision is fo leaving no room for errors or at least avoidable errors.
Since the detenu is not placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention.
If a vital ground is shown to be non existing so that it could not have and ought not to have played a part in the material for consideration, the court may attach some importance to this fact.
[509 D G] Shibban Lai Saksena vs U.P. ; and Keshav Talpade The King Emperor, referred to.
(ii) Black marketing is a sufficient ground for detention because it has a definite tendency to disrupt supplies when scarcity exists or scarcity is created artificially by hoarding to attain illegitimate profits.
Indulging in black marketing is conduct which is prejudicial to the maintenance of supplies.
It is hardly necessary to read supplies conjunctively with services, although cases may exist where supplies and services may both be affected.
The word 'and ' is not used conjunctively but disjunctively.
If sweepers strike, no question of disrupting supplies arises but services essential to the life of the community will certainly be disruped.
[510 B] Bhim Sen vs State of Punjab, ; , referred to.
(iii)The grounds of detention supplied to the appellant were either non existent or vague or otherwise deficient and, did not justify the detention of the appellant.
It was a matter of great regret that powers of detention without a trial which should be exercised with the greatest care and attention had been exercised in this case with disregard for truth and accuracy.
[514 B D]


judgement:
Appeal No. 287 of 1967.
Appeal from the judgment and order dated May 29, 1964 of the Punjab High Court in Civil Writ No. 1609 of 1961.
Harbans Singh and R. N. Sachthey, for the appellants.
The Judgment of the Court was delivered by Shah, J.
The respondents Joint Stock Company has its principal place of business in Bombay, and a branch office in New Delhi.
The Assessing Authority, Karnal, exercising power under the Punjab Professions, Trades, Callings and Employments Taxation Act 7 of 1956, assessed the respondent to, profession tax 537 for the years 1960 61 and 1961 62 and issued a notice of demand for the amount so assessed.
The High Court of Punjab quashed the notices of demand and the assessment orders holding that the respondent did not carry on trade within the State of Punjab and was not liable to be assessed to tax under the Act.
The State of Punjab has appealed to this Court against the order of the High Court.
Section 3 of Act 7 of 1956 provides "Every person who carries on trade, either by himself or by an agent or representative, or who follows a profession or calling or who is in employment, either wholly or in part, within the State of Punjab, shall be liable to pay for each financial year or a part thereof a tax in respect of such profession, trade, calling or employment.
Provided . . .
The respondent, it is common ground, has no branch office or any other place of business in the State of Punjab.
It has also not appointed any agent or representative to carry on business on its behalf within the State.
The respondent supplies goods to the Government of Punjab and certain "semi Government bodies" in the State in execution of orders received at its branch office at Delhi.
The goods are despatched from Delhi by rail or by public motor transport.
Pursuant to the terms and conditions of the "Rate Contract" between the respondent and the Controller of Stores for the State of Punjab, the respondent consigns the goods sold by it to the appropriate Government Department F.O.R. des tination.
Inspection of the goods is made within the State of Punjab.
The price for the goods sold is collected by presenting bills or railway receipts through Banks to the consignees.
The Assessing Authority held that the respondent "may rea sonably be regarded as selling goods within" the State of Punjab because it was supplying goods F.O.R. destination.
The High Court held that the respondent could not in law be regarded as carrying, on trade at the place at which the goods were supplied, merely because the railway or other receipts were taken out in the name of the respondent and presented to the purchasers duly endorsed in their favour to secure realization of the price of the goods.
Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise.
The expression "trade" is not defined in the Act.
"Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning it is repeated activity in the 538 nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.
The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances.
No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular, place.
The question, though one of mixed law and fact, must in each case be determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.
In the present case, the respondent has no shop or office within the State of Punjab.
The respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State.
But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab.
We need not refer in detail to cases such as Grainger and Son vs Gough (Surveyor of Taxes) (1); F. L. Smith & Co. vs F. Greenwood (Surveyor of Taxes)(2); and Firestone Tyre Co. Ltd vs Lewellin, (3) which interpret the expression "trade exercised within the United Kingdom" in the English Income Tax Acts, for they merely lay down that for the purpose of the Income Tax Acts, there is no single, decisive or "crucial" test to determine whether the tax payer exercises trade at a given place.
The appeal fails and is dismissed.
The respondent has not appeared at the hearing.
There will, therefore, be no order as to ,costs.

summary/full:
The respondent a Joint Stock Company, having no shop or office or agent within the State of Punjab, used to supply goods within the State pursuant to orders received and accepted at New Delhi, and also used to receive the price for the goods within the State.
The Assessing Authority, Kamal, assessed the respondent to profession tax under the Punjab Professions, Trades, Callings and Employments Taxation Act, 1956.
The order was quashed by the High Court.
In appeal to this Court, HELD : The activities of the respondent in the State were mere ancillary activities and did not amount to carrying on trade within the State.
[538 C D] The expression "trade" is not defined in the Act.
"Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning it is repeated activity in the nature of business carried oh with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.
The question whether trade is carried on by a person at a given place, though one of mixed law and fact, must in each case be determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.
[537 H 538 E] Grainger and Son vs Gough (Surveyor of Taxes) , F.L. Smith & Co. vs F. Greenwood (Survevor of Taxes), 8 T.C. 193 and Firestone Tyre Co. Ltd. vs Lewellin, distinguished.


judgement:
No. 55 of 1954.
Under article 32 of the Constitution for the enforcement of fundamental rights.
N. C. Chatterjee, (J. B. Dadachanji and Rajinder Narain, with him) for the petitioners.
K. V. Tambe and I. N. Shroff for the respondent.
April 5.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is a petition under article 32 of the Constitution and is presented to this Court under the following circumstances.
Petitioner No. I before us was an Agricultural Demonstrator of the Government of Madras and was employed as an Assistant Marketing Officer in Central Provinces and Berar for the purchase and movement of blackgram and other grains on behalf of the Madras Government.
He, as well as the second petitioner and 44 others, are under prosecution before Shri K. E. Pandey, a Special Magistrate of Nagpur, Madhya Pradesh, in Case No. I of 1949 pending before him on charges of cheating, attempt to commit cheating, criminal breach of trust 22 170 and criminal conspiracy, (i.e., for offences punishable under section 420 read with section 120 B or 109 of the Indian Penal Code, section 409 and section 409 read with section 120 B of the Indian Penal Code) and the allegation is that by reason of the acts committed by the accused, the Government of Madras had to incur an expenditure of Rs. 3,57,147 10 0 in excess of the amount due.
The Special Magistrate before whom the case is now pending was appointed by the Madhya Pradesh Government under section 14 of the Criminal Procedure Code, and as the first petitioner was a servant of the Government of Madras, the prosecution against him has been initiated by sanction given by the Government of Madras under section 197(1) of the Criminal Procedure Code.
The validity of the prosecution is challenged on various grounds, and the present petition is for quashing the proceedings on the ground of their invalidity.
The three main points taken before us are: (1) Section 14 of the Criminal Procedure Code, in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first, second or third class in respect of particular cases and thereby to constitute a Special Magistrate for the trial of an individual case, violates the guarantee under article 14 of the Constitution; (2) The sanction given under section 197(1) of the Criminal Procedure Code for the prosecution as against the first petitioner is invalid, inasmuch as the order of the Madras Government granting the sanction does not disclose that all the facts constituting the offences to be charged were placed before the sanctioning authority ; nor does the sanction state the time or place of the occurrence or the transactions involved in it, or the persons with whom the offences were committed.
This contention is raised relying on the Privy Council case in Gokulchand Dwarkadas Morarka vs The King(1); (3) Even if the sanction under section 197 (1) of the Criminal Procedure Code is valid, it is for the very Government which accords the sanction to specify also the Court before (1) A.I.R. 1948 P.C. 82. 171 which the trial is to be held under section 197(2) and in the absence of any such specification by the said Government, the power under section 14 of the Criminal Procedure Code of appointing a Special Magistrate for the trial of the case cannot be exercised by the Madhya Pradesh Government.
These points may now be dealt with seriatim.
In support of the objection raised under article 14 of the Constitution, reliance is placed on the decision of this Court in Anwar Ali Sarkar 's case (1).
That decision, however, applies only to a case where on the allotment of an.
individual case to a special Court authorised to conduct the trial by a procedure substantially different from the normal procedure, discrimination arises as between persons who have committed similar offences, by one or more out of them being subjected to a procedure, which is materially different from the normal procedure and prejudicing them thereby.
In the pre sent case, the Special Magistrate under section 14 of the Criminal Procedure Code has to try the case entirely under the normal procedure, and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's case (1) and the other cases following it arises here.
A law vesting discretion in an authority under such circumstances cannot be said to be discriminatory as such, and is therefore not hit by article 14 of the Constitution.
There is, therefore, no substance in this contention.
As regards the second ground which is put forward on the authority of the Privy Council case of Gokulchand Dwarkadas Morarka vs The King(2), it is admitted that the trial has not yet commenced.
The Privy Council itself in the case mentioned above has recognised that the lacunas, if any, in the sanction of the kind contemplated by that decision can be remedied in the course of the trial by the specific evidence in that behalf.
Learned counsel for the State, without conceding the objection raised, has mentioned to us that evidence in that behalf will be given at the trial.
It is, therefore, unnecessary to decide the point whether or not the sanction, as it is, and without such evidence is invalid.
(1) ; (2) A.I.R. 1948 P.C. 82.
172 It is the third point that has been somewhat seriously pressed before us.
The contention of learned counsel for the petitioners is based on sub section (2) of section 197 of the Criminal Procedure Code, which runs as follows : " The Governor General or Governor, as the case may be, exercising his individual judgment may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate, or public servant is to be conducted, and may specify the Court before which the trial is to be held.
" The argument is that it is for the very Government which sanctioned the prosecution under section 197(1) to specify the Court before which the trial is to be held and no other, and that consequently, in a case to which section 197(1) applies, the exercise of any power under section 14 is excluded.
It is said that though the exercise of the power under section 197(2) in so far as it relates to specification of the Court is concerned is discretionary and optional, but if in an individual case, that power is not exercised, it must be taken that the appropriate Government did not feel called upon to allot the case 'to any special Court, and that, therefore, such allotment by another Government under section 14 would affect or nullify the power of the appropriate Government under section 197(2).
It is also suggested that such dual exercise of the power by two Governments would be contrary to the policy underlying section 197 which is for the protection of the public ser vant concerned, by interposing the sanction of the Government between, the accuser and its servants of the categories specified therein.
This argument is farfetched.
In the first instance, there is no reason to think that section 197(2) is inspired by any policy of protection of the concerned public servant, as section 197(1) is.
There can be no question of protection involved by an accused being tried by one Court rather than by another at the choice of the Government.
The power under section 197(2) appears to be vested in the appropriate Government for being exercised, on grounds of convenience, or the complexity or gravity of the case or other relevant considerations.
The argument as to 173 the implication of non exercise of the power by the appropriate Government under section 197(2) is also untenable.
The power to specify a Court for trial in such cases is a permissive power, and there can be no such implication, as is contended for, arising from the non exercise of the power.
This entire argument, however, is based on a misconception of the respective scopes of the powers under, section 197(2) and section 14.
The one relates to the "Court" and the other to the "Person".
Under sub section (2) of section 197, the sanctioning Government may specify a. Court for the trial of the ' case but is not bound to do so.
When it does not choose to specify the Court, the trial is subject to the operation of the other provisions of the Code.
But even when it chooses to exercise the power of specifying the Court before which the trial is to be held, such specification of the Court does not touch the question as to who is the person to function in such Court before which the trial is to take place.
That is a matter still left to be exercised by the Provincial Government of the area where the trial is to take place. 'The argument of learned counsel proceeds on treating the word "Court" in sub section (2) of section 197 as being the same as a "person" in sub section (1) of section 14, for which there is no warrant.
There is accordingly no substance in this contention.
In addition to the above three points, learned counsel for the petitioners has also raised a further point that in the present case Shri K. L. Pandey who was first appointed as a Special Magistrate for the trial of the case, and to whose file on such appointment this case was transferred, was later on appointed as acting Sessions Judge for some time and ceased to have this case before him.
He reverted back from his position as acting Sessions Judge to his original post.
The point taken is that without a fresh notification appointing him as Special Magistrate and transferring the case to him as such, he cannot be said to be seized of this case as Special Magistrate.
Here again, learned counsel for the State informs us, without conceding the point so taken, that he is prepared to advise the Government 174 to issue the necessary notification and have the case transferred.
In view of that statement, it is unnecessary to pronounce on the objection so raised.
In the result, all the points raised on behalf of the petitioners fail, and this petition must be dismissed.
It is desirable to observe that the questions above dealt with appear to have been raised before the High Court at previous stages by means of applications under article 226 and decided against.
No appeals to this Court have been taken against the orders therein.
Nothing that we have said is intended to be a pronouncement as to the correctness or otherwise of those orders, nor to encourage the practice of direct approach to this Court (except for good reasons) in matters which have been taken to the High Court and found against, without obtaining leave to appeal therefrom.
Petition dismissed.

summary/full:
The petitioner, an officer of the Madras Government, was employed in Central Provinces and Berar for the purchase of grains on behalf of the Madras Government.
He along with many others, was under prosecution before a Special Magistrate, Nagpur (Mad by a Pradesh), on charges for offences under section 420 of the Indian Penal Code etc.
for causing loss to the Madras Government.
The Special Magistrate trying the case was appointed by the Madhya Pradesh Government under section 14 of the Code of Criminal Procedure and as the petitioner was a servant of the Government of Madras, the prosecution against him was initiated with the sanction given by the Government of Madras under section 197 of the Code of Criminal Procedure.
Held, (i) that section 14 of the Criminal Procedure Code in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on Magistrates of the first, second or third class in 169 respect of particular oases and thereby to constitute a Special Magistrate for the trial of an individual case, does not violate the guarantee under article 14 of the Constitution as the Special Magistrate in the present case had to try the case entirely under the normal procedure and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's Case ([1952] S.C.R. 284) arose in the present case.
A law vesting discretion in an authority under such circumstances cannot be discriminatory and is, therefore, not hit by article 14 of the Constitution.
(ii) It is not for the very Government which accords sanction under section 197(1) to specify also the Court before which the trial is to be held under section 197(2) and therefore in a case to which section 197(1) applies, the exercise of any power under section 14 is not excluded.
The word "Court" in sub section (2) of section 197 is not the same thing as a "person" in sub section (1) of section 14.
The practice of direct approach to the Supreme Court under article 32 (except for good reasons) in matters which have been taken to the High Court and found against, without obtaining leave to appeal therefrom, is not be encouraged.
Gokulchand Dwarkadas Morarka vs The King (A.I.R. 1948 P. C. 82) referred to; and Anwar Ali Sarkar 's case ([1952] S.C.R. 284) distinguished.