judgement:
Appeals Nos. 666 and 667 of 1957.
N. C. Chatterjee and G. C. Mathur, for the appellant.
A. V. Viswanatha Sastri, K. N. Rajagopala Sastri and T. M. Sen, for the respondents.
March 8.
The judgment of the Court was delivered by HIDAYATULLAH, J.
These two appeals raise a common question of law, and it is convenient to deal with them together.
They have been filed (with certificate) against a judgment of the High Court of Orissa, by Jagannath Agarwala, who sought to enforce a claim he had against the former State of Mayurbhanj and the ex Ruler of Mayurbhanj.
They arise out of two petitions under article 226 of the Constitution, for writs of mandamus, etc., which the High Court of Orissa dismissed by its order under appeal.
It appears that in the year 1943 the Maharaja, of 207 Mayurbhanj entered into an agreement or arrangement with Jagannath Agarwala for establishing a business for the manufacture of industrial alcohol and essential oils and for purchases of wheat and barley in the Punjab.
Civil Appeal No. 666 of 1957 relates to the establishment of the manufacturing business, and Civil Appeal No. 667 of 1957, to the purchases of wheat and barley.
With reference to the establishment of the business, the appellant urges that it was agreed that the capital required would be contributed by the parties in equal shares, and that the profit and loss would also be shared equally.
As regards the purchases, the appellant was to advance such money as might be required, and the State of Mayurbhanj was to provide necessary permits and facilities for transport.
In furtherance of this agreement, the appellant urges that he established a factory and started the business, but the Maharaja, instead of contributing his share of the capital, asked the appellant to do so on his behalf, promising to pay him the amount.
The factory was constructed, and, it appears, it went into production, but later closed down, suffering a total loss of Rs. 2,80,875 9 3.
In the first case, therefore, the claim of the appellant against the Maharaja and the State was Rs. 1,40,400 odd.
In the second case, the appellant advanced a sum of Rs. 50,000 and also incurred a further expenditure of Rs. 3,741 7 9.
The State of Mayurbhanj failed in its promise of procuring the necessary permits and facilities for transport, and the appellant was, therefore, required to sell the foodgrains in the Punjab, and thus incurred a loss of Rs. 14,844 0 3.
The appellant alleges that the Maharaja promised to pay the 'amount.
From January 1, 1949, the Mayurbhanj State merged with the Province of Orissa, and on the same day, the Government of Orissa promulgated the Administration of Mayurbhanj State Order, 1949 under section 4 of the Extra Provincial Jurisdiction Act, 1947 (47 of 1947).
That Order allowed claims against the State of Mayurbhanj to be preferred to Government for its 208 consideration.
Clause 9 of the Order, in so far as it is material, is as follows: "9.
Claims against Ruler of the State.
(a) The Administrator shall as soon as possible publish a notification in the Gazette in English and in vernacular calling upon all persons having pecuniary claims, whether immediately enforceable or not, against the State or the Ruler of the State in his capacity as Ruler of that State, to notify the same in writing to the officer authorised, by the Administrator in this behalf (hereinafter called the said officer) within three months from the date of the notification.
(b) The notice shall also be published at such places and in such other manner as the Administrator may by special or general order direct.
(c) Every such claimant shall, within the period specified in sub paragraph (a) notify to the said officer in writing his claim.
with full particulars thereof and any claim presented after the expiration of such period shall be summarily rejected.
(d) Every document including entries.
in book.% of account in the possession of or under the control of the claimant on which he bases his claim shall be produced before the said officer along with the statement of the claim: (f) Nothing in the preceding sub paragraphs shall apply to any pecuniary claim of Government or any local authority.
(g) The said officer shall after making such enquiry as he may deem fit, decide which claims notified under sub paragraph (c) are to be allowed in whole or in part and which are to be disallowed, and on his decision being confirmed by the Administrator, the said officer shall give written notice of the same to the claimants.
The decision of the Administrator shall be final and shall not be liable.
to be called into question in any Court whatsoever. ' (h) No court shall have jurisdiction to investigate 209 any pecuniary claim against the State or against the Ruler of the State in his capacity as Ruler of that State and such claim shall be determined only in accordance with the provisions of this paragraph.
(i) The Administrator may delegate his powers under this paragraph to any officer subordinate to him not below the rank of an Additional District Magistrate.
(j) The provisions of this paragraph shall not apply to any claim against the State based on a cause of action which arose on or after the 1st January 1949 and such claim shall be disposed of in accordance with the laws applied or continued in force under paragraph 5.
" The appellant preferred his two claims for the consideration of the Claims Officer, who was dealing with such claims on behalf of the Administrator.
The Claims Officer made a report to the Administrator on June 20, 1951 in respect of the first claim, and after examining the merits, gave his conclusions as follows: "Considering the evidence laid by the Claimant before me in support of his claim, I find that he is entitled to a sum of Rs. 1,37,785 13 7 1/2.
It has been urged by the Claimant that interest @ Rs. 4 per cent.
per annum should be allowed to him till the date of repayment of his dues.
He has been allowed interest from 1 4 43 to 28 2 49 and,, I think, he should get interest thereafter @ Rs. 4 per cent.
per annum till the date of repayment of his dues.
As regards the Claimant 's demand for half share of further advances made by the Claimant after filing of this claim case, it cannot be entertained in this case.
Submitted to the Revenue Commissioner, Orissa, Cuttack through the District Magistrate, Mayurbhanj as required under Clause 9(g) of the Administration of Mayurbhanj State Order, 1949.
" In the other case, he made a report on November 5, 1951 that the appellant had substantiated his claim for Rs. 14,844 0 3, and was also liable to be paid interest amounting to Rs. 5,303 14 0.
This report was 27 210 submitted to the Member (Third), Board of Revenue, Orissa, Cuttack, through the District Magistrate, Mayurbhanj.
On June 28, 1952, the appellant received a Memo randum from the Deputy Secretary, Board of Revenue, Orissa, Cuttack, which read as ' follows: "Dear Sri Agarwalla, With reference to your petitions dated 1 10 51 and 7 9 50.
I am directed to say that the claims have been rejected as Government have been advised that they are barred by limitation.
Yours sincerely, Sd.
Govind Tripathy".
It appears that the appellant applied for review, and he was asked on November 8, 1952 to produce before the Board any document or documents in his possession to show that these were continuing businesses and also to point out the law that no claim of a continuing business could be barred by limitation.
The documents on which the appellant presumably relied before the Board of Revenue have not been printed in the record of this Court, but on April 2, 1953, the solicitors of the appellant were informed that the Board of Revenue had declined to review the matter.
It appears also that, in the first case, even before the merger the Revenue Minister, Mayurbhanj State, had rejected the claim put forward by the appellant by his order dated October 26, 1948, to the following effect: "The State need not recognise the claims put forward by Mr. J. Agarwalla, as there was really no formation of any Joint Stock Company nor any written agreement entered into and finally settled.
B. Mohapatra (Revenue Minister, Mayurbhanj)".
It was in these circumstances, that the two petitions under article 226 of the Constitution were filed.
The High Court dismissed them.
From the order of the High Court, it appears that two points alone were urged before it.
The first was that the decision of the 211 Claims Officer should have gone to the Board of Revenue as a whole and not to a single Member and the second was that the appellant should have been served with a notice by the Board before the recommendations of the Claims Officer were rejected, and, as has now been argued before this Court, allowed a hearing.
The first point was not argued before us, and it seems that the appellant has accepted the decision of the High Court that the Third Member was competent to hear and dispose of these cases.
The second point alone has been argued, and.
needs to be considered.
The case was argued by Mr. N. C. Chatterjee on behalf of the appellant as illustrating a patent breach of the principles of natural justice.
He contended that his client was entitled to a proper hearing before the report in his favour was rejected, and relied upon the following cases: Shivji Nathubai vs The Union of India (1), New Prakash Transport Co. Ltd. vs New Suwarna Transport Co. Ltd. (2), Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam (3) and Gullapalli Nageswara Rao vs Andhra Pradesh State, Road Transport Corporation (4).
In reply, Mr. A. V. Viswanatha Sastri contended that the rejection of the claim was an act of State, and that the new Sovereign State could not be compelled by a process of the municipal courts to accept a liability of the old Ruler, and though the new Sovereign State might make such enquiry as it chose, it was not compelled to give a hearing to the claimant.
In his rejoinder, Mr.Chatterjee contended that the act of State was over, when the new Sovereign State invited claims under a law passed for the purpose, and proceeded to consider the evidence tendered in support of the claim He also contended that by the admission of the claim by the Claims Officer the act of State was over, and that any further consideration of the report had to comply with the rules of natural justice, laid down by this Court in the cases cited by him.
What is an act of State and when it ceases to apply between a new Sovereign and the subjects of a State (1) ; (3) ; (2) (4) [1959] SUPP.
1 S.C.R. 319.
212 conquered, acquired or ceded to the new Sovereign, has been the subject of several decisions of this Court.
In M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax (1) and The State of Saurashtra vs Memon Haji Ismail Haji (2), it has been held that unless the new Sovereign, either expressly or impliedly admits the claim.
, the municipal courts have no jurisdiction in the matter.
The question to consider is whether such a stage had been reached in the enquiry which had been commenced.
No doubt, the plea that this was a part of an act of State was not specifically raised before the High Court; but, as pointed out by the Judicial Committee ' in Vale Singh Ji Joravar Singh vs Secretary of State for India (3), no plea is really needed.
It is clear from the Order, which was made under the Extra Provincial Jurisdiction Act, that claims were being asked to be entertained only for investigation and not for acceptance.
It is the acceptance of the claim which would have bound the new Sovereign State and the act of State would then have come to an end.
But short of an acceptance, either express or implied, the time for the exercise of the sovereign right to reject a claim was still open.
In Vaje Singh Ji 's case (3), enquiries were made by Captain Buckle and again in 1868, and the two enquiries lasted 16 years before the rejection of the claims, and the rejection was still upheld as an act of State.
Vaje Singh Ji 's case (3) has been relied upon by this Court in the two cases referred to, in the argument of Mr. A. V. Viswanatha Sastri.
It would, therefore, appear that the act of State could not be said to have come to an end, when the Government allowed claims to be preferred, or when their own Officer made his report.
The Claims Officer was not a part of the municipal courts, and Government cannot be said to have submitted itself to the jurisdiction of the municipal courts, when it entrusted the enquiry to him.
Nor can the investigation of claims be said to have conferred a civil right upon the claimants to enforce their claims against the State.
In our opinion, enquiry was for the benefit of the State and not (1) [1959] S.C.R. 729.
(2) ; (3) (1924) L.R. 51 I.A. 357.
213 for conferring rights upon likely claimants.
It was always open to the Government to admit any claim, even though reported adversely by the Claims Officer, though such a contingency might have been very remote.
Equally, therefore, the Government had the paramount right to reject a claim, which its Claims Officer considered good but on which the Government held a different opinion.
In short, till there was an acceptance by the Government or some officer of the Government, who could be said to bind the Government, the act of State was still open, and, in our opinion, it was so exercised in this case.
Mr. Chatterjee contended that at least within the four corners of the Order, the appellant had a right to be heard, and that he did not have a proper bearing.
If the Member, Board of Revenue, entertained some doubt about the claim being within time, he might have heard the party.
That this was an enquiry mainly to ascertain whether a claim should or should not be recognised is obvious enough.
It was in no sense a trial of any issue between the appellant and the Government.
To judge such an action with the same rigour with which a judicial enquiry or trial is judged is to convert the enquiry into a civil suit.
The appellant was fully heard by the Claims Officer, and the only question was whether the claim was within time.
Even there, the Member, Board of Revenue, asked the appellant to submit all documents and arguments in support of his contention that the claim was within limitation, and to that extent, the appellant had his say.
Whether the Member, Board of Revenue should have gone further and given a viva voce hearing was a matter entirely for that Officer to choose, and there was nothing under the law to compel him.
Though we think that such an opportunity might have been afforded to the appellant, we cannot say that this was a matter which entitled him to a writ.
In this view of the matter, the appeals fail, and are dismissed.
But, in the circumstances of the case, there shall be no order as to costs.
Appeals dismissed.

summary/full:
The appellant had two money claims against the Maharaja of Mayurbhanj State.
From January 1, 1949, the State merged with the Province of Orissa.
Clause 9 of the Administration of Mayurbhanj State Order, 1949, promulgated by the Government of Orissa, provided for the issuing of a notification for calling upon all persons having pecuniary claims against the Maharaja to notify the same to an officer authorised in that behalf.
After issue of the notification the appellant preferred his two claims before the Claims Officer.
The Claims Officer made a report substantially accepting the claims.
This report was submitted to the Member (third), Board of Revenue.
Without giving the appel lant any hearing the claims were rejected on the ground that they were barred by limitation.
The appellant applied for a review and submitted the documents on which he relied but again without giving the appellant a hearing the Board of Revenue declined to review the matter.
The appellant contended 206 that there was a breach of the principles of natural justice in the Board of Revenue deciding the matter without giving the appellant a proper hearing.
The respondent contended that the rejection of the claims was an act of State, that the new Sovereign State could not be compelled by the courts to accept the liability of the old Ruler, that though the new Sovereign State might make such enquiry as it chose it was not compelled to give a hearing to the appellant.
The appellant replied that the act of State was over when the claims were invited and accepted by the Claims Officer.
Held, that the rejection of the claims was an act of State and could not be challenged.
Unless the new Sovereign, either expressly or impliedly, admitted the claims, the municipal courts had no jurisdiction in the matter.
The act of State did not come to an end when Government allowed the claims to be preferred or the Claims Officer made his report.
The enquiry was for the benefit of the State and not for conferring rights on the claimants.
Till there was an acceptance of the claims by the Government or some officer who could be said to bind the Government, the act of State was still open.
Dalmia,Dadri Cement Co. Ltd. vs Commissioner of Income tax, [1959] S.C.R 729 State of Saurashtra vs Mmemon Haji Ismail Haji, ; and Vaje Singh ji joravar Singh vs Secretary of State for India, (1924) L.R. 51 I.A. 357, relied on.


judgement:
Appeals Nos.
7 to 9 of 1959.
Appeals by special leave from the judgment and order dated June 25,1955, in cases Nos.
