judgement:
minal Appeal No. 113 of 1963.
Appeals by special leave from the judgment and order dated April 19, 1963, of the Bombay High Court in Criminal Appeal No. 988 of 1962.
V.B. Ganatra and I. N. Shroff, for the appellant (Cr. A. No. 57 of 1963).
Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the appellant (in Cr. A. No. 113 of 1963).
S.G. Patwardhan and B. R. G. K. Achar, for the respondent State (in both the appeals).
The Judgment of the Court was delivered by Mudholkar, J.
This appeal and Criminal appeal No. 113/63 arise out of a joint trial of the appellant Mangaldas and the two appellants Daryanomal and Kodumal in Crl.
A. 113 of 1963 for the contravention of section 7(v) of The (hereinafter referred to as the Act) in which they were convicted and sentenced tinder section 16(1) (a) of the Act.
The appellants Mangaldas and Daryanomal were each sentenced under section 16 ( 1 ) (a) (ii) of the Act to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500 while the other appellant was sentenced under sub cl (1) to undergo imprisonment until the rising of the Court and to pay a fine of Rs. 200.
On appeal they were all acquitted by the Additional Sessions Judge, Nasik.
The State preferred an appeal before the High Court of Bombay which allowed it and restored the sentences passed on Mangaldas.
and Daryanomal by the Judicial Magistrate but imposed only a fine of Rs. 200 on Kodumal.
They have come up to this Court by special leave.
The admitted facts are these.
Mangaldas is a wholesale dealer, Commission agent, exporter, supplier and manufacturer of various kinds of spices doing business at Bombay.
Dayanomal is engaged 896 in grocery business at Nasik while Kodumal is his servant.
On November 7, 1960 Daryanomal purchased from Mangaldas a bag of haldi (turmeric powder) weighing 75 kg.
which was despatched by the latter through a public carrier.
It was received on behalf of Daryanomal at 11.45 A.M. on November 18, 1960 by Kodumal at the octroi post of Nasik Municipality.
After he paid the octroi duty to the Nasik Municipality and took delivery of the bag the Food Inspector Burud purchased from him 12 oz.
of turmeric powder contained in that bag for the purpose of analysis.
The procedure in this regard which is laid down in section 11 of the Act was :followed by Burud.
A portion of the turmeric powder was sent to the Public Analyst at Poona, whose report exhibit 16, shows that the turmeric powder was adulterated food within the meaning of section 2 (1) of the Act.
Thereupon Burud, after obtaining the sanction of the Officer of Health of the Municipality, filed (a complaint against the appellants in the court of the Judicial Magistrate for offences under section 16(1) (a) read with section 7(v) of the Act.
At the trial Kodumal admitted that he had taken delivery of the bag at the octroi post and sold 12 oz.
of turmeric powder to the Food Inspector and that he had also received a notice from him under section 11 of the Act.
It was contended at the trial on behalf of Daryanomal that actually no delivery had been taken but that point was not pressed before the High Court.
While Mangaldas admitted that he had sold and despatched the bag containing turmeric powder he contended that what was sent was not turmeric powder used for human consumption but was "Bhandara" which is used for religious purposes or for applying to the forehead.
This contention was rejected by the Judicial Magistrate as well as by the High Court but was not considered by the Additional Sessions Judge.
It was sought to be challenged before us by Mr. Ganatra on his behalf but as the finding of the High Court on the point is upon a question of fact we did not permit him to challenge it.
We will take Mangaldas 's case first.
Mr. Ganatra had made an application on his behalf for raising a number of new points, including some alleged to raise constitutional questions.
At the hearing, however, he did not seek to urge any question involving the interpretation of the Constitution.
The new points which he 'Sought to urge were: (1) that the appellant was not questioned regarding the report of the Public Analyst; (2) the joint trial of Mangaldas with the other two appellants was illegal; and (3) that the sanction was not valid.
897 As regards the first of these points his contention is that he had raised it before the High Court also though it has not referred to in its judgment.
The High Court has stated clearly that all the points raised in argument before it were considered by it.
In the face of this statement we cannot allow the point to be urged before US.
As regards the second point it is sufficient to say that it was not raised before the Magistrate.
Section 537(b) of the Code of Criminal Procedure provides that no judgment, conviction or sentence can be held to be vitiated by reason of misjoinder of parties unless prejudice has resulted to the accused thereby.
For determining whether failure of justice has resulted the Court is required by the Explanation to section 537 to have regard to the fact that the objection had not been raised at the trial.
Unless it is so raised it would be legitimate to presume that the accused apprehended no prejudice.
The point thus fails.
As regards the alleged invalidity of sanction it is sufficient to point out that the contention was not raised in the High Court or earlier.
We, therefore, decline to consider it.
Mr. Ganatra urged that the trial court had no jurisdiction to try the appellant as the appellant had not committed any offence within its jurisdiction.
With regard to this point the High Court has held that Mangaldas had distributed the commodity within the jurisdiction of the Magistrate and, therefore, the Magistrate had jurisdiction to try him.
Apart from that we may point out that under section 182 of the Code of Criminal Procedure where it is uncertain in which of the local areas an offence was committed or where the offence is committed partly in one local area and partly in another or where an offence is a continuing one and continues to be committed in more local areas than one or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
Since Mangaldas actually sent the bag from Bombay to Nasik he could be said to have committed the offence partly in Bombay from where it was despatched and partly in Nasik to which place it had been consigned.
Apart from that, the mere fact that pro ceedings were taken in a wrong place would not vitiate the trial unless it appears that this has occasioned a failure of justice (see section 531, Cr. P. C.).
Mr. Ganatra, however, says that there was failure of justice in this case because had Mangaldas been prosecuted at Bombay, one of the samples taken from the bag of turmeric powder would have been sent to the Public Analyst at Bombay and not to the Public Analyst at Poona.
We are wholly 898 unable to appreciate how this could make any difference whatsoever.
Apart from that since the samples were actually taken at Nasik the one meant for analysis had, according to an administrative order of the Government, to be sent to the Public Analyst at Poona.
Therefore, even if Mangaldas had been tried at Bombay tile report of the Public Analyst at Poona could be put in evidence.
There is nothing in the Act which prevents that from being done.
In view of the fact that the finding of the Judicial Magistrate and the High Court that the turmeric powder had been adulterated was based solely on the report of the Public Analyst, Mr. Ganatra raised three contentions before us.
One is that such evidence is not by itself sufficient for the conviction of an accused person; the second is that the Public Analyst was not called as a witness in the case and the third is that unless notice is given to an accused person under section 11 of the Act after a sample had been taken of the allegedly adulterated commodity the report of the Public Analyst concerning that commodity is not admissible against him.
In support of the contention that the conviction could not be based solely upon the report of the Public Analyst that the turmeric power was adulterated.
Mr. Ganatra relied upon the decisions in State vs Bhausa Hanmatsa Patwar(1) and City Corporation Trivandrum vs Antony (2) .
The first of these is a case under the Bombay Prohibition Act, 1949 (Bombay XXV of 1949).
In that case a large quantity of angurasava, partly contained in two barrels and partly in three boxes containing 109 bottles was recovered from the house of the accused person.
Samples taken from the barrels and boxes were sent for analysis to the Chemical Analyser and to the Principal, Podar Medical College, Bombay.
The report of the former showed that three out of the four samples contained alcohol in varying degrees.
Thereupon the accused was Prosecuted for offence , under sections 65, 66(b) and 83(1) of the Bombay Prohibition Act.
His defence was that he manufactured a medical preparation called angurasava which contained Ayurvedic ingredients which generated alcohol.
According to him, therefore, what was seized from him was outside the orbit of the Bombay Prohibition Act.
Partly relying upon the certificate issued by the Principal of Podar Medical College, the trying Magistrate acquitted the accused holding that the Prosecution failed to discharge the onus of proof that angurasava was prohibited liquor.
On appeal by the State of Maharashtra before the High Court reliance was placed upon the certificates issued by the Chemical Analyser as well as by the Principal, Podar Medical College.
The certificate of (1) [ (2) I.L.R. [1962] 1 Kerala 430.
899 the former showed that three out of the four samples contained "2.2 and 6 per cent v/v of ethyl alcohol respectively and they contain yeast.
No alkaloidal ingredient or metallic poison was detected in them.
The certificate of the Principal of the Podar Medical College is as follows "Formula supplied is found to be similar to that given in the Ayurvedic Books.
There are no easy methods to find out the herbal drugs dissolved in a liquid.
It is not possible for us, to find out the herbal drugs used in the above liquids.
The colour and smell of the samples supplied is not identical with the colour and smell of fermented Ayurvedic preparation like, Assam and Arishta.
Hence it is very difficult to give any definite opinion in the matter.
" On behalf of the accused it was urged that by virtue of sub section (ii) of section 24(a) of the Prohibition Act, the provisions of sections 12 and 13 thereof do not apply to any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor.
Section 12 of the Act prohibits the manufacture and possession of liquor and section 16 prohibits the possession of materials for the manufacture of liquor.
It was, however, contended on behalf of the State that once it is established that what was seized from the possession of the accused contains alcohol the burden of proving that what was seized, falls under section 24(a) was on the accused person.
The High Court, however, held that the burden of establishing that a particular article does not fall under section 24(a) rests on the prosecution.
In so far as the certificate of the Chemical Analyser was concerned the High Court observed as follows : "It is beyond controversy that, normally, in order that a certificate could be received in evidence, the person who has issued the certificate must be called and examined as a witness before the Court.
A certificate is nothing more than a mere opinion of the person who purports to have issued the certificate, and opinion is not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross examination.
" It will thus be clear that the High Court did not hold that the certificate was by itself insufficient in law to.
sustain the conviction and indeed it could not well have said so in view of the provisions of section 510, Cr.
What the High Court seems to have felt was that in circumstances like those present in the case 900 before it, a court may be justified in not acting upon a certificate of the Chemical Analyser unless that person was examined as a witness in the case.
Sub section (1) of section 510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code and sub section
(2) thereof empowers the court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard.
It would, therefore, not be correct to say that where the provisions of sub section
(2) of section 5 1 0 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as having no weight.
Whatever that may be, we are concerned in this case not with the report of a Chemical Examiner but with that of a Public Analyst.
In so far as the report of the Public Analyst is concerned we have the provisions of section 13 of the Act.
Sub section (5) of that Section provides as follows : "Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code : Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.
" This provision clearly makes the report admissible in evidence.
What value is to be attached to such report must necessarily be for the Court of fact which has to consider it.
Sub section (2) of section 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity taken under section 1 1 of the Act to the Director of Central Food Laboratory for a certificate.
The certificate issued by the Director would then supersede the report given by the Public Analyst.
This certificate is not only made admissible in evidence under subs.
(5) but is given finality of the facts contained therein by the proviso to that sub section.
It is true that the certificate of the Public Analyst is not made conclusive but this only means that the court of fact is to act on the certificate or not, as it thinks fit.
901 Sub section (5) of section 13 of the Act came for consideration in Antony 's case(1) upon which the State relied.
There the question was whether a sample of buffalo 's milk taken by the Food Inspector was adulterated or not.
The Public Analyst to whom it was sent submitted the following report : "I further certify that I have analysed the aforementioned sample and declare the result of my analysis to be as follows : Solids not fat 9.00 per cent.
Fat 5.4 per cent.
Pressing point (Hortvet 's method) 0.49 degree C and am of the opinion that the said sample contains not less than seven per cent (7%) of added water as calculated from the freezing point (Hortvet 's method) and is therefore adulterated." The Magistrate who tried the accused persons acquitted them on the ground that it was not established that the milk was adulterated.
Before the High Court it was contended that the certificate was sufficient to prove that water had been added to the milk and reliance was placed upon the provisions of section 13(5) of the Act.
The learned Judge who heard the appeal observed that this provision only says that the certificate may be used as evidence but does not say anything as to the weight to be attached to the report. 'Me learned Judge then proceeded to point out what according to him should be the contents of such report and said: "In this case the court is not told what the Hortvet 's test is, what is the freezing point of pure milk and how the calculation has been made to find out whether water has been added.
I cannot, therefore, say that the Magistrate was bound to be satisfied on a certificate of this kind, which contains only a reference to some test and a finding that water has been added.
The prosecution could have examined the Analyst as a witness on their side.
The learned Magistrate also could very well have summoned and examined the Public Analyst, but whatever that might be, I am not prepared to say that the finding of the Magistrate that the case has not been satisfactorily proved is one which could not reasonably have been reached by the learned Magistrate and (1) I.L.R. [1962] 1 Kerala 430.
902 that the acquittal is wrong and calls for interferences" (p. 436) All that we would like to say is that it should not have been difficult for the learned Judge to satisfy himself by reference to standard books as to what 'Hortvet 's method is and what the freezing point of milk is.
We fail to see the necessity of stating in the report as to how the calculations have been made by the Public Analyst.
Apart from that it is clear that this decision does not support the contention of learned counsel that a court of fact could not legally act solely on the basis of the report of, the Public Analyst.
As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution.
The report of the Public Analyst was there nd if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken.
The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case.
Mr. Ganatra then contended that the report does not contain adequate data.
We have seen the report for ourselves and quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the Necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration.
The report sets out the result of the analysis and of the tests performed in the public health laboratory.
Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder.
The microscopic examination showed the presence of pollen stalks.
This could well be regarded as adequate to satisfy the mind of a Judge or Magistrate dealing with the facts.
Mr. Ganatra then said that the report shows that the analysis was not made by the Public Analyst himself but by someone else.
What the report says is "I further certify that the have caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows.
" This would show that what was done was done under the supervision of the Public Analyst and that should be regarded as quite sufficient.
Now as to the necessity of notice under section 11 of the Act.
Mr. Ganatra said that the report is admissible only against a person to whom notice is given tinder section 11 (1) (a) by the Food Inspector, that the object of talking the sample was to have it analysed.
The law requires notice to be given only to the person from whom the sample is taken and to none else.
The object of 903 this provision is clearly to apprise the person from whom the sample is taken of the intention of the Food Inspector so that he may know that he will have the right to obtain from the Food Inspector a part of the commodity taken by way of sample by the Food Inspector.
This is with a view to prevent a plea from being raised that the sample sent to the analyst was of a commodity different from the one from which the Food Inspector has taken a sample.
What bearing this provision has on the admissibility of the evidence of the Public Analyst is difficult to appreciate.
Once the report of the Analyst is placed on record at the trial it is admissible against all the accused persons.
What it shows in the present case is that the commodity of which Kodumal had taken possession contained turmeric powder which was adulterated.
Therefore, since it is admitted and also established that the bag of turmeric powder from which sample was taken had been despatched by the appellant Mangaldas, the report of the Public Analyst could be properly used against him in regard to the quality or composition of the commodity.
Mr. Ganatra then said that it was necessary to establish that the appellant had the mens rea to commit the offence.
In support of his contention Mr. Ganatra pointed out that section 19(1) of the Act deprives only the vendor of the right to contend that he was ignorant of the nature, substance or quality of the food sold by him and not a person in Mangaldas 's position.
According to him, the word vendor here means the person from whom the sample was actually taken by the Food Inspector.
We cannot accept the contention.
The word "Vendor", though not defined in the Act, would obviously mean the person who had sold the article of food which is alleged to be adulterated.
Mangaldas having sold the bag to Daryanomal, was the original vendor and, therefore, though the sample was taken from Kodumal he will equally be barred from saying that he was not aware of the nature, substance or quality of the turmeric powder in question.
Moreover, it is curious that a person who sought to get out by saying that what he had actually sent was not an article of food but something else should now want to say that he did not know that though it was an article of food it was adulterated.
We may now refer to two decisions upon which learned counsel relied in support of his contention.
The first is Municipal Board, Bareilly vs Ram Gopal(1).
There the question was whether a shopkeeper who allowed the owner of adulterated ghee to sell on his premises was entitled to say in defence that he was ignorant of, (1) 42 Crr.
L.J. 243.
up./65 12 904 the quality of ghee which its owner was offering for sale.
It was held by the Allahabad High Court that he was so entitled.
We fail to appreciate how this case is of any assistance in the matter before us.
For, here, the turmeric powder admittedly once belonged to Mangaldas and was in fact sold by him to Daryanomal.
At one stage, therefore, Mangaldas was the vendor of the turmeric powder and, therefore, falls squarely within the provisions of section 13 (1) of the Act.
The second case is Ravula Hariprasada Rao vs The State(1).
What was held in that case is that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind.
The proposition there stated is well established.
Here section 19(1) of the Act clearly deprives the vendor of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him and this places upon him the burden of showing that he had no mens rea to commit an offence under section 17(1) of the Act.
In a recent case State of Maharashtra vs Mayer Hans George(2) this Court had to consider the necessity of proving mens rea in regard to an offence under section 23 (1) (a) of the Foreign Exchange Regulation Act (7 of 1947) read with a notification dated November 8, 1962 of the Reserve Bank of India.
The majority of Judges constituting the Bench held that on the language of section 8 (1 ) read with section 24 (1) of the above Act, the burden was upon the accused of proving that he had the requisite permission of the Reserve Bank of India to bring gold into India and that there was no scope for the invocation of the rule that besides the mere act of voluntarily bringing gold into India any further mental condition or mens rea is postulated as necessary to constitute an offence referred to in section 23(1 A) of the above Act.
We are, therefore, unable to accept the contention of learned counsel.
The only other point which falls for consideration is the one raised by Mr. Anthony in the other appeal.
Mr. Ganatra did not address any separate argument on this point but he adopted what was said by Mr. Anthony.
That point is whether the transaction in question i.e., taking of a sample by a Food Inspector under section 11 amounts to a "sale" and, therefore, whether the person connected with the transaction could be said to have infringed section 7(v) of the Act.
Mr. Anthony 's contention is that for a transaction to be a sale it must be consensus sale.
Where a person is required by the Food Inspector to sell to him a sample of a commodity there is an element of compulsion and, therefore, it cannot be (1) ; (2) ; 905 regarded as sale.
In support of the contention he has placed reliance upon the decision in Food Inspector vs Parameswaran(1) Raman Nayar J., who decided the case has observed therein: "As a sale is voluntary transaction and (sic) a seizure or compulsory acquisition in exercise of statutory power is not a sale within the ordinary sense of that word.
Nor does the definition of 'sale in section 2(xiii) as including a sale of good for analysis make it one, for, the first requisite even under the definition is that there must be a sale.
The definition apparently by way of abundant caution, merely states that the word 'sale ' means all manner of sales of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis; and all that the definition means in relation to the question we are considering is that a We of food is nonetheless a sale, by reason of the fact that it was not for consumption or use, but only for analysis.
In my view when a food inspector obtains a sample under section 10 of the Act there is no sale.
of course, it is possible for a Food Inspector just like any other human being to effect a purchase in the ordinary course, and the transaction would be a sale notwithstanding that the purchaser is a Food Inspector and that his purpose is to have the article analysed with a view to prosecution.
But, if he obtains the article not by a voluntary exchange for a price but in exercise of his statutory power under section 10 of the Act the transaction is not a sale notwithstanding that in obedience to sub section
(3) of section 10 its cost and I think the sub section advisedly uses the long phrase, 'its cost calculated at the rate at which the article is usually sold to the public ' instead of the word ' price is paid to the person from whom the sample is taken.
" In Sarjoo Prasad vs The State of Uttar Pradesh (2); M. V. Joshi vs M. U. Shimpi(3) and The State of Uttar Pradesh vs Kartar Singh (4) this Court has treated a transaction of the kind we have here as a sale.
No doubt, no argument was addressed in any of these cases before this Court similar to the one advanced by Mr. Anthony in this case and as advanced in Parameswaran 's case(1).
(1) (2) ; (3) (4) A.T.R. 906 A view contrary to the one taken in Parameswaran 's case(1) was taken in State vs Amritlal Bhogilal(1) and Public Prosecutor vs Dada Rail Ebrahim Helari(3).
In both these cases the sale was to a sanitary inspector who had purchased the commodity from the vendor for the purpose of analysis.
It was contended in these cases that the transaction was not of a voluntary nature and, therefore, did not amount to a sale.
This contention was rejected.
In Amritlal Bhogilal 's case(1) the learned Judges held: "There is also no reason why in such a case the article should not be held to have been sold to the inspector within the meaning of section 4 (1) (a).
He has paid for the article purchased by him like any other customer.
Moreover, section 11 itself uses the words "purchase ' and ' sell ' in regard to the inspectors obtaining an article for the purpose of analysis and paying the price for it.
It is, therefore, clear that the Legislature wanted such a transaction to be regarded as a sale for the purposes of the Act." (p. 463) The learned Judges in taking this view relied upon several reported decisions of that Court.
In Dada Haji Ebrahim Helari 's case(3) which was under the Madras Prevention of Adulteration Act, (3 of 1918) Ramaswami J., dissented from the view taken by Horwill J., in In re Ballamkonda Kankayya(4) and following the decisions in Public Prosecutor vs Narayan Singh(5) and Public Prosecutor vs Ramachandrayya(6) held the transaction by which a sample of an article of food was obtained by a sanitary inspector from the vendor amounts to a sale even though that man was bound to give the sample on tender of the price thereof.
But Mr. Anthony contends that a contract must be consensual and that this implies that both the parties to it must act voluntarily.
No doubt a contract comes into existence by the acceptance of a proposal made by one person to another by that other person.
That other person is not bound to accept the proposal but it may not necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract.
Apart from this we need not, however, consider this argument because throughout the case was argued on the footing that the transaction was a 'sale '.
That was evidently because here we have a special definition of "sale" in 2(xiii) of the Act which specifically includes within its ambit a (1) (2) L.L.R. (3) A.I.R. 1953 Mad.
(4) A.I.R. 1942 Mad.
(5) 1944 M.W.N. Crl.
(6) 1948 MW.N. Cri.
907 sale for analysis.
It is, therefore, difficult to appreciate the reasons which led Raman Nayar J., to hold that a transaction like the present does not amount to a sale.
We are, therefore, unable to accept that view.
In the result we uphold the conviction and sentence passed on each of the appellants and dismiss these appeals.
Appeals dismissed.

summary/full:
The three appellants were a wholesale dealer in spices, a dealer in groceries, and his servant respectively.
The second appellant purchased a bag of turmeric powder from the first and the third appellant took delivery of it on behalf of the second appellant, his master.
Immediately after it was taken delivery of, the food inspector purchased from the third appellant some turmeric powder contained in that bag for the purpose of analysis, and after issuing notice to the third appellant as required by section 1 1 of the , sent a portion of the powder purchased to the public analyst, who gave a report that it was adulterated food.
The three appellants were then prosecuted under sections 6(1) (a) read with section 7(v) of the Act and convicted by the Magistrate.
The conviction was confirmed by the High Court.
In the appeal to this Court it was contended that, (i) the report of the public analyst, by itself was not sufficient to sustain the conviction, and the public analyst should have been called as a witness, (ii) the report of the public analyst could not be used as evidence against a person who was not given notice under section 11 of the Act, (iii) the first appellant could not be convicted without establishing that he had the mens rea, and (iv) the taking of the sample under section 10 by a food inspector, was not a "sale" within the meaning of section 2(xiii) and therefore section 7(v) of the Act was not infringed.
HELD : (i) Section 13(5) of the Act, makes the report of the public analyst admissible in evidence and a Court of fact is free to act on it or not, as it thinks fit.
The Court could therefore legally act solely on the basis of the report and the prosecution Could not fail on the ground that the public analyst was not called as a witness.
If the appellant wanted the analyst to be examined, it was for the appellant to take appropriate steps.
C D] (ii)The law requires notice under section 11 to be given only to the person from whom the sample was taken and none else.
If that formality had been complied with and the report of the analyst is placed on record at the trial, it would be admissible against all the accused persons.
[902 H ; 903 C] (iii)The word "vendor" in section 19(1) means the person who had add the article of food which was alleged to be adulterated.
At one stage, the first appellant was the vendor of the turmeric powder.
Since the section deprives the vendor of adulterated food of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him the burden of showing that he had no mens rea to commit the offence would be upon the first appellant.
[904 B D] State of Maharashtra vs Mayer Hans George, ; followed.
895 (iv)The definition of "sale" in section 2(xiii) of the Act, specificallY includes within its ambit a &,de for analysis.
The transaction in the instant can would amount to sale inspite of the fact that where a person is required by the food inspector to sell him a sample of a commodity, there is an element of compulsion under section 10 of the Act.
L906 H] Sarjo Prasad vs State of U.P., ; , M. Y. Joshi vs M. U. Shimpi, ; and State of Uttar Pradesh vs Kartar Singh, ; , referred to.
Food Inspector vs Parameswaran, [1962] 1 Cr. L.J. 652, overruled.


judgement:
No. 47 of 1966.
Petition.under article 32 of the Constitution of India for the enforcemont of fundamental rights.
The petitioner appeared in person.
210 Niren De, Additional Solicitor General, N. section Bindra, R. H. Dhebar and B.R.G.K. Achar, for the respondent.
R. V. section Matti, for the intervener.
The Judgment of the Court was delivered by Sarkar, CJ.
The petitioner, Puran Lal Lakhanpal, was arrested and detained under cl.
(b) of sub r.
(1) of Rule 301 of the Defence of India Rules.
1962 by an order passed on December 10, 1965 and directed to be detained in Central Jail, Tehar, New Delhi.
The order stated that: "WHEREAS the Central Government is satisfied that with a view to preventing Shri P.L. Lakhanpal.
son of late Shri Diwan Chand Sharma. . from acting in a manner prejudicial to the Defence of India and Civil Defence, public safety and the maintenance of public order, it is necessary that he should be detained; NOW, THEREFORE. . . the Central Government hereby directs that the said Shri P. L. Lakhanpal be detained.
" He has moved this Court under article 32 of the Constitution by a petition presented on December 24, 1965 for a writ of habeas corpus directing his release.
He challenges the legality of the detention order on various grounds which we now proceed to consider.
The first ground is that r. 30(1)(b) is ultra vires section 3(2)(15)(1) of the Defence of India Act under which the Rules were made.
Sub s.(1) of section 3 contains the general power to make rules for certain purposes.
Sub section (2) states that the rules made may provide for and many empower any authority to make orders providing for all or any of the following matters, namely: "(15) notwithstanding anything in any other law for the time being in force. . . . (i) the apprehension and detention in custody of any person whom the authority empowered. . suspects, on grounds appearing to that authority to be reasonable . . . . acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest,the maintenance of public order. . or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner." 211 Rule 30(1)(b) is in these terms: "The Central Government. . . if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order. . . may make an order (b) directing that he be detained.
" It will be noticed that the rule does not say that the satisfaction mentioned in it shall be on grounds appearing to the authority concerned to be reasonable.
It is said that by omitting these words the rule has gone outside the section which mentions them, and is, therefore, ultra vires.
This contention is untenable.
It overlooks the fact that the latter part of the section states that the rules made under it may also provide for the apprehension and detention of a person "with respect to whom that authority is satisfied that his apprehension and detention are necessary" for certain purposes; this part does not contain any requirement as to satisfaction on reasonable grounds.
This part of the section is independent of the earlier part under which the apprehension and detention can be directed only when the authority suspects on certain grounds appearing to it to be reasonable that a person is about to act in a certain manner.
It is of some significance to point out that the second part of the section is preceded by the word 'or '.
That puts it beyond doubt that the rules made under it may provide for detention in two alternative cases, for the first of which only it is necessary that the authority should entertain a suspicion on grounds appearing to it to be reasonable.
That requirement is absent in the case of a rule made under the second part of the section.
Rule 30(1)(b) cannot be said to be ultra vires the section for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable.
The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says.
The rule has clearly been made in terms of the section authorising it.
It was next said that the Proclamation of Emergency made by the President under article 352 of the Constitution which prevented the Act from being illegal, was not in terms of the article as it did not state that the President was satisfied that a grave emergency existed.
It is true that the Proclamation did not do that.
It stated: " In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I Sarvapalli Radhakrishnan, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression.
" 212 We, however, find nothing in the Article which requires the Proclamation to state the satisfaction of the President about the emergency.
Article 352(1) reads, "If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.
" The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned.
The words "to that effect" can have no other meaning.
The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency, but we do not see that the Article requires the condition precedent for the exercise of the power, that is, the President 's satisfaction, to be stated in the declaration.
The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly performed applies and there is nothing proved by the petitioner to displace that presumption.
We were referred to certain other provisions, viz., article 311(2)(c) of the Constitution and r. 30(1)(b) of the Rules and it was contended that these provisions require the satisfaction to be stated.
It is unnecessary to decide whether they so require.
Even if they did, the requirement of the statement of the President 's satisfaction in the present case has to be decided on the terms of article 352 alone.
We have said that this Article does not contain any such requirement.
It is of interest to point out here that the petitioner stated in his petition that he extended his full support to the Government on the Proclamation of Emergency.
Obviously he could not have done so if he had any doubt about the legality of the Proclamation.
Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended.
We find nothing in the Article to require the Proclamation to state this.
The Proclamation was issued on October 26, 1962 when, it is well known, India 's integrity was threatened by China.
It was also stated that the continuance of Emergency which was declared over three years ago is a fraud on the Constitution.
We were told that the President in his address to the Parliament in February this year did not state that the Emergency continued to exist.
The President 's address has not been produced, and we do not know what it contained.
However that may be, article 352 itself by cl.
(2) provides that a Proclamation issued under cl.
(1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.
This clause also states that the Proclamation shall be laid before each House of Parliament.
It has not 213 been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months.
It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause.
None of them has happened.
Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation.
In this connection it was also said that 'external aggression ' means armed aggression and as for some time past there was no armed, aggression against the territory of India, the continuance of the Proclamation was unjustified.
This contention must also fail, on the ground which we have just mentioned.
Another challenge to the legality of the detention was that the petitioner had not been allowed to make any representation against his detention.
Our attention was drawn in this connection to section 3(2) (15)(iv) of the Act and r. 30 A of the Rules and also to r. 23, of the Defence of India (Delhi Detenues) Rules, 1964.
The two first mentioned provisions do not, in our opinion, give a right to make a representation.
Their effect is to provide a review of the detention order by the authorities and in the manner mentioned.
The last one states that a detenue will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention.
It has not been stated in the petition that the petitioner was pre vented from making any representation or denied the opportunity to consult a legal practitioner.
All hat is said is that he had not been furnished particulars of his writing s and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention.
This contention seems to us unwarranted.
There is nothing to show that the detention order had been based on petitioner 's writings, nor has our attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detention.
Then it was said that the order of detention violated section 44 of the Act and section 3(2)(4)(b), (6), (7)(a)(b)(c) and (d) and rr. 41, 42, 44, 45 and 46 of the Rules.
The substance of the contention is that the petitioner was the editor of and ran a newspaper and that action against him could only be taken under the sections and rules earlier mentioned and not under r. 30(1)(b).
This contention seems to us to be entirely groundless.
The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under r. 30(1)(b).
The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under r. 30(1)(b).
It was also said that r. 30(1)(b) requires that the part of India which is to be prejudicially affected by the acts of the detenue has to be mentioned in the order.
This is an idle contention.
The 214 rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be ordered for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that part should be mentioned in the order of detention.
The order in this case was made on these grounds.
The petition furnishes no material for saying that the terms of section 44 have been violated.
There is nothing to show that the detention interfered with the petitioner 's avocation in life in a manner not justified by that section.
The last ground taken was that the detention order was mala fide because the Home Minister had not sworn an affidavit to say that he was satisfied about the necessity for the detention.
There is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention.
This part of the petition was verified as true to the petitioner 's knowledge.
This verification was plainly false and, therefore, the allegation in the petition required no answer.
However, that may be, a Deputy Secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and, on a consideration of those materials, the Minister was satisfied that the detention order was necessary.
The result is that this petition fails and it is accordingly dismissed.
Petition dismissed.

dataset_name: IN-Abs

summary/full:
The petitioner, the editor of a newspaper, was detained under r. 30(1)(b) of the Defence of India Rules, 1962.
He filed a petition under article 32 of the Constitution for a writ of habeas corpus challenging the legality of the detention order on various grounds.
Dismissing the petition, HELD:Rule 30 (1) (b) cannot be said to be ultra vires of section 3 (2) (15)(i) of the Defence of India Act for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable.
The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says.
This part does not contain any requirement as to satisfaction on reasonable grounds.
The rule has clearly been made in terms of the section authorising it.
[211 F] Article 352 of the Constitution does not require the proclamation to state the satisfaction of the President about the Emergency.
The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned.
The words "to that effect" can have no other meaning.
A proclamation ceases to have effect only by one of the events mentioned in cl. 2 of article 352 of the Constitution.[212 C] Section 3(2)(15)(iv) of the Defence of India Act and r. 30 A of the Defence of India Rules, does not give a right to make a representation.
Their effect is to provide a review of the detention order by the authorities and in the manner mentioned.
Rule 23 of the Defence of India (Delhi Detenus) Rules, 1964, states that a detente will be allowed to interview a legal practitioner for the Purpose of drafting his representation against his detention.
[213 C D].
The fact that newspapers and men connected with them may be dealt with under other provisions of the Art and Rules does not prevent detention of such persons under r. 30(1)(b) of the Defence of India Rules.
[213 H] The order need not mention the part of India which was to be Prejudicially affected by the acts of the detenue.


judgement:
Civil Appeals Nos. 334, 335 and 338 of 1965.
Appeals by Special Leave from the judgment and orders dated January 1, 1963, November 7, 1962 and November 4, 1963 of the Madras High Court in Tax Case No. 170 of 1961 Civil Revision Petition No. 105 of 1961 and Tax Case No. 153 of 1963 respectively.
Bishan Narain and A. V. Rangam, for the appellants (in C.As.
Nos. 334 and 335 of 1965).
A.V. Rangam, for the appellant (in C.A. No. 338/1965).
K.R. Chaudhuri, for the respondent (in C.
A. No 334/1965).
N. D. Karkhanis, O.C. Mathur, J.B. Dadachanji and Ravinder Narain,for the respondents (in C.As.
Nos. 335 and 338/1965).
The Judgment of the Court was delivered by Shah, J.
This is a group of appeals filed by the State of Madras against orders passed by the High Court of Judicature at Madras which raises the following common question as to applicability of concessional rate of sales tax to transactions of inter State sale and taxable under the : "When a purchasing dealer in one State furnishes in Form 'C ' prescribed under the Central Sales Tax (Registration & Turnover) Rules, 1957, to the selling dealer in another State a declaration, certifying that the goods ordered, purchased or supplied are covered by the certificate of registration obtained by the purchasing dealer in Form 'B ' prescribed under r. 5(1) of the Central Sales Tax (Registration & Turnover) Rules, 1957, and that the goods are intended for resale, or for use in manufacture of goods for sale, or for use in the execution of contracts, or for packing of goods for resale, and that, declaration is produced by the selling dealer, is it open to the Sales Tax authority under the Central Sales ax Act to deny to the selling dealer the benefit of concessional rates under section 8(1) of the . 200 on the view that the certificate in Form 'C ' mentions more purposes than one for which the goods are intended to be used, or that the goods are incapable of being used for the purpose for which they are declared to be purchased, or that the goods are applied for some other purpose not mentioned in the certi ficate in Form 'C '?" We may briefly set out the facts which give rise to two out of the appeals: Civil Appeals Nos. 334 & 335 of 1965.
Civil Appeal No. 334 of 1965.
M/s Radio & Electricals Ltd., respondents in this appeal on business in the State of Madras in electrical equipment and are registered as dealers under the .
The Bombay State Electricity Board, Saurashtra Division, which is engaged in the production of electric energy purchased transformers and other goods of the total value of Rs. 1,42,020/ from M/s. Radio & Electricals Ltd. and the latter claimed in proceeding for assessment for Central sales tax for the year 1957 58 that they were liable to pay tax at the rate of 1 per cent on the turnover under section 8(1) of the .
The Deputy Commercial Tax Officer rejected the claim on the ground that the Bombay State Electricity Board was not a dealer engaged in selling goods and merely because they held a registration certificate, the goods sold to the Board could not be admitted to the concessional rate of tax under section 8(1) of the Act.
The Appeal late Assistant Commissioner of Commercial Taxes confirmed the order on the ground that transformers and other goods purchased by the Electricity Board for use in the production of electrical energy were not intended, to be used in the manufacture of goods for sale within the meaning of section 8(3) (b) of the Central Sales Tax, ' Act, because electricity was not at the material time "goods" within the meaning of the Act.
The order passed by the Appellate Assistant Commissioner was confirmed by the Sales Tax Appellate Tribunal, Madras.
The High Court, following an earlier judgment in Deputy Commissioner of Commercial Taxes, Madras Division, vs Manohar Brothers(1) modified the order holding that if the selling dealer within the State produces a certificate in Form 'C ' setting out one or more of the purposes in section 8(3)(b) of the Act, and if the Sales Tax authorities on behalf of the State do not deny that the purchasing dealer is a registered dealer, the selling dealer will not be denied the concessional rate of tax under the Act, even if it transpires that the purchasing dealer has utilised the goods for purposes other than those mentioned in the certificate of registration.
The High Court then held that out of the certificates in Form 'C ' produced by the selling dealer, certificates in respect of a turnover of Rs. 42,080/ set out the purpose as "manufacture of electrical energy" and since this was not one of the purposes mentioned in section 8(3)(b) of the Act as it stood at the relevant time, the Sales Tax authority was right in denying the benefit of the rate under section 8 (1) to the assessee, but with regard to a turnover of (1) 13 S.T.C. 686.
201 Rs. 47,340/ the Sales Tax authority was bound to accept the certificates in Form 'C ' produced by the assessee even though the certificates contained all the purposes mentioned in the prescribed form, and no purpose was struck out.
The facts which give rise to Civil Appeal No. 335 are these; M/s Stanes Motors (South India) Ltd. respondents in this appeal are dealers in automobiles, tractors and spare parts.
For the year 1957 58 they claimed benefit of concessional rates under section 8(1) on a turnover of Rs. 1,38,572/12/ resulting from sale of tractors supplied to certain "tea factories" in the State of Kerala.
The purchasing dealers who were four "tea factories" registered as dealers under the Act delivered to the respondents certificates in Form 'C ' declaring that the tractors purchased by them were in.
tended for use in the manufacture of tea for sale.
In the view of the Tax Officer benefit of the concessional rate could not be claimed in respect of those sales, since the tractors were not for resale and the tractors "were not directly relatable to the manufacturing process".
In appeal, the order passed by the Tax Officer was confirmed by the Appellate Assistant Commissioner.
He held that the tractors which were used for transporting tea leaves from the plantations to the factories cannot be said to be used in the manufacture of goods for sale.
In appeal to the Sales Tax Appellate Tribunal, it was held that the respondents were entitled to the concessional rate in respect of sales to two out of the four factories, which held certificates of registration in Form 'B ' specifying "machinery" as one of the items under section 8(3)(b).
The High Court of Madras confirmed the order passed by the Tribunal in exercise of its revisional jurisdiction.
Counsel for the State of Madras contends that the Commercial Tax Officer is invested with authority under the Act to scrutinise the transactions in respect of which the claim to concessional rate of tax is made, and he is competent to ascertain not only whether the certificate in Form 'C ' is genuine, but whether the certificate is valid in law, whether the purchasing dealer holds a valid certificate of registration in Form 'B ', whether the goods specified in the purchasing dealer 's certificate can be used for the purpose mentioned in the certificate in Form 'C ', and whether the goods were applied for the purpose for which they were purchased.
Counsel also submitted that a certificate in Form 'C ' which specifies more purposes than one for which the goods are intended to be used by the purchasing dealer is invalid.
We may in the first instance set out the relevant Provisions of the Act and the Rules.
The 74 of 1956 was enacted by the Parliament to formulate principles for determining when a sale or purchase of goods takes place in the course of inter.
State trade or commerce or outside a State or in the course of import into or export from India.
By Ch.
11 principles for determining when a sale or purchase of goods takes place in the course of 202 inter State trade or commerce or outside a State or in the course of import or export are enacted.
Chapter III deals with inter State sales tax.
By section 6 liability is imposed upon every dealer to pay tax under the Act on all sales effected by him in the course of interState trade or commerce during any year.
Section 7 provides for registration of dealers.
Section 8, as originally enacted, provided: "(1) Every dealer who, in the course of inter State trade or commerce sells to a registered dealer goods of the description referred to in sub section (3) shall be liable to pay tax under this Act, which shall be one per cent of his turnover: Provided that, if under, the sales tax law of the appropriate State, the sale or purchase of any goods by a dealer is exempt from tax generally and not in specified cases or in specified circumstances or is subject to tax (by whatever name called) at a rate or rates which is or are lower than the rate specified in sub section (1), the tax payable under this Act on the turnover in relation to the sale of such goods in the course of inter State trade or commerce shall be nil or shall be calculated at the lower rate, as the case may be.
(2). . . . (3) The goods referred to in sub section (1) (a) in the case of declared goods, are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him; and (b) in any other case, are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract; and in either case include the containers or other materials used for the packing of goods of the class or classes of goods so specified.
Explanation .
(4) The provisions of sub section (1) shall not apply to any sale in the course of inter State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered, dealer to whom the goods are sold, containing the prescribed particulars con a prescribed form obtained from the prescribed authority.
(5) (With effect from October 1, 1958, by Act 31 of 1958, section 8 was extensively amended, but we are, in these appeals, not concerned with the statute as amended).
203 Section 10 provides for penalties.
The section at the material time provided: "If any person (a) fails to get himself registered as required by section 7; or (b) being a registered dealer, falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration , or (c) not being a registered dealer, falsely represents when purchasing goods in the course of inter State trade or commerce that he is a registered dealer; or (d) after purchasing any goods for any of the purposes specified in clause (b) of sub section (3) of section 8 fails, without reasonable excuse, to make use of the goods for any such purpose; (e) has in his possession any form prescribed for the purpose of sub section (4) of section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder; he shall be punishable with simple imprisonment.
Section 14 deals with declared goods in respect of which by section 8(1) read with section 8(3)(a) the concessional rate of tax applies when the goods are purchased as being intended for resale.
Reading section 8(1) with section 8(3)(b), it is clear that the Legislature intended to grant the benefit of concessional rates of tax under the Act to registered dealers, provided that the goods sold were of the class or classes specified in the certificate of registration of the purchasing dealer and the goods were intended to be used for resale by him or, for use in the manufacture of goods for sale, or for use in the execution of contracts, or for packing of goods for resale.
In exercise of the power under section 13 the Central Government made rules called "The Central Sales Tax (Registration & Turnover) Rules, 1957".
Rules 3 to 8 provide for registration and issue of certificate of registration.
Rule 5(1) provides that when the notified authority is satisfied, after making such enquiry as it thinks necessary, that the particulars contained in the application are correct and complete, it shall register the dealer and grant him a certificate of registration in Form 'B ' and also a copy of such certificate for every place of business within the State other than the principal place of business mentioned therein.
The material part of Form 'B ' is as follows: This is to certify that. . . .whose principal place of business within the State of. . . is situated at . . . . 204 has been registered as a dealer under section 7(1)/7(2) of the .
The business is: wholly mainly partly partly partly The class(es) of goods specified for the purpose of sub section (1) of section 8 of the said Act is /are as follows and the sales of these goods in the course of inter State trade to the dealer shall be taxable at the rate specified in that subsection subject to the provisions of sub section (4) of the said section: (a) For resale, (b) For use in manufacture, (c) For use in the execution of contracts.
The dealer 's year for the purpose of accounts runs from. . day of . . to the . .It. . . " Rules 9 & 10 deal with cancellation of registration, and Rules 1 1 & 12 deal with determination of turnover.
By r. 12 the declaration referred to in sub section
(3) of section 8 of the Act has to be in Form 'C ' consisting of three sections a counterfoil, a duplicate and the original.
The duplicate section of the Form (which in terms is identical with the original section) is as follows: "Form 'C ' Form of Declaration (See rule 12).
(to be used at the time of making purchases from out of State sellers).
Name of issuing State. . . . .
Issued to holder of Registration Certificate No. .
Serial No. . . To . . . . . . (Seller) . . .
Certified that the goods **Ordered for in our purchase order No. dt. *Purchased from you as per bill/cash memostated below.
Supplied under your chalan No. . .dated. . are for **resale **use in manufacture of goods for sale/use in the execution of contracts/packing of goods for resale.
205 and are. covered by my/ our registration certificate No. .dated issued under the .
(Name of the purchasing dealer in full).
. . . . . (Signature and status of the person sigming the declaration).
*Particulars of Bill/Cash Memo Dated. .No. .Amount. **Strike out whichever is not applicable.
(Note To be retained by the selling dealer)".
The Scheme of the Rule read with the Act is that the pur chasing dealer as well as the selling dealer must register themselves under the .
If declared goods are specified in the certificate of registration of the purchasing dealer and if it be certified that the goods are intended for resale by him, the sale is subject to concessional rate of tax under section 8(1).
In respect of sales of other classes of goods specified in the certificate of registration of the purchasing dealer, if the goods are purchased either for resale by him, or for use in manufacture of goods for sale, or for use in the execution of contracts, the concessional rate of tax is available, provided the selling dealer obtains from the purchasing dealer the declaration in the prescribed form duly filled in and signed by the latter containing the particulars that the goods are ordered, purchased or supplied under a certain specific order, bill or cash memo or chalan, for all or any of the purposes mentioned and that the goods are covered by the registration certificate of the purchaser described therein and issued under the Act.
If the certificate is defective in that it does not set out all the details, or that it contains false particulars about the order, bill, cash memo or chalan, or about the number and date of the registration certificate and specifications of goods covered by the certificate of the purchasing dealer, the transaction will not be admitted to concessional rates.
Now in certain certificates in Form 'C ' furnished by the purchasing dealer in this group of appeals all the alternatives in the printed form were retained, and in others one or more but not all the alternatives were retained.
Counsel for the State of Madras urged that a certificate in Form 'C ' is defective unless it specifies, only one purpose for which the goods purchased are intended to be used.
But that contention is not borne out by the Act and the Rules.
Goods may be sold to a purchasing dealer under a, single order, bill, cash memo or chalan, one part to be used for resale, another to be used in the execution of contracts, and the rest ill manufacture of goods for sale, but it is not enacted that separate certificates should be issued each relating to the quantity intended to be used for a specified purpose.
A purchasing dealer may again be carrying on business as a, manufacturer, as a building, installation or repair contractor, and as a dealer in goods, and if he purchases goods specified in his certificate, but without making up his 206 mind about the precise purpose for which the goods will be used, provided it is one of the purposes, he will still be complying with the statutory requirements if he declared in Form 'C ' that the goods are purchased for more than one purpose.
The Act and the Rules do not impose an obligation upon the purchasing dealer to declare that goods purchased by him are intended to be used for one purpose only, even though under his certificate of registration he is entitled to purchase goods of the classes mentioned in section 8(3)(b) for more purposes than one.
When the purchasing dealer furnishes a certificate in Form 'C ' without striking out any of the four alternatives, it is a representation that the goods purchased are intended to be used for all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules.
The Sales Tax authority is, of course, competent to scrutinise the certificate to find out whether the certificate is genuine.
He may also, in appropriate cases, when he has reasonable grounds to believe that the goods purchased are not covered by the registration certificate of the purchasing dealer, make an enquiry about the contents of the certificate of registration of the purchasing dealer.
But it is not for the Tax Officer to hold an enquiry whether the goods specified in the certificate of registration of the purchaser can be used by him for any of the purposes mentioned by him in Form 'C ', or that the goods purchased have in fact not been used for the purpose declared in the certificate.
The authority issuing the certificate under r. 5(1), as expressly stated in the rule, has, before issuing a registration certificate, to be satisfied after making such enquiry as it thinks necessary that the particulars contained in the application are correct and complete.
The enquiry would obviously be made in the light of the nature of the business and goods which are likely to be needed either for resale, or for use in the manufacture of goods for sale, or for use in the execution of contracts.
Satisfaction which is contemplated by r. 5 is objective, and may be arrived at upon a quasijudicial enquiry.
This Court has in several cases had occasion to consider the legality of orders of the notified authority refusing to grant certificates of registration in Form 'B ' in respect of cer tain classes of goods which it was claimed by the tax payer were necessary for the purpose of his business and were therefore requested to be specified in the certificate of registration: e.g. Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes, Bihar & Others(1) and J. K. Cotton Spinning & Weaving Co. Ltd., vs The Sales Tax Officer, Kanpur & Another(1).
On the plain words used in section 7 and the Rules, it is contemplated that the certificate of registration may only be issued after an objective satisfaction by the notified authority that the specified goods are likely to be needed for the purpose of the business of the registered dealer, and that satisfaction is open to challenge in an appropriate proceeding before the High Court and even before this Court.
Correctness or (1) S.T.O. 259.
(2) , 16 S.T.C. 563.
207 propriety of satisfaction of the notified authority in issuing the certificate in Form 'B ' that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceedings for assessment of tax.
If therefore goods are specified in the certificate of registration in Form 'B ' it is not open, when a claim is made in respect of the purchases of those goods for the application of concessional rate of tax, to the Sales Tax Officer to deny to the selling dealer of those goods the benefit on the ground that the goods specified cannot be used by the purchasing dealer for the purpose of his busi ness.
It is open to the Tax Officer to ascertain whether the goods in respect of which a claim for concessional rate is made are specified in the certificate of registration, but if the class of goods is included in the certificate of registration in Form 'B ' he cannot say that the class of goods should not have been specified.
The Act, seeks to impose tax on transactions, amongst others, of sale and purchase in inter State trade and commerce.
Though the tax under the Act is levied primarily from the seller, the burden is ultimately passed on the consumers of goods because it enters into the price paid by them.
Parliament with a view to reduce the burden on the consumer arising out of multiple taxation has, in respect of sales of declared goods which have special importance in inter State trade or commerce, and other classes of goods which are purchased at an intermediate stage in the stream of trade or commerce, prescribed low rates of taxation, when transactions take place in the course of inter State trade or commerce.
Indisputably the seller can have in these transactions no control over the purchaser.
He has to rely upon the representations made to him.
He must satisfy himself that the purchaser is a registered dealer, and the goods purchased are specified in his certificates but his duty extends no further.
If he is satisfied on these two matters, on a representation made to him in the manner prescribed by the Rules.
and the representation is recorded in the certificate in Form 'C ' the selling dealer is under no further obligation to see to the application of the goods for the purpose for which it was represented that the goods were intended to be used.
If the purchasing dealer misapplies the goods he incurs a penalty under section 10.
That penalty is incurred by the purchasing dealer and cannot be visited upon the selling dealer.
The selling dealer is under the Act authorised to collect from the purchasing dealer the amount payable by him as tax on the transaction, and he can collect that amount only in the light of the declaration mentioned in the certificate in Form 'C '.
He cannot hold an enquiry whether the notified authority who issued the certificate of registration acted properly, or ascertain whether the purchaser, notwithstanding the declaration, was likely to use the goods for a purpose other than the purpose mentioned in the certificate in Form 'C '.
There is nothing in the Act or the Rules 208 that for infraction of the law committed by the purchasing dealer by misapplication of the goods after he purchased them, or for any fraudulent misrepresentation by him, penalty may be visited upon the selling dealer.
Counsel for the appellant contended that the view expressed by the High Court in the judgments under appeal was in any case erroneous, because they held that a 'C ' Form certificate produced by the selling dealer is conclusive of the right to the concessional rate of tax, and that no enquiry whatever may be made by the assessing authority.
He invited our attention to the following passage from the judgment which is under appeal in Civil Appeal No. 335 of 1965: " We are of the opinion that whether or not the goods were in fact used for the stated purposes or even usable for such a purpose, so long as the purchasing dealer has furnished the required declaration to the selling dealer, the selling dealer becomes under law entitled to the benefit of section 8(1) of the Act.
It is no function of the selling dealer to enter into a judicial examination of whether the goods are in fact used or usable for the manufacture or processing of goods for sale by the purchasing dealer.
The purchasing dealer declares that they are required for such a purpose and are further so specified in his form of registration granted by the sales tax authorities.
It is not the function of the selling dealer to enquire whether the requirement of the purchasing dealer is bona fide or even is or is not within the certificate.
of registration of that dealer.
" It is implicit in the context in which these observations occur that if the purchasing dealer holds a valid certificate specifying the goods which are to be purchased, and furnishes the required declaration to the selling dealer, the selling dealer becomes on production of the certificate entitled to the benefit of section 8(1).
It is of course open to the sales tax authority to satisfy himself that the goods which are purchased by the purchasing dealer under certificate in Form 'C ' are specified in the purchasing dealer 's certificate in Form 'B '.
Observation of the High Court that the selling dealer may not enquire whether the requirement is not within the certificate of re gistration of the purchasing dealer is not accurate.
But whether the goods specified in the registration certificate in From 'B ' can be used for the purpose is not for the selling dealer to determine.
That is a matter which has already been determined by the notified authority issuing the certificate of registration.
Appeal No. 334 therefore fails and is dismissed with costs.
In Appeals Nos. 335 & 338 the respondent is the same assessee, and common questions for different periods are raised.
These appeals also fail and are dismissed with costs.
One hearing fee.
Appeals dismissed.

summary/full:
The assessees carried on business in the State of Madras and were registered dealers under the .
In proceedings for assessment for central sales tax for the year 1957 58 the assessees claimed that they were liable to pay tax at the concessional rate of tax on the turnover under sec.
8(1) of the Act where sales were made by them to registered purchasing dealers who furnished declaration in Form 'C".
The common question considered in these appeals was: When a purchasing dealer in one State furnishes in Form 'C ' prescribed under the Central Sales Tax (Registration & Turnover) Rules, 1957, to the selling dealer in another State a declaration, certifying that the goods ordered, purchased or supplied are covered by the certificate of registration obtained by the purchasing dealer in Form 'B ' prescribed under r. 5(1) of the Central Sales Tax (Regis tration & Turnover) Rule. ,, 1957, and that the goods are intended for resale, or for use in manufacture of goods for sale, or for use in the execution of contracts, or for packing of goods for resale, and that declaration is produced by the selling dealer, is it open to the Sales Tax authority under the to deny to the selling dealer the benefit of concessional rates under section 8(1) of the , on the view that the certificate in Form 'C ' mentions more purposes than one for which the goods are intended to be used, or that the goods are incapable of being used for the purpose for which they are declared to be purchased, or that the goods are applied for some other purpose not mentioned in the certificate in Form 'C '? HELD: The Act and the Rules do not impose an obligation upon the purchasing dealer to declare that goods purchased by him are intended to be used for one purpose only, even though under his certificate of registration in Form 'B ' he is entitled to purchase goods of the classes mentioned in section 8(3) (b) for more purposes than one.
When the purchasing dealer furnishes a certificate in Form C without striking out any of the four alternatives, it is a representation that the goods purchased are intended to be usedfor all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules.
The Sales Tax Officer may scrutinise the certificate to find out whether it is genuine and may also examine the registration certificate of the purchasing dealer.
to see if the goods are covered by it.
But it is not for him to hold an enquiry whether the goods specified in the certificate of registration of the purchaser can be used by the purchasing dealer for any of the purpose mentioned in Form 'C '.
or whether they should have been specified in the registration certificate or even that the goods purchased have in fact not been used for the purpose declared in the certificate.
[2O6 B D] 199 It is contemplated in sec.
7 and the Rules that the certificate of registration may only be issued after an objective satisfaction by the notified authority that the specified goods are likely to be needed for the purpose of business of the registered dealer, and that satisfaction is open to challenge in an appropriate proceeding before the High Court and even before this Court.
Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form 'E ' that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceedings for assessment of tax.
[206 G 207 B].
Indian Copper Corporation Ltd. vs Commissioner of Commercial Taxes, Bihar & Others 16 S.T.C. 259 and J.K. Cotton Spinning Another 16 S.T.C. 563, referred to.


judgement:
Appeal No. 72 of 1952.
Appeal under articles 132 (1) and 133 (1) (b) of the Constitution of India from the Judgment and Order dated the 27th April, 1951, of the High Court of Judicature at Madras (Rajamannar C.J. and Satyanarayana Rao J.) in Civil Miscellaneous Petition No. 4697 of 1951.
M.K. Nambiyar (U. Sethumadhava Rao, with him) for the appellant.
M. Seshachalapathi for the respondent.
V.K.T. Chari, Advocate General of Madras (Porus A. Mehta and V.V. Raghavan, with him) for fife Intervener (State of Madras).
February 10.
The Judgment of the Court was delivered by DAs J.
This is an appeal arising out ' of a judgment delivered on the 27th April, 1951, by a Bench o15 the Madras High Court in C.M.P. No. 4697 of 1951 filed under article 226015 the Constitution for the issue of a writ of certiorari or other appropriate writ to call 780 for the records and quash the order of the Government passed under section 4(1) of the Madras Act XLIII of 1949 declaring the undertaking of the appellant company to vest in the Government.
The appellant company was formed and registered under the Indian Companies Act in 1924 with the object, inter alia, of generating and supplying electrical ,energy to the public in Rajahmundry.
In 1949 the Madras Legislature passed the Madras Electricity Supply Undertakings (Acquisition) Act, 1949.
The Act received the assent of the Governor General on the 18th January, 1950, and was published in the Official Gazette on the 24th January, 1950.
Upon the Constitution of India coming into force on the 26th January, 1950, the Act was submitted to the President for his certification and on the 12th April, 1950, the President certified that the Act should not be called in question m any court on the ground that it contravened the provisions of clause (2) of article 31 or it contravened the provisions of sub section (2) of section 299 of the Government of India Act, 1935.
By an order in writing made on the 2nd September, 1950, the Government of Madras acting under section 4(1) of the Act declared that the undertaking of the appellant company should vest in the Government on the date specified therein.
Under the proviso to section 4(1) the Government from time to time postponed the date of vesting and the 2nd April, 1951, was the last extended date fixed for such vesting.
On the 29th March, 1951, the appellant company filed C.M.P. No. 4697 of 1951, under article 226 for quashing the order of the Government.
Shortly stated the contentions of the.
appellant before the High Court were that the Act was ultra vires in that (1) it was beyond the legislative competency of the Madras Legislature to enact it, (2) it was not enacted to subserve any public purpose, and (3) the compensation provided for was illusory.
The High Court repelled each and all of the aforesaid contentions of the appellant company.
It held that the legislation was with respect to electricity under entry 31 of the 781 concurrent list in the seventh Schedule to the Government of India Act, 1935, and was not a legislation with respect to corporations under entry 33 in list I as contended by the appellant and that, therefore, the Madras Legislature was competent to enact it.
It further held that the Act having received the certificate of the President the challenge based on an alleged absence of public purpose or the illusory nature of the compensation was shut out and could not be raised.
The High Court, however, held that certain sections and rule 19(2) of the Rules framed under the Act were invalid and subject thereto dismissed the application of the appellant company.
The High Court granted leave to the appellant company to appeal before this court.
The appeal has now come up for heating before us.
Learned counsel appearing in support of the appeal has not pressed before us the contention raised in the High Court as to the absence of public purpose or the illusory nature of the compensation provided by the Act.
He has confined his submissions to the question of the legislative competency of the Madras Legislature to enact this piece of legislation.
In the High Court the contest centered round the question whether the Act was a law with respect to electricity under entry 31 of the concurrent list or with respect to corporations under entry 33 in list I. The High Court held that the Act was, in pith and substance, a law with respect to electricity and was, therefore, within the legislative competency of the Provincial Legislature.
In his arguments before us learned counsel contended that the act is in substance and effect one for the acquisition of an electrical undertaking and, as such, is ultra vires because (a) the acquisition of an electrical undertaking was not a legislative item in any of the three lists in the seventh schedule to the Government of India Act, 1935, and (b) in so far as it relates to the acquisition of an electrical undertaking of a corporation it is a law with respect to corporations under entry 33 in list I. 782 In our opinion this appeal can be disposed of on the first of the two grounds mentioned above.
Turning to the Act it will be noticed that the long title of the Act is "an Act to make provision for the acquisition of undertakings in the Province of Madras supplying electricity.
" The preamble recites the expediency of making Provision "for the acquisition of undertakings in the Province of Madras engaged in supplying electricity.
" Section 1 gives the short title, extent and commencement of the Act.
Section 2 is a definition section.
Section 3 provides that the Act shall apply to all undertakings of licensees including certain undertakings therein mentioned.
Section 4 empowers the Government to take over any undertaking by making an order in writing declaring that such undertaking shall vest in the Government on a specified date.
Section 5 provides for compensation payable to a licensee who is not a local authority.
The section gives an option to the licensee to claim compensation on one of three bases therein specified.
Section 6 deals with compensation payable where the licensee is a local authority.
Section 7 specifies the properties or assets which will vest according aS compensation is claimed under one basis or another.
Section 8 provides for the appointment of a sole representative to act as the sole and accredited representative of the licensee in connection with the handing over of the undertaking and performing on behalf of the licensee the functions thereinafter specified.
The choice of basis of compensation is to be made within one month under section 9 and such choice once intimated to the Government is not to be open to revision except with the concurrence of the Government.
Section 10 authorises the Government, in case the licensee has disposed of any of the assets otherwise than in the normal course of events causing loss to the Government as succeeding owners, to deduct from the compensation payable to the licensee an amount which they consider to be the loss sustained by them.
Section 11 prescribes the various deductions which the Government shall be entitled to make from the compensation payable under the Act.
The manner of 783 payment or deposit of compensation is laid down in section 12.
Section 13 permits the Government to repay all loans, debentures, mortgages and the like outstanding on the vesting date at any time before the time fixed for repayment.
Section 14 is the arbitration section.
Section 15 provides for the termination of the managing agency.
Section 16 authorises the Government to terminate the services of any person on the staff of the licensee immediately before the vesting 'date.
Section 17 requires all licensees to prepare and hand over to the Government a complete inventory of all the assets.
Section 18 gives power of entry to the Government or any officer authorised by the Government upon any land or premises in the possession of the licensee.
Section 19 prescribes penalties for various defaults therein specified.
Section 20 makes certain officers of a company liable for the offence committed by the company.
Section 21 gives protection against suit or prosecution for anything done in good faith under any rule or order made under the Act.
Section 22 confers rule making power on the Government.
Section 23 provides that the provisions of certain Acts in so far as they are inconsistent with the provisions of this Act shall have no effect.
Section 24 gives power to the Government to do anything which appears to them necessary for the purpose of removing any difficulty.
From the above summary it will be noticed that the Act does not purport to make any provision for the granting of licenses or maintenance of works for generating or transmitting energy or for supplying electrical energy as one would expect to find in a law dealing with electricity nor does the Act purport to make any provision for the incorporation, regulation or winding up of trading corporations.
On the contrary, it is abundantly clear from the long title, the preamble and the sections that it is, in pith and substance, nothing but an Act to provide for the acquisition of electrical undertakings.
Section 299 (2) of the Government of India Act, 1935, provided that neither the Federal nor a Provincial Legislature would have power to make any law authorising the compulsory acquisition for public purposes 784 of any land or any commercial or industrial undertaking or any interest in or in any company owning any commercial or industrial undertaking unless the law provided for the payment of compensation for the property acquired.
Compulsory acquisition of property is undoubtedly an important sovereign right of the State but this right has to be exercised under a law.
The legislative power of the State was distributed by sections 99 and 100 amongst the Federal Legislature and the Provincial Legislatures in the manner provided ' in the several lists set forth in the Seventh Schedule to the Act.
Section 100 read with entry 9 in list II authorised the Provincial Legislature to make a law with respect to compulsory acquisition of land.
There was no entry in any of the three lists relating to compulsory acquisition of any commercial or industrial undertaking, although section 299 (2) clearly contemplated a law authorising compulsory acquisition for public purposes of a commercial or industrial undertaking.
The acquisition of a commercial or industrial undertaking not being the subject matter of any entry in any of the three legislative lists, neither the Federal Legislature nor the Provincial Legislature could enact a law with respect to compulsory acquisition of a commercial or industrial undertaking.
Under section 104, however, the Governor General, in his individual discretion, could, by public notification, empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the lists in the seventh schedule to the Act.
It is, therefore, clear that although Parliament expressly entrusted the Provincial Legislature with power to make a law with respect to compulsory acquisition of land it did not straightaway grant any power, either to the Federal Legislature or the Provincial Legislature, to make a law with respect to compulsory acquisition of a commercial or industrial undertaking but left it to the discretion of the Governor General to empower either of the Legislatures to enact such a law.
There is no suggestion that the Governor General had, in exercise of his discretionary powers under section 104, authorised the Madras 785 Legislature to enact the impugned Act and, therefore, the Act was, prima facie, beyond the legislative competency of the Madras Legislature.
The learned Advocate General of Madras urges that there was implicit in every entry in the legislative lists in the Seventh Schedule to the Government of India Act, 1935, an inherent power to make a law with respect to a matter ancillary or incidental to the subject matter of each entry.
His argument is that each entry in the list carried with it an inherent power to provide for the compulsory acquisition of any property, land or any commercial or industrial undertaking, while making a law under such entry.
It is quite true that the powers of each Legislature to make laws with respect to the different subjects assigned to it by the, appropriate list were to be regarded as wide and plenary and also covering matters incidental or ancillary to such subject matter, but it is, nevertheless, clear from the provision of the Act that the power to make a law for compulsory acquisition was, under entry 9 in list II, given only to Provincial Legislatures and that such power of the Provincial Legislatures was, under that entry, limited to making a law for the compulsory acquisition of land only and that unless the Governor General made an .order under section 104 of the Act the Provincial Legislatures had no power to make a law for the compulsory acquisition of any property other than land ,and that the Federal Legislature had no power to make any law with respect to the compulsory acquisition of any property at all.
If the argument of the learned Advocate General were correct then entry 9 in list II 'was wholly unnecessary for under entry 21 in list II the Provincial Legislatures could make a law for the compulsory acquisition of land.
A similar argument was repelled by this court in the State of Bihar vs Maharajadhiraja Sir Kameshwar Singh( ).
The matter is placed beyond any doubt or dispute by the provisions of section 127 of the Government of India Act, 1935, which provided that the Federal might, if it ,deemed it necessary to acquire any land situate in a (1) 786 Province for any purpose connected with a matter with respect to which the Federal Legislature had power to make laws, require the Province to acquire the land on behalf and at the expense of the Federation.
If power ' inhered in the Federal Legislature to make a law for the acquisition of any property for any purpose connected with a matter with respect to which it had ' power to make laws then section 127 would not have ' been necessary at all.
The absence of any entry empowering any Legislature to make laws with respect to compulsory acquisition of a commercial or industrial undertaking and the provisions of section 127 to, which reference has just been made make it abundantly clear that the contentions urged by the learned ' Advocate General cannot possibly be sustained.
In our opinion, therefore, it must be held that the Madras Legislature had no legislative competency to enact the impugned law.
This is sufficient to dispose of this appeal and it is not necessary to express any opinion, on the other points raised in the court below.
The result, therefore, is that this appeal must be ' allowed with costs both in the High Court as well as in this court.
Appeal allowed.
Agent for the intervener: R.H. Dhebar.

summary/full:
The Madras Electricity Supply Undertakings (Acquisition) Act (Madras Act XLIII of 1949) was beyond the legislative competency of the Madras Legislature because there was no entry in ,any of the three Lists of the Seventh Schedule of the Government of India Act, 1935, relating to compulsory acquisition of any commercial or industrial undertaking although section 299 (2) clearly contemplated a law authorising compulsory acquisition for public purposes of a commercial or industrial undertaking.
State of Bihar vs Maharajadhiraja Sir Kameshwar Singh ([1952] S.C.R. 889) referred to.