judgement:
ivil Appeal No. 4055 of 1987.
From the Judgment and Order dated 11.8.1987 of the Punjab and Haryana High Court in R.S.A. No. 2092 of 1987.
C.M. Nayar for the Appellants.
R.P. Agarwal and U.S. Prasad for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This appeal of the State of Punjab by special leave arises out of a suit filed by the respondent, Nachhat tar Singh.
The plaintiff respondent was serving the State Police as a constable when an incident took place on 17.2.1971, which led to the prosecution of the plaintiff along with the Head Constable Kahan Singh and the Sub Inspector Baldev Singh.
The charge made against the plaintiff was that he physically assaulted and detained one Gurdial Singh.
The accused were tried and Baldev Singh was acquitted.
So far the plaintiff and Kahan Singh were concerned, they were found guilty under section 325 read with section 34 of the Indian Penal Code and several other sections, and were sentenced to rigorous imprisonment for six months each.
The conviction was maintained up to the Supreme Court stage.
The Senior Superintendent of Police, Patiala, thereafter dismissed the plaintiff on 20.4.1976.
This order of dismiss al was challenged as illegal in the present suit which was instituted on 6.11.1982.
Besides taking several technical objections, the suit was defended on merits, as well as on the ground of limita tion.
From the judgment of the trial court it appears that only two questions were pressed by the parties, namely, whether the suit was barred by limitation and whether the order of dismissal was illegal on the ground that the plain tiff was not served with a show cause notice before the impugned order was passed.
Both the issues were decided by the learned 824 Subordinate Judge against the plaintiff and the suit was accordingly dismissed.
The plaintiff appealed against the decision.
It appears that before the Additional District Judge, who heard the appeal, it was contended on behalf of the plaintiff that the other accused constable Kahan Singh, who was also con victed with the plaintiff, had also filed a separate suit against his dismissal from service, which was decreed with an observation that it was open to the competent authorities to pass fresh order of punishment in accordance with law, but while no further punishment was awarded to Kahan Singh, the respondent 's service stands terminated.
A plea of dis crimination was taken on this basis which was accepted by the first appellate court and the suit was decreed.
On the question of limitation the court after a very brief discus sion in the judgment held that the impugned order of dis missal was void on the ground of arbitrariness and, there fore, the bar of limitation would not apply.
It was further observed that this decision would not preclude the authority to award a minor punishment, provided such a punishment has been awarded to the other police officials tried and con victed along with him.
The authority was also permitted to take a decision in regard to the pay and allowance for the period the plaintiff remained out of service because of his being in jail.
The defendant appellants filed a regular second appeal before the High Court against the decree of the first appellate court which was dismissed at the admission stage by merely saving: "HEARD.
DISMISSED" It has been contended on behalf of the appellants, and in our view correctly, that serious questions of law are in volved in this case and the High Court erred in dismissing the second appeal in limine.
It has been argued that Rule 16.2(2) of the Punjab Police Rules, 1934 mandatorily directs that a police officer judicially sentenced to rigorous imprisonment exceeding one month shall be dismissed, and this mandate of law cannot be ignored on the ground that in the case of another member of the police force a mistake was committed.
Besides, it has been asserted on oath before this Court and not denied by the respondent that the aforesaid Kahan Singh had to be re instated in service for a short time in pursuance of the decision in the suit as the order of his dismissal had been passed by an authority not compe tent in this regard, and that later he was again dismissed.
It has also been pointed out that another convicted consta ble Surinder Singh was given the 825 benefit of probation by the criminal court and his case, therefore, is distinguishable.
Even in the concluding por tion of the last paragraph of the judgment of the Additional District Judge, the possibility that "the other police officials convicted with him" (that is, the plaintiff) might have been later punished, is recognised.
It has been further urged on behalf of the appellants that the finding of the Additional District Judge on the question of limitation is patently illegal inasmuch as the judgment assumes that no law of limitation is applicable to suits where an order is impugned as being void.
The High Court should have examined the plaint for finding out the cause of action for the suit and then in that light deter mined the correct article of the Limitation Act applicable to the case.
Serious objection has been taken against the observations of the first appellate court permitting the competent authority to inflict only minor punishment on the plaintiff in certain conditions, and the direction about the payment of the salary and the other emoluments.
After heat ing the learned counsel for the parties, we agree with the appellants that the question involved in this suit should not have been lightly brushed aside by the High Court in the manner it has been done.
We, therefore, set aside the judg ment of the High Court and remit the case to it for fresh disposal in accordance with law.
It will be open to the appellants to file an application for admitting additional evidence in regard to the further orders passed against Kahan Singh subsequent to the civil court 's decree in his favour, and to argue before the High Court that the case of the present plaintiff is distinguishable.
The High Court should call for the records and decide the case finally at the motion stage itself as the case is an old one.
In the event of admission of fresh evidence, the High Court shall permit the plaintiff to file relevant rebutting evidence.
The operation of the decree of the first appellate court shall remain stayed till the final disposal of the second appeal by the High Court.
The appeal is accordingly allowed.
There will be no order as to costs.
T.N.A. Appeal allowed.

summary/full:
The respondent, a constable, convicted under sections 325/34 of the Indian Penal Code along with another co ac cused constable and dismissed from service, filed a suit challenging his dismissal, which was dismissed by the trial court holding that it was barred by limitation.
On appeal the First Appellate Court decreed his suit by holding that the respondent plaintiff was discriminated because his co accused was re instated in service pursuant to the decision in the suit filed by the co accused; his dismissal was void on the ground of arbitrariness, and the bar of limitation was not applicable.
The defendant appellant filed a regular second appeal against the aforesaid decree before the High Court which was dismissed in limine.
In the appeal to this Court it was contended on behalf of the appellant that the High Court erred in dismissing the second appeal in limine.
Allowing the appeal, this Court, HELD: 1.
Serious questions of law are involved in this case and they should not have been lightly brushed aside by the High Court in the manner it has been done.
Therefore the High Court erred in dismissing the second appeal in limine.
[824F; 825D] 2.
Rule 16.2 (2) of the Punjab Police Rules, 1934 manda torily directs that a police officer judicially sentenced to rigorous imprisonment exceeding one month shall be dis missed, and this mandate of law 823 cannot be ignored on the ground that in the case of another member of the police force a mistake was committed.
[824F] 3.
The appellant 's assertion that the respondent 's co accused who was .reinstated in service pursuant to the Court 's decision was subsequently dismissed has not been denied by the respondent.
The case is, therefore, remitted to the High Court for fresh disposal.
[824G; 825D]


judgement:
vl Appeal Nos. 17 and 18 of 1989.
From the Judgment and Order dated 3.10.1988 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos.
E/2 123 of 1987 C and E/2 124 of 1987 C in Order Nos. 738 and 739 of 1988 C, K. Parasaran, V. Balachandran and M.V. Madhava Rao for the Appellant.
Ashok H. Desai, Solicitor General, Ms. Indu Malhotra and P. Parmeshwaran for the Respondents.
These are two appeals under section 35 L of the (hereinafter referred to as 'the Act ') They arise out of the claim of M/s Rohit Pulp and Paper Mills Ltd. (hereinafter referred to as 'the assessee ') for partial exemption from excise duty in respect of the art paper and chromo paper manufactured by it.
The assessee is having a factory at Khadki in which different varieties of paper and paper boards are manufac tured.
The factory does not have a bamboo pulp plant.
It uses waste paper and cereal straw which are considered to be unconventional raw materials for the manufacture of paper and paper board.
The pulp used by the assessee contains more than 50% by weight of pulp made from these unconventional raw materials. 'Paper and paper board ' are goods falling under item 17(1) of the first schedule to the Act.
Two notifications were issued on 1st March, 1984 under rule 8(1) of the Cen tral Excises Rules, 1944 in respect of the above item.
The first of them, being notification No. 24 of 1984, restricted the excise duty on items falling under the aforesaid item in the manner following: 802 section No. Description Rate 1.
Printing and writing paper.
Ten per cent ad valorem paper plus one thousand rupees per metric tonnes.
All sorts of paper commonly Ten per cent ad valorem known as kraft paper (inclu plus one thousand three ding paper and paper boards hundred and eighty five of the type known as kraft rupees per metric tonne.
liner or corrugating medium) of a substance equal to or exceeding 65 grammes per sq. metre 3.
Paper board of the following Ten per cent ad valorem varieties, namely, pulp board plus one thousand eight duplex board and triplex board.
hundred and ten rupees per metric tonne.
Paper and paper boards, other Ten per cent ad valorem than those specified in S.Nos.
plus one thousand four 1 to 3. hundred and thirty rupees per metric tonne.
The second notification, notification No. 25 of 1984, is the one with which we are directly concerned here.
It pro vides for a concession in respect of paper and paper boards falling under item 17(1) of the Schedule, manufactured out of pulp containing not less than 50 per cent by weight of pulp made from materials (other than bamboo, hardwoods, softwoods, reeds or rags) and cleared on or after the 1st day of April in any financial year.
The concessional rates prescribed were as below: section No. Description Rate Conditions 1.
(i) Printing and wri Rs.450 per provided that the ting paper metric tonne total quantity of clearances, if any, of all vari (ii) All sorts of paper Rs.450 per eties of paper and commonly known as metric tonne paper boards in the kraft paper (inclu preceding financial ding paper & paper year, by or on be boards of the type half of a manufac known as kraft liners turer, from one or or corrugating medium) more factories, or of a substance equal to from a factory by or exceeding 65 grammes or on behalf of one per square metre.
or more manufactu rers did not exce ed 3,000 metric tonnes.
803 (iii) Others Rs.560 per metric tonne.
(i) Printing and writing Rs.730 per Provided that the writing paper metric tonne.
total quantity of clearances of all varieties of paper (ii) All sorts of papers Rs.730 per & paper boards in commonly known as metric tonne.
the preceding fin kraft paper (including ancial year, by or paper and paper boards on behalf of a ma of the type known as nufacture, from kraft liners or corru one or more facto gating medium) of a ries or from a substance equal to or factory by or on exceeding 65 grammes behalf of one or per square metre.
more manufacturers , exceedings 3,000 metric tonnes but did not exceed 7,500 metric ton nes.
(iii) Others Rs.900 per metric tonne.
(i) Printing and Rs.900 per Provided that the writing paper metric tonne.
total quantity of clearances of all (ii) All sorts of Rs.900 per varieties of paper paper common metric tonne.
& paper boards in ly known as the preceding fin Kraft paper & nancial year, by (including pa or on behalf of a per & paper manufacturer, from boards of the one or more facto type known as kraft ries or from a fa liners or corruga ctory or on behalf ting medium) of a of one or more substance equal to manufacturers, ex or exceeding 65 gram ceeding 7,500 met mes per square metre.
tric tonne but did not exceed 16,500 metric tonnes: (iii) Others Rs.1.120 per metric tonne.
804 4.
[This para, added by notification No. 92/84 dated 18.4.84 added another concessional rate where the clearances exceed ed 10,500 but did not exceed 24,000 metric tonnes on the same lines as above but this does not need to be set out here]" The grant of the above concessional rates were, however, subject to certain important conditions set out in the provisoes to the notification.
These provisoes read: "Provided that the factory does not have a plant attached thereto for making bamboo or wood pulp.
Provided further that the exemption contained in this notification shall not apply to cigarette tissue, glassing paper, grease proof paper, coated paper (including waxed paper) and paper of a substance not exceeding 25 grammes per square metre.
" Another notification No. 45 of 1985 dated 17.3.1985 has been relied upon in support of the contention of the Union of India and hence this may also be set out here.
It pre scribed rates on paper and paper board falling under item 17(1) in the following manner: section No. Description Rate 1.
Printing and writing paper (i) coated paper Ten percent ad valorem plus one thousand five hundred and five rupees per metric tonne.
(ii) of a substance not ex Ten percent ad valorem ceeding 25 grammes per plus one thousand five square metre hundred and five rupees per metric tonne.
(iii) Others Ten percent ad valorem plus one thousand five hundred and five rupees per metric tonne.
All sorts of paper com Ten percent ad valorem monly known as kraft plus one thousand five paper (including paper hundred and eighty five and paper boards of the rupees per metric type known as kraft liner tonne.
or corrugating medium) of a substance equal to or exceeding 65 grammes per square metre.
805 3.
Coated paper (including Ten percent ad valorem waxed paper) and paper of plus one thousand nine a substance not exceeding hundred and thirty 25 grammes per square rupees per metric metre (other than those tonne.
specified in Sl.
No.1) 4.
Glassine paper, cigarette Ten percent ad valorem tissue and grease proof plus one thousand nine paper.
hundred and thirty rupees per metric tonne 5.
Paper board of the follow Ten percent ad valorem ing varieties, namely, pulp plus one thousand eight board, duplex board and hundred and ten rupees triplex board.
per metric tonne.
Paper and boards, other Ten percent ad valorem than those specified in plus one thousand four Sl.
No.1 to 5.
hundred and thirty rupees per metric tonne The assessee seems initially to have paid excise duty on the goods manufactured by it in terms of notification No. 24/84 but later seems to have thought of claiming the con cessional rates prescribed by notification No. 25/84.
The company was manufacturing art paper and chromo paper.
It is common ground that these two types of paper fall under category "printing and writing paper".
It is also common ground that these two articles also fall under the descrip tion "coated paper" used in the second proviso.
Since coated paper is taken by the proviso out of the purview of the notification No. 25 of 1984, the Excise Department refused to permit the assessee to avail of this concession in re spect of its manufactured goods.
This treatment by the Excise Department has also been confirmed by the Central Excise and Gold Control Appellate Tribunal (CEGAT).
The Tribunal disposed of the matter very briefly.
It observed: 806 "37.
That brings us to the second question whether art paper and chromo paper were eligible for the exemption granted under notification No. 25 of 1984.
We have carefully consid ered arguments of the appellants.
We have perused the noti fication No. 24 of 1984 as amended and note that the second proviso excludes from the exemption, among others, coated paper (including waxed paper).
There is no denial that art paper and chromo paper are coated papers.
It may be correct that these are not, like other papers mentioned in second proviso, industrial varieties of papers and are writing and printing varieties.
All the same when the proviso, as it is worded, is clear there is no warrant for us to supply words to the proviso to the notification.
We, therefore, find against the appellants in this regard and hold that art and chromo paper would not be eligible for exemption under notification No. 25 of 1984." (emphasis added) The assessee is aggrieved by this order of the Tribunal and hence the present appeals.
Sri K. Parasaran, appearing for the appellant, raises an ingenious contention.
He urges that though the expression 'coated paper ' has generally a wide connotation and includes coated papers of all varieties, it should be given a re stricted meaning in the context in which it appears in the proviso.
It is submitted that in the paper business, paper is broadly of two varieties, "industrial paper" and "cultur al paper".
Paper used for printing or writing is treated as cultural paper.
On the other hand, industrial paper is paper which is used for various purposes which may be broadly described as industrial purposes, such as wrapping, packing sanitary use and the like.
It is submitted that though the notification intended to grant a concession.
to small facto ries manufacturing paper out of unconventional raw material.
it was decided to deny the concession to certain kinds of paper.
These exceptions have been set out in the proviso.
They are: (1) cigarette tissue, (2) glassing paper, (3)grease proof paper, (4) coated paper (including waxed paper), and (5) paper of substance not exceeding 25 gm.
per square metre in weight (which may be compendiously described as light paper).
It is argued that a common strain runs through all these five categories.
The first three varie ties, namely, cigarette tissue, glassing paper and grease proof paper admittedly fall under the category of industrial paper.
Likewise, paper of a substance not exceeding 25 gm.
per square metre in weight is invariably used for 807 industrial purposes and this is so found by the Tribunal.
The word 'coated paper ', it is urged, must be read in this context.
Since the other items set out in the proviso are items of industrial paper, it stands to reason that though 'coated paper ', in a wider sense, may include all categories of coated paper, the denial of concession by the proviso is to be restricted only to coated paper falling under the industrial variety.
In other words, it is submitted that the word 'coated paper ' should be interpreted by applying the principle of "Noscitur A Sociis" or on the analogy of the "Ejusdem generis" principle.
This contention, it is submit ted, is re inforced by two considerations.
The first is that the Government must have had some idea or principle in putting together the exceptions and there is no conveivable principle other than the one enunciated.
The second consid eration is the addition of the words used in parenthesis along with 'coated paper ' viz. "(including waxed paper)".
It is pointed out that waxed paper obviously means coated paper because waxed paper is nothing but paper coated with wax and would have anyhow been covered by the exception.
Neverthe less, it was considered necessary, it is said, to specifi cally include it in order to make it clear by this illustra tion that only industrial paper like waxed paper is taken out from the concession.
The words in parenthesis are, in other words, the words illustrative of the limitation to be read into the expression 'coated paper '.
It is finally argued that, even if the words of the proviso are capable of being construed in a wider manner so as to deny exemption to all kinds of coated paper, the Court should apply the well established principle of construction of taxing statutes that an ambiguous provision should be interpreted in favour of the subject.
On the other hand, the learned Solicitor General submits that if there are two possible views of the proviso, the Court should not interfere with the conclusion reached by the Tribunal which reflects one of two possible and plausi ble views.
On the interpretation of the proviso, the Solici tor General submits that there is no principle of interpre tation by which the plain and natural meaning of the word 'coated paper ' can be abridged nor, he says, is there any thing in the context to warrant such a limitation.
He re futes the suggestion that, in commercial parlance, there is a clear cut distinction between industrial and cultural paper.
He does not agree that light paper can only be indus trial paper and refers to the terms of the 1985 notification in support.
He points out that if coated paper meant only industrial paper, as contended for by the assessee, the expression in parenthesis was totally unnecessary.
He submits that there is a distinction between coated paper and impregnated paper.
As waxed paper could fall under 808 either of these categories, there was a possibility of some one contending that paper impregnated with wax is not 'coated paper '; that is why it became necessary to add the parenthesis to clarify that both kinds will be 'coated paper ' for the purposes of the proviso.
He submits for these reasons that the view taken by the Tribunal was the correct one and that the appeals should be dismissed.
We have considered the contentions urged on both sides and we have come to the conclusion that there is force in the appellant 's contentions.
All the three notifications we have extracted above draw a distinction between printing and writing paper on the one hand and other types of paper on the other.
They also show that the duty on printing and writing paper is generally less than that on the other varieties of paper.
Though paper can be classified into various varieties, it does appear that one such classifica tion is between industrial paper and cultural paper.
"The Dictionary of Paper" published by the American Paper and Pulp Association (Second Edition) contains the following definition: Industrial Papers A very general term which is used for to indicate papers manufactured for industrial uses as opposed to those for cultural purposes.
Thus, building papers, insulative papers, matching paper etc. would be considered industrial papers whereas writing and printing papers would be cultural papers.
Now the proviso denies the concession extended by notifica tion No. 25/84 to certain types of papers.
It is true that no meticulous reasons can always be made available or dis covered for variations in rates of duty as between various types of goods and the absence of some common thread in relation to a set of goods treated alike may not necessarily render the classification irrational or arbitrary.
But, at the same time, one can legitimately postulate that the denial of a concession to a group proceeds on the basis of some aspect or feature common to all items in the group.
If such a principle can be conceived of which would rationalise the inclusion of all the items, it would be quite reasonable and proper to give effect to a construction of the notifica tion as will accord with that principle.
It is this which the appellant has attempted to do and we are reclined to think that the ratiocination of the exceptions suggested, far from being artificial or far fetched, is a plausible and likely one that the Government could have had in mind and that it should be accepted.
809 As mentioned earlier, the concession of the notification is denied to five kinds of paper.
Three of them, undoubtedly and indisputably, are varieties of industrial paper.
This is indeed common ground and it has also been supported by reference to the definitions in the Dictionary of Paper and elsewhere which it is unnecessary to set out here.
The fourth is what we have referred to as 'light paper ' not exceeding a particular weight.
On behalf of the assessee, it is contended that this is also only industrial paper.
In support of this contention, reference is invited to the tables appended to the Dictionary of Paper which indicate that there cannot be printing and writing paper of weight less than 26 gms per sq.
metre.
It is also pointed out that the Tribunal has also given a finding to this effect in para 37 of its order.
The learned Solicitor General, on the other hand, points out that section No. 1 (ii) of the 1985 notification itself clearly shows that there can be "printing and writing paper of a substance not exceeding 25 gramms per sq. metre".
On behalf of the assessee, on instructions, it is submitted that this classification proceeds on a totally unreal basis and that there is no such printing and writing paper in existence.
We cannot, however, assume that the 1985 notifi cation proceeds on an erroneous basis.
1t is sufficient for our purposes to take it, on the basis of the record in this case, that light paper is, by and large, industrial paper without altogether excluding all possibility that it is used occasionally for cultural purposes also.
The classification set out in the 1985 notifications also lends some support to the contentions urged.
The five varieties of paper we are concerned with are found in serial Nos. 3 and 4 of this notification and serial Nos. 1 and 3 reflect a contrast between coated paper and light paper used for cultural purposes (item No. 1) and that used for other (industrial) purposes (item No. 4).
On this basis, then, it is clear that tour out of the five varieties of paper which are denied the benefit of the concession seem to constitute industrial paper.
In fact even if, as urged for the Union of India, only three of ' these items are of the industrial variety while the other two could be either, it will not still be unreasonable (though, may be, a little less plausible) to draw an inference that only industrial paper failing in those two categories are intended to be comprehended in the classification rather than assume, for no detectable reason, that all paper of these two varieties alone are excluded from the concession.
We think, therefore, that the appel lants are on firm ground in submitting that the expression 'coated paper ' in the proviso should draw colour from the context in which it is employed and receive an interpreta tion consistent therewith than its literal one, which in its widest sense, may be comprehensive enough to include all coated paper, industrial or otherwise.
810 The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established.
In the context with which we are concerned, we can legitimately draw upon the "nosci tur a sociis" principle.
This expression simply means that "the meaning of a word is to be judged by the company it keeps.
" Gajendragadkar, J. explained the scope of the rule in State vs Hospital Mazdoor Sabha, ; in the following words: "This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense.
They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general.
The same rule is thus inter preted in "Words and Phrases" (Vo.
XIV, p. 207): "Associated words take their meaning from one another under the doctrine of nosciture a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim Ejusdem Generis.
" In fact the letter maxim "is only an illustration or specific application of the broader maxim noscitur a sociis".
The argument is that certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider.
We are not impressed by this argument.
It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider.
It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied.
It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construc tion in question cannot be pressed into service.
" 811 This principle has been applied in a number of contexts in judicial decisions where the Court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used.
The cases are too numerous to need discussion here.
It should be sufficient to refer to one of them by way of illustration.
In Rainbow Steels Ltd. vs C.S.T., ; this Court had to understand the meaning of the word 'old ' in the context of an entry in a taxing tariff which read thus: "Old, discarded, unserviceable or absolute machinery, stores or vehicles including waste products . . " Though the tariff item started with the use of the wide word 'old ', the Court came to the conclusion that "in order to fall within the expression 'old machinery ' occurring in the entry, the machinery must be old machinery in the sense that it has become non functional or nonusable".
In other words, not the mere age of the machinery, which would be relevant in the wider sense, but the condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of the statute.
The maxim of noscitur a sociis has been described by Diplock, C.J. as a "treacherous one unless one knows "the socictas to which the socii belong" (vide: Letang vs Coopex, ; The learned Solicitor General also warns that one should not be carried away by labels and Latin maxims when the word to be interpreted is clear and has a wide meaning.
We entirely agree that these maxims and prece dents are not to be mechanically applied; they are of as sistance only in so far as they furnish guidance by compen diously summing up principles based on rules of common sense and logic.
As explained in Collector of Central Excise vs Parle Exports (P) Ltd.; , at p. 357 and Tata Oil Mills Co. Ltd. vs
C.C.E.; , at p. 545 6 in interpreting the scope of any notification, the Court has first to keep in mind the object and purpose of the notifi cation.
All parts of it should be read harmoniously in aid of, and not in derogation, of that purpose.
In this case, the aim and object of the notification is to grant a conces sion to small scale factories which manufacture paper with unconventional raw materials.
The question naturally arises: Could there have been any particular object intended to be achieved by introducing the exceptions set out in the provi so? Instead of proceeding on the premise that it is not necessary to look for any reason in a taxing statute, it is necessary to have a closer look at the wording of the provi so.
If the proviso had referred only to 'coated paper ', no special object or 812 purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exempting only 'coated paper ' manufactured by these factories from the purview of the exemption.
But the notifi cation excepts not one but a group of items.
If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again, it may be permissible to give the exceptions their widest latitude.
But when tour of them undoubtedly, at least three of them can be brought under an intelligible classification and it is also conceivable that the Govern ment might well have thought that these small scale facto ries should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes, there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification.
In our view, the only reason .
able way of interpreting the proviso is by understanding the words 'coated paper ' in a narrower sense consistent with the other expressions used therein.
In the view we have taken it is unnecessary to consider the other contentions urged before us: (i) whether the words "(including waxed paper)" are words indicative of the limi tation sought to be placed on the words "coated paper" or they are only intended to make it clear that even paper impregnated with wax will not be entitled to exemption; and (ii) whether, if the notification is capable of two equally plausible interpretations, the one in favour of the subject should be upheld or the one taken by the Tribunal should be confirmed.
For the reasons discussed above, we accept the appel lant 's submission that 'coated paper ' in the second proviso refers,only to coated paper used for industrial purposes and not to coated varieties of printing and writing paper.
The Tribunal 's order is set aside and the appellant held enti tled to the concessional rates specified in notification No. 25184.
The appeals are allowed.
But we make no order as to costs.

dataset_name: IN-Abs

summary/full:
Notifications No. 24 and 25 of 1984 under rule (1) of the Central Excise Rules, were issued on 1.3.1984 in respect of paper and paper board falling under item 17(1) of the first schedule to the .
While notification No. 24 of 1984 restricted the excise duty on certain items, notification No. 25 of 1984 provided for a concession in respect of paper and paper boards manufactured out of pulp containing not less than 50 per cent by weight of pulp made from materials (other than bamboo, hardwoods, softwoods, reeds or rags) and cleared on or after the 1st day of April in any financial year, subject to certain important conditions set out in the provisoes to the notifi cation.
Under the provisoes, the concessional rates were applicable only if the factory did not have plant attached to it for making bamboo, wood pulp and the exemption would not apply to cigarette tissue, glassing paper, grease proof paper, coated paper (including waxed paper) and paper of a substance not exceeding 25 grammes per square metre.
Another notification No. 45 of 1985 dated 17.3.1985 was also issued prescribing rates on paper and paper board failing under the aforesaid item including coated paper.
The appellant assessee had a factory in which different varieties of paper and paper board were being manufactured, using waste paper and cereal straw containing more than 50 per cent by weight of pulp made from the unconventional raw materials.
The factory did not have a bamboo pulp plant.
The assessee was manufacturing art paper and chromo paper.
These two types of paper generally fell under catego ry of printing and writing paper.
These two articles also fell under the description coated 798 paper used in the second proviso to the notification No. 25 of 1984.
The appellant initially paid excise duty on the goods manufactured by it in terms of notification No. 24 of 1984, but later claimed concessional rates prescribed by notification No. 25 of 1984.
Since coated paper was taken out of the purview of notification No. 25 of 1984, by the proviso, the Excise Department refused to permit the asses see to avail of this concession in respect of its manufac tured goods.
This was confirmed by the Central Excise and Gold Control Appellate Tribunal.
In the appeal before this Court, on behalf of the appel lantassessee it was contended that though the expression 'coated paper ' had generally a wide connotation and included coated papers of all varieties, it should be given a re stricted meaning in the context in which it appeared in the proviso, that in the paper business, paper was broadly two varieties, "industrial paper" and "cultural paper", that while paper used for printing or writing was treated as cultural paper that used for various purposes, broadly described as industrial purposes, such as wrapping, packing, sanitary use and the like, was industrial paper, that since a common strain ran through all the five categories men tioned in the proviso, inasmuch the first three varieties, admittedly fell under the category of industrial paper and the last one was invariably used for industrial purposes, and so found by the Tribunal, the word 'coated paper ', must be read in that context, and should be interpreted by apply ing the principle of "Noscitur A Sociis" or on the analogy of the "Ejusdem generis" principle and that even if the words of the proviso were capable of being construed in a wider manner so as to deny exemption to all kinds of coated paper, the Court should apply the well established principle of construction of taxing statutes that an ambiguous provi sion should be interpreted in favour of the subject.
On behalf of the respondent it was contended that there was no principle of interpretation by which the plain and natural meaning of the word 'coated paper ' could be abridged nor was there anything in the context to warrant such a limitation, that there was no 'clear cut distinction between industrial and cultural paper, and that it could not be said that light paper could only be industrial paper.
Allowing the appeals, this Court, HELD: 1. 'Coated paper ' in the second proviso to notifi cation No. 25 of 1984 refers only to coated paper used for industrial purposes and not to coated varieties of printing and writing paper.
The 799 appellant is, therefore, entitled to concessional rates specified in the notification.
[812F G] 2.1 The expression 'coated paper ' in the proviso should draw colour from the context in which it is employed and receive an interpretation consistent therewith than its literal one, which in its widest sense, may be comprehensive enough to include all coated paper, industrial or otherwise, [809G H] 2.2 The concession of the notification is denied to five kinds of paper.
Three of them are varieties of industrial paper.
The fourth is light paper, not exceeding a particular weight.
Light paper is by and large industrial paper and is also used occasionally for cultural purposes also.
The five varieties of paper are found in serial Nos. 3 and 4 of the 1985 notification and serial Nos. 1 and 3, reflect a con trast between coated paper and light paper used for cultural purposes (item No. 1) and that used for other (industrial) purposes (item No. 3).
On this basis, it is clear that four out of the five varieties of paper which are denied the benefit of the concession constitute industrial paper.
In fact, even if, only three of these items are of the indus trial variety, while the other two could be either, it will not still be unreasonably (though may be, a little less plausible) to draw an inference that only industrial paper falling in those two categories are intended to be compre hended in the classification rather than assume, for no detectable reason, that all paper of these two varieties alone are excluded from the concession, [809E G] 2.3 Though no meticulous reasons can always be made available or discovered for variations in rates of duty as between various types of goods and the absence of some common thread ' in relation to a set of goods treated alike may not necessarily render the classification irrational or arbitrary, it can legitimately be postulated that the denial of a concession to a group proceeds on the basis of some aspect or feature common to all items in the group.
If such a principle can be conceived of which would rationalise the inclusion of all the items, it would be quite reasonable and proper to give effect to a construction of the notification as will accord with that principle.
[808F G] 2.4 In interpreting the scope of any notification, the Court has first to keep in mind the object and purpose of the notification.
All parts of it should be read harmonious ly in aid of, and not in derogation, of that purpose.
[811F] 800 Collector of Central Excise vs Parle Exports (P) Ltd., ; and Tata Oil Mills Co. Ltd. vs
C.C.E.; , , referred to.
In the instant case, the aim and object of the notifica tion is to grant a concession to small scale factories which manufacture paper with unconventional raw materials.
If the proviso had referred only to coated paper no special object or purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exempting only coated paper manufactured by these factories from the purview of the exemption.
But the notifi cation excepts not one but a group of items.
If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them, again, it may be permissible to give the exceptions their widest latitude.
But when four of them undoubtedly, at least three of them can be brought under an intelligible classifi cation and it is also conceivable that the Government might well have thought that these small scale factories should not be eligible for the concession contemplated by the notification where they manufacture paper catering to indus trial purposes, there is a purpose in the limitation pre scribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification.
[811H; 812A C] The only reasonable way of interpreting the proviso is by understanding the words 'coated paper ' in a narrower sense consistent with the other expressions used therein.
[812D] 3.
The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established.
The expression noscitur a sociis simply means that the meaning of a word is to be judged by the company it keeps [810A B] In the context of the instant case, this principle can be legitimately drawn upon.
However, the latin maxims and precedents are not to be mechanically applied; they are of assistance only in so far as they furnish guidance by com pendiously summing up principles based on rules of common sense and logic.
[811E F] State vs Hospital Mazdoor Sabha, ; ; Rainbow steels Ltd. vs
C.S.T.; , and Lethang vs Coopex, ; , referred to. 801 "The Dictionary of Paper" published by the American Paper and Pulp Association (Second Edition), referred to.


judgement:
ON: Civil Appeal Nos.
2076 2078 of 1990.
From the Judgment and Orders dated 25.8.
1989, 10.11.1989 & 5.9.
1989 of the Bombay High Court in W.A. Nos.
2198, 3377 and 2197 of 1989.
D.N. Dwivedi and Sarva Mitter for the Appellants.
Arun Jetley, Additional Solicitor General, Raian Karan jawala, H.S. Anand, Nandini Gore, Ravi Kumar, M. Karanjawa la, V,N. Patil and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by 828 RANGANATH MISRA, J.
Special leave granted.
Three applications were filed under Article 226 of the Constitution before the High Court of Bombay by the respec tive appellants before us challenging the rejection of their highest offers in response to invitation by public tender without assigning any reason for the same as arbitrary, unconstitutional and contrary to rule of law.
The respondent a Government company within the meaning of section 617 of the Companies Act has been constituted as the New Town Development Authority under sub section
(3A) of section 113 of the Maharashtra Regional Town Planning Act, 1966.
The respondent is empowered to dispose of land vested in it and the respondent has formulated with the approval of the State Government under section 159 of the said Act a code for regulat ing, inter alia disposal of land.
Regulation 4 provides: "The Corporation may dispose of plots of lands by putting to auction or considering the individual applications as the Corporation determines from time to time." According to the appellants the normal practice adopted by the Corporation is to invite tenders for the disposal of specified plots which the Corporation chooses to assign according to the terms and conditions for lease of plots for mercantile use.
The appellants maintained that they had given the highest offers by way of tender for certain speci fied plots by complying with the requirements of deposit and claim that though the offers were the highest, yet the same have not been accepted.
Each of the appellants was before the High Court challenging the action of respondent No. 1 but the writ petitions were dismissed in limine by saying that there was no arbitrariness in the respondent No. 1 trying to get proper price for its plots.
It is not disputed that the scheme which is operating provides that "respondent No. 1 reserves the fight to amend, revoke or modify the scheme at its discretion as well as to reject any or all offers for allotment without assigning any reason.
" Obviously it is in exercise of this power that the highest tenders have not been accepted.
It is the contention of Mr. Dwivedi appearing in support of these appeals that the respondent is 'State ' under Arti cle 12 of the Constitution and conferment of naked and unguided power as referred to above is arbitrary and con trary to the provisions of Article 14 of the Constitution; and since there is no prescribed norm or guideline and he power is unregulated and unfettered and the highest offer after complying with the prescribed requirements is avail able to be rejected 829 without assigning any reasons, citizens are likely to be affected by exercise of such uncanalised power.
Shortly put, Mr. Dwivedi submits that the procedure is contrary to the requirement of rule of law and therefore, cannot be sus tained.
An affidavit in opposition has been filed on behalf of respondent No. 1 wherein the circumstances under which the highest offers have not been accepted has been indicated and the position has been explained.
We do not find it difficult to agree with Mr. Dwivedi 's submissions that respondent No. 1 is 'State ' within the meaning of article 12 and in its dealings with the citizens of India it would be required to act within the ambit of rule of law and would not be permitted to conduct its activities arbitrarily.
It is too late in the day for an institution like respondent No. 1 to adopt the posture that the activity in question is commercial and as respondent No. 1 is engaged in trading activity it would be open to it to act as it considers appropriate for the purpose of protecting its business interest.
An instrumentality of the State as has been laid down by this Court in a series of authoritative decisions beginning with R.D. Shetty vs International Air port Authority of India & Ors., and in Ajay Hasia vs Khalid Mujib Sehravardi, ; and a number of decisions thereafter has to act within the ambit of rule of law and would not be allowed to conduct itself arbitrarily and in its dealings with the public would be liable to judicial review.
The State is certainly entitled to look for the best deal in regard to its properties.
This has been accepted by several decisions of this Court with reference to State action under the Excise Laws.
There is no allegation of mala fides in the conduct of respondent No. 1 in refusing to accept the highest offer.
We must, therefore, proceed on the footing that respondent No. 1 acted bona fide and in refus ing to accept the highest offers of the appellants in regard to specific plots has been actuated by the consideration of looking for better offers for the specific plots in the economic interest of respondent No. 1.
The question which still remains to be answered is as to whether when the highest offer in response to an invitation is rejected would not the public authority be required to provide reasons for such action? Mr. Dwivedi has not asked us to look for a reasoned decision but has submitted that it is in the interest of the public authority itself, the State and every one in the society at large that reasons for State action are placed on record and are even communicated to the persons from whom the offers came so that the dealings remain above board; the interest of the public authority is adequately protected and a citizen knows where he stands with reference to his offer.
What this Court 830 said in State of U.P.v.
Raj Narain & Ors., ; may be usefully recalled here: "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets.
The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public trans action in all its bearing.
The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.
To cover with veil of secrecy, the common routine business, is not in the interest of the public.
" In recent times, judicial review of administrative action has become expansive and is becoming wider day by day.
The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded.
State activi ty too is becoming fast pervasive.
As the State has descend ed into the commercial field and giant public sector under takings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers.
That very often involves long stakes and availability of reasons for action on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability.
Looking for reasons in support of such action provides an opportuni ty for an objective review in appropriate cases both by the administrative superior and by the judicial process.
The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the con cerned parties unless there be any specific justification not to do so.
We do not intend.
to go into matters any further in as much as we do not propose to apply this test to the present appeals.
These appeals fail but we make no order as to costs.
P.S.S. Appeals dismissed.

summary/full:
The appellants had given the highest offers for certain specified plots for lease in response to invitation by public tender by the respondent Corporation a Government Company, and complied with the requirements of deposit.
The respondent, however, rejected the said offers without as signing any reason.
The appellants challenged the action of the respondent before the High Court as arbitrary, unconstitutional and contrary to rule of law.
The High Court, dismissed the writ petitions in limine.
In these appeals by special leave, it was contended for the appellants that the respondent Corporation was a 'State ' under Article 12 of the Constitution, that the power of rejection of offers without assigning any reason was unregu lated and unfettered, contrary to the requirement of rule of law, and that it was in the interest of the public authority itself, the State and everyone in the society at large that reasons for State action are placed on record and or even communicated to the persons from whom the offers came.
827 Dismissing the appeals, the Court, HELD: 1.
The respondent No. 1 was 'State ' within the meaning of Article 12 of the Constitution and in its deal ings with the citizens of India, it would be required to act within the ambit of rule of law and would not be permitted to conduct its activities arbitrarily.
[829B C] R.D. Shetty vs International Airport Authority of India Sehravardi; , , referred to. 2.
The State is certainly entitled to look for the best deal in regard to its properties.
In the instant case, there was no allegation of mala fides in the conduct of respondent No. 1 in refusing to accept the highest offers.
It could, therefore, be presumed that in so doing the respondent had been actuated by the consideration of looking for better offers for the specific plots in its economic interest.
There was thus no arbitrariness in respondent trying to get proper price for its plots.
[829E F, 828E F] 3.
When highest offers of commercial nature are rejected reasons sufficient to indicate the stand of the public authority should be made available and the same should be communicated to the concerned parties unless there be any specific justification not to do so.
That would assure credibility to the action, discipline public conduct and improve the culture of accountability and provide an oppor tunity for an objective review in appropriate cases both by the administrative superior and by the judicial process.
[830F G, E F] State of U.P. vs Raj Narain & Ors., ; , re ferred to.


judgement:
Appeal No. 410 of 1958.
Appeal by special leave from the judgment and order dated July 31, 1958, of the Judicial Commissioner 's Court, Himachal Pradesh at Simla in Civil Misc.
First Appeal No. 2 of 1958.
K.L. Misra, Advocate General for the State of U. P. and section section Shukla, for the appellant.
Achhru Ram and Ganpat Rai for respodent No. 1. 1958.
October 17.
The Judgment of the Court was delivered by SARKAR, J.
This appeal arises out of an election petition filed by the respondent No. 1, Hira Singh Paul, whom we shall hereinafter refer to as the respondent.
The other respondent to this appeal is the Election Commission, but it has not appeared presumably because it is not interested in the result of the appeal which involves no claim against it.
The only question that it involves is whether the appellant was guilty of a corrupt practice, the details of which will be set out later, within the meaning of section 123(7) of the Representation of the People Act, 1951.
In the 1957 General Elections, ten candidates filed their nomination papers to contest the election from the Mahasu double member constituency in Himachal Pradesh.
One of the two seats for this constituency 215 was reserved for a scheduled caste candidate.
Two of the candidates withdrew from the contest and the remaining eight went to the poll.
These eight included the appellant, the respondent and one Nek Ram.
Nek Ram was declared elected to the reserved seat and the appellant to the general seat.
The respondent polled the next largest number of votes to the appellant.
After the results had been declared the respondent filed the election petition on August 3, 1957, challenging the validity of the election of the appellant on the ground that he had committed various corrupt practices.
The Election Tribunal framed 18 issues in respect of the various corrupt practices alleged in the petition but answered all the issues excepting issues Nos.
8(1), 8(ii) and 11 against the respondent.
Issue No. 8(1) raised the question whether one Amar Singh, said to be a member of the armed forces of the Union of India, worked and canvassed for the appellant.
Issue No. 8(ii) was whether Amar Singh was appointed his polling agent by the appellant.
Issue No. 11 was in the following terms: In case one or more of Issues Nos.
(8) to 10 is or are decided in the affirmative, whether the respondent No. 1 obtained, procured or abetted or attempted to obtain, procure by himself, by his agents and by his supporters the assistance of the Government servants as specified under the said issues for the furtherance of the prospects of his election ? The Tribunal found against the appellant on Issues Nos.
8(1), 8(ii) and 11 and thereupon declared his election void.
The appellant then went up in appeal to the judicial Commissioner, Himachal Pradesh, who by his judgment dated July 31, 1958, set aside the finding of the Tribunal on Issue No. 8(1) but maintained its findings on the other two issues and confirmed the declaration that the appellant 's election was void.
The appellant has come up to this Court by special leave in appeal against that judgment.
As will have been seen from what has been earlier stated the only questions 216 that survive are those raised by Issues Nos. 8(ii) and 1 1.
The facts are not now in dispute and may be stated as follows: The constituency was divided into 606 polling stations and for each polling station three polling agents could be appointed.
The appellant was thus entitled to appoint 1818 polling agents.
On April 28, 1957, he signed a very large number of the forms prescribed by the rules framed under the Act for appointing polling agents, in blank and without 'setting out therein the name of any polling agent, as he had not then been able to make up his mind in view of the large number of polling stations as to who would be his polling agents at the various polling stations.
He made over these forms to Kalyan Singh, who passed on three of them to Kashmira Singh having inserted therein the words " polling station No. 13, Sheopur ".
Kashmira Singh filled in the name of Amar Singh as the polling agent in one of these forms on May 25, 1957, the day of polling, and made it over to the latter to enable him to act as the appellant 's polling agent at polling station No. 13, Sheopur.
Amar Singh then duly signed the form as required by the rules and filed it with the presiding officer at polling station No. 13, Sheopur, and on the strength of it, acted as the polling agent of the appellant at that station for about two hours when objection having been taken to him on the ground that he was a member of the armed forces, he withdrew and left the polling station.
Amar Singh was on the polling day in fact a member of the armed forces, though this was not then known to the appellant.
Kalyan Singh and Kashmira Singh acted in all that they did, under the authority of the appellant.
These facts may be taken to have been established on the evidence adduced.
The learned Advocate General of Uttar Pradesh who appeared for the appellant, first sought to contend that Amar Singh had not really been appointed the appellant 's polling agent.
He said that under section 46 of the Act a polling agent can be appointed only by the candidate himself or by his election agent and Amar Singh could not on the facts found, for reasons to 217 be stated presently, be said to have been appointed a polling agent either by the appellant or his election agent.
Therefore, according to him, Amar Singh had not been appointed the appellant 's polling agent at all and hence the charge of corrupt practice against him for having so appointed Amar Singh must fail.
First, it seems to us that this argument is not open to the learned Advocate General.
He himself appeared for the appellant before the learned Judicial Commissioner and there conceded that the factum or the validity of the appointment of Amar Singh as the appellant 's polling agent could not be questioned by him.
We do not think that we should permit the appellant to withdraw a concession expressly made by his counsel in the Court below in a matter of this kind.
This is all the more so as the present argument does not seem to have been raised when the matter was before the Tribunal, either.
Secondly, it seems to us that the contention is without substance.
We will assume that the learned Advocate General is right in his contention that under the Act a polling agent can be appointed only by the candidate himself or by his election agent and not by the candidate acting through any other agent.
The learned Advocate General 's contention is that on the facts found, the only possible conclusion is that Amar Singh had not been appointed polling agent by the appellant himself but by one or other of his agents, namely, Kalyan Singh or Kashmira Singh and as none of them was his election agent, the appointment was invalid.
It is not in dispute that neither Kalyan Singh nor Kashmira Singh was his election agent.
In fact it appears that the appellant had no election agent at all.
In our view, however, this does not matter as the present is not the case of an appointment by any agent but by the appellant himself.
We have come to this view because here, the appointment was made by the document signed per sonally by the appellant.
The fact that the name of the polling agent was written in the document by another person after the appellant had signed it, does not make the appointment of the polling agent under 28 218 that document an appointment by some other person acting as the agent of the appellant.
On the language of the document and the appointment was not purported to have been made in any other.
way than by the document it was an appointment made by the appellant himself.
The other person only wrote the name in the document which he had authority to do.
He did not purport to make any appointment at all.
It is impossible to read the document as the making of the appointment by an agent of the appellant acting for him.
The true view of the matter plainly is that the appellant himself appointed by the document as his polling agent, a person whose name had been written therein by another with his authority.
We, therefore, hold that Amar Singh had been appointed his polling agent by the appellant himself.
It was thus even on the learned Advocate General 's construction of section 46, a proper appointment.
We then come to this that the appellant appointed Amar Singh, a member of the armed forces, his polling agent and the latter acted as such.
The question is, Did this amount to a corrupt practice by the appellant ? The respondent 's contention which has been accepted by the Courts below, is that it is a corrupt practice within section 123(7) of the Act.
That provision so far as is relevant and the explanation to it, are in these terms.
Section 123.
The following shall be deemed to be corrupt practices for the purposes of this Act : (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate 's election, from any person in the service of the Government and belonging to any of the following classes, namely : (c) members of the armed forces of the Union; Explanation. (1) (2) For the purposes of clause (7), a person shall be 219 deemed to assist in the furtherance of the prospects of a candidate 's election if he acts as an election agent, or a polling agent or a counting agent of that candidate.
" The learned Advocate General contends that the procuring or obtaining by a candidate of any assistance for the furtherance of the prospects of his election from a person in the service of the Government as a member of the armed forces, would not amount to a corrupt practice unless that candidate knew that the person was in such Government service.
He says that the words 'procuring orobtaining ' import such knowledge and that this view of the matter receives great strength from the word I for ' in the phrase " for the furtherance of the prospects of that candidate 's election ".
According to him, without such knowledge the candidate cannot be said to have procured or obtained any assistance, for no one can obtain or procure a thing unless he knows that he is doing so.
He then points out that there is evidence that neither the appellant nor Kalyan Singh nor even Kashmira Singh knew that Amar Singh was a member of the armed forces.
He, therefore, says that the appellant cannot in the absence of such knowledge be said to have procured or obtained the assistance of a member of the armed forces for furthering the prospects of his election.
,It is true that neither the appellant nor Kalyan Singh, nor even Kashmira Singh knew at the date of the appointment of Amar Singh that he was a member of the armed forces but the point now raised by the learned Advocate General is, in our view, none the less unsustainable.
It overlooks the provisions of the second explanation to the section which we have already set out.
Under that explanation if a person acts as the polling agent of a candidate it must be held without more, that, he assisted in furtherance of the prospects of that candidate 's election.
In the present case therefore it has to be held that Amar Singh who acted as the appellant 's polling agent, thereby assisted in the furtherance of the prospect. , of his election.
Now under the provisions of the Act, no one can act as the polling agent of a candidate unless he has been appointed as such and we have already held that the appellant 220 himself had appointed Amar Singh as his polling agent.
It follows in view of the explanation that the appellant procured and obtained the assistance of Amar Singh for the furtherance of the prospects of his election.
All the requirements of the section are thus satisfied and the appellant must therefore be held to have committed the corrupt practice thereby constituted.
All that the section requires is that assistance shall be procured for furthering the election.
Where the explanation applies as it does in the present case, if a candidate has appointed a person to act as his polling agent and he accordingly does so act, a statutory presumption arises that the candidate thereby procured that person 's assistance in furtherance of the prospects of his election, and this irrespective of whether he intended to procure such assistance or not.
Indeed, as Mr. Achhru Ram appearing for the respondent pointed out, the explanation clearly shows that the candidate 's intention is irrelevant, for, such presumption arises even when a candidate has procured another person to act as his counting agent and it is very difficult to imagine that the appointment of a counting agent can further the prospects of any election, for the counting agent acts after the polling is over and only when the votes already polled, are counted.
Therefore it seems to us that in the case of the appointment of a polling agent which comes within the explanation as the present case does, the intention of the candidate in procuring the assistance is irrelevant.
If that is so, it is clear that the knowledge of the candidate whether the person, whose service as his polling agent he has procured, is a member of the armed forces or any of the other specified class of Government servants or not, is equally irrelevant.
We think therefore that the learned Advocate General 's contention must fail.
What we have said just now also disposes of the other argument of the learned Advocate General, namely, that a corrupt practice is in the nature of a criminal act and cannot therefore be established unless mens rea, or criminal intention, is established, and that the appellant cannot be said to have committed 221 a corrupt practice for he had no mens rea in appointing Amar Singh his polling agent since he did not know that Amar Singh was a member of the armed forces.
On this point we were referred to certain passages from English text books on election law of which it will be enough to refer to one, for all state the law in substantially the same terms.
In Schofield 's Parliamentary Elections, 2nd Edn. which is one of the text books to which we were referred, it is stated at p. 402: There is an elementary distinction between a corrupt and an illegal practice.
To establish the former it is essential to show that a corrupt intention is present.
A corrupt practice is a thing the mind goes along with, whereas an illegal practice is a thing the legislature is determined to prevent, whether it is done honestly or dishonestly.
The view thus formulated is founded on the English law of election and is clearly of no assistance to us.
It is based on particular English statutes and the language employed therein.
We have already shown that our statute in the case at least of a corrupt practice of the kind in hand does not concern itself with any question of intention.
Mr. Achhru Ram with his usual industry made available to us the English statutes on which the statement of law set out in the text books referred to by counsel for the appellant had been based and pointed out that under these statutes the acts therein made corrupt practices had to be done corruptly and that corrupt practices were always made offences punishable as crimes.
It may be of use here to point out that the relevant provisions in our statute were amended in 1956 and that has done away with the distinction between illegal and corrupt practices.
In fact, we have now only corrupt practices and no illegal practices.
The present case, it may be pointed out, is governed by the amended statute.
No question of mens rea or intention or knowledge of the candidate arises in this case.
We, therefore, come to the conclusion that the appellant was guilty of a corrupt practice by appointing Amar Singh, a member of the armed forces, his polling 222 agent whereby the latter was enabled to and did act as such.
The appellant 's election was consequently in our opinion rightly declared void.
The appeal is therefore dismissed with costs.

summary/full:
The appellant, who was a candidate for election to Parlia ment, signed a very large number of blank forms for the appointment of polling agents and made them over to one Kalyan Singh.
Kalyan Singh passed on three of the forms to Kashmira Singh after inserting therein the name of a particular polling station.
Kashmira Singh filled in the name of Amar Singh as the polling agent in one of these three forms and gave it to Amar Singh, who, duly signed the form, filed it before the presiding officer of the polling station and acted as the appellant 's polling agent.
Amar Singh was a member of the armed forces but this fact was not known to the appellant or to Kashmira Singh or Kalyan Singh.
After the poll the appellant was declared elected but on an election petition being filed his election was set aside on the ground that he had committed the corrupt practice of procuring the assistance of a person in the service of the Government.
The appellant contended that Amar Singh had not been duly appointed as the appellant 's polling agent as neither the appellant nor his election agent had made the appointment, and that the appellant could not be held guilty of the corrupt practice for he did not know that Amar Singh was in the service of the Government and consequently did not have the necessary mens Yea.
214 Held, that the appellant did appoint Amar Singh as his polling agent by personally signing the appointment form.
The fact that the name of the polling agent was written in the form by another person after the appellant had signed it does not make it an appointment by the other person.
Held, further, that the appellant was guilty of the corrupt practice inasmuch as he appointed Amar Singh as his polling agent and Amar Singh by acting as the polling agent assisted in the furtherance of the prospects of the appellant 's election.
A presumption arises under section 123(7) Explanation (2) that the appellant by so doing procured Amar Singh 's assistance in furtherance of the prospects of his election, irrespective of whether he intended to procure such assistance or not.
The knowledge of the appellant whether the person whose assistance he procured was a person in the service of the Government or not was irrelevant.
Mens rea was not a necessary ingredient of the corrupt practice.