0551 R CG/ 54, 0602 R/CG/54 and 0503 R/CG/54 of 1954.
Achhru Ram and B. R. L. Ayengar, for the appellants.
Gopal Singh and T. M. Sen, for the respondents.
March 10.
The Judgment of the Court was delivered MUDHOLKAR, J.
These are appeals by special leave from three orders against an order passed on March 12, 1954 by the Custodian General, Evacuee Property, disposing of three revision petitions, two of which were preferred by one Bharoo Mal (since deceased) 247 and one by his wife, and now widow, Padma Devi.
Even though a common order was passed by the Custodian General, three appeals have been preferred before this Court.
The facts leading upto the appeals are briefly as follows: An agreement was entered into between Bharoomal and one Nanan Begum on April 11, 1948 for the exchange of Bharoomal 's properties,at Sukkar in Sind, Pakistan for Nanan Begum 's properties at Lucknow.
Prior to that, on April 7, 1948 a similar agreement was entered into between Padma Devi and one Tahir Ali.
It is common ground that in pursuance of the agreement Bharoomal and Padma Devi entered into possession of the properties obtained by them in exchange from Nanan Begum and Tahir Ali respectively and the latter entered into possession of the. properties belonging to the former situated in Sukkar.
The deed of exchange was to be executed within two years of the date of agreement; but in fact it was never executed.
Consequently in the year 1950 Bharoomlal and Padma Devi instituted three suits for specific performance.
These suits were decreed and sale deeds conveying certain properties to Bharoomal and certain properties to Padma Devi were executed by the Court in February, 1952.
In October, 1949 the U. P. Administration of Evacuee Property Ordinance, 1949 (1 of 1949) was promulgated and shortly thereafter the Administration of Evacuee Property (Chief Commissioners Provinces) Ordinance, 1949 (12 of 1949), promulgated by the Central Government, was extended to the United Provinces replacing U. P. Ordinance 1 of 1949.
Nanan Begum and Tahir Ali having migrated to Pakistan, Bharoomal and Padma Devi made three applications under cl.
25(2) of the Central Ordinance for confirmation of the exchanges in their favour.
These applications were granted by the Deputy Custodian of Evacuee Property in the year 1950.
Sometime in the year 1951 the Custodian of Evacuee Property suo motu revised the orders of the Deputy Custodian passed in the year 1950 on the ground that the agreements on the basis 248 of which the applications for confirmation were made by Bharoomal and Padma Devi do not amount to transfers and that consequently they could not be, confirmed.
He also held that the, deeds of transfer obtained by Bharoomal and Padma Devi from the court were not confirmed by the Custodian and that, therefore, the possession of Bharoonal and Padma Devi over the properties in question which wore admittedly evacuee properties was unauthorised.
He, therefore, ordered that possession of the properties be taken back from Bharoomal and Padma Devi and that they should be required to account for the rent& and profits realised by them from these properties.
These persons preferred applications for revision before the Custodian General of Evacuee Property.
Their applications were, as already stated, rejected by him.
In the appeal to this Court the only ground pressed is that the Custodian had no jurisdiction to pass an order requiring the appellants to render accounts of the rents and profits from the properties in their possession.
Mr. Achhruram, who appears for them, accepts the position that the orders of the Deputy Custodian of Evacuee Property passed in the year 1950 confirming the transfers were rightly set aside by the Custodian in revision.
Therefore, only a short question falls to be determined by us and that is whether the Custodian was right in further ordering the appellants to render accounts of rents and profits from the properties in their possession.
We asked Mr. Gopal Singh, who appears for the Custodian General, to show us any provision in the Act or in the rules which authorises the Custodian of Evacuee Property to direct a person who is alleged to be in unauthorised possession of evacuee property to render accounts for rents and profits of those properties without resorting to the ordinary remedy provided by law, that is by way of suit.
Mr. Gopal Singh contends that as soon as Nanan Begum and Tahir Ali migrated to Pakistan their property in India automatically vested in the Custodian of Evacuee Property under cl.
5(1) of the U. P. Ordinance 1 of 1949 and continued to vest under Central 249 Ordinance No. XII of 1949 which replaced the U. P. Ordinance.
By virtue of sub section
(2) of section 8 of the (XXXI of 1950) which came into force on April 18, 1950, the property which is vested in the Custodian under any law repealed by the Act shall be deed to be evacuee property within the meaning of the Act and shall be deemed to have vested in the Custodian appointed under that Act.
The Central 1 Ordinance XII of 1949 was one of the laws repealed by the Act.
He then referred to section 10 and contended that thereunder the Custodian has the power to recover from an unauthorised occupant of evacuee property the rents and profits realised by him during the period of his unauthorised occupation.
Sub section (1) of section 10 reads thus: "Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as lie considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto.
" According to him the words "for the purposes of securing, administering,preserving and managing any evacuee property"effectively confer on the Custodian power to recoverrents and profits of the property from the person in possession.
There is nothing in the words relied on from which a power of the kind contended for by learned counsel can be deduced.
Sub section (2) of section 10 specifically enumerates some of the powers of the Custodian.
Learned counsel was not able to point to anything in the sub section which confers power on the Custodian to recover rents and profits from a person in unlawful possession of the properties.
Learned counsel then referred to r. 10 and said that this rule would entitle the Custodian to determine and recover rents and profits from unauthorised occupants of evacuee property.
Sub rule 1 32 250 of r. 10 undoubtedly authorises the Custodian to recover possession of property from the evacuee or from a person whether holding on behalf of, or under the evacuee or otherwise and not having a lawful title to possession thereof as against the Custodian.
There is nothing in this sub rule which further entitles the Custodian to determine and recover rents and profits from an unauthorised occupant of evacuee property.
Sub rule 2 of r. 10 empowers the Custodian to issue a notice to a tenant or a licensee in possession of evacuee property whom the Custodian cannot eject or does not want to eject.
For one thing this sub rule cannot apply to a person who :Is alleged to be in unauthorised occupation of evacuee property.
Then again it does not confer any power on the Custodian to determine rents and profits or to recover rent in a summary manner.
In the circumstances we must hold that this provision also does not help the respondent.
Such being the legal position, we must quash and set aside that portion of the order of the Custodian, confirmed by the Custodian General, which requires the appellants to pay rents and profits in respect of properties of Nanan Begum and Tahir Ali in their possession.
Both parties will, however, be at liberty to take such steps is may be open to them at law for establishing or enforcing their respective claims.
Costs of the appeal will be borne by the respondents.
As the appeals were argued together there will be only one hearing fees.
Appeals allowed.

dataset_name: IN-Abs

summary/full:
The appellants exchanged their property in Pakistan with the property of an evacuee in India.
They applied for confir mation of the transaction which was granted by the Deputy Custodian.
Later, the Custodian revised the order and set aside the confirmation and ordered the ejectment of the appellants from the properties which were the subject of exchange.
He further ordered that they should render accounts of the rents and profits realised by them from this property.
The appellants contended that the Custodian bad no jurisdiction to pass any order requiring them to render accounts of the rents and profits.
Held, that the Custodian bad no power under the Adminis tration of Evacuee Property Act to direct a person in unauthorised possession of evacuee property to render accounts of rents and profits thereof without resorting to the ordinary remedy provided by law, that is, by way of suit.


judgement:
Appeal No. 270 of 1960.
Appeal from the judgment and order dated February 21, 1956, of the Andhra Pradesh High Court in Case Reference No. 4 of 1955.
K. N. Rajagopal Sastri and D. Gupta, for the appellant.
H. J. Umrigar, Thiyagaraja and G. Gopalakrishnan, for the respondents.
March 10.
The Judgment of the Court was delivered by 30 234 SHAH, J.
The assessees are a firm carrying on business at Kurnool, of manufacturing ground nut oil and cake.
Under the Madras General Sales Tax Act IX of 1939, the assessees were entitled to a rebate of sales tax paid on goods purchased by them and used in the manufacturing process.
The assessees maintained their books of account according to the Samvat Year ending with Diwali.
The system of accounting was a mixture of mercantile and cash.
Purchases and sales of goods on credit were duly entered in the books of account.
The sales tax actually recovered by the tax authorities was debited when paid and amounts if any refunded were credited when received.
The assessees had adopted the system which was permitted by the Act of paying tax calculated on the turnover of the previous year of account.
Under this system, tax was provisionally assessed by the Sales Tax Officer on the basis of the turnover of the previous year, and thereafter the liability was adjusted at the end of the year of account in the light of the actual turnover of that year, and of rebate allowed in respect of groundnuts pressed into oil.
As a result of the final adjustment made by the sales tax authorities, in some years the assessees were assessed to 'pay tax in excess of the amount provisionally assessed and in others they obtained refund of the excess tax paid under the provisional assessment.
The following tabular statement shows the official years for sales tax, provisional demands made by the sales tax authorities, the final demands and the adjustments made in that behalf.
Official Provi Filial Adjustment Year sional Refund/Addi ended.
demand.
demand.
tional levy.
Rs. Rs. Rs. Rs. 31 3 1942 2,679 1 872 807 31 3 1943 3,046 2,863 183 31 3 1944 14,509 18,402 3,893 31 3 1945 47,276 20,037 27,239 31 3 1946 45,315 13,379 31,936 For the assessment year 1946 47 (corresponding to the year of account October 18, 1944 to November 4,1945), the assessees claimed in their assessment to 235 income tax to deduct Rs. 49,633 being the amount of sales tax paid under a provisional assessment.
In the year ending 31 3 1945, the assessees had paid Rs. 47,276 as sales tax provisionally assessed.
They also had paid in that year Rs. 3,894 in adjustment of the liability for the previous year towards sales tax due.
After giving credit for Rs. 1,537 received as rebate, the total sales tax liability under the provisional assessment was Rs. 49,633.
The Income tax Officer accepted this claim, and debited it from the income in the assessment year 1946 47 in assessing the taxable income of the assessees.
Deduction of salestax actually paid under provisional assessment less rebates was permitted by the Income tax Officer not only in the assessment year 1946 47 but also in the earlier years.
The Excess Profits Tax Officer had also adopted for the chargeable accounting period prior to October 18, 1944 the same method of computation, but for the chargeable accounting period October 18,1944 to November 4, 1945, the Excess Profits Tax Officer allowed out of the amount of Rs. 47,276 debited to sales tax only Rs. 17,055 as properly attributable to that period in computing the Excess Profits Tax liability.
According to the Excess Profits Tax Officer, the excess amount paid under he provisional assessment i.e., Rs. 30,221 could not be taken into account, because under r. 12 of Sch. 1 of the Excess Profits Tax Act, expenditure in excess of the amount reasonable and necessary for the business was not a permissible deduction.
In appeal against the order of the Excess Profits Tax Officer, the Tribunal affirmed the order.
Against the order passed by the Tribunal confirming the order of the Excess Profits Tax Officer, the assessees applied for and obtained an order referring the following question to the High Court of Judicature of Andhra Pradesh, "Whether there are materials for the Tribunal to hold that the aforesaid sales tax payments of Rs. 30,221 were unreasonable and unnecessary having due regard to the requirements of the business and not consequently deductible under r. 12 of Sch.
1 of the Excess Profits Tax Act?" 236 The High Court answered the question in the negative and against the order of the High Court, this appeal is preferred with leave under section 66A(2) and (3) of the Income Tax Act read with section 21 of the Excess Profits Tax Act.
It is manifest that the assessees had not altered the method according to which their accounts were maintain Id.
Year after year, they were paying tax provisionally assessed by the Sales tax Officer on the turnover of the previous year subject to adjustment at the close of the year of account.
This system of payment of tax under provisional assessments was not adopted with a view to evade,, tax liability.
Nor was recovery of the amounts ordered to be refunded to the assessees delayed because of any deliberate, inaction on the part of the assessees.
It is not found that excess tax on inflated returns was paid in anticipation of the repeal of the Excess Profits Tax Act.
The assessees for reasons of convenience adopted, as they were entitled under the Madras General Sales Tax Act, a system of payment of tax on provisional assessment based on the turnover of the, previous year subject to final adjustment to be made at the end of the year.
The assessees could opt for the system of paying sales tax on provisional assessment, but the liability to pay tax imposed was on that account not voluntarily incurred.
This system produced no direct benefit to the business and adjudged in retrospect, it undoubtedly reduced the taxable income; but if otherwise the payment was reasonable and necessary having regard to the requirements of the business, it was not liable to be ignored in assessing the Excess Profits Tax liability of the assessees.
By r. 12 of Sch. 1 of the Excess Profits Tax Act, it is provided that "in computing the profits of any chargeable accounting period, no deduction shall be allowed in respect of expenses in excess of the amount which, the Excess Profits Tax Officer considers reasonable and necessary having regard to the requirements of the business;. ".
It is for the Excess Profits Tax Officer to decide whether the deductions claimed are reasonable and necessary having regard to the requirements of the 237 business.
But the reasonableness and necessity of the expenditure sought to be deducted in assessing Excess Profits Tax liability must be adjudged in the light of commercial expediency.
The payments made by the assessees were in discharge of obligation imposed lawfully and were necessary for the proper conduct of the business.
By section 10 of the Madras General Sales Tax Act, the assessees were obliged within 15 days from the date of service of the notice of assessment to pay tax and in default, the amount was liable to be recovered as if it were an arrear of land revenue.
Again, by section 15, if the assessees failed to submit the return as required by the provisions of the Act or the rules made thereunder or failed to pay the tax within the time prescribed, they were liable to be penalised.
Payments made in satisfaction of liability which arises by virtue of the assessment made by the Sales Tax Officer cannot be called unreasonable.
Payment of sales tax as assessed being obligatory and necessary for the purpose of carrying on the business, it must in our opinion be deemed to satisfy the requirements of r. 12 of Sch.
1 of the Excess Profits Tax Act.
The Excess Profits Tax Officer was, in our opinion, in error in thinking that the tax paid was in excess of the requirements of the business.
We are also of the view that the Tribunal was in error in holding that by seeking to deduct only the tax properly attributable to the actual turnover during the chargeable accounting period, the Excess Profits Tax Officer was not seeking to disturb the method of accounting which was followed by the assessees and was accepted by the taxing authorities for many years.
Counsel for the Commissioner submitted that the rules relating to advance provisional assessment and levy of tax framed under the Madras General Sales Tax Act, 1939 were inconsistent with the provisions of the Act and the assessees should have raised this contention and have obtained a decision from the court before paying tax on provisional assessment and not having done so, payments made cannot be regarded as either reasonable or necessary.
Counsel says that in In re M. P. Kumraswami Raja (1), the Madras High (1) [1955] 6 Sales Tax Cases 113. 238 Court has declared this scheme of taxation on provisional assessment ultra Vires.
But the reasonableness or the necessity of payments under r. 12 Sch. 1 of the Excess Profits Tax Act must be ascertained in the light of what may be regarded as commercially expedient and not on any legalistic considerations.
It would not be expected of a businessman to start a litigation in respect of a tax which the Legislature of the State was competent to levy on the ground that the method devised for computing the tax liability was ultra vires.
The tax was duly assessed and paid and the reasonableness and necessity must be adjudged in the light of the circumstances then prevailing and not in the light of subsequent developments.
It may also be noticed that since the Madras High Court 's decision in In re Kumaraswami Raja 's case (1), the Madras Legislature by the Madras General Sales Tax Amendment Act VIII of 1955 retrospectively validated the levy.
By virtue of this Act, assessments made provisionally and the levy of the tax were to be regarded as valid notwithstanding any initial incon sistency between the provisions of the Act and the Rules framed thereunder.
It may also be pointed out that no such question was referred to the High Court and not even an argument appears to have been raised in the High Court on this question.
We are of the view that the High Court was right in answering the question in the negative.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
(1) [1955] 6 Sales Tax Cases 118.

summary/full:
The respondents were entitled to a rebate of sales tax on goods purchased by them and used in their manufacturing process.
They had adopted the system which was permissible under law, 233 of paying sales tax provisionally assessed by the Sales Tax Officer on the basis of turnover of the previous year, the liability being adjusted at the end of the year of account in the light the actual turnover of that year, as a result of which, in some years the respondents were assessed to pay tax in excess of the amount provisionally assessed, in others they obtained refund of the excess tax paid under the provisional assessment.
The Income Tax Officer recognised the system and permitted deduction of sales tax actually paid under the provisional assessment.
The Excess Profits Tax Officer had in assessing liability to excess profits tax for previous periods adopted the same method of computation, but for the chargeable accounting period, he did not allow the deduction of the full amount of tax provisionally debited to the sales tax, because in his view it was not reasonable and necessary expenditure and thus not a permissible deduction.
The question was whether the sales tax payments were unreasonable and unnecessary having due regard to the requirements of the business and consequently not deductible under r. 12 Sch. 1 of the Excess Profits Tax Act.
Held, that it is for the Excess Profits Tax Officer to decide whether the deductions claimed are reasonable and necessary having regard to the requirements of the business.
But the reasonableness and necessity of the expenditure sought to be deducted under r. 12 Sch. 1 of the Excess Profits Tax Act in assessing excess profits tax liability must be adjudged in the light of commercial expediency, and not on any legalistic consideration.
Payments made in satisfaction of liability which arises by virtue of assessment made by the Sales Tax Officer cannot be called unreasonable.
Payment of sales tax as assessed being obligatory and necessary for the purpose of carrying on the business, it must be deemed to satisfy the requirements of r. 12 of Sch.
1 of the Excess Profits Tax Act.
In re M. P. Kumaraswami Raja, (1955) 6 Sales Tax Cases 113, referred to.


judgement:
riminal Ap.
peal No. 82 of 1952.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated June 10, 1952, of the High Court of Judicature for the State of Punjab at Simla (Bbandari and Khosla JJ.) in Criminal Writ No. 144 of 1951.
M. C. Setalvad (Attorney General for India) and C. K. Daphtary (Solicitor Genera I for India) (B. Gana pathy, with them) for the appellant.
J. B. Dadachanji (amicus curice) for respondent No. 1. 1952.
November 10.
The Judgment of the Court was delivered by DAS J.
This appeal arises out of a habeas corpus petition Bled by one Ajaib Singh in the High Court of Punjab for the production and release of one Musammat Sardaran alias Mukhtiar Kaur, a girl of about 12 years of age.
256 The material facts leading up to the filing of that petition may be shortly stated as follows.
On the report made by one Major Babu Singh, Officer Commanding No. 2 Field Company, section M. Faridkot, in his letter dated February 17, 1951, that the petitioner Ajaib Singh had three abducted persons in his possession, the recovery police of Ferozepore, on June 22, 1951, raided his house in village Shersingwalla and took the girl Musammat Sardaran into custody and delivered her to the custody of the Officer in charge of the Muslim Transit Camp at Ferozepore from whence she was later transferred to and lodged in the Recovered Muslim Women 's Camp in Jullundur City.
A Sub Inspector of Police named Nibar Dutt Sharma was deputed by the Superintendent of Police, Recovery, Jullundur to make certain enquiries as to the facts of the case.
The Sub Inspector as a result of his enquiry made a report on October 5, 1951 to the effect, inter, that the girl had been abducted by the petitioner during the riots of 1947.
On November 5, 1951, the petitioner filed the habeas corpus petition and obtained an interim order that the girl should not be removed from Jullundur until the disposal of the petition.
The case of the girl was then enquired into by two Deputy Superintendents of Police, one from India and one from Pakistan who, after taking into consideration the report of the Sub Inspector and the statements made before them by the girl, her mother who appeared before them while the enquiry was in progress, and Babu alias Ghulam Rasul the brother of Wazir deceased who was said to be the father of the girl and other materials, came to the conclusion, inter alia, that the girl was a Muslim abducted during the riots of 1947 and was, therefore, an abducted person as defined in section 2(a) (1) of the Abducted Persons (Recovery and Restoration) Act LXV of 1949.
By their report made on November 17, 1951, they recommended that she should be sent to Pakistan for restoration to her next of kin but in view of the interim order of the High Court appended a note to the effect that she 257 should not be sent to Pakistan till the final decision of the High Court.
The matter then came before a Tribunal said to have been constituted under section 6 of the Act.
That Tribunal consisted of two Superintendents of Police, one from India and the other from Pakistan.
The Tribunal on the same day, i.e., November 17, 1951, gave its decision agreeing with the findings and recommendation of the two Deputy Superintendents of Police and directed that the girl should be sent to Pakistan and restored to her next of kin there.
The habeas corpus petition came up for hearing before Bhandari and Khosla JJ.
on November 26, 1951, but in view of the several questions of farreaching importance raised in this and other similar applications, the learned Judges referred the following questions to a Full Bench : 1.
Is Central Act No. LXV of 1949 ultra vires the Constitution because its provisions with regard to the detention in refugee camps of persons living in India violate the rights conferred upon Indian citizens under article 19 of the Constitution ? 2.
Is this Act ultra vires the Constitution because in terms it violates the provisions of article 22 of the Constitution ? 3.
Is the Tribunal constituted under section 6 of the Act a Tribunal subject to the general supervision of the High Court by virtue of article 227 of the Constitution ? At the same time the learned Judges made it clear that the Full Bench would not be obliged to confine itself within the narrow limits of the phraseology of the said questions.
On the next day the learned Judges made an order that the girl be released on bail on furnishing security to the satisfaction of the Registrar in a sum of Rs. 5,000 with one surety.
It is not clear from the record whether the security was actually furnished.
The matter eventually came up before a Full Bench consisting of the same two learned Judges 258 and Harnam Singh J.
In course of arguments before the Full Bench the following further questions were added: 4.Does this Act conflict with the provision of article 14 on the ground that the State has denied to abducted persons equality before the law or the equal protection of the laws within the territory of India? 5.Does this Act conflict with the provisions of article 15 on the ground that the State has discriminated against abducted persons who happen to be citizens of India on the ground of religion alone ? 6.
Does this Act conflict with article 21 on the ground that abducted persons are deprived of their personal liberty in a manner which is contrary to principles of natural justice ? " There was also a contention that the Tribunal which decided this case was not properly constituted in that its members were not appointed or nominated by the Central Government and, therefore, the order passed by the Tribunal was without jurisdiction.
By their judgments delivered on June 10, 1952, Khosla and Harnam Singh JJ.
answered question 1 in the negative but Bhandari J. held that the Act was inconsistent with the provisions of article 19(1) (g) of the Constitution.
The learned Judges were unanimous in the view that the Act was inconsistent with the provisions of article 2.2 and was void to the extent of such inconsistency.
Question 3 was not fully argued but Bhandari and Khosla JJ.
expressed the view that the Tribunal was subject to the general supervision of the High Court.
The Full Bench unanimously answered questions 4, 5 and 6 in the negative.
Bhandari and Khosla JJ.
further held that the Tribunal was not properly constituted for reasons mentioned above, but in view of his finding that section 4(1) of the Act was in conflict with article 22(2) Harnam Singh J. did not consider it necessary to express any opinion on the validity of the constitution of the Tribunal.
259 The Full Bench with their aforesaid findings remitted the case back to the Division Bench which had referred the questions of law to the larger Beach.
The case was accordingly placed before the Division Bench which thereafter ordered that Musammat Sardaran alias Mukhtiar Kaur be set at liberty.
The girl has since been released.
The State of Punjab has now come up on appeal before us.
As the petitioner respondent Ajaib Singh represented to us that he could not afford to brief an advocate to argue his case, we requested Sri J. B. Dadachanji to take up the case as ambicus curiae which be readily agreed to do.
He has put forward the petitioners case with commendable ability and we place on record our appreciation of the valuable assistance rendered by him to the Court.
In his opening address the learned Solicitor General frankly admitted that he could not contend that the Tribunal was properly constituted under section 6 of the Act and conceded that in the premises the order of the ' High Court directing the girl to be released could not be questioned.
He, however, pressed us to pronounce upon the constitutional questions raised in this case and decided by the High Court so that the Union Government would be in a position to decide whether it would, with or without modification, extend the life of the Act which is due to expire at the end of the current month.
We accordingly heard arguments on the constitutional questions on the clear understanding that whatever view we might express oh those questions, so far as this particular case is concerned, the order of the High Court releasing the girl must stand.
After hearing arguments we intimated, in view of the urgency of the matter due to the impending expiry of the Act, that our decision was that the Act did not offend against the provisions of the Constitution and that we would give our reasons later on.
We now proceed to set forth our reasons for the decision already announced.
34 260 In order to appreciate the rival contentions canvassed before us it is necessary to bear in mind the circumstances which led to the promulgation of an Ordinance which was eventually replaced by Act LXV of 1949 which is impugned before us as unconstitutional.
It is now a matter of history that serious riots of virulent intensity broke out in India and Pakistan in the wake of the partition of August, 1947, resulting in a colossal mass exodus of Muslims from India to Pakistan and of Hindus and Sikhs from Pakistan to India.
There were heart rending tales of abduction of women and children on both sides of the border which the governments of the two Dominions could not possibly ignore or overlook.
As it was not possible to deal with and control the situation by the ordinary laws the two governments had to devise ways and means to check the evil.
Accordingly there was a conference of the representatives of the two Dominions at Lahore in December, 1947, and Special Recovery Police Escorts and Social Workers began functioning jointly in both the countries.
Eventually on November 11, 1948, an Inter Dominion Agreement between India and Pakistan was arrived at for the recovery of abducted persons on both sides of the border.
To implement that agreement was promulgated on January 31, 1949, an Ordinance called the Recovery of Abducted Persons Ordinance,. 1949.
This Ordinance was replaced by Act LXV of 1949 which came into force on December 28, 1949.
The Act was to remain in force up to October 31, 1951, but it was eventually extended by a year.
That the Act is a piece of beneficial legislation and has served a useful purpose cannot be denied, for up to February 29, 1952, 7,981 abducted persons were recovered in Pakistan and 16,168 in India this circumstance, however, can have no bearing on the constitutionality of the Act which will have to be judged on purely legal considerations.
The Act is a short one consisting of eleven sections.
It will be observed that the purpose of the Act is to implement the agreement between the two countries 261 as recited in the first preamble.
The second preamble will show that the respective governments of the States of Punjab, Uttar Pradesh, Patiala and East Punjab States Union, Rajasthan and Delhi gave their consent to the Act being passed by the Constituent Assembly a circumstance indicative of the fact that those governments also felt the necessity for this kind of legislation.
By section 1 (2) the Act extends to the several States mentioned above and is to re main in force up to October 31, 1952.
The expression "abducted person" is defined by section 2(1) (a) as meaning " a male child under the age of sixteen years or a female of whatever age who is, or immediately before the 1st day of March, 1947, was a Muslim and who, on or after that day and before the 1st day of January, 1949, has become separated from his or her family, and in the latter case includes a child born to any such female after the said date.
" Section 4 of the Act, which is important, provides that if any police officer, not below the rank of an Assistant Sub Inspector or any other police officer specially authorised by the State government in that behalf, has reason to believe that an abducted person resides or is to be found in any place, he may, after recording the reasons for his belief, without warrant, enter and take into custody any person found therein who, in his opinion, is an abducted person, and deliver or cause such persons to be delivered to the custody of the officer in charge of the nearest camp with the least possible delay.
Section 6 enacts that if any question arises whether a person detained in a camp is or is not an abducted person, or whether such person should be restored to his or her relatives or handed over to any other person or conveyed out of India or allowed to leave the camp, it shall be referred to, and decided by , 'a Tribunal constituted for the purpose by the Central Government.
The section makes the decision of the Tribunal final, subject, however, to the power of the Central Government to review or revise any such decision.
Section 7 provides for the implementation of the decision of the 262 Tribunal by declaring that any officer or authority to whom the custody of any abducted person 'has been delivered shall be entitled to receive and hold the person in custody and either restore such person to his or her relatives or convey such persons out of India.
Section 8 makes the detention of any abducted person in a camp in accordance with the provisions of the Act lawful and saves it from being called in question in any court.
Section 9 gives the usual statutory immunity from any suit or proceeding for anything done under the Act in good faith.
Section ' 10 empowers the Central Government to make rules to carry out the purposes of the Act.
The main contest before us has been on question 2 which was answered unanimously by the Full Bench against the State, namely, whether the Act violates the provisions of article 22.
If the recovery of a person as an abducted person and the delivery of such person to the nearest camp can be said to be arrest and detention within the meaning of article 22(1) and (2) then it is quite clear that the pro visions of sections 4 and 7 and article 22(1) and (2) cannot stand together at the same time, for, to use the language of Bhandari J., " it is impossible to obey the directions contained in sections 4 and 7 of the Act of 1949 without disobeying the directions contained in clauses (1) and (2) of article 22." The Constitution commands that every person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours excluding the time requisite for the journey from the place of arrest to the Court of the Magistrate but section 4 of the Act requires the police officer who takes the abducted person into custody to deliver such person to the custody of the officer in charge of the nearest camp for the reception and detention of abducted persons.
These provisions are certainly conflicting and inconsistent.
The absence from the Act of the salutary provisions to be found in article 22(1) and (2) as to the right of the arrested person to be informed of the grounds of such arrest and to consult and to be 263 defended by a legal practitioner of his choice is also significant.
The learned Solicitor General has not contended before us, as he did before the High Court, that the overriding provisions of article 22(1) and (2) should be read into the Act, for t e o vious reason that whatever may be the effect of the absence from the Act of provisions similar to those of article 22(1), the provisions of article 22(2) which is wholly inconsistent with section 4 cannot possibly, on account of such inconsistency, be read into the Act.
The sole point for our consideration then is whether the taking into custody of an abducted person by a police officer under section 4 of the Act and the delivery of such person by him into the custody of the officerin charge of the nearest camp can be regarded as arrest and detention within the meaning of article 22(1) and (2).
If they are not, then there can be no complaint that the Act infringes the fundamental right guaranteed by article 22(1) and (2).
Sri Dadachanji contends that the Constitution and particularly Part III the ereof should be construed liber ally so that the fundamental rights conferred by it may be of the widest amplitude.
He refers us to the various definitions of the word "arrest" given in several wellknown law dictionaries and urges, in the light of such definitions, that any physical restraint imposed upon a person must result in the loss of his personal liberty and must accordingly amount to his arrest.
It is wholly immaterial why or with what purpose such arrest is made.
The mere imposition of physical restraint, irrespective of its reason, is arrest and as such, attracts the application of the constitutional safeguards guaranteed by article 22 (1) and (2).
That the result of placing such a wide definition on the the term "arrest" occurring in article 22 (1) will render many enactments unconstitutional is obvious.
To take one example, the arrest of a defendant before judgment under the provisions of Order XXXVIII, rule 1, of the Code of Civil Procedure or the arrest of a judgment debtor in execution of a decree under section 55 of the Code will, on this 264 hypothesis, be unconstitutional inasmuch as the Code provides for the production of the arrested person, not before a Magistrate but before the civil court which made the order.
Sri Dadachanji contends that such consideration should not weigh with the court in construing the Constitution.
We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce.
if, however, two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory.
We have, therefore, to examine the article in question with care and ascertain the meaning and import of it primarily from its language.
Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a court and arrests otherwise than under such warrants.
As to the first category of arrest, sections 76 to 86 collected under sub heading B Warrant of Arrest " in Chapter VI of the Code of Criminal Procedure deal with arrests in execution of warrants issued by a court under that Code.
Section 76 prescribes that such a warrant must be in writing signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench and bear the Beal of the court.
Form No. II of Schedule V to the Code is a form of warrant for the arrest of an accused person.
The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence.
, Form No. VII of that Schedule is used to bring up a witness.
The warrant itself recites that the court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so.
The point to be noted is that in either case the 265 warrantex facie sets out the reason for the arrest, namely, that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence.
In short, the warrant contains a clear accusation against the person to be arrested.
Section 80 requires that the Police Officer or other person executing a warrant must notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.
It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested.
Then comes section 81 which runs thus: " The Police Officer or other person executing a warrant of arrest shall (subject to the provisions of section 76 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.
" Apart from the Code of Criminal Procedure, there are other statutes which provide for arrest in execution of a warrant of arrest issued by a court.
To take one example, Order XXXVIII, rule 1, of the Code of Civil Procedure authorises the court to issue a warrant for the arrest of a defendant before judgment in certain circumstances.
Form No. 1 in Appendix F sets out the terms of such a warrant.
It clearly recites that it has been proved to the satisfaction of the court that there is probable cause for belief that the defendant is about to do one or other of the things mentioned in rule 1.
The court may under section 55 read with Order XXI, rule 38, issue,a warrant for the arrest of the judgment debtor in execution of the decree.
Form No. 13 sets out the terms of such a warrant.
The warrant recites the decree and, the failure of the judgment debtor to pay the decretal amount to the decree holder and directs the bailiff of the court to arrest the defaulting judgment debtor, unless he pays up the decretal amount with costs and to bring him before the court with all convenient speed.
The point to be noted is that, as in the case of a warrant of arrest issued by a court under the Code of Criminal Procedure, a warrant of arrest 266 issued by a court under the Code of Civil Procedure quite plainly discloses the reason for the arrest in that it sets out an accusation of default, apprehended or actual, and that the person to be arrested is made acquainted with the reasons for his arrest before lie is actually arrested.
The several sections collected under sub heading B Arrest without warrant " in Chapter V of the Code of Criminal Procedure deal with arrests otherwise than under warrants issued by a court under that Code.
Section 54 sets out nine several circumstances in which a police officer may, without an order from a Magistrate and without a warrant, arrest a person.
Sections 55, 57, 151 and 401 (3) confer similar powers on police officers.
Column 3, Schedule II to the Code of Criminal Procedure also specifies; the cases where the police may arrest a person without warrant.
Section 56 empowers an officer in charge of a police station or any police officer making an investigation under Chapter XIV to require any officer subordinate to him to arrest without a warrant any person who may lawfully be arrested without a warrant.
In such a case, the officer deputing a subordinate officer to make the arrest has to deliver to the latter an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the subordinate officer is required, before making the arrest, to notify to the person to be arrested the substance of the order and, if so required by such person, to show him the order.
Section 59 authorises even a private person to arrest any person who in his view commits a non bailable and cognisable offence or any proclaimed offender and requires the person making the arrest to make over the arrested person, without unnecessary delay, to a police officer or to take such person in custody to the nearest police station.
A perusal of the sections referred to above will at once make it plain that the reason in each case of arrest without a warrant is that the person, arrested is accused of having committed or reasonably suspected to have committed or of 267 being about to commit or of being likely to commit some offence or misconduct.
It is also to be noted that there is no provision, except in section 56, for acquainting the person to be arrested without warrant with the grounds for his arrest.
Sections 60 and 61 prescribe the procedure to be followed after a person is arrested without warrant.
They run thus: " 60.
A police officer making an arrest without warrant shall without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station." "61.No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall, not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours, exclusive of the, time necessary for the journey from the place of arrest to the Magistrate 's Court.
" Apart from the Code of Criminal Procedure, there are other statutes which authorise the arrest of a person without a warrant issued by any Court.
Reference may, byway of example, be made to sections 173 and 174 of the Sea Customs Act (VIII of 1878) and section 64 of the Forest Act (XVI of 1927).
In both cases, the reason for the arrest is that the arrested person is reasonably suspected to have been guilty of an offence under the Act and there is provision in both cases for the immediate production of the arrested person before a Magistrate.
Two things are to be noted, namely, that, as in the cases of arrest without warrant under the Code of Criminal Procedure, an arrest without warrant under these Acts also proceeds upon an accusation that the person arrested is reasonably suspected of having committed an offence and there is no provision for communicating to the person arrested the grounds for his arrest.
35 268 Turning now to article 22(1) and (2), we have to ascertain whether its protection extends to both categories of arrests mentioned above, and, if not, then which one of them comes within its protection.
There can be no manner of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants.
The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.
In the case of, arrest under a warrant issued by a court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right.
It is also perfectly plain that the language of article 22(2) has been practically copied from sections 60 and 61 of the Code of Criminal Procedure which admittedly prescribe the procedure to be followed after a person, has been arrested without warrant.
The requirement of 'article 22(1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest without a warrant of court, for, as already noted, a person arrested under a, court 's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected.
There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest.
The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended.
The language of article 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such 269 arrests as are effected otherwise than under a warrant issued by a court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi criminal nature or some activity prejudicial to the public or the State interest.
In other words, there is indication in the language of article 22(1) and (2) that it was designed to give protection against the act of the executive or other non judicial authority.
The Blitz case (Petition No. 75 of 1952), on which Sri Dadachanji relies, proceeds on this very view, for there the arrest was made on a warrant issued, not by a court, but, by the Speaker of & State Legislature and the arrest was made on the distinct accusation of the arrested person being guilty of contempt of the Legislature.
It is not, however, our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection.
Whatever else may come within the purview of article 22(1) and (2), suffice it to say for the purposes of this case, that we are satisfied that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi criminal nature or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer in charge of the nearest camp under section 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of article 22(1) and (2).
In our view, the learned Judges of the High Court over simplified the matter while construing the article, possibly because the considerations hereinbefore adverted to were not pointedly brought to their attention.
Our attention has been drawn to sections loo (search for persons wrongfully confined) and 552 (power to compel restoration of abducted females) of 270 the Code of Criminal Procedure, and it has been urged that neither of those sections contemplates an accusation against the victim and yet such victim, after recovery, has to be brought before a Magistrate.
It is to be observed that neither of the two sections treats the victim as an arrested person for the victim is not produced before a Magistrate under sections 60 and 61 'which require the production of a person arrested without warrant, or under section 81 which directs the production of a person arrested under a warrant issued by a, court.
The recovered victim is produced by reason of special provisions of two sections,, namely, sections 100 and 552.
These two sections clearly indicate that the recovery and taking into custody of such a victim are, not regarded as arrest at all within the meaning of the Code of Criminal Procedure and, therefore, cannot also come within the protection of article.
22(1) and (2).
This circumstance also lends support"to the conclusion we have reached, namely, 'that the taking into custody of an abducted person under the impugned Act is not an arrest within the meaning of article 22(1) and (2).
Before the Constitution, came into force it was entirely for the Legislature to consider whether the recovered person should be produced before a Magistrate as is provided by sections 100 and 552 of the Criminal Procedure Code in the case of persons wrongfully confined or abducted.
By this Act, the Legislature provided that the recovered Muslim abducted person should be taken straight to the officer in charge of the camp, and the Court could not question the wisdom of the policy of the Legislature.
After the Constitution, article 22 being out of the way, the position in this behalf remains the same.
Sri Dadachanji also argued that the Act is inconsistent with article 14.
The meaning, scope and ambit of that article need not be explained again, for they have already been explained by this Court on more than one occasion.
[See Chiranjit Lal Chowdhury vs The Union of India (1), The State of Bombay vs F. N. (1) ; 271 Balsara (1), The State of West Bengal vs Anwar Ali Sarkar (2), and Kathi Raning Rawat vs The State of Saurashtra (3)].
There can be no doubt that Muslim abducted persons constitute a well defined class for the purpose of legislation.
The fact that the Act is extended only to the several States mentioned in section 1 (2) does not make any difference, for a classification may well be made on a geographical basis.
Indeed, the consent of the several States to the passing of this Act quite clearly indicates, in the opinion of the governments of those States who are the best judges of the welfare of their people, that the Muslim abducted persons to be found in those States form one class having similar interests to protect. ' Therefore the inclusion of all of them ' in the definition of abducted persons cannot be called discriminatory.
Finally, there is nothing discriminatory in sections 6 and 7.
Section 7 only implements the decision of the Tribunal arrived at under section 6.
There are several alternative things that the Tribunal has been authorised to do.
Each and everyone of the abducted persons is liable to be treated in one way or another as the Tribunal may determine.
It is like all offenders under a particular section being liable to a fine or imprisonment.
There is no discrimination if one is fined and the other is imprisoned, for all offenders alike are open to the risk of being treated in one way or another.
In our view, the High Court quite correctly decided this question against the petitioner.
The learned counsel for the respondent Ajaib Singh contended that the Act was inconsistent with the provisions of article 19(1)(d) and (e) and article 21.
This matter is concluded by the majority decision of this court in Gopalan 's case (4) and 'the High Court quite correctly negatived this contention.
Sri Dadachanji has not sought to support the views of Bhandari J. regarding the Act being inconsistent with article 19 (1)(g).
Nor has learned counsel (1) ; (3) ; (2) ; (4) ; 272 seriously pressed the objection of unconstitutionality based on article 15, which, in our view, was rightly rejected by the High Court.
Although we hold that the High Court erred on the construction they Put upon article 22 and the appellant has succeeded on that point before us, this appeal will, nevertheless, have to be dismissed on the ground that the Tribunal was not properly constituted and its order was without jurisdiction, as conceded by the learned Solicitor General.
We, therefore, dismiss this appeal on that ground.
We make no order as to costs.

summary/full:
The Abducted Persons (Recovery and Restoration) Act (Act LXV of 1949) does Dot infringe article 14, article 16, article 19 (1) (d), (e) and (g), article 21 or article 22 of the Constitution and is not unconstitutional on the ground that it,contravenes any of these provisions.
The physical restraint Put upon an abducted person in the process of recovering and, taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi criminal nature or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer in charge of the nearest camp under section 4 of the Abducted Persons (Recovery and Restoration) Act (LXV of 1949) is not arrest and detention within the meaning of article 22 (1) and (2) of the Constitution.
The said Act does not therefore infringe the fundamental right guaranteed by article 22 of the Constitution.
255 The fundamental right conferred by article 22 gives protection ,against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has, or is suspected to have,.
committed, or is about or likely to commit, an act of a criminal or quasi criminal nature or some activity prejudicial to the public or the State interest.
There is indication in the language of article 22 (1) and (2) that it was designed to give protection against the act of the exe cutive or other non judicial authority.
The Blitz Case (Petition No. 75 of 1952) explained.
Muslim abducted persons constitute a well defined class for the purpose of legislation and the fact that the Act is extended only to the several States mentioned in section 1 (2) of the Act does not make any difference, for a classification may well be made on a geographical basis.
The Act does not therefore contravene article 14 of the Constitution.
If the language of an article is plain and unambiguous and admits of only one meaning, then the duty of the Court is to adopt that meaning irrespective of the inconvenience that such a construction may produce.
If, however, two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and, eschew, the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory.