judgement:
N: Criminal Appeal No. 439 of 1976.
Appeal by special leave from the judgment and order dated the 23rd April, 1976 of the Rajasthan High Court in Criminal Revision No. 300 of 1974.
K.K. Venugopal, S.S. Khanduja, and G.C. Mishra for the Appellant.
B.D. Sharma for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated June 29, 1974 of the Rajasthan High Court overruling a preliminary objection taken by the accused before the Sessions Judge to the effect that the Sessions Judge, Tonk was not competent to try the case as the accused Umesh Chandra was a child as contemplated by the provisions of the Rajasthan Children Act, 1970 (hereinafter referred to as the 'Act ') on the date of the alleged occurrence.
This Act appears to have been passed by the Rajasthan Legislature, but after receiving assent of the President was enforced in various districts from time to time.
Under the provisions of the Act any person below the age of 16 (sixteen) would be presumed to be a child and the trial of a delinquent child was to be conducted in accordance with the procedure laid down therein.
The objection taken by the appellant was that as he was below the age of 16 at the time of the occurrence on 12.3.1973, he could not be tried by the Additional Sessions Judge, Tonk or the Additional Sessions Judge, Jaipur city, to whom the case was transferred or 17.10.73 586 The Sessions Judge overruled the objection taken by the accused and therefore he filed a revision to the Rajasthan High Court against the order.
The High Court after considering the oral and documentary evidence came to the conclusion that the Act was not applicable to the appellant for two reasons (1) that it was not brought into force in Tonk at the time of the offence, and (2) that it was not proved by the accused that he was below the age of 16 on 12.3.1973, the date of the occurrence.
The accused was charged for offences punishable under sections 364 and 302 of the Indian Penal Code.
Aggrieved by the order of the High Court, the appellant moved this Court in special leave and at the time of granting special leave, this Court directed the High Court to return a finding of fact on the actual date of birth of the accused so that this Court may determine the applicability of the Act to the facts of the present case.
The High Court after reappraising the entire evidence oral and documentary by its Order dated 18.11.76 came to a clear finding that the age of Umesh Chandra at the time when the offence was committed was 16 years 5 months and 20 days and that the exact date of birth of the appellant was proved to be 22.9.1956.
After the finding of fact called for from the High Court was sent to this Court, the appeal was placed for hearing before us.
In support of the appeal, the learned counsel for the appellant has assailed the finding of the High Court that the age of the appellant was above 16 years and it was contended that the High Court has based its decision on wholly irrelevant material and has also committed errors of law in appreciating important documentary evidence.
Another point that was argued before us was as to the application of the Act to Tonk, where the offence was committed.
As, however, the Act has now been enforced in the entire State, this question no longer survives because where a situation contemplated by section 26 of the Act arises, an accused, who is found to be a child, has to be forwarded by the Sessions Court to the Children 's court which can pass appropriate sentence.
Where however proceedings against a child are pending before Sessions Judge, section 26 of the Act enjoins a duty on the Court in which the proceeding in respect of the child is pending on the date on which the Act is extended to the area to act in the manner therein prescribed.
In this eventuality, the Court is under an obligation to proceed With the trial and record 587 a finding as if the Act does not apply.
But after concluding the trial and recording a finding that the child had committed an offence, the Court cannot pass any sentence but the Court is under a statutory obligation to forward the child to the Children 's court which shall pass orders in respect of that child in accordance with the provisions of the Act, as if it has been satisfied on inquiry under the Act that the child bas committed the offence.
In view of this provision, section 21 would be attracted and the Children 's court will have to deal with the child under section 21.
Thus, the main point for consideration in this case is as to what is the exact date of birth of the appellant, Umesh Chandra.
The High Court appears to have brushed aside the documentary evidence produced by the appellant mainly on the ground that subsequent documents clearly proved that the father of the accused had not correctly mentioned the date of birth in the previous schools attended by him (accused) and later corrected his date of birth by an affidavit which was accepted by the High Court to be the correct date.
The High Court also rejected the oral evidence adduced by the appellant as also the horoscope produced by his father.
We agree with the High Court that in cases like these, ordinarily the oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity.
Oral evidence may have utility if no documentary evidence is forthcoming.
Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation.
To this extent, we agree with the approach made by the High Court.
Coming now to the facts on the basis of which the appellant sought protection to be tried only under the Act; according to the testimony of the father of the appellant he was.
born on 22.6.57 and was aged 15 years 9 months on 12.3.1973 the date of the occurrence.
It is, however, not disputed that at the time when the appellant was born, his father was posted in a small village (Dausa) where the maternal grandfather of the appellant had lived and perhaps he was not meticulous enough to report the birth of his children.
There is nothing to show the birth of the appellant nor any evidence has been produced on this aspect of the matter.
There is also nothing to show that the dates of birth of the other children of 588 Gopal (the father) were registered in any Municipal register or in chowkidar 's register.
We have mentioned this fact because the High Court seems to have laid special stress and great emphasis on the non production of any reliable record to prove that the birth of the appellant had been entered therein.
It is common knowledge that in villages people are not very vigilant in reporting either births or deaths and, therefore, an omission of this type cannot be taken to be a most damaging circumstance to demolish the case of the appellant regarding his actual date of birth.
The first document wherein the age of the appellant was clearly entered is Ext.
D 1 which is the admission form under which he was admitted to class III in St. Teressa 's Primary School, Ajmer.
In the admission form, the date of birth of the appellant has been show a as 22.6.1957.
The form is signed by Sister Stella who was the Headmistress.
The form also contains the seal of the school, DW, Ratilal Mehta, who proved the admission form, has clearly stated that the form was maintained in the ordinary course of business and was signed only by the parents.
The evidence of Ratilal Mehta (DW 1) is corroborated by the evidence of Sister Stella (DW 3) herself who has also endorsed the fact of the date of birth having been mentioned in the admission form and has also clearly stated on oath that the forms were maintained in regular course and that they were signed by her.
She has also stated that at the time when the appellant was first admitted she was the headmistress of St. Teressa Primary School, Ajmer.
The High Court seems to have rejected this document by adopting a very peculiar process of reasoning which apart from being unintelligible is also legally erroneous.
The High Court seems to think that the admission forms as also the School 's register (Ext.
D 3) both of which were, according to the evidence, maintained in due course of business, were not admissible in evidence because they were not kept or made by any public officer.
Under section 35 of the Evidence Act, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only.
The High Court seems to have confused the provisions of sections 35, 73 and 74 of the Evidence Act in interpreting the documents which were admissible not as public documents or documents maintained by public servants under sections 34, 73 589 or 74 but which were admissible under section 35 of the Evidence Act which may be extracted as follows: "35.
Relevancy of entry in public record made in performance of duty An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such books, register or record is kept, is itself a relevant fact." (Emphasis ours) A perusal of the provisions of section 35 would clearly reveal that there is no legal requirement that the public or other official book should be kept only by a public officer but all that is required is that it should be regularly kept in discharge of her official duty.
This fact has been clearly proved by two independent witnesses, viz., DW 1, Ratilal Mehta and DW 3, Sister Stella.
The question does not present any difficulty or complexity as in our opinion the section which would assist in this behalf is section 35 of the Evidence Act which provides for relevancy of entry in the public record.
In this connection we may refer to a decision of this Court in Mohd. Ikram Hussain vs State of U.P., where Hidayatullah, J. speaking for the Court, observed as under: "In the present case Kaniz Fatima was stated to be under the age of 18.
There were two certified copies from school register which show that on June 20, 1960, she was under 17 years of age.
There was also the affidavit of the father (here evidence on oath) stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age.
These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam." This topic has been elaborately dealt with particularly in regard to the entries in School Register and the admission forms in the case of Abdul Majid vs Bhargavam.
In these circumstances, 590 the view of the High Court with regard to section 35 is plainly untenable and sections 73 and 74 are utterly irrelevant.
Further, the High Court was of the view that as the documents produced by the Teressa Primary School were kept in loose sheets, no reliance can be placed on them.
This fact is admitted but the headmistress has explained that the admission forms were bound much after the date of birth was recorded and hence it cannot be presumed that the documents were not kept in the regular course of business.
Moreover, the School where the documents were maintained was an English public school and the record maintained by it was undoubtedly unimpeachable and authentic and could not be suspected or presumed to be tampered with.
At the time when the age of the appellant was first mentioned in the admission form, there was absolutely no dispute about the date of birth or for that matter the exact date on which he was born and there could not have been any motive on the part of the parents of the accused to give a false date of birth because it was his first admission to a school at a very early age.
Further, the school to which the appellant was admitted being a Public School enjoyed good reputation of authenticity.
In M/s. Gannon Dunkerlay & Co. Ltd. vs Their Workmen this Court made the following observations: "In fact, if the register had been prepared at one sitting for purposes of these cases, the Company would have taken care that no suspicious circumstance comes into existence and, if, by chance, any error was committed, it could have ' prepared another register in lieu of Ext.
The fact that this was not done shows that this register is the register kept in the course of business and, hence, there is no reason to doubt the entries made in it.
" These observations fully apply to the facts of the present case because if there had been any element of suspicion in giving the date of birth, the admission register and the Scholar 's register would have been corrected by the headmistress of the school.
591 Exts.
D 1 and D 2, mentioned above, are corroborated by subsequent documentary evidence.
It appears that an 1.7.65, the boy was admitted to 3rd standard (equivalent to 5th class) in St. Paul 's school, Jaipur after the appellant 's father was transferred from Ajmer to Jaipur.
Here also the document shows that the date of birth given was the same, namely, 22.6.1957.
Thus, consistently on two occasions, starting from 1963 and ending in 1965, the date of birth was mentioned in the relevant documents as 22.6.1957.
This Court in Mohd. Ikram Hussain vs State of U.P. & Ors.
(Supra) has held that copies of school certificates or the affidavit of the father constitute good proof of age, vide observations extracted herein before.
In the instant case also there are two documents of two different schools showing the age of the accused appellant as 22.6.57 and both these documents have been signed by his father and were in existence ante litem motam.
Hence, there could be no ground to doubt the genuineness of these documents and the High Court committed a serious error of law in brushing aside these important documents.
Another circumstance which weighed with the High Court was that when the boy was admitted in St. Paul 's school, no transfer certificate appears to have been taken.
This by itself is not sufficient to dislodge the case of the appellant unless a transfer certificate was taken and it had shown that the date of birth given there did not tally with the documents (Exts.
D 1 to D 4).
It appears that as the father of the appellant was subsequently transferred from Jaipur sometime in June 1966 to Dhausa and he was admitted to the Sanskrit Pathshala in Dhausa, for the first time in this school the date of birth of the appellant was changed from 22.6.57 to 22.9.56.
The explanation given by his father is that as by this time the boy had become almost 10 years of age and as clause 10 of Chapter XVIII of the Rajasthan Board of Secondary Education Regulations required that no candidate could take the Higher Secondary Examination until he had attained the age of 15 years on the 1st of October of the year in which the Examination was held, he had to give an affidavit to change this fact in order to enable his son (appellant) to appear in the Higher Secondary Examination.
This position was not disputed by the State.
The High Court seems to have made much of this lacuna and has gone 592 to the extent of labelling Gopal Sharma, appellant 's father, as a liar having gone to the extent of making a false affidavit.
Here also, we think the High Court has taken a most artificial and technical view of the matter.
In our country, it is not uncommon for parents sometimes to change the age of their children in order to get some material benefit either for appearing in examination or for entering a particular service which would be denied to a child as under the original date of birth he would be either under aged or ineligible.
Thus, the appellant 's father has given a cogent reason for changing the date of birth and there is no reason not to accept his explanation particularly because the offence was committed seven years after changing the date of birth, and, therefore, there could be no other reason why Gopal Sharma should have gone to the extent of filing an affidavit to change the date, except for the reason that he has given.
It was also argued that in the insurance policy, the appellant 's mother had shown his age as 10 years without giving the exact date of birth.
The age of the appellant was given as a rough estimate in the insurance policy but as the policy was not in the name of the appellant, nothing turns upon this fact particularly because by and large giving allowance for a few months this way or that way the boy was about 10 years old when the policy was taken.
The High Court, therefore, was wrong in attaching too great an importance to this somewhat insignificant fact.
For these reasons we are satisfied that these circumstances also do not put the case of the appellant out of court.
These are the main reasons given by the High Court for distrusting what, in our opinion, seems to be unimpeachable documentary evidence produced by the appellant to show that his exact date of birth was 22.6.57 and not 22.9.56 as altered by his father later.
Another question argued at the Bar was as to what is the material date which is to be seen for the purpose of application of the Act.
In view of our finding that at the time of the occurrence the appellant was undoubtedly a child within the provisions of the Act, the further question if he could be tried as a child if he had become more than 16 years by the time the case went up to the 593 court, does not survive because the Act itself takes care of such a contingency.
In this connection sections 3 and 26 of the Act may be extracted thus: "3.
Continuation of inquiry in respect of child who has ceased to be child.
Where an inquiry has been initiated against a child and during the course of such inquiry the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a child.
xx xx xx 26.
Special provision in respect of pending cases.
Notwithstanding anything contained in this Act, all proceedings in respect of a child pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the child has committed an offence, it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the children 's court which shall pass orders in respect of that child in accordance with the provision of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence.
" A combined reading of these two sections would clearly show that the statute takes care of contingencies where proceedings in respect of a child were pending in any court in any area on the date on which the Act came into force.
Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but would forward the child to the children 's court for passing orders in accordance with the Act.
As regards the general applicability of the Act, we are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place.
Children Act was enacted to protect young children from the consequences of their 594 criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult.
This being the intendment of the Act, a clear finding has to be recorded that the relevant date for applicability of the Act is the date on which the offence takes place.
It is quite possible that by the time the case comes up for trial, growing in age being an involuntary factor, the child may have ceased to be a child.
Therefore, sections 3 and 26 became necessary.
Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence.
We are clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial.
The High Court has failed to take notice that the Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and, therefore, its provisions should be liberally and meaningfully construed so as to advance the object of the Act.
Bearing this in mind we have construed the documents in the instant case.
We, therefore, allow the appeal to the extent that while setting aside the judgment of the Sessions Judge, as affirmed by the High Court, we direct the Additional Sessions Judge, Jaipur, to try the accused and if he gives a finding that the accused is guilty, he shall forward the accused to the Children 's court for receiving sentence in accordance with the provisions of section 26 of the Act.
H.L.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The Rajasthan Children Act, 1970, provides that any person below the age of 16 years should be presumed to be a child and that a delinquent child should be tried by a Children 's court in accordance with the procedure laid down therein.
The appellant was charged under sections 364 and 302, I.P.C., in connection with an occurrence that took place in Tonk district on March 12, 1973.
A preliminary objection that the Sessions Judge was not competent to try the case of The appellant as he was a child under the provisions of the Children Act was overruled by the trial court.
The revision filed by the appellant against the decision of the trial court was dismissed by the High Court which held that the Children Act was not applicable to the appellant as that Act had not been enforced in Tonk district on the date of the occurrence.
The High Court further held that the appellant had failed to prove that he was below the age of 16 years.
On being directed by this Court to ascertain the actual date of birth, the High Court held that the date of birth of the appellant was September 22, 1956; and, therefore, he was over 16 years on the date of the occurrence.
The High Court rejected the documents produced from the first two schools attended by the appellant which showed his date of birth to be June 22, 1957, for the reason that those documents had not been kept or made by a public officer; it relied on an affidavit furnished by the father of tho appellant while admitting him to the third school in which the date of birth had been changed to September 22, 1956.
The explanation of the appellant 's father that the date of birth had been changed to fulfil the requirement of age under the Rajasthan Board of Secondary Regulations to enable the appellant to appear in the Higher Secondary Examination at the appropriate time was not accepted.
Allowing the appeal, 584 ^ HELD: 1.
(a) The relevant date for applicability of the Rajasthan Children Act, 1970 so far as the age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial as is clear from the provisions of sections 3 and 26 of the Act.
[594 C] (b) At the time of the occurrence, the appellant was undoubtedly a child within the provisions of the Act.
[592 H] (c) The question whether the appellant could be tried as a child if he had become more than 16 years by the time the case went up to the court, does not survive as the Act has now been enforced in the entire State.
A combined reading of sections 3 and 26 clearly shows that the statute takes care of contingencies where proceedings in respect of a child were pending in any court on the date on which the Act came into force.
Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but is obliged to forward the child to the Children 's court for passing orders in accordance with the Act.
[592 H; 593 A; 593 F G] (d) The judgment of the Sessions Judge as affirmed by the High Court be set aside and the Additional Sessions Judge, Jaipur, be directed to try the accused and if he gave a finding that the accused was guilty, he shall forward the accused to the Children 's court for receiving sentence in accordance with the provisions of the Act.
[594 E] 2.
There is no legal requirement under section 35 of the Evidence Act that the public or other official book should be kept only by a public officer; all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document.
[588 G; 589 C] Mohd.
Ikram Hussain vs State of U.P., [1964] 5 S.C.R. 86, 100 & Abdul Majid vs Bhargavam, A.I.R. 1963 Ker. 18 referred to.
The Rajasthan Children Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and, therefore, its provisions should be liberally and meaningfully construed so as to advance the object of the Act.
The Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult.
[524 D; 593 H; 594 A] In the instant case there are two documents of two different schools showing the date of birth of the appellant as June 22, 1957 and both these documents have been signed by his father and were in existence ante litem motam.
Hence, there could be no ground to doubt the genuineness of these documents.
At the time when the age of the appellant was first mentioned in the admission form, there was absolutely no dispute about the date of birth and there could Dot have been any motive on the part of the parents to give a false date of birth because it was his first admission to a school at a very early age.
The school to which the appellant was admitted enjoyed good reputation of authenticity.
585 there had been any element of suspicion, the admission register and the scholar 's register would have been corrected by the headmistress of the school.
[591 D; 590 D; 590 H] M/s. Gannon Dunkerlay & Co. Ltd. vs Their Workmen, referred to.
The appellant 's father has given a cogent reason for changing the date of birth and there is no reason for not accepting his explanation particularly because the offence was committed seven years after changing the date of birth.
[592 C]


judgement:
: Criminal Appeal No. 45 of 1982.
597 From the Judgment and Order dated the 9th July, 1981 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 333 DB of 1981, AND S.L.P. (Crl.) No. 2948 of 1982.
R.L. Kohli and R. C. Kohli for the Appellants.
T.U. Mehta and A.G. Ratnaparkhi for Respondent No. 1.
N.C. Talukdar and R.N. Poddar for Respondent No. 3.
N.C. Talukdar and R.N. Poddar for the Petitioner in S.L.P. (Crl.) No. 2498/81.
D. D. Sharma for the State.
The Judgment of the Court was delivered by MISRA, J.
The appeal as well as the special leave petition are directed against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 9th July, 1981.
Criminal appeal has been filed by the complainant while the special leave petition has been filed by the State of Himachal Pradesh.
Vinay Kumar and his mother Chhano Devi were convicted for the murder of Asha, the wife of Vinay Kumar by burning her alive and sentenced to life imprisonment by the learned Sessions Judge, Gurdaspur.
On appeal by the accused, the High Court acquitted them by the impugned judgment.
The prosecution case set up at the trial was that the deceased Asha was married with Vinay Kumar in July, 1972.
The marriage was an arranged marriage.
It did not prove to be a success, the apparent cause for the failure of marriage was that Asha was only a matriculate and not cultured enough to move about in the society with the husband.
To make up this deficiency the deceased again resumed her studies and started attending college at Nagrota Bhagwan.
While prosecuting her studies she was rebuked and abused and sometimes even thrashed, whenever she visited the house of her in laws.
She however, kept on suffering in the vain hope that in due course of time things might improve.
There was, however, no improvement and she was fed up with the maltreatment and 598 cruelty meted out to her in the in laws house.
She left the matrimonial home and started living with her parents sometime in the year 1975 or early 1976.
In 1977 Vinay Kumar filed a petition in the court of the District Judge, Kangra at Dharamshala under section 13 of the Hindu Marriage Act for the dissolution of his marriage with the deceased on various grounds including one of desertion.
The District Judge in the first instance tried for reconciliation between the spouse and as an interim arrangement Asha returned to her in laws house in June 1978 on trial basis, while divorce petition was kept pending and adjourned to July 29, 1978.
As the parties did not appear in the Court on the date fixed, it was presumed that they were living happily and the proceedings were, therefore, consigned to the record.
On 5th of August, 1978 at about 11 a.m.
Kanwal Nain P.W. 4, Bil Bhandur P.W. 14, employee of the Post office, which was just in front of the house of the accused at a distance of 10/12 feet, and a number of other persons saw smoke coming out of the window of the house of the accused.
When Bil Bhandur and others went to the house, they found the outer door locked.
There was no other means of ingress to the house.
After a short while one Raj brought the key from Chhano Devi accused with which the lock was opened and entry gained into the house.
Asha was found burning and after extinguishing the fire, she was removed to the local hospital.
Dr. O. P. Dutta attended her and sent an intimation of the incident to the Incharge local Police Post.
He recorded the statement of Asha on the out patient register 13x.
Meanwhile Kesar Singh, Assistant Sub Inspector, arrived there an d after getting a certificate from Dr. Dutta, he also recorded her statement exhibit PU.
From Civil Hospital, Kangra Asha was removed in a truck to a Civil Hospital in Dharamshala (H.P.) where she breathed her last.
The police suspected no foul play and did not register any case.
The father of the deceased Hanumant Dass, however, made a report on 7th August, 1978 and a case was registered on that basis.
The accused were sent up for trial.
When the case was pending in the Court of Sessions Judge, Dharamshala in Himachal Pradesh, the complainant moved an application to the 599 Supreme Court for transfer of the case from Himachal Pradesh to some other province.
The case was transferred to a Court of competent jurisdiction at Gurdaspur in Punjab.
The Sessions Judge, Gurdaspur convicted both the accused under section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment.
This conviction was based only on the circumstantial evidence.
Accused went up in appeal to the High Court.
The High Court in its turn set aside the order of conviction and acquitted the accused of the charge.
The complainant has filed the present appeal.
Shri Kohli appearing for the complainant has strenuously contended that the appeal before the High Court has been allowed in the absence of the State of Himachal Pradesh and without any notice to that State and as such the impugned judgment of the High Court is a nullity and should be set aside on that ground alone.
The accused had impleaded only the State of Punjab as a party and the High Court has issued notice to the Advocate General of Punjab.
As a second limb to this argument it has been contended by Shri Kohli that the appeal was filed in the High Court on 15th June, 1981 and while considering the application for bail on 22nd of June, 1981, posted the appeal for hearing on 6th of July, 1981 after service of notice on the Advocate General of Punjab and the appeal was decided on 9th July, 1981 without even summoning the record.
Thus the High Court was in a hot haste to dispose of the appeal even without reasonable opportunity being afforded to the counsel for the State and without impleading the appropriate State as a party to the appeal and without notice to the counsel for the State of Himachal Pradesh.
We may first deal with the criticism of the learned counsel about the undue haste in the disposal of the appeal by the High Court.
It appears that Shri M.R. Mahajan, counsel for the appellants while moving the application for bail made a statement before the High Court and it is on his statement that the case was posted for hearing at the earliest possible.
This will be apparent from the order dated 22.6.1981 passed by the High Court while disposing of the application for bail.
The order insofar as it is material for consideration of the point reads: ".
Mr. Mahajan, Advocate states that on the findings of fact recorded by the learned trial Judge, the conviction of the appellants cannot be sustained.
Notice for 6.7.81.
600 to the Advocate General, Punjab.
Copy of the grounds of appeal and the judgment rendered by the learned trial Judge be delivered in the office of the A. C. Punjab within two days, The case is likely to be disposed of on that date . " Therefore, the charge levelled against the High Court that it was in a hot haste to decide the appeal at the earliest possible appears to be uncalled for.
This leads us to the main contention raised by Shri Kohli that the transfer of the case from Dharamshala lying within the territorial jurisdiction of the High Court of Himachal Pradesh to Gurdaspur Lying within the jurisdiction of the Punjab and Haryana High Court, does not change the parties and the parties remain the same even after the transfer of the case from Dharamshala to Gurdaspur.
In this view of the legal position, the State of Himachal Pradesh where the offence was committed was a necessary party and should have been impleaded in appeal.
In the absence of the State of Himachal Pradesh as a party and in the absence of notice to the counsel for the State of Himachal Pradesh, the High Court was not justified in disposing of the appeal and its judgment is only a nullity.
This contention is based on section 385 of the Code of Criminal Procedure.
Insofar as it is material for the purpose of the case it reads : "385(1): If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in case instituted upon complaint, to the complainant; (iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
601 (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
In the appeal before the High Court, State of Punjab was made a party and notice .
Of the appeal was also given to the Advocate General of Punjab.
According to Shri Kohli this does not satisfy the requirement of law.
It would be appropriate at this stage to refer to other relevant provisions of the Code: Section 225 provides that "In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
" Section 2(4) defines public prosecutor "Public Prosecutor means any person appointed under section 24, and includes any person acting under the direction of a public prosecutor.
" Section 24 deals with "Public Prosecutors in the High Court": "24.
Public Prosecutors: (I) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. . . . . . .
Section 378 talks of an appeal in case of acquittal.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the , or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub sec.(3) to the High Court from the order of acquittal.
Section 432 authorises the appropriate Government to suspend or remit sentences. "432(1): When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension for remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion (3) .
. . (4). . (s) (6) The provisions of the above sub sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property, 603 (7) In this section and in section 433, the expression "appropriate Government" means (a) in cases where the sentence is for an offence against, or the order referred to in sub section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
From the various provisions extracted above it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central Government or State Government in the High Court.
Shri Kohli, however, contends that occurrence in the instant case took place within the territorial limits of Himachal Pradesh.
That State, therefore, will continue to be a necessary party in the appeal irrespective of the fact that the appeal was filed in the Punjab High Court.
Section 432(7) extracted above defines "appropriate Government".
"Appropriate Government" means (a) in cases where the sentence is for an offence against, or the order referred to in subsection (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed.
A somewhat similar question came up for consideration in the State of Madhya Pradesh vs Ratan Singh & Ors.,(1) where the respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh.
At his request he was transferred o a Jail in the State H 604 of Punjab, to which State he belonged.
He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment.
The application was sent to the Government of Madhya Pradesh, which rejected it.
In a Writ petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter.
This Court in appeal observed "a perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of sec.
401 of the Code of Criminal Procedure.
Thus since the prisoner in The instant case, was tried, convicted and sentenced in the State of Madhya Pradesh, the State of Madhya Pradesh would be the appropriate Government.
to exercise the discretion for remission of the sentence under sec.
401(1) of the Code of Criminal Procedure. .
" That was a case based on section 401 of the old Criminal Procedure Code, but the Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and reiterated the provisions of section 402(3) in sub section (7) of section 432, Lastly it was contended that the appeal was disposed of by the High Court even without summoning the record.
There is no warrant for this assumption.
No specific allegation has been made in the special leave petition that the record was not summoned.
We have perused the Judgment of the High Court and the tenor of the judgment indicates that the record must have been there before the court.
There is copious reference to the materials on the record which could be possible only when the record was there before the court.
the counsel for the appellant made a statement before the court that on the finding of fact recorded by the High Court he was entitled to an acquittal and in this view of the matter even if the record had not been summoned (for which there is no basis) that would not be fatal, Proviso to sub section (2) of section 385 itself provides ". the court may dispose of the appeal without sending for the record.
" in a certain situation.
The rigour of subsection (2) of sec.
385, which provides that "the Appellate Court shall then send for the record of the case. " has been taken away by the proviso in a certain situation.
If the appellant himself says that the appeal can be allowed on the findings recorded by the Sessions Judge, the non summoning of the record, if it was at all so, 605 would not to our mind be fatal.
The complainant was present with his counsel, the State Advocate General was also present.
If there had been any grievance about the record, they would have raised an objection.
Their non objection on this point is also an indicator that the record was there or in any case, the summoning of the record was not thought to be necessary by the parties.
B Assuming for the sake of argument, that there were certain irregularities it the procedure the judgment of the High Court could not be set aside unless it was shown by the appellant that there has been failure of justice, as will be evident from section 465 of the Criminal Procedure Code which reads: "465.
no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
" We have perused the judgment of the High Court which was placed before us in full.
It shows that each and every aspect of the matter has been thoroughly discussed and the High Court has also referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions.
on merits we fully agree with the appraisal of the evidence made by the High Court.
It is not necessary to repeat the same 606 over again.
There is no eye witness.
The fate of the case hinges upon the circumstantial evidence.
The High Court has dealt with the two dying declarations, one recorded by the Doctor and the other by the Assistant Sub Inspector.
The High Court also took into consideration the oral dying declaration on which the prosecution strongly relied.
But even that declaration does not implicate the accused.
The reason given by the High Court for acquittal in our opinion is cogent and plausible.
For the foregoing discussion, the criminal appeal and the special leave petition must fail and they are accordingly dismissed.

summary/full:
Vinay Kumar, the husband of the deceased Asha and his mother Chhano Devi were charged, convicted for the offence of burning alive the deceased and sentenced to life imprisonment on a complaint by Hanumant Dass the father of the deceased and the appellant in Criminal Appeal 45 of 1982 by the Sessions Judge Gurdaspur, Punjab.
The offence is alleged to have been committed within the territorial limits of the State of Himachal Pradesh, but on an application of the complainant the case was transferred by an order of the Supreme Court inasmuch as the accused were the brother in law and mother in law of a Judge of the High Court of Himachal Pradesh.
In appeal by tho accused the High Court of Punjab issued, on 22 6 1981, notice for 6 7 1981 to the Advocate General of Punjab only and on that date heard the appeal and acquitted both the accused.
Hence the appeal by the complainant and the special leave by the State of Himachal Pradesh.
Dismissing the appeal and the Special Leave Petition, the Court, ^ HELD: 1.
The charge levelled against the High Court that it was in a hot haste to decide the appeal at the earliest possible is incorrect in view of the order dated 22 6 1981 passed by the High Court of Punjab.
[600 B] 2:1.
Section 385 of the Code of Criminal Procedure is a mandatory provision and the requirement of the section must be satisfied.
In the appeal before tho High Court State of Punjab was made a party and notice of the appeal was also given to the Advocate General of Punjab.
From sections 2(4), 24, 225, 378 and 432 it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central 596 Government or State Government in the High Court.
If notice has been given to the Public Prosecutor, namely, the Advocate General of Punjab the requirement of law has been fulfilled.
[601 B C, 603 C D] 2:2.
Section 432 of the Criminal Procedure Code defines "appropriate Government" as meaning (a) in cases where the sentence is for an offence against, or the order referred to in sub section (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed.
[603 C D] State of Madhya Pradesh vs Ratan Sing & Ors., [1976] Supp.
S.C.R. 552, applied.
To contend that the High Court disposed of the appeal even without summoning the record is incorrect.
No specific allegation has been made in the Special Leave Petition that the record was not summoned.
The tenor of the judgment of the High Court indicates that the record must have been there before the High Court.
There is copious reference to the materials on the record which could be possible only when the record was there before the court.
Besides, the counsel for the appellant made a statement before the court that on the finding of fact recorded by the High Court he was entitled to an acquittal and in this view of the matter even if the record had not been summoned that would not be fatal.
Further proviso to sub section (2) of section 385 itself provides ". the court may dispose of the appeal without sending for the record," in a certain situation.
The rigour of sub section (2) of section 385, which provides that "the Appellate Court shall then send for the record of the case. " has been taken away by the proviso in a certain situation.
If the appellant himself says that the appeal can be allowed on the findings recorded by the Sessions Judge, the non summoning of the record, if it was at all so, would not be fatal.
The complainant was present with his counsel, the State Advocate General was also present.
If there had been any grievance about the record, they would have raised an objection.
Their non objection on this point is also an indicator that the record was there or in any case, the summoning of the record was not thought to be necessary by the parties.
[604 E H, 605 A B] 4.
On merits also there is no case for the appellants since each and every aspect of the matter has been thoroughly discussed by the High Court which has referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions.
There is no eye witness.
The fate of the case hinges upon the circumstantial evidence.
The High Court has dealt with the two dying declarations, one recorded by the Doctor and the other by the Assistant Sub Inspector.
The High Court also took into consideration the oral dying declaration on which the prosecution strongly relied.
But even that declaration does not implicate the accused.
[605 G H, 606 A B]


judgement:
N: Criminal Appeal No. 669 of 1980.
Appeal by special leave from the judgment and order dated the 2nd February, 1979 of the Karnataka High Court in Criminal Revision Petition No. 320 of 1978.
B.R.L. Iyengar and N. Nettar for the Appellant.
A.L. Wahi and K.C. Dua for Respondent Nos.
Ram Jethmalani and Miss Rani Jethmalani for Respondent No. 4.
The Judgment of the Court was delivered by SEN, J.
In this appeal, by special leave, from the judgment of the Karnataka High Court, the only issue between the parties is as to the legality and propriety of the order of confiscation passed by the Deputy Commissioner, Belgaum, of a consignment of 7,200 kg.
of groundnut oil seized for contravention of sub cls.
(2) (a) and (b) of cl. 3 of the edible oil, edible oil Seeds and oil Cakes (Declaration of Stocks) order, 1976 hereinafter called the order).
Briefly stated the facts are these: on 6.6 1977 at about 11.30 a.m., the Sub Inspector of Police, Hukeri, intercepted a truck bearing registration No. MHL 2675 laden with 40 barrels of groundnut oil weighing 7,200 kg.
which were being transported from Kampli to Nippani, without furnishing a declaration in Form II to Tahsildar, Hospet, as required under sub cls.
(2) (a) and (b) of cl. 3 of the order.
The Sub Inspector of Police, after seizing the vehicle and the oil registered a case and thereafter reported the matter to the Deputy Commissioner, Belgaum.
He forwarded the report together with the seized vehicle and the oil to the Deputy Commissioner, Belgaum for taking action under section 6 A of the (hereinafter called the Act).
The truck was released to the owner on his executing an indemnity bond, and the groundnut oil released to the Respondent 4, Gopinath Manikchand Dharia, Proprietor, Messrs Anant Oil Mills, Nippani on his furnishing a bank guarantee for Rs. 70,000/ towards the price thereof.
The Deputy Commissioner gave notices as required under section 6 B of the Act to the parties concerned.
During the enquiry, the respondent No. 4 produced before him a copy of the invoice dated 5.6.1977 issued by Sri Satyanarayana Oil Mills, Bellary Road, Kampli, show 832 ing the sale of 7,200 kg.
of groundnut oil to Messrs Anant Oil Mills, Nippani.
He also produced a copy of the declaration in Form No. 39 prescribed under the Mysore Sales Tax Act, 1957.
The Deputy Commissioner, after affording the parties an opportunity of hearing, held that the respondents had contravened the provisions of sub cl.
(2) (a) and (b) of Cl.
3 of the order and accordingly confiscated 40 barrels of groundnut Oil and the truck bearing registration No. MHL 2675.
The respondents preferred an appeal under section 6 C of the Act before the II Additional Sessions Judge, Belgaum, who was the Appellate Authority.
But he, by his well considered judgment, confirmed the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act.
Thereupon, the respondents preferred a revision before the High Court and a learned Single Judge has, by his judgment, set aside the order of the Appellate Authority as well as the Deputy Commissioner on the ground that there was substantial compliance of the requirements under sub cls.
(2) (a) and (b) of cl. 3 of the order inasmuch as the respondents had sent the prescribed declaration in Form II to the Tahsildar, Hospet on 7.6.1977.
According to the High Court, no such declaration could be furnished on 5.6.1977 as it was a holiday being Sunday.
Upon that view, the High Court set aside the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act and directed restoration of all the properties to the persons concerned.
Hence this appeal by special leave.
The State was not interested in the confiscation of the truck and, therefore, special leave is confined to the question of the legality and propriety of the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act in respect of the seized groundnut Oil.
On the admitted facts, there can be no doubt whatever that there was a contravention of sub cls.
(2) (a) and (b) of cl. 3 of the order.
Sub cls (2) (a) and (b) of cl. 3 are as follows: 3.
(2) A stock holder who transports Edible Oils, Edible Oil Seeds and Oil Cakes shall make a declaration in Form II to the officer specified in Sub Clause (I) in respect of such Edible Oils, Edible Oil Seeds and Oil Cakes, (a) at the place from where such Edible Oils, Edible Oil Seeds and Oil Cakes are transported, before such 833 Edible Oils, Edible Oil Seeds and Oil Cakes leave the said place; and (b) at every check post on the route, immediately after their arrival there: Provided that the declaration at a check post shall be made in person by the stock holder or by the person in charge of such Edible Oils, Edible Oil Seeds and Oil Cakes to such officer, as the Government may by special or general order specify.
The expression 'stock holder ' has been defined in the order as meaning "Every person who is in possession or control of 150 kilograms or more of groundnut oil. (b) 15 quintals or more of groundnut oil or cake. (c) 15 quintals or more of groundnut seeds. and (d) 20 quintals of groundnut shell.
The Explanation thereto provides that edible oil, edible oil seeds and oil cakes in transit shall be presumed to be under the control of the owner thereof.
D The order passed by the High Court setting aside the order of r confiscation made by the Deputy Commissioner under section 6 A of the Act can hardly be supported.
In reaching the conclusion that it did, the High Court observes that 5.6.1977 being Sunday, the declaration in Form II could not be delivered to the Tahsildar since the Taluka office was closed.
Nor could it be sent by registered post acknowledgement due as the Post office could not have been working on that day.
It then goes on to observe: Then, the question is, whether a stock holder should not at all transport his stock on a Sunday, though the contractual terms of his business of such transaction required that it should be done, as the stock should reach the consignee on a particular date.
It is impossible to conceive that law expects any citizen to perform what is impossible to be performed in law.
Now the fact that Form II has been received in the office of the Tahsildar on 7.6.1977, clearly indicates that it must have been sent by registered post on 6.6.1977.
Anyhow, when once it is seen that it was impossible for the stock holder (petitioner 4) to submit Form II on 5.6.1977 before transporting groundnut oil in that truck on that day, it cannot at all be said that petitioner 4 has committed any breach of the provisions of the order.
834 It is difficult to subscribe to the view expressed by the High Court.
When the parties were entering into a transaction of such magnitude there was a duty cast on them to comply with the requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order before the consignment left the place.
If the consignment was to be loaded on 5.6.1977 which was a Sunday, nothing prevented the parties from furnishing a declaration on 4.6.1977.
The High Court appears to be labouring under a belief that there need be no strict observance of the laws on a Sunday.
There is no warrant for this view.
Faced with the situation that it was rather difficult, if not impossible, to support the view taken by the High Court, Shri Ram Jethmalani, learned counsel for the respondent No. 4 made a valiant effort to avert the order of confiscation passed under section 6 A of the Act, by advancing the following three contentions: (1) The power conferred on the Deputy Commissioner under section 6 A of the Act, by the use of the word 'may ', makes it a discretionary power which had to be used according to sound judicial principles.
It is urged that Messrs Anant Oil Mills to whom the groundnut oil belonged had committed no breach of sub cls.
(2) (a) and (b) of cl. 3 of the order and therefore, the order of confiscation of the entire consignment passed by the Deputy Commissioner was wholly arbitrary and excessive.
(2) The power of confiscation entrusted to the Deputy Commissioner under section 6 A of the Act is exercisable in relation to an essential commodity seized in pursuance of an order made under section 3.
There was nothing to show that the groundnut oil in question had been seized or that a report of such seizure had been made without unreasonable delay to the Deputy Commissioner under the order and, therefore, the Deputy Commissioner had no power to direct its confiscation under section 6 A of the Act.
(3) It is not established that the Deputy Commissioner had complied with the statutory requirements of section 6 B of the Act, by giving a show cause notice to the persons concerned against the action proposed to be taken or afforded them an opportunity of hearing and, therefore, the order of confiscation passed by him under section 6 A was a nullity.
We are afraid, none of these contentions can prevail.
As to point No. (1), it is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order issued under cl. 3, is a discretionary power.
The use of the word 'may ', however, does not necessarily mean that the Deputy Com missioner cannot, in the given circumstances of a particular case, direct the confiscation of the entire consignment of an essential commodity in relation to which there is a contravention of any of the orders issued under section 3 of the Act.
It all depends on the facts 835 and circumstances of each case whether the confiscation should be of an entire consignment or part of it, depending upon the nature of the contravention.
The power conferred on the Deputy Commissioner under section 6 A of the Act, by the use of the word 'may ', makes the power coupled with a public duty.
Sometimes it may be in the public interest to direct confiscation of the entire consignment of an essential commodity when there is deliberate contravention of the provisions of an order issued under section 3 of the Act.
In the facts and circumstances of the present case, it cannot be doubted for a moment that the Deputy Commissioner acted in the public interest to direct confiscation of the entire consignment of the groundnut oil, as it was being transported from one place to.
another without furnishing the requisite declaration in Form II.
All systems of control, supply and distribution of essential commodities would fail unless the various control orders issued by the Central Government under section 3 of the Act in relation thereto are strictly observed.
These control orders are issued under section 3 when the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of essential commodities or for securing equitable distribution and availability at fair prices etc.
Sub cls.
(2) (a) and (b) of cl. 3 of the order enjoin that the stock holder shall make a declaration in From II in relation to movement of edible oil, edible oil seeds and oil cakes, to the Tahsildar in charge of the taluka of the place from where such edible oil, edible oil seeds and oil cakes are transported before such edible oil, edible oil seeds or oil cakes, leave the place.
The whole purpose is to maintain a control over the stock of such essential commodities at a place with a view to secure their equitable distribution and availability at fair prices.
The requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order are clearly mandatory.
We fail to comprehend the contention that there was only a technical breach.
Under sub cls.
(2)(a) and (b) of cl. 3 of the order, a stock holder is required to furnish a declaration in Form II in relation to movement of edible oil, edible oil seeds and cakes, to the Tahsildar in charge of the taluka at the place from where such commodity is sought to be transported before such commodity leaves the place.
The definition of 'stock holder ' certainly means the consignor who holds such stock of edible oil, oil seeds and cakes and also may include a purchaser of such oil, seeds and cakes who is in possession or control thereof.
Explanation to the definition of 836 'stock holder ', by a legal fiction, treats the owner to have control over the edible oil, edible oil seeds and cakes, in transit.
The respondent No. 4, being the purchaser, also comes within the definition of 'stock holder ' by reason of the said Explanation.
There is nothing to show that the consignor had reserved the jus disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to the respondent No. 4 on their delivery to a common carrier under section 25 of the .
The allegation in the complaint is that 40 barrels of groundnut oil weighing 7,200 kg. were being transported by the truck bearing No. MHL 2675 without furnishing the requisite declaration in Form II and it was intercepted at the Hukeri check post by the sub Inspector of Police.
In response to a notice issued by the Deputy Commissioner under section 6 B of the Act, the respondent No. 4 produced before him the documents of title in relation to the goods.
From these documents, it is clear that the consignor was Sri Satyanarayana Oil Mills, Kampli and the consignee was Messrs Anant Oil Mills, Nippani and that the truck was laden with the consignment.
These facts were also borne out by the particulars furnished in the declaration in Form 39 under the Mysore Sales Tax Act, 1957.
It appears from these documents that Sri Satyanarayana Oil Mills, after despatching the consignment, purported to furnish the declaration in Form II to the Tahsildar, Hospet, which was received by him on 7.6.1977, requesting for the release of the groundnut oil in question.
The respondent No. 4 contended before the Deputy Commissioner that there was substantial compliance of the requirements of sub cls.
(2)(a) and (b) of cl. 3 of the order and, therefore, the seized groundnut oil be released, but he rejected the contention on the ground that the declaration in Form II was required to be filed before the specified officer before the goods left the place.
The Deputy Commissioner requisitioned the form produced before the Tahsildar, but i t did not bear any date.
He was of the view that the declaration was not sent by registered post on 6.6.1977 as asserted, but had apparently been handed over in the Taluka office and acknowledgment obtained for the same.
The Deputy Commissioner observed that the requirement of law was that the declaration in Form II had to be produced at every check post during transit, and this was not done.
The driver of the truck did not have a copy of the declaration in Form II, but only the declaration in Form 39 which could not be taken to be in compliance of law.
Obviously, the stock holder, Sri Satyanarayana Oil Mills, after despatching the 837 consignment of groundnut oil, purported to furnish the declaration in Form II.
This was in complete breach of the requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order.
The Deputy Commissioner, therefore, held that the respondents having contravened the provisions of sub cls.
(2) (a) and (b) of cl. 3 of the order, the seized truck alongwith the entire consignment of the groundnut oil was liable to be confiscated under section 6 A of the Act.
The learned Sessions Judge, in our opinion, rightly confirmed the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act as it was unassailable.
At no point of time was there a contention raised that the Deputy Commissioner had failed to exercise his discretion as to the quantity of the groundnut oil liable to be seized.
It is now too late in the day to urge the point before this Court.
C As to point No. (2), there is no warrant for the submission that there was nothing to show that the groundnut oil had been seized and, therefore, the power of confiscation was not exercisable by the Deputy Commissioner under section 6 A of the Act, It is manifest from the order of the Deputy Commissioner that there was a contravention of sub cls.
(2) (a) and (b) of cl. 3 of the order and that the Sub Inspector of Police seized both the truck and the consignment of groundnut oil, and forwarded the same to him along with his report for taking action under section 6 A of the Act.
The contention of the Public Prosecutor before the Deputy Commissioner was that the seized truck and the groundnut oil were liable to be confiscated.
The very fact that the seized groundnut oil was released to the respondent No. 4 on his furnishing a bank guarantee for Rs. 70,000 for the price of the consignment of the groundnut oil clearly shows that it had been seized.
It is, therefore, idle to contend that the power of confiscation under section 6 A of the Act was not exercisable for want of seizure.
As to point No. (3), from the narration of facts above, it is amply clear that there was no breach of the requirements of section 6 B of the Act on the part of the Deputy Commissioner.
The record shows that the Deputy Commissioner, on receipt of the report of the Sub Inspector of Police mentioning the fact of contravention of sub cls.
G (2) (a) and (b) of cl. 3 of the order and forwarding the seized truck and the consignment of groundnut oil, issued notice to the parties concerned under section 6 B of the Act to show cause against their confiscation.
In response to the notice, the respondent No. 4 appeared before the Deputy Commissioner and filed a copy of the invoice together with a copy of the declaration in Form 39 under the Mysore 838 Sales Tax Act, 1957.
The Deputy Commissioner sent for the declaration in Form II as furnished to the Tahsildar which did not bear a date.
He also gave a hearing to the parties.
That being so, the validity of the order of confiscation under section 6 C cannot be challenged on the ground that the requirements of section 6 B had not been fulfilled.
The result, therefore, is that the appeal succeeds and is allowed.
The judgment of the High Court is set aside and that of the II Additional Sessions Judge, Belgaum, upholding the order of confiscation passed by the Deputy Commissioner, Belgaum, is restored, insofar as it relates to the confiscation of the consignment of groundnut oil weighing 7,200 kg.
under section 6 A of the .
P.B.R. Appeal allowed.

summary/full:
Clause 3(2)(a) of the Edible oil, Edible oil Seeds and oil Cakes (Declaration of Stocks) order, 1976 enjoins that before a consignment of oil leaves a place a stock holder who transports edible oils shall make a declaration in Form II to the specified officer of the place (in this case the Tehsildar of the) Taluk from where such edible oils are transported.
Clause (b) enjoins that the declaration shall be shown at every check post on the route immediately after arrival there.
A police officer seized in transit a truck carrying a large quantity of ground.
nut oil on the ground that the requisite declaration in Form II had not been furnished to the Tehsildar of the place of despatch of the consignment.
The Deputy Commissioner, after issuing a notice to the respondent under section 6B of the , released the truck and the consignment on taking from him an indemnity bond and a bank guarantee towards the price of oil.
The respondent however produced before the Deputy Commissioner a copy of the invoice issued by the seller and a declaration in Form 39 prescribed under the Mysore Sales Tax Act, 1957.
The Deputy Commissioner ordered confiscation of the truck and the oil on the view that the respondent had contravened the provisions of clause 3(2) (a) and (b) of the order.
On appeal the Sessions Judge affirmed this order.
A single Judge of the High Court in revision held that there was no contravention of the requirement of the order because the day on which the goods were despatched being a Sunday, it was impossible for the respondent to deliver on that day to Tehsildar the declaration in Form II and that the law would not expect a citizen to do the impossible.
The respondent in the State 's appeal to this Court contended that: (1) the confiscation of the entire consignment was arbitrary and excessive in that the use of the word "may" in section 6A made exercise of that power discretionary; (2) since there was nothing to show that the goods had been seized, the power of 830 confiscation under section 6A had not been properly exercised and (3) the order of confiscation was a nullity in that the Deputy Commissioner had not issued a proper show cause notice under section 6B of the Act.
Allowing the State 's appeal ^ HELD: 1 (a) The word "may" used in section 6A does not mean that the Deputy Commissioner could not order confiscation of the entire consignment of an essential commodity where he found contravention of any of the orders issued under section 3 of the Act.
The power conferred on the Deputy Commissioner under section 6A is a power coupled with public duty.
[834 H] (b) In directing confiscation of the entire consignment which was being transported without furnishing the declaration in Form II the Deputy Commissioner acted in public interest.
The whole purpose of the control order was to maintain control over the stock of essential commodities at a place with a view to securing their equitable distribution and availability at fair prices.
The requirements of clause 3 (2) (a) and (b) are mandatory.
[835 C D] (c) "Stock holder" as defined in the order includes the purchaser of oil who is in possession or control thereof.
By a legal fiction the explanation treats the owner to have control over the oil in transit.
Respondent 4 being the purchaser fell within the definition of "stock holder".
Moreover there was nothing to show that the consignor had reserved the jus disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to respondent 4 (purchaser) on delivery to a common carrier under section 25 of the .
[836 A B] (d) The Deputy Commissioner was right in holding that the declaration in Form II was required to be filed before the specified officer before the goods left a place and that the declaration should be produced at every check post in transit as required by law.
The respondent having contravened the provisions of clause 3 (2) (a) and (b) of the order the truck and the consignment of oil were rightly confiscated.
[837 A C] (e) It is not correct to say that since the date of despatch of the goods was a Sunday there was no need to comply with the requirements of clause 3 of the order.
If the consignment had to be despatched on Sunday nothing prevented the parties from furnishing the declaration a day earlier.
In a transaction of such a magnitude a duty was cast on the party to comply with the requirements of the order before the consignment left the place.
[834 A B] 2.
The very fact that the seized groundnut oil was released only after the respondent furnished the requisite Bank guarantee clearly showed that the consignment had been seized.
Therefore power under section 6A had been correctly exercised.
[837 E F] 3.
There was no breach of the requirement of section 6B.
In response to the show cause notice issued by the Deputy Commissioner respondent 4 appeared before him and filed a copy of the invoice and declaration in Form 39 of the Mysore Sales Tax Act.
The Deputy Commissioner gave a hearing to the parties.
That being so, validity of the confiscation under section 6C could not be challenged.
[837 G H] 831