judgement:
minal Appeal No. 226 of 1959.
Appeal by special leave from the judgment and order dated September 23, 1958, of the Patna High Court in Criminal Appeal No. 87 of 1957.
H. J. Umrigar, P. Rana and M. K. Ramamurai, for the appellant.
243 H. R. Khanna and T. M. Sen, for the respondent.
April 24.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This appeal, by special leave, is against the order of the High Court at Patna dismissing the appellant 's appeal against his conviction under section 420, read with section 511, 'of the Indian Penal Code.
The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate, representing that he was a graduate having obtained his B.A. Degree in 1951 and that he had been teaching in a certain school.
In support of his application, he attached certain certificates purporting to be from the Headmaster of the School, and the Inspector of Schools.
The University authorities accepted the appellant 's statements and gave permission and wrote to him asking for the remission of the fees and two copies of his photograph.
The appellant furnished these and on April 9, 1954, proper admission card for him was despatched to the Headmaster of the School.
Information reached the University about the appellant 's being not a graduate and being not a teacher.
Inquiries were made and it was found that the certificates attached to the application were forged, that the appellant was not a graduate and was not a teacher and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination.
In consequence, the matter was reported to the police which, on investigation, prosecuted the appellant.
The appellant was acquitted of the charge of forging those certificates, but was convicted of the offence of attempting to cheat inasmuch as he, by false representations, deceived the University and induced the authorities to issue the admission card, which, if the fraud had not been detected, would have been ultimately delivered to the appellant.
Learned counsel for the appellant raised two contentions.
The first is that the facts found did not amount 244 to the appellant 's committing an attempt to cheat the University but amounted just to his making preparations to cheat the University.
The second is that even if the appellant had obtained the admission card and appeared at the M. A. Examination, no offence of cheating under section 420, Indian Penal Code, would have been committed as the University, would not have suffered any harm to its reputation.
The idea of the University suffering in reputation is too remote.
The offence of cheating is defined in section 415, Indian Penal Code, which reads: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omis sion causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat '.
Explanation.
A dishonest concealment of facts is a deception within the meaning of this section.
" The appellant would therefore have cheated the University if he had (i) deceived the University; (ii) fraudulently or dishonestly induced the University to deliver any property to him; or (iii) had intentionally induced the University to permit him to sit at the M.A. Examination which it would not have done if it was not so deceived and the giving of such permission by the University caused or was likely to cause damage or harm to the University in reputation.
There is no doubt that the appellant, by making false statements about his being a graduate and a teacher, in the applications he had submitted to the University, did deceive the University and that his intention was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the M.A. Examination.
This card is 'Property '.
The appellant would therefore have committed the offence of 'cheating ' if the admission card had not been withdrawn due to certain information reaching the University.
245 We do not accept the contention for the appellant that the admission card has no pecuniary value and is therefore not 'property '.
The admission card as such has no pecuniary value, but it has immense value to the candidate for the examination.
Without it he cannot secure admission to the examination hall and consequently cannot appear at the Examination.
In Queen Empress vs Appasami (1) it was held that the ticket entitling the accused to enter the examination room and be there examined for the Matriculation test of the University was 'property '.
In Queen Empress vs Soshi Bhushan (2) it was held that the term 'property ' in section 463, Indian Penal Code, included the written certificate to the effect that the accused had attended, during a certain period, a course of law lectures and had paid up his fees.
We need not therefore consider the alternative case regarding the possible commission of the offence of cheating by the appellant, by his inducing the University to permit him to sit for the examination, which it would not have done if it had known the true facts and the appellant causing damage to its reputation due to its permitting him to sit for the examination.
We need not also therefore consider the further question urged for the appellant that the question of the University suffering in its reputation is not immediately connected with the accused 's conduct in obtaining the necessary permission.
Another contention for the appellant is that the facts proved do not go beyond the stage of reparation for the commission of the offence of `cheating ' and do not make out the offence of attempting to cheat.
There is a thin line between the preparation for and an attempt to commit an offence.
Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence.
If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence.
Attempt to commit an offence, therefore, can be said to begin when the preparations (1) Mad. 151.
(2) All. 210, 246 are complete and the culpit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence.
The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence.
This is clear from the general expression 'attempt to commit an offence ' and is exactly what the provisions of section 511, Indian Penal Code, require.
The relevant portion of section 511 is: "Whoever attempts to commit an offence punish able by this Code. . or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished. . " These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence.
It follows, therefore, that the act which would make the culprit 's attempt to commit an offence punishable, must be an act which, by itself, or in combination with other acts, leads to the commission of the offence.
The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated.
The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by section 511.
He does the act with the intention to commit the offence and the act is a step towards the commission of the offence.
It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it.
No exhaustive precise definition of what would amount to an attempt to commit an offence is possible.
The cases referred to make this clear.
247 We may refer to some decided cases on the construction of section 511, Indian Penal Code.
In The Queen vs Ramsarun Chowbey (1) it was said at p. 47: "To constitute then the offence of attempt under this section (section 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence.
Two illustrations of the offence of attempt as defined in this section are given in the Code; both are illustrations of cases in which the offence has been committed.
In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence, although it was not an act which constituted a part of the offence,, and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition.
From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredient (so to say) of the offence attempted. .
The learned Judge said, further, at p. 49: "I regard that term (attempt) as here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence, although nothing be done, or omitted, which of itself is a necessary constituent of the offence attempted".
We do not agree that the 'act towards the commission of such offence ' must be 'an act which leads immediately to the commission of the offence '.
The purpose of the illustration is not to indicate such a construction of the section, but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence.
The learned Judge himself emphasized this by observing at p. 48: "The circumstances stated in the illustrations to (1) (1872) 4 N.W.P. 46. 248 section 51 1, Indian Penal Code, would not have constituted attempts under the English law, and I cannot but think that they were introduced in order to show that the provisions of Section 51 1, Indian Penal Code, were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law".
In In the matter of the petition of R. MacCrea (1) it was held that whether any given act or series of acts amounted to an attempt which the law would take notice of or merely to preparation, was a question of fact in each case and that section 511 was not meant to cover only the penultimate act towards the completion of an offence and not acts precedent, if those acts are done in the course of the attempt to commit the offence, and were done with the intent to commit it and done towards its commission.
Knox, J., said at p. 179: "Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed.
The offence of cheating and inducing delivery is an offence in point.
The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practiced upon him may be a very considerable interval of time.
There may be the interposition of inquiries and other acts upon his part.
The acts whereby those preparations may be brought to bear upon her mind may be several in point of number, and yet the first act after preparations completed will, if criminal in itself, be beyond all doubt, equally an attempt with the ninety and ninth act in the series.
Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt, in my opinion, because the person (1) I.L.R. 15 All. 173. 249 committing the offence does or may repent before the attempt is completed".
Blair, J., said at p. 181: "It seems to me that section (section 511) uses the word 'attempt ' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt.
It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section.
It says expressly that whosoever in such attempt, obviously using the word in the larger sense, does any act, etc., shall be punishable.
The term 'any act ' excludes the notion that the final act short of actual commission is alone punishable.
" We fully approve of the decision and the reasons therefor.
Learned counsel for the appellant relied on certain cases in support of his contention.
They are not much to the point and do not in fact express any different opinion about the construction to be placed on the provisions of section 511, Indian Penal Code.
Any different view expressed has been due to an omission to notice the fact that the provisions of section 511, differ from the English Law with respect to 'attempt to commit an offence '.
In Queen vs Paterson (1) the publication of banns of marriage was not held to amount to an attempt to commit the offence of bigamy under section 494, Indian Penal Code.
It was observed at p. 317: "The publication of banns may, or may not be, in cases in which a special license is not obtained.
a condition essential to the validity of a marriage, but common sense forbids us to regard either the publication of the banns or the procuring of the license as a part of the marriage ceremony.
" (1) I.L.R. 1 All.
32 250 The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne 's Commentaries on the Indian Penal Code to the effect: "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations have been made." In Regina vs Padala Venkatasami (1) the preparation of a copy of an intended false document, together with the purchase of stamped paper for the purpose of writing that false document and the securing of information about the facts to be inserted in the document, were held not to amount to an attempt to commit forgery, because the accused had not, in doing these acts, proceeded to do an act towards the commission of the offence of forgery.
In In the matter of the petition of Riasat Ali (2) the accused 's ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting to commit forgery as the printed form would not be a false document without the addition of a seal or signature purporting to be the seal or signature of the company.
The learned Judge observed at p. 356: ". . .
I think that he would not be guilty of an attempt to commit forgery until he had done some act towards making one of the forms a false document.
If, for instance, he had been caught in the act of writing the name of the Company upon the printed form and had only completed a single letter of the name, I think that he would have been guilty of the offence charged, because (to use the words of Lord Blackburn) 'the actual transaction would have commenced, which would have ended in the crime of forgery, if not interrupted '.
" The learned Judge quoted what Lord Blackburn said in Reg.
vs Chessman (3): (1) Mad. 4.
(2) Cal.
(3) Lee & Cave 's Rep. 145. 251 "There is no doubt a difference between the preparation antecedent to an offence and the actual attempt; but if the actual transaction has commenced, which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.", He also quoted what Cockburn, C. J., said in M 'Pher son 's Case (1): "The word 'attempt ' clearly conveys with it the idea, that if the attempt had succeeded, the offence charged would have been committed.
An attempt must be to do that which, if successful, would amount to the felony charged.
" It is not necessary for the offence under section 511, Indian Penal Code, that the transaction commenced must end in the crime or offence, if not interrupted.
In In re: Amrita Bazar Patrika Press Ltd. Mukherjee, J., said at p. 234: "In the language of Stephen (Digest of Criminal Law, article 50), an attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted.
To put the matter differently, attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime; in other words, an attempt consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of, its actual commission; it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted: Reg.
vs Collins This again is not consistent with what is laid down in section 511 and not also with what the law in England is.
In Stephen 's Digest of Criminal Law, 9th Edition, attempt ' is defined thus: (1) Dears & B. 202.
(2) Cal.
(3) (1864) 9 Cox.
497. 252 "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted.
The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case.
An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime.
The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself.
" In In re: T. Munirathnam Reddi (1) it was said at p. 122: "The distinction between preparation and attempt may be clear in some cases, but, in most of the cases, the dividing line is very thin.
Nonetheless, it is a real distinction.
The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime.
If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he would be guilty of an attempt to commit the offence of murder.
The illustrations in the section (section 511) bring out such an idea clearly.
In both the illustrations, the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box in one case and the pocket was empty in the other case.
" The observations 'the crucial test is whether the last act, if uninterrupted and successful, would constitute a crime ' were made in connection with an attempt to commit murder by shooting at the victim and are to be understood in that context.
There, the nature of the offence was such that no more than one act was necessary for the commission of the offence.
(1) A.I.R. 1955 And.
118. 253 We may summarise our views about the construction of section 511, Indian Penal Code, thus: A personal commits the offence of 'attempt to commit a particular offence ' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
In the present case, the appellant intended to deceive the University and obtain the necessary permission and the admission card and, not only sent an application for permission to sit at the University examination, but also followed it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the University did issue the admission card.
There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation.
The preparation was complete when he had prepared the application for the purpose of submission to the University.
The moment he dispatched it, he entered the realm of attempting to commit the offence of 'cheating '.
He did succeed in deceiving the University and inducing it to issue the admission card.
He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher.
We therefore hold that the appellant has been rightly convicted of the offence under section 420, read with section 511, Indian Penal Code, and accordingly dismiss the appeal.
Appeal dismissed.

summary/full:
The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having obtained his B. A. Degree in 1951 and that he had been teaching in a certain school.
Believing his statements the University authorities gave him the necessary permission, and on his remitting the requisite fees and sending copies of his photograph, as required, a proper admission card for him was dispatched to the Headmaster of the School.
As a result of certain information received by the University, an investigation was made and it was found that the appellant was neither a graduate nor a teacher as represented by him and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination.
He was prosecuted and convicted under section 420 read with section 511 of the Indian Penal Code, of the offence of attempting to cheat the University by false representations by inducing it to issue the admission card, which if the fraud had not been detected would 31 242 have been ultimately delivered to him.
The appellant contended that on the facts found the conviction was unsustainable on the grounds (1) that the admission card had no pecuniary value and was therefore not property under section 415, and (2) that, in any case, the steps taken by him did not go beyond the stage of preparation for the commission of the offence of cheating and did not therefore make out the offence of attempting to cheat.
Held, that under section 511 of the Indian Penal Code a person commits the offence of attempting to commit a particular offence, when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing such offence.
It is not necessary for the offence under section 511 that the transaction commenced must end in the crime or offence, if not interrupted.
The observations to the contrary in The Queen vs Ramsarun Chowbey, (1872) 4 N. W. P. 46, In the matter of the Petition of Raisat Ali, Cal. 352 and In re Amrita Bazar Patrika Press Ltd., Cal.
190, not approved.
In the matter of the Petition of R. MacCrea, (1893) I.L.R. 15 All. 173, approved.
In re T. Munirathnan Reddi, A.I.R. 1955 And.
118, explained.
Held, further that an admission card issued by the Univer sity for appearing at the Examination held by it, though it has no pecuniary value, has immense value to the candidate and is property within the meaning Of section 415 Of the Indian Penal Code.
Queen Empress vs Appasami, Mad. 151 and Queen Empress vs Soski Bhusan, All. 210, relied On.
In the present case, the preparation was complete when the appellant had prepared the application for the purpose of submission to the University, and the moment he despatched it, he entered the realm of attempting to commit the offence of cheating.
Accordingly, the appellant was rightly convicted of the offence under section 420 read with section 511 of the Indian Penal Code.


judgement:
Appeals Nos. 170 to 172 of 1959.
Appeals by special leave from the decision dated August 20, 1953/September 3, 1953, and August 30, 36 278 1954, of the Board of Revenue, Bihar at Patna in Reference Cases Nos. 461 and 462 of 1952 and 430 of 4954, respectively.
Veda Vyas and B. P. Maheshwari, for the appellant.
R. C. Prasad, for the Respondent.
April 24.
The Judgment of the Court was delivered by section K. DAS,J.
These three appeals with special leave granted under article 136 of the Constitution have been heard together and this judgment will govern them all.
They raise a common question as to the practice of this Court, which we shall presently state.
But before we do so, we must first set out the facts in so far as it is necessary to state them in order to appreciate the precise nature of the question that has arisen for consideration in these appeals.
The relevant facts are these.
The firm of Messrs. Durga Dutt Chandi Prasad, appellant in these appeals, carried on a business of dealing in several kinds of goods but mostly in raw jute at Sahebganj in Bihar.
It was registered as a dealer under section 4 of the Bihar Sales Tax Act, 1944, with effect from July 1, 1946.
For three periods, commencing from October 1, 1947 and ending on March 31, 1950, it was assessed to sales tax on its turnover of the relevant periods, which consisted inter alia of purchases alleged, to have made on behalf of two other jute mills outside Bihar, namely, the Raigarh Jute Mills and the Bengal Jute Mills, and also of dispatches of jute said to have been made to the dealer 's own firm in Calcutta for sale in Calcutta.
For the assessment period commencing on October 1, 1947 and ending on March 31, 1948 the appellant claimed a deduction of (a) Rs. 6,58,880 5 9 on the ground that the said amount represented purchases made on behalf of the aforesaid two jute mills, and (b) Rs. 1,62,662 13 3 being despatches of jute made to the dealer 's own firm in Calcutta.
Similarly, for the next assessment period commencing on April 1, 1948 and ending on March 31, 1949 the appellant claimed a deduction of certain amounts (the exact amounts being 279 irrelevant for our purpose) on the two grounds mentioned above from the relevant turnover.
The claim of the appellant was that purchases made on behalf of the two jute mills aforesaid and the despatches of jute made to the appellant 's own firm in Calcutta were not `sales ' within the meaning of the Bihar Sales Tax Act, 1947 (hereinafter called the Act).
For the third period of assessment commencing on April 1, 1949 and ending on March 31, 1950 a similar claim was made.
But for this period there was an additional claim with regard to the sale of mustard seed worth Rs. 1,00,513 119 to Messrs. Panna Lal Binjraj for which the appellant claimed a deduction.
On June 7, 1951 the Sales Tax Officer concerned disallowed the claim of the appellant for the first two periods and by an order dated April 17, 1953, the claim for the third period was also disallowed.
The appellant then preferred appeals under the relevant provisions of the Act.
These appeals were heard by the Deputy Commissioner of Commercial Taxes,, Bihar, and were dismissed by him.
Then the appellant filed applications in revision under section 24 of the Act to the Board of Revenue, Bihar.
The Board by its orders dated August 20, 1953, and September 3, 1953, dismissed the petitions of revision relating to the first two periods and by its orders dated April 30, 1954, also dismissed the petition of revision relating to the third period.
Under section 25(1) of the Act the appellant moved the Board to state a case to the High Court of Patna on certain questions of law which, According to the appellant, arose out of the orders passed.
The Board, however, refused to state a case inasmuch as in its opinion no questions of law arose out of the orders passed.
The Board expressed the view that the two questions, namely, (1) whether the despatch of jute outside the State of Bihar was a sale within the meaning of the Act and (2) whether the purchases said to have been made on behalf of the two mills outside Bihar were liable to tax, were both concluded by findings of fact arrived at by the competent authorities on relevant materials in the record and were no longer open to challenge.
The appellant then 280 moved the High Court for requiring the Board to state a case on the questions of law which, according to the appellant, arose out of the orders passed with regard to the first two periods of assessment.
By an order dated November 17, 1954, the High Court dismissed the two applications made to it for requiring the Board to state a case to the High Court with regard to the said two periods.
On a similar application made by the appellant to the High Court with regard to the third period of assessment, the High Court directed the Board of Revenue to state a case on the following question: "Whether the petitioner is entitled to claim a deduction on account of sale of mustard seed to the extent of Rs. 1,00,513 11 9 to Messrs. Panna Lal Binjraj as sales made to a registered dealer under the Schedule to Bihar Finance Act (No. 11) of 1949 read with the Bihar Sales Tax Act (Bihar Act XIX of 1947).
" By an order dated January 21, 1957 the High Court answered the question against the appellant.
The finding of the High Court was thus expressed: "We are satisfied that the petitioner was not entitled to deduction of the amount of the price of mustard seed sold to Messrs. Panna Lal Binjraj for the purpose of manufacture because there is no mention in the certificate of registration granted to Messrs. Panna Lal Binjraj that mustard seed could be sold to them for the purpose of manufacture free of tax.
As the conditions imposed by the proviso to section 5 have not been satisfied in this case, the Sales tax authorities rightly decided that deduction of the price of mustard seed sold to Messrs. Panna Lal Binjraj cannot be granted to the petitioner.
" On February 17,1955, the appellant made an application to this Court for special leave to appeal from the orders of the Board of Revenue passed on the two applications in revision as respects the first two periods.
This Court granted the leave prayed for by an order dated December 23, 1955.
It should be emphasised here that the appellant prayed for and got leave to appeal from the orders of the Board dated 281 August 20, 1953 and September 3, 1953 passed on the two applications in revision.
No application was made for leave to appeal, nor was any leave granted, with regard to the subsequent orders made by the Board refusing to state a case or the orders of the High Court refusing the application of the appellant to direct the Board to state a case.
With regard to the third period of assessment regarding which the High Court had directed the Board to state a case on a particular question of law and had actually answered it, the appellant again made an application for special leave to appeal on April 12, 1955, and this Court granted leave to the appellant by an order dated December 23, 1955, the leave granted being confined to the order of the Board of Revenue dated August 30, 1954, by which the Board decided that no questions of law arose for a reference to the High Court.
Again, the appellant neither asked for nor obtained any leave to appeal from the subsequent orders of the High Court by which the High Court held that only one question of law arose out of the orders passed with regard to the third period of assessment and directed the Board to state a case on that question.
Nor did the appellant move against the judgment and order of the High Court dated January 21, 1957, by which the High Court answered the one question referred to it adversely to the appellant.
On the facts stated above the question which has arisen is whether as a matter of practice of this Court, the appellant is enticed to be heard on merits in the three appeals when special leave was neither asked for nor granted in respect of the subsequent orders of the High Court relating to the assessments in question which have now become final between the parties thereto.
In other words, the question is whether the High Court should be allowed to be by passed in the manner sought to be done by the appellant in these three appeals? The position is quite clear.
With regard to two of the assessment orders the High Court held that no questions of law arose at all; with regard to the third assessment order the High Court held that only one question of law arose and it answered 282 that question against the appellant.
Can the appellant now ignore these orders of the High Court and ask us to consider on merits the orders of the Board of Revenue passed on the two revision applications for the first two periods and the orders of the Board in the reference case holding that no question of law arose out of the assessment order for the third period? This is the question, taken as a preliminary point, which we have to answer in these three appeals.
The question has to be considered with regard to (a) the scope and ambit of article 136 of the Constitution; (b) the practice of this Court; and (c) the question must also be considered in the context of the scheme of the Act under which the assessments were made, appeals and revisions in respect thereof were heard, and the scope and effect of section 25 of the Act under which the Board was asked to refer certain alleged questions of law to the High Court and the High Court was asked to direct the Board to state a case on the questions of law said to arise out of the assessment orders.
It is necessary at this stage to dispose of an initial point taken on behalf of the appellant, before we go to a consideration of the main question.
The point is this.
On behalf of the appellant it has been submitted that leave having been granted by this Court, the preliminary objection taken to the hearing of the appeals should not be entertained now and the appeals should be heard on merits.
We are unable to accept this as correct.
In these cases leave was granted without hearing the respondents, and full materials in the record were not available nor placed before the Court when leave was granted.
In Baldota Brothers vs Libra Mining Works (1) this Court has pointed out that there is no distinction in the scope of the exercise of the power under article 136 at the stage of application for special leave and at the stage when the appeal is finally disposed of, and it is open to the Court to question the propriety of the leave granted even at the time of the hearing of the appeal.
This view is in accord with some of the earlier decisions of this Court to which a reference has been made in Baldota '8 case (1) A.I.R 1961 S.C. 100.
283 (supra).
Therefore, it is open to us to consider now whether leave was properly granted in these appeals and whether the appellant is entitled to be heard on merits consistently with the practice of this Court in similar circumstances.
We proceed now to a consideration of the main question.
As a preface to that discussion it is advisable to refer here to some of the provisions of the Act in order to bring out clearly the scheme and object of the Act.
The charging section is section 4 which says in effect that every dealer whose gross turnover exceeds a particular amount in a year shall be liable to pay tax under the Act on sales taking place in Bihar.
Section 5 lays down the rate of tax.
The assessment section is section 13 which states the various circumstances in which the assessing authority may make the assessment.
Section 24 of the Act provides for an appeal, revision or review of the assessment.
Then come section 25, the scheme of which is analogous to that of section 66 of the Indian Income tax Act, 1922.
Under sub section
(1) of section 25, the dealer or Commissioner who is aggrieved by an order made by the Board under sub section
(4) of section 24 may by application in writing require the Board to refer to the High Court any question of law arising out of such an order; if for reason to be recorded in writing the Board refuses to make such reference, the applicant may under subs.
(2) of section 25 apply to the High Court against such refusal.
If the High Court is not satisfied that such refusal was justified, it may require the Board to state a case and refer it to the High Court.
When a case is referred to the High Court, it decides the question of law raised thereby by a judgment containing the grounds on which the decision is founded.
The Board then disposes of the case according to the decision of the High Court.
This in short is the scheme of section 25.
It is manifest that under this scheme questions of fact ate dealt with by the assessing authorities, subject to appeal and revision; but on questions of law the decision of the High Court is the decision according to which the case has to be disposed of Section 23 of the Act says that save as provided in section 25, no 284 assessment made and no order passed under the Act or the rules made thereunder by the Commissioner or any person appointed under section 3 to assist him shall be called into question in any court and save as provided in section 24, no appeal or application for revision or review shall lie against any such assessment or order.
Clearly enough, sections 23, 24 and 25 of the Act cannot override the provisions of the Constitution, nor affect the power of this Court under article 136 of the Constitution. ' The decision of the High Court under section 25 of the Act is undoubtedly subject to the power of this Court under article 136; so also the deter mination or order of any of the assessing authorities which are tribunals within the meaning of article 136.
That Article reads (omitting what is not relevant for our purpose): "article 136.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
" The words of the Article are very general and it is stated in express terms that this Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
The question before us is not whether we have the power; undoubtedly, we have the power, but the question is whether in the circumstances under present consideration, it is a proper exercise of discretion to allow the appellant to have resort to the power of this Court under article 136.
That question must be decided on the facts of each case, having regard to the practice of this Court and the limitations which this Court itself has laid down with regard to the exercise of its discretion under article 136.
What are these limitations In Pritam Singh vs The State (1) this Court indicated the nature of these limitations in the following observations: (1) ; 285 "On a careful examination of Article 136 along with the preceding Article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this Article.
By virtue of this Article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases.
The only uniform standard which in our opinion can be laid down in the circumstances is that the Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. . . . . . .
Generally speaking, this Court wilt not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.
" Pritam Singh 's case (1) was a case of criminal appeal, but the same view was reiterated in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal (2), which was an income tax case.
It was there observed: "The limitations, whatever they be, are implicit in the nature and character of the power itself.
It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations.
Beyond that it is not possible to fetter the exercise of this power by any set formula.or rule.
" We shall deal with this decision in greater detail a little later, when considering the question of the practice of this Court.
It is enough to state here that this Court has uniformly held that there must be exceptional and special circumstances to justify the exercise of the discretion under article 136.
(1) ; 37 (2) ; 286 Are there any such circumstances in the appeals before us? The answer must clearly be in the negative.
Under the scheme of the Act which we had adverted to earlier, it is not open to the appellant to contest now the findings of fact arrived at by the assessing authorities.
As to questions of law the appellant had gone up to the High Court, which held that in respect of two of the assessment orders no ' questions of law.
arose and in respect of the third assessment order, only one question of law arose and this question the High Court answered against the appellant.
As we have pointed out earlier, the decision of the High Court in respect of all the three assessment orders was no doubt subject to an appeal to this Court if this Court gave special leave under article 136.
The appellant did not, however, move this Court for special leave in respect of any of the orders passed by the High Court; those orders have Dow become final and binding on the parties thereto.
What the appellant is seeking to do now is to by pass the High Court by ignoring its orders.
This the appellant cannot be allowed to do.
Far from there being any special cir cumstances in favour of the appellant, there are plenty of circumstances against him.
The appellant is really trying to go behind the orders of the High Court by preferring these appeals directly from the orders of the Board of Revenue, and in one appeal from the orders of the Board refusing to make a reference to the High Court.
The practice of this Court is also against the appellant.
The earliest decision on this point is that of Dhakeswari Cotton Mills Ltd.(1) and learned Counsel for the appellant has relied on it in support of his argument that this Court had in some previous cases interfered with an order of the tribunal in exercise of its power under article 136 even though the assessee had not moved against the order of the High Court.
In Dhakeswari 's case (1) what happened was this.
The assessee having exhausted all his remedies under the Income tax Act, 1922, including that under section 66(2) for the issue of a mandamus to the Tribunal, made an (1) ; 287 application to this Court for special leave to appeal against the order of the tribunal; this Court granted special leave and in the appeal filed in pursuance thereof quashed the order of the Tribunal.
But the decision in Dhakeswari 's case (1) must be read in the light of the special circumstances which existed there.
It was found by this Court that the tribunal had violated certain fundamental rules of just ice in reaching its conclusions, and that the assessee had not had a fair hearing; therefore, it was held that it was a fit case for the exercise of the power under article 136.
The decision proceeded really on the basis that the principles of natural justice had been violated and there was in reality no fair trial.
In the appeals before us no such or similar ground is alleged so as to attract the exercise of our power under article 136.
In Moti Ram V. Commissioner of Income tax (2) the appellant did not make any application under section 66(2) of the Income tax Act, 1922, but obtained special leave of this Court in respect of the order of the Tribunal in the special circumstance that his property was attached and proceeded against for the recovery of the tax.
The question of the propriety of the grant of special leave was not considered, but the appeal was dismissed on merits.
The decision in Jogta Coal Co. Ltd. vs Commissioner of Income tax, West Bengal (3) which is a decision on its own facts, has been open to much debate.
The question which fell for consideration there related to depreciation under section 10(2)(vi) of the Indian Income tax Act, 1922, namely, the amount on which the appellant was entitled to calculate deduction allowance for purposes of depreciation.
The Income tax Officer made an estimate which was accepted by the Appellate Assistant Commissioner.
The matter was taken to the Appellate Tribunal which made its own estimate.
An application under section 66(1) was rejected and an attempt to move the High Court under section 66(2) also proved unsuccessful.
Then, this Court was moved for special leave to appeal from the orders of the (1) [1955]1 S.C R. 941.
(2) [1958]34 I.T.R. 646, (3) [1959]36 I.T.R. 521.
288 Tribunal, and the appeals were brought with special leave granted by this Court.
This Court remitted the case to the Tribunal and directed the latter to refer two questions of law to the High Court under section 66(2).
It is a little difficult to see how on an appeal from the appellate orders of the Tribunal, a direction under section 66(2) could be made.
Perhaps, this fact was not noticed.
In any view, the decision cannot be taken as settling the practice of this Court in favour of the appellant.
In Omar Salay Mohammed Sait vs Commissioner of Income tax, Madras(1) the Tribunal based its findings on suspicions, conjectures or surmises and the principle laid down in Dhakeswari 's case (2) was followed.
The decision in Sardar Baldev Singh vs Commissioner of Income tax, Delhi & Ajmer(1) was also a decision special to its own facts.
There the application to the Tribunal was barred by time in circumstances which were beyond the control of the appellant.
The Tribunal dismissed the application for a reference on the ground of limitation and the High Court had no power to extend the time.
In these circumstances the appellant asked for special leave and condonation of delay.
Special leave was granted by condoning the delay.
More in point is the decision in V. Govindarajulu Mudaliar vs The Commissioner of Income tax, Hyderabad (4) which was concerned with appeals from the decision of the Tribunal by special leave, after an application under section 66(2) had been dismissed by the High Court.
This Court then observed: " We must mention that against the order of the Tribunal the appellant applied for reference to the High Court under section 66(2) of the Indian Income tax Act and the learned Judges of the High Court dismissed that application.
No appeal has been preferred against that at all.
The present appeal is against the decision of the Tribunal itself.
It is no doubt true that this Court has decided in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, 1955(1) S.C.R. 941, that an appeal (1) [1959]37 I.T.R. 151.
(3) (2) ; (4) A.I.R. 1959 S.C. 248, 289 lies under article 136 of the Constitution of India to this Court against a decision of the Appellate Tribunal under the Indian Income tax Act.
But seeing that in this case the appellant had moved the High Court and a decision has been pronounced adverse to him and this has become final, obviously it would not be open to him to question the correctness of the decision of the Tribunal on grounds which might have been taken in an appeal against the judgment of the High Court." In Messrs Chimmonlall Rameshwarlal vs Commissioner Income tax (Central), Calcutta(1) the facts were these.
Four appeals were filed with special leave granted by this Court under article 136 which were directed against the orders of the Appellate Tribunal refusing to state a case on an application made to it under section 66(1).
No appeals were filed against the orders of the Appellate Tribunal under section 33(4), nor against the orders of the High Court under section 66(2)a position which is similar to the one in the appeal before us relating to the assessment for the third period.
In these circumstances this Court observed: "In the present case the circumstance of very great materiality and significance which stares the appellants in the face is that in regard to this very point there is a considered judgment of the High Court delivered by it on the applications made by the appellants to it under section 66(2) of the Act which came to the conclusion that no question of law arose out of the order of the Tribunal, which judgment stands, not having been appealed against in any manner whatever by the appellants.
The result of our going into these appeals before us on the merits would be either to confirm the judgment which has been pronounced by the High Court or to differ from it.
If we did the former, the appellants would be out of Court; if, however, perchance we came to the contrary conclusion and accepted the latter view, namely, that the High Court was wrong in not granting the applications of the appellants under section 66(2) of the Act there would be two (1) , 290 contrary decisions, one by the High Court and the other by us and we would be in effect, though not by proper procedure to be adopted by the appellants in that behalf, setting aside the judgment of the High Court.
This is an eventuality which we cannot view with equanimity.
It is contrary to all notions of comings of Courts and even though we are a Court which could in certain events set aside and overrule the decisions of the High Court concerned, we cannot by pass the normal procedure which is to be adopted for this purpose and achieve the result indirectly in the manner suggested by the appellants.
We, therefore, think that in the circumstances here it would be inappropriate on our part to enter upon an adjudication of these appeals on merits.
We would, therefore, dismiss these appeals without anything more.
" We think that these observations apply with equal force, here.
A careful examination of the previous decisions of this Court shows that whenever the question was considered, this Court said that save in exceptional and special circumstances such as were found in Dhakeswari 's case (1) or Baldev Singh 's case (2) it would not exercise its power under article 136 in such a way as to by pass the High Court and ignore the latter 's decision, a decision which has become final and binding on the parties thereto, by entertaining appeals directly from the orders of a tribunal.
Such exercise of power would be particularly inadvisable in a case where the result may be a conflict of decisions of two courts of competent jurisdiction, a conflict which is not contemplated by sections 23, 24 and 25 of the Act.
On the contrary, the object of these sections is to avoid a conflict by making the decision of the assessing authorities final on questions of fact subject to appeal, revision or review as provided for by section 24 and the decision of the High Court subject to an appeal to this Court, final on questions of law under section 25 of the Act.
To ignore the decision of the High Court on a question of law would really nullify the statutory provisions of section 25 of the Act.
(1) ; (2) ; 291 It remains now to consider one last argument urged on behalf of the appellant.
Learned Counsel for the appellant has drawn our attention to article 133 of the Constitution and has pointed out that when the High Court refuses a certificate under article 133, it is open to this Court to grant special leave to appeal (and this Court has often granted such special leave) from the main decision of the High Court irrespective of the orders of the High Court refusing such a certificate.
It is argued that the same analogy should apply, and in spite of the orders of the High Court under section 25 of the Act, this Court may and should grant special leave to appeal from the orders of the Tribunal.
We do not think that the analogy is apposite.
Firstly, in dealing with an application under article 133 the High Court merely considers whether a certificate of fitness should be given in respect of its own decision; in such a case it does not itself decide any question of law such as is contemplated by section 25 of the Act.
Secondly, there is no likelihood of any conflict of decisions of the kind referred to earlier arising out of an order under article 133, when special leave is granted to appeal from the main decision of the High Court.
The question of two decisions by two different courts or tribunals does not arise, and none of them is by passed by the grant of such special leave.
Moreover ' as we have said earlier the question is not one of the power of this Court; but the question is what is the proper exercise of discretion in granting special leave under article 136 of the Constitution.
In these appeals we have reached the conclusion, for reasons already stated, that the appellant is not entitled to ask us to exercise our power under article 136.
There are no special circumstances justifying the exercise of such power; on the contrary the circumstances are such that it would be wrong both on principle and authority to allow the appellant to by pass the High Court by ignoring its orders.
In our view, special leave was not properly given in these cases and we would accordingly dismiss the appeals with costs, without going into merits.
There will be one hearing fee.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The appellant firm was assessed to sales tax under the pro visions of the Bihar Sales Tax, 1944, for three periods commencing from October 1, 1947, and ending on March 31, 1050.
Its claim for certain deductions was disallowed, and its applications in revision under section 24 Of the Act to the Board of Revenue, Bihar, were dismissed by three orders dated August 20, 1953, September 3, 1953 and April 30, 1954.
Under section 25(1) of the Act the appellant applied to the Board to state a case to the High Court of Patna on certain questions of law, but the applications were dismissed by order dated August 30, 1954, on the ground that no questions of law arose.
The appellant then moved the High Court for requiring the Board to state a case on the said questions of law.
The High Court dismissed the applications in respect of the first two periods of assessment, but by order dated November 17, 1934, directed the Board to state a 277 case in regard to the third period on one of the questions of law which only, in its opinion, arose.
By its judgment dated January 21, 1957, the High Court answered the question against the appellant.
On February 17, 1955, the appellant made applications to the Supreme Court for special leave to appeal against the orders of the Board of Revenue dated August 20, 953, and September 3, 1953, in respect of the first two periods; and on April 12, 1955, it similarly applied for special leave in respect of the third period.
Leave was granted in respect of all the three applications by order dated December 23, 1955, the leave granted in regard to the third period being confined to the order of the Board dated August 30, 1954.
When the appeals came up for hearing the question was raised as to whether the appeals were maintainable in view of the fact that no applications for leave to appeal were filed against the orders of the Board of Revenue and the High Court subsequent to the orders of the Board in respect of which only special leave had been granted.
Held, that though the words of article 136 of the Constitution of India are wide, the Supreme Court has uniformly held as a rule of practice that there must be exceptional and special circumstances to justify the exercise of the discretion under that Article.
Pritam Singh vs The State, ; , V. Govinda rajulu Mudaliar vs The Commissioner of Income tax, Hyderabad, A.I.R. 1959 S.C. 248 and Messrs Chimmonlall Rameshwarlal vs Commissioner of Income tax (Centyal), Calcutta, , relied on.
Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, ; and Baldev Singh vs Commis sioner of Income tax, Delhi and Ajmer, , explained.
Held, further, that in the circumstances of the present case the appellant was not entitled to a grant of special leave against the orders of the Board of Revenue where the result would be to by pass the High Court by ignoring its orders.
Held, also, that though special leave might have been granted on an application made under article 136, the Court is not precluded from coming to a conclusion at the time of the hearing of the appeal that such leave ought not to have been granted.
Baldota Brothers vs Libra Mining Works, A.I.R. 1961 S.C.C. 100, followed.


judgement:
ON: Cases Nos. 11 and 12 of 1950.
Appeals under article 132 (1) of the Constitution of India from the Judgment and Order dated April 5, 1950, of the High Court of Judicature for the State of Punjab at Simla (Khosla J.) in Criminal Revision Nos, 1144 and 1147 of 1949.
Achhru Ram (Gopal Singh, with him) for the appellant in Case No. 11.
H. J. Umrigar for the appellant in Case No. 12.
section M. Sikri (Advocate General of Punjab) (H. section Gujral, with him) for the respondent, the State of Punjab.
M. C. Setalvad (Attorney General for India) (B. Sen, with him) for the Intervener. 1952.
December 5.
The Judgment of the Court was delivered by MUKHERJEA J.
The facts giving rise to these two connected appeals may be briefly narrated as follows: Darshan Singh, the appellant in Case No. 1 1, and Attar Singh who is the appellant in Case No. 12, along with three other persons were tried by the Special Magistrate, Ambala, East Punjab, on charges under section 120 B of the Indian Penal Code, read with section 3/10 of the East Punjab Cotton Cloth and Yarn (Regulation of ' Movement) Order, 1947, and section 7 of the Essential Supplies Act, 1946.
There wets a further charge under section, 8 of the Essential Supplies Act against three of these accused, Darshan Singh begning on of them.
321 The allegation against all the accused, in substance, was that they conspired to export 76 bags of mill made cloth to Pakistan without a permit, by smuggling them through the customs barrier near Wagha, on the morning of the 26th ,May, 1948.
Wagha is., about 18 miles from Amritsar, and at a distance of nearly half a mile from this place lies the actual Indo Pakistan border.
Between the customs barrier and the border there is a small Police Post and almost opposite the Police Post is the customs office which is located in a tent.
The prosecution case ' is that at about 7 a. m. on the 26th of May, 1948, a truck, loaded with a large quantity of millmade cloth owned by the accused Ram Singh, arrived at the customs barrier near Wagha.
Rajendra Singh, another accused, who was on duty at that time as the Customs Supervisor, allowed the truck to pass through and the truck stopped near the customs office on the side of the Police Post.
As soon as the truck stopped, Darshan Singh, who was the Deputy Superintendent in charge of the customs barrier, and Attar Singh, who was a Customs Preventive Officer at Amritsar and was then under order of transfer to some other place, went to the Police Station and asked Kulraj, the Sub Inspector in charge of the same, to allow the lorry to pass through upto the border.
Kulraj did not accede to this request and thereupon both Darshan Singh and Attar Singh went back to the customs tent.
The truck was then unloaded and the goods were handed over to a large number of coolies who began carrying them towards the border, being followed by both Attar Singh and Ram Singh.
A little later, Kailash Chandra, a Police Sub Inspector of Amritsar who was at that time on special duty in connection with checking and detec tion of smuggling cases, arrived at the place on a motor bicycle and being informed by Kulraj of what had happened before, both he and Kulraj proceeded in his motor cycle towards the border and overtook the coolies who were carrying the goods.
The coolies were rounded up and brought back to the border along 322 with Attar Singh, though Ram Singh managed to Slip away.
Kailash Chandra made a report of the occurrence to Inder Singh, who was the head of the Special Police Establishment at Delhi dealing with smuggling cases, and after a detailed investigation, the five accused were sent up to take their trial.
The trying Magistrate convicted all of them under section 120 B of the Indian Penal Code, read with section 3/10 of the East 'Punjab Cotton Cloth and Yarn Order, 1947, and sentenced them to rigorous imprisonment for a period of one year each.
Attar Singh was further convicted under section 7 of the Essential Supplies Act and Darshan Singh under section 8 of the said Act, and there was a sentence of one year 's rigorous imprisonment and a fine of Rs. 1,000 upon each one of them under these sections, the sentence of rigorous imprisonment to run concurrently with that on the previous charges.
Against this judgment there was an appeal taken by all the accused to the Court of the Sessions Judge at Amritsar.
The Additional Sessions Judge, who heard the appeal, acquitted two of the accused but maintained the conviction of the other three, namely, Attar Singh, Ram Singh and Darshan Singh, though their sentences were reduced.
Thereupon these three persons presented three separate revision petitions to the High Court of East Punjab at Simla which were heard and disposed of by Mr. Justice Khosla sitting singly.
The learned Judge dismissed the revision petitions but granted a certificate under article 132 of the Constitution on the ground that the cases involved a substantial question of low as to the interpretation of the Constitution.
It is on the strength of this certificate that these two appeals have come before us, one being filed by Darshan Singh and the other by Attar Singh.
No appeal has been preferred by the accused Ram Singh.
The constitutional point involved in these appeals has been presented before us very lucidly by Mr. Achhru Ram who appeared on behalf of Darslian 323 Singh, the appellant in Case No. II, and his contention, in substance, is that the East Punjab Cotton Cloth and Yarn Order, 1947, which was promulgated by the Governor of East Punjab by notification dated 15th November, 1647, and under the provisions of which the prosecution was launched against the accused, was ultra vires the authority of the Governor, in so far as it purported to legislate on matters of export and import across the customs frontier, and consequently the accused could not be held guilty of any offence for having violated such provisions.
For a proper appreciation of raised by the learned counsel, it would be necessary to refer to certain provisions of the Government of India Act, 1935, as well as to those of a number of later enactments.
Under entries 27 and 29 of List II of the Government of India Act, 1935, " trade and commerce within the province " and " produc tion. supply and distribution of goods " were provincial subjects, while " import and export across the customs frontier " was a central subject being covered by item 19 in List I. Section 102 of the Government of India Act, 1935, gave the Central Legislature the power to legislate on provincial subjects if and when a proclamation was issued by the Governor General that a state of emergency existed in the country, and such legislation would, under sub section (4) 'of the section, cease to have effect on the expiration of a. period of ' six months after the proclamation had ceased to operate.
It appears that these extraordinary powers were assumed by the Central Legislature during the period of the last war when there was a Proclamation of Emergency by the Governor General, and the Defence of India Rules promulgated during this period dealt with various ' provincial matters.
The Proclamation of Emergency was revoked by the Governor General under section 102, clause (3), of the Constitution Act on 1st April, 1946, and the result of the revocation was that all orders passed on the basis of the Defence of India Act or the Defence of India Rules ceased to be 42 324 operative after the 30th of September, 1946.
The (state of the country, however, was at that time far from normal and it was considered necessary that the control of the Central Legislature over the production, supply and distribution of goods should not be discontinued.
To meet this situation, the British Parliament passed a temporary Act (9 and 10 Geo.
6 chapter 39) which gave the Indian Legislature, during the period specified in the Act, the power to make laws with regard to certain provincial subjects.
The provision of section 2 of the Act, so far as is necessary for our present purpose, stood as follows: "(1) Notwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall, during the period mentioned in section 4 of this Act, have power to make laws with respect to the following matters: (a)trade and commerce (whether or not within a Province) in and the production, supply and distribution of, cotton and woollen textiles, paper, petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica; ".
Armed with this authority, the Indian Legislature passed the Essential Supplies (Temporary Powers) Act of 1946, sections 3 and 4 of which are in these terms: " 3.
The Central Government so far as it appears to it necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices may, by notified order provide for regulating and prohibiting the production, supply and distribution thereof and trade and commerce therein.
* * * * 4.The Central Government may by notified order direct that the power to make orders under section 3 shall in relation to such matters and subject to such conditions,, if any, as may be specified in the direction, be exercisable also by 326 (a) * * * * (b)such Provincial Government or such officer or authority subordinate to a Provincial Government as may be specified in the direction.
" By a notification dated 20th of December, 1946, issued under section 4 mentioned above, the Central Government delegated to the Governor of Punjab the powers under section 3 of the Act.
On the 15th of November, 1947, the Governor of East Punjab, in exercise of the powers delegated by the said notification, passed the East Punjab Cotton Cloth and Yarn (Regulation of Movement) Order, 1947, and sections 2, 3 and 10 of the Order are material for our present purpose.
Section 2 is in these terms: "In this Order unless there is anything repugnant in the subject or context, (a) " export " means to take out of the Province of the East Punjab or the said land by rail, road or river to any Province or State of the Dominions of India and Pakistan and includes taking out of the Province of East Punjab to any place, situated in the said lands as well as out of the said lands to any place situated in the East Punjab.
" Section 3 runs as follows: " No person shall export or attempt to export cotton cloth or yarn except under the authority and in accordance with the conditions of a permit, issued by a permit issuing authority. .
The permit shall be in form IV, specified in Schedule 'A ' annexed to this Order ".
Section 10 provides: "If any person contravenes any provision of this Order, he shall be punishable with imprisonment which may extend to 3 years, with fine or both and without prejudice to any other general punishment which may be imposed by any court trying such contravention may direct that any cotton cloth and/,or yarn in respect of which the court is satisfied that this order, has been contravened together with the 326 covering and packing of such cloth shall be forfeited to His Majesty.
" The point for our consideration is, whether the above provisions which prohibit inter alia the export of certain essential commodities to any country outside India without a permit and make the violation of such provisions an offence, were validly made by the Governor in exercise of the powers delegated to him under section 4 of the Essential Supplies (Temporary Powers) Act 1946 ? It is not suggested by the learned counsel that there was anything improper in the Central Government 's delegating its powers to the Governor of East Punjab under section 4 of the Essential Supplies (Temporary Powers) Act.
His contention is that the Governor, in making the order, acted in excess of is delegated authority by prohibiting the export of cotton cloth and yarn to any I place outside India.
Matters of export and import, it is said, were not within the scope of section 3 of the Essential Supplies and :the notification tinder section 4 could only delegate to the Governor such powers as the Central Government could itself 'exercise under section 3.
Section 3 of the Essential Supplies Act, it is true, authorised the Central Government to make provisions for regulating and prohibiting the production, supply and distribution of the essential commodities specified in the Act and also trade and commerce therein; but it is argued by the learned counsel that the expression, " trade and commerce ", as used in the section, must be taken to mean trade and commerce within a province or at the most between provinces inter se, but it cannot include any transaction by way of exporting goods outside India.
This interpretation, somewhat restricted as it appears to us, is sought to be supported by a two fold argument.
In the first Place, it, is said, that the Essential Supplies Act, as its, Preamble shows, was passed by the Central Legislature in exercise of the authority conferred upon it by the India (Central Government and Legislature) Act, 1946, (9 and, 10 Geo.
6, c. 39) and that statute 327 conferred, only for a short period of time, a, power in the Central Indian.
Legislature to legislate on certain provincial matters, which it could not do after the revocation of the Proclamation of Emergency on the termination of the war.
It is said, therefore, that the Essential Supplies Act purported to deal exclusively with provincial matters, and import and export of goods outside the Indian territory, being a central subject, could not reasonably be brought within the purview of the Act.
The other line of reasoning that is put forward in support of the argument is, that the intention of the Central Legis lature not to include export and import within the provisions of the Essential Supplies Act is evidenced by the fact, that the Central Legislature dealt with export and import of goods separately, and by an, altogether different set of enactments which exist side by side with the Essential Supplies Act and other legislation of the same type preceding it.
It is pointed out that there was an order made under the Defence of India Rules on 3rd November, 1945, (being Order No. 91 c. w. (1) 45) imposing prohibitions on export of various descriptions of goods specified therein.
The Defence of India Rules were due to expire on the 30th September, 1946.
On the 26th September, 1946, the Essential Supplies Ordinance was passed and this was later replaced by the Essential Supplies Act.
On the very day that this Ordinance ,was passed, another Ordinance, being Ordinance No. XX of 1946, was promulgated, which inter alia continued the provisions of the Defence of India Rules relating to prohibition and restriction of import and export of goods.
Subsequently on the 26th of March, 1947, the Im ports and Exports (Control) Act was passed, which dealt comprehensively with the subject of control over exports and imports.
As it would be unnatural to suppose that the legislature was legislating on the same subject simultaneously by two parallel sets of legislation existing side by side, it is argued that export and import of goods were not within the scope and intendment of the Essential Supplies Act.
328 These arguments though somewhat plausible at first sight, do not appear to us to be sound or convincing.
It is a cardinal rule of interpretation that the language used by the legislature is the true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself.
The object of the Essential Supplies Act, as set out in the preamble, was to provide for the continuance, during a limited period of time, of the power to control the production, supply and distribution of, and trade and commerce in, foodstuffs, cotton and woollen textiles, petroleum, iron and other essential commodities, a list of which appeared in the Act itself.
Section 3, which is the most material part of the Act,, authorised the Central Government, whenever it considered expedient or necessary, for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, to provide by notified order, for regulating or prohibiting, the production, supply and distribution thereof or trade and commerce therein.
Keeping this object in view and reading the words" trade and commerce " in the light of the context, there appears to be no reason why these words should not be taken in their ordinary or natural sense and why restriction on the export of goods to any place outside a province, including a neighbouring foreign State should be deemed to be outside their scope and ambit.
For maintenance or increase of supply of essential commodities within a province and to secure their equitable distribution and availability at fair prices, it might certainly be necessary to restrict export of the goods outside the province, and Pakistan being a foreign State abutting on the very borders of East Punjab, it was quite natural for the East Punjab Governor to mention Pakistan as one of the places to which export of goods from his province should not be allowed without a proper permit.
As 329 the main object of the legislation was the continuance of control over the production, supply and distribution of commodities considered essential to the community and as these are provincial subjects, the Central Legislature in legislating on them must have to invoke the powers conferred upon it by the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo.
6, c. 39) spoken of above; and that is plainly the reason why a reference to that statute was made in the second paragraph, of the preamble.
But from this it cannot be argued that the Central Legislature was legislating only in exercise of the powers which it derived from the British Parliament and that it did not exercise the powers which it itself had under the Government of India Act.
It is not disputed that the Central Legislature was fully competent to legislate on exports and imports which are central subjects and in making any provision relating thereto, it cannot be said that it acted in excess of its authority.
Even taking the legislation to be purely on the provincial subjects of production, distribution and supply of goods, restriction of export as ancillary to production and supply of essential commodities would, in our opinion, be quite within the scope and ambit of such legislation and in pith and substance it would be an enactment dealing exclusively with these provincial matters.
Looked at from this standpoint, the other argument advanced by Mr. Achhru Ram would also be found to be without any substance.
The imports and Exports Act or the earlier Order and Ordinance, referred to by the learned counsel, were legislation essentially on the subject of exports and imports.
Their object was to regulate or control imports and exports generally and they dealt with a large variety of articles far outnumbering those enumerated in the Essential Supplies Act.
The object of the imports and Exports Act was not to regulate production and distribution of commodities considered essential to the community 330 and it was not as a means to secure that object that it purported to prohibit or restrict exporting of goods.
Thus the scope and purpose of the two sets of legislation were totally different and there was nothing wrong if they existed side by the side and were in operation at one and the same time, We are not told that there was any overlapping of the provisions of these two statutes; and as the competency of the legislature to enact both these sets of provisions is not disputed, we do not think that any occasional overlapping, even if it is assumed to exist, would be at all material.
In our opinion, therefore, the contentions raised in regard to the constitutional point involved in these appeals are unsupportable and could not be accepted.
As the appeals have come up before us on the strength of a certificate granted under article.
132(1) of the Constitution, the appellants are not entitled to challenge the propriety of the decision appealed against on a ground other than that on which the certificate was given except with the leave of this court as provided for by clause (3) of article 132 of the Constitution.
At the close of the arguments of the parties in regard to the constitutional point referred, to above.
, we made it clear to the learned counsel appearing for both the appellants that we would not allow any question relating to the merits of the cases to be raised before us which turned merely on appreciation of evidence by the courts below.
Mr. Umrigar, who appeared for Attar Singh the appellant in Case No. 12, however stated to us that he would crave leave to bring to our notice one important matter which, according to him, resulted in grave miscarriage of Justice at least so far as his client was concerned.
He pointed out that both the Additional Sessions judge and the learned Judge of the High Court in deciding the case against his client relied upon an admission alleged to have been made by the latter that he was present at the customs barrier at Wagha on the morning of the day of occurrence and had gone there to say good bye to the customs staff, he 331 being under an order of transfer from Amritsar to Gurdaspur.
It is said by the learned counsel that his client never admitted his presence at the customs barrier on the morning of 26th May, 1948, and that he neither did nor had any occasion to put forward any explanation regarding his presence there at that time.
The whole thing, it is said, is based upon sheer misapprehension and is not warranted by anything appearing on the record.
There is no doubt that the Additional Sessions Judge as well as the High Court did refer in their respective judgments to the alleged admission of Attar Singh and rely upon the same to arrive at their decision in the case.
The Additional Sessions Judge said in his judgment: " The next important man is Attar Singh accused.
He admits his presence at the barrier on that morning, when he says that he had gone to bid good bye to the customs staff on his transfer to Gurdaspur According to the leave obtained by him he had yet to remain at Amritsar till 28th and in view of illness of his wife he need not have been in hurry to go to the barrier for this purpose so soon.
I am not convinced with his explanation.
" The High Court in referring to the said admission observed as follows: " Attar Singh admitted that he was present at the barrier on that morning but the explanation he gave was this.
His office is at Amritsar but be had received orders of transfer to Gurdaspur.
His wife was ill and, therefore, he could not move immediately.
So he applied for a few days leave, and on the morning of the 26th of May he went to the barrier to say goodbye to his colleagues in the Customs Department and while he was there this incident took place without his knowledge. .
Attar Singh 's explanation of his presence at the spot does not convince me at all.
" It appears that in course of the examination of the accused Attar Singh under section 342 of the Criminal 43 332 Procedure Code before the trial Magistrate a specific question was put to him as to whether he could explain his presence on the scene of occurrence on the 26th May, 1948, although it was alleged that he was on leave.
To this question he replied categorically that he was not present as alleged.
In this state of the records, we asked the learned Advocate General, who appeared for the State of East Punjab, as to when and how was the admission referred to above made by Attar Singh.
The Advocate General, answered that the admission might be in the written statement which Attar Singh said he would file when he was interrogated under section 342 of the Criminal Procedure Code.
In order to clear up the matter we had the further hearing of the case adjourned to enable the Advocate General to produce before us the written statement, if any, that was filed by Attar Singh in the trial court.
The case was again taken up for hearing on the 26th of November last and the Advocate General frankly stated to us that no written statement by Attar Singh 'was on the records at all.
It is clear, therefore, that both the courts below in coming to their decision regarding the guilt of the accused did rely to a considerable extent on the so called admission of Attar Singh which, it must be held, had no existence in fact.
The Advocate General contends that even if there was an error committed by the courts below in this respect, we should nevertheless dismiss the appeal inasmuch as there is sufficient evidence to support the conviction of the accused independently of the so called admission of Attar Singh; and he invited us to examine the evidence ourselves and come to our own decision on the point.
Without in any way disputing our right to adopt this course in cases where it may be considered necessary, we think that in the circumstances of the present case the proper order to make will be to direct a rehearing of the appeal by the Session& Court on the evidence as it actually stands after excluding from consideration the alleged Admission of Attar Singh.
There can be no doubt 333 that the supposed admission was of a very damaging character and was highly prejudicial to the accused.
It is quite,, problematic to value its effect upon the minds of the Judges in the courts below and it is difficult for us to say that had it been excluded from consideration the courts would have come to the same decision of guilt or that conversely a verdict of acquittal would have been a perverse one.
In such cases, the function of this court, which is not an ordinary court of criminal appeal, is not so much to weigh and appraise the evidence again to find out the guilt or innocence of the accused as to see that the accused gets a fair trial on proper evidence.
It has been argued by Mr. Achhru Ram, and in our opinion quite rightly, that if the case of Attar Singh is to be heard afresh, the same order should be made in the case of Darshan Singh as well.
Not only are the two cases closely interconnected, but so far as Darshan Singh is concerned the prosecution sought to establish his complicity.
in the affair primarily by adducing evidence to show that he was in the company of Attar Singh when both of them approached Kulraj, the officer in charge of the police station, and requested him to allow the truck to pass through.
The Additional Sessions Judge observed in his judgment that the only motive of Darshan Singh was to help his colleague, namely Attar Singh, who was about to leave the district.
It is necessary, therefore, that the case of Darshan Singh should also be reheard and the whole evidence against him reconsidered with a view to find out whether he is guilty or innocent.
The result, therefore, is that both the appeals are allowed.
The judgment of the High Court as well as that of the Additional Sessions Judge are set aside and the cases remitted to the Sessions Court in order that they may be heard afresh on the evidence on record in the light of the observations made above after excluding from consideration the supposed admission of Attar Singh., Pending the decision of the Session a Court, the accused would remain on bail 7 on the same terms as before.
Appeals allowed.
Agent for the appellant in Case No. 11: Naunit Lal.
Agent for the appellant in Case No. 12: A. D. Mathur.
Agent for the respondent and the intervener G. H. Rajadhyaksha.

summary/full:
Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which was passed by the Indian Legislature in 1946 empowered the Central Government by notified order to provide for regulating and prohibiting the production, supply and distribution of any essential commodity and trade and commerce therein; section 4 of the Act empowered the Central Government to delegate its powers under section 3 to the Provincial Government or any officer thereof.
The Governor of the Punjab to whom such powers had been delegated under section 4 passed the East Punjab Cotton Cloth and Yarn Control Order, 1947, which prohibited the export of cotton cloth and yarn to any country outside India except under a permit, and made export without permit an offence.
The validity of this order was questioned on the ground that the Governor had acted in excess of his powers in so far as lie prohibited export outside India without a permit: Held, (i) that, keeping the object of the Essential Supplies Act, 1946, in view and reading the words " trade and commerce " in a. 3 of the Act in the light of the context, these words could be interpreted as including the export of goods outside the Province including a neighbouring foreign State and the Governor in passing the impugned Order did not act in excess of the powers delegated to him; (ii)that as the Central Legislature was fully competent to legislate on exports and imports and making any provision relating thereto under the Government of India Act, 1935, it had power to make a law prohibiting export to a foreign State, even &part from the powers conferred on it by the India (Central Government and and Legislature) Act, 1946 (9 320 (iii) even taking the legislation to be purely on the provincial subjects of production, distribution and supply of goods, restriction of import as ancillary to production and supply of essential commodities would be quite within the scope and ambit of such legislation and in pith and substance the enactment would be one dealing exclusively with these provincial matters.
It is a cardinal rule of interpretation that the language used 'by the legislature is the true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself.