judgement:
l Appeals Nos.
2480 to 2509 2543 to 2546, 2547 to 2553, 2559, 2575, 2576 and 2602 of 1966, 214 to 217, 672 to 674, 1053, 1054, 1055, 1062, 1063,.
1457 and 1458 of 1967, and 162, 672 ' 673 and 1000 of 1968.
Appeals from the judgments and orders dated June 24, 1966 and July 20, 1966 of the Madras High Court in Writ Petitions Nos.
1542 of 1965 etc.
V. Vedantachari, K. C. Rajappa, section Bala krishnanand N. M. Ghatate, for the appellants (in C.As.
2480 2482, 2484 2509, 2575 and 2576, of 1966).
V. Vendantachari and section Balakrishnan, for the appellants (in C.As.
Nos. 2543, 2544 and 2546 of 1966).
section Balakrishnan and N. M. Ghatate, for the appellant (in C.A. No. 2545 of 1966).
section V. Gupte and K. Jaram, for the appellants (in C.A. Nos. 2547 to 2553 and 2559 of 1966).
792 K. Parasaran, K. R. Chaudhuri and K. Rajendra Chaudhuri, for the appellants (in C.As.
2602 of 1966, 214 to 217 and 1055 of 1967).
M. section K. Sastri section Gopalan and M. section Narasimhan, for the appellants (in C.As.
672 to 674 of 1967).
M. section Narasimhan, for the appellants (in C.As.
1053 and 1054 of 1967).
A. V. V. Nair, for the appellants (in C.As.
Nos. 1062 and 1063 of 1967).
V. Vedantachart, A. T. M. Sampath and E. C. Agarwala, for the appellants (in C.As.
14517 and 1458 of 1967).
P. C. Bhartari, for the appellant (in C.A. No. 162 of 1968).
K. Jayaram, for R. Thiagarajan for the appellants (in C.As.
Nos. 672, 673 and 1000 of 1968 and 2483 of 1966).
section Mahan Kumaramangalam and A., V. Rangarm, for the respondent State of Madras in, all the appeals).
R. Kunchitapadam, Vineet Kumar and K. Jayaram, for respondent No. 2 (in C.A. No. 2484 of 1966).
M. K. Ramamurthy, J. Ramamurthy and Vineet Kumar, for respondent No. 2 (in C.As.
2488 to 2490 of 1966).
The Judgment of the Court was delivered by Hegde, J.
In this batch of appeals, the validity of the Mad ras Inam Estates (Abolition and Conversion Into Ryotwari) Act, 1963 (Madras Act 26 of 1963); the Madras Lease Holds (Abolition and.
Conversion into Ryotwari) Act, 1963 (Madras Act 27 of 19 63) and the Madras Minor Inams (Abolition and Conversion Into Ryotwari) Act, 1963 (Madras Act 30 of 1963) is challenged on the ground that the material provisions in those Acts are violative of articles 14, 19(1)(f) and 31 of the Constitution.
The provisions in these Acts reducing the tenants" liability to pay the arrears of rent are also challenged on the ground that the legislature had no competence to enact 'those provisions.
A few other minor contentions are also raised in these appeals to which reference will be made in the course of the judgment.
All these contentions had been unsuccessfully urged before the High Court.
Dealing with the allegation of infringement of articles 14, 19 and 31, the High Court in addition to holding that there has been no infringement of those Articles has further held that the challenge to the validity of these Acts on the basis of those 793 articles is precluded in view of article 31 (A).
Dealing with the contention relating to the reduction of rent the High Court came to the conclusion that the legislature had power to enact the impugned provisions.
The High Court also has given reasons for rejecting the other contentions advanced before it.
Aggrieved by the decision of the High Court these appeals have been brought by special leave.
The impugned statues deal with agrarian reforms.
They purport to deal with Inam lands.
It is profitless to go to the origin of Inams or about their early history.
Suffice it to say that the Urdu word "Inam" means a gift.
The Inams, rants were made by the Rulers for various purposes.
Some of them were granted to institutions and some to individuals.
Broadly speaking there were three types of Inams The first type consisted of the grant of the melwaram right alone.
The second category consisted of the grant of both the melwaram as well as the kudivaram right.
In addition to these two Inams, there were what are known "as Minor Inams.
Sometime prior to 1862, the Government took up the question of enfranchising the Inams.
The Inams Commissioner went into the rights of various persons claiming to be Inamdars.
Thereafter the Madras Enfranchised Inams Act '.
1862 (Madras Act 47 of 1862) was passed for declaring and confirming the title of the Inamdars.
Section 2 of that Act provided that the title deeds issued by the Inams Commissioner or an authenticated extracted from the register of the Commissioner or Collector shall be deemed sufficient proof of the enfranchisement of land previously hold on Inam tenure.
By Madras Inams (Assessment) Act, 1956 (Madras Act 40 of 1 95 6), full assessment was levied on 'all Inam lands except Warm inams granted on service tenure, without affecting in any way the rights as between the Inamdar and other, persons, if any, in possession or enjoyment of the Inam land.
Where the Inam comprised the entire villa e, the same was treated as an "estate" in the Madras Proprietary Estates ' Village Service Act, 1894 (Madras Act 2 of 1894) and the Madras Hereditary Village Offices Act, 1895 (Madras Act 3 of 1895) as well as in Madras Estate Land Act, 1908 (Madras Act 1 of 1908).
Mdras Estates Land Act, 1908 recognised the ryots ' permanent tenure.
That Act secured a permanent right of occupancy to every ryot who at the commencement, was in possession of "ryoti" I and or who was subsequently admitted to the possession of such land.
Then came the Madras Estate Land (Third Amendment Act, 1936 (Madras Act 18 of 1936).
That Act amplified the definition of the "estate" in the Madras Estate Land Act, 1908, so as to bring within its scope A, Inam villages, of 794 which the grant was made, confirmed or recognised by the Government.
It also provided that when a question arises whether any land was the land holder 's private land or not, the land should be presumed not to be Inamdar 's private land until the contrary was proved.
In 1937, the Madras Government appointed the, Prakasam Committee to enquire into and report the conditions which prevailed in the Zamindari and other proprietary areas in the State.
That committee submitted its report together with a draft bill on the lines of its recommendations, but no action was taken on that report as the Congress Ministry which appointed it resigned.
Then we come to the Madras Estates (Abolition and Conversion Into Ryotwari) Act, 1948 (Madras Act 26 of 1948).
This Act applies to all estates i.e. Zamindari and under tenure estates and all Inam villages in which the grant consisted of melwaram alone.
That Act as its preamble says is an Act to provide for the repeal of the permanent settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras and the introduction of the ryotwari settlement in such estates.
To complete the agrarian reform initiated by this Act, the impugned Acts appears to have been enacted.
The Preamble to Madras Act 26 of 1963 says that it is an Act to provide for the acquisition of all rights of landholders in Inam estates in the State of Madras and the introduction of the ryotwari settlement in such estates.
That Act follows by and large the provisions in Act 26 of 1948.
In Act 26 of 1963 Inams estates are divided into two categories namely (1) existing Inam estate and (2) a new Inam estate.
The existing Inam estate refers to the estate consisting of the whole village and the new Inam estate means a part village Inam estate of Pudukkottai Inam estate.
The "New Inam estate" was not an estate known to law earlier.
It is merely a name given to part village Inam estate a Pudukkottai Inam estate for drafting convenience.
Act 27 of 1963 is an Act to provide for the termination of the leases of certain lease holds granted by the Government, the acquisition of the rights of the lessees in such lease holds, and the introduction of the ryotwari settlement in such leaseholds.
Act 30 of 1963 is an Act to provide for the acquisition of the rights of the Inamdars in minor Inams and the introduction of the ryotwari settlement in such Inams.
We do not think it necessary to go into the contention that one or more provisions of the impugned Acts are violative of articles 14, 19 and 31 as in our.
opinion these Acts are completely protected by article 31 '(A) of the Constitution which says that "Notwithstanding anything contained in article 13, no law providing for 7 95 (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights. . shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 1 9 or article 3 1.
" The expression "estate" is defined in sub article
(2) of Art31 (A).
That definition includes not merely Inams but also land held under ryotwari settlement as well as land held or let for the purpose of agriculture or for purposes ancillary thereto, including(, waste land, forest land, land for pastures or site or buildings, and other structures occupied by the cultivators of land, agricultures and village artisans.
The impugned Acts are laws providing for the acquisition by the State of an "estate" as contemplated ' by article 31 (A).
They seek to abolish all intermediate holders and 'to establish direct relationship between the Government and the occupants of the concerned lands.
These legislations were undertaken as a part of agrarian reforms.
Hence the provisions relating to acquisition or the extinguishment of the rights of the intermediate holders fall within the protective wings of article 31 (A) see B. Sankara Roo, Badami and ors.
vs State of Mysore and anr.
It is next contended on behalf of the appellants that the lands, on which full assessment was levied under Act 40 of 1956 ceased to be inams and therefore provisions of the Madras Act 26 of 1963 cannot be applied to the same.
We have not thought it necessary to go into the question whether as a result of Madras Act 40 of 1956, certain Inams have ceased to be Inams, as in our opinion, whether they continued to be Inams or not they are still "estate" within the meaning of article 31 (A) because they fall either under sub clauses (1) or (II) or (111) of Clause (a) of article 31 (A) (2) and that being so the provisions of the impugned Acts cannot be challenged on the ground that they infringe articles 14, 19 and 31.
The contention that as the State purported to abolish Inams and not other intermediaries the law cannot be held to be valid if the intermediaries sought to be removed are not Inamdars is an untenable one.
If the impugned legislation can be traced to a valid legislative power, the fact that the legislature wrongly described some of the intermediaries sought to be removed does not make the law invalid.
From the above observations, it should not be understood that we have come to the conclusion that the intermediaries concerned were not Inamdars.
We have not gone into that question.
From the provisions of (1) ; 796 The impugned Acts, it is quite clear that the intention of the legislature was to abolish all intermediaries including the owners of those "estates" that were subjected to full assessment by Act 40 ,of 1956.
It was next urged that article 31(A) does not protect a legis lation where no compensation whatsoever has been provided for taking the "estates".
We do not think we need go into that question.
This contention bears only on the provisions of the Madras Act 26 of 1963.
Section 18 of that Act provides that compensation shall be determined for each Inam as a whole and not separately for each of the interests in the Inams.
The validity of this section was not challenged before us.
All that was urged was that for some of the pro reties included in the Inam, no compensation was provided.
Even if we assume this contention to be correct, it cannot be as that no compensation was provided for the acquisition of the lnam as a whole.
Hence article 31(A) bars the plea that there was contravention of article 31(2) in making the acquisition in question.
One of the contentions taken on behalf of the appellants that the impugned Acts to the extent they purport to acquire mining lands are outside the purview of article 31 (A).
It is not known whether the lands in which mining operations are going on were let or held as "estates".
There is also no evidence to show that the owners of those lands were entitled to the mines.
Hence, it is not possible to uphold the contention that lands concerned in some of the appeals have been acquired without paying compensation.
In order to avoid the bar of article 3 1 (A), a curious plea was put forward.
It was urged that when the concerned bills were submitted to the President for his assent as required by the first proviso to article 31 (A), the President was not made aware of the implications of the bills.
This contention is a wholly untenable one.
There is no material before us from which we could conclude that the President or his advisers were unaware of the implications of those 'bills.
We must proceed on the basis that the President had given his assent to those bills after duly considering the implication of the provisions contained therein.
it was next urged that the provisions in the impugned Acts reducing the liability of the tenants in the matter of payment of the arrears of rent, whether decreed or not was beyond the legislative competence of the State legislature.
This contention is agairt untenable.
Those attears are either affairs of rent or debts due from agriculturists.
It they are treated as affears of rent then the State legislature had legislative power to legislate in respect of the same under Entry 18 of List II of the VIIth Schedule.
If they are considered as debts due from agriculturists then the 797 State legislature had competence to legislate in respect of the same under Entry 30 of the same list.
In regard to the Inams belonging to the religious and chari table institutions, the impugned Acts do not provide for payment of compensation in a lumpsum but on the other hand provision is made to pay them a portion of the compensation every year as Tasdik.
This is only a mode of payment of the compensation.
That mode was evidently adopted in the interest of the concerned institutions.
We are unable to agree that the method is violative of article 31(2).
At any rate that provision is protected by article 31 A. It was next urged that by acquiring the properties belonging to religious denominations the legislature violated article 26 (c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law.
These provisions do not take away the right of the State to acquire property belonging to religious deuomintions.
Those denominations can own acquire properties and administer them in accordance with law.
That does not mean that the property owned by them cannot be acquired.
As a result of acquisition they cease to own that property.
Thereafter their right to administer that property ceases because it is no longer their property.
article 26 does not interfere with the ' right of the State to acquire property.
Mr. section V. Gupte appearing for some of the appellants urged that the Impugned Act contravenes the second proviso to article 31(A).
From the material before us it is not possible to hold that any property under the personal cultivation of any of the appellants had been acquired.
Further there is no material to show what the ceiling is.
Hence it is not possible for us to examine the correctness of that contention.
If in any particular case, the second proviso to article 31 (A) has been breached, then to that extent, the acquisition will become invalid.
It was urged by Mr. Sastri appearing for some of the appel lants that the impugned Acts do not acquire the lands concerned in some of the appeals.
This contention was not 'gone into by the High Court.
Dealing with that contention, the High Court in its judgment observed : "But the applicability of the impugned Acts to the Inams in question cannot be conveniently investigated in the present writ proceedings.
The question will have to be determined with reference to the terms of the 798 grant, the extent of the grant has to be ascertained by reference to the relevant materials.
Section 5 of Madras Act, XXXI of 1963 (XXX of 1963 ?) makes special provision for determination of the question whether any non ryotwari area is or is (not an 'existing Inam Estate 'or ' part village Inam Estate ' or a minor Inam or whole Inam village in Pudukkottai.
It is stated at the bar that in most of the cases now 'before us the parties have applied under the provisions of the said Act for determination of the character of the Inams respectively held 'by them.
It, is needless to point out that the Tribunal constituted under the Act will be entitled to decide that a particular property is neither an existing Inam estate ' nor a part village Inam estate nor a whole inam village in Puddukkottai and completely out of the coverage of Acts XXVI and XXX of 1963.
We a1so make it clear that the disposal of these writ petitions now does not preclude the Inamdars from agitating The question that a particular property is not an Inam at all and does not under any of the aforesaid four categories or falls under one or other of the categories as may be urged for the inamdars.
" We agree with the High Court that the contention in question can be more appropriately gone into in the manner suggested by the High Court.
In the result these appeals fail and they are dismissed.
But ,under the circumstances; we make no order as to costs in these appeals.

summary/full:
In the State of Madras there were :three types of inams namely: (1)those which constituted of the grant of melwaram alone; (2) thosewhichconsisted of the grant of both melwaram and kudivaram; and (3) minor inams.
By Madras Inams (Assessment) Act, 1956, full assessment was levied on all inam lands except melwaram inams granted on service tenure, without affecting in any way the rights between the inamdars and the persons in possession or enjoyment of the land.
To complete the agrarian reform initiated by the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the he Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 the Madras Leaseholds (Abolition and Conversion, into Ryotwari) Act, 1963, and the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, were enacted.
Under the first, acquisition of all rights of landholders in inam estates and the introduction of ryotwari settlement in such estates was provided for.
Section 18 of the Act provides that compensation shall be determind for each inam as a whole.
The second Act provides for the termination of the leases of certain leaseholds granted by the Government, the acquisition of the rights of the lessees in such leaseholds and the introduction of ryotwari settlement; and the third Act provides for the acquisition of the rights of inamdars in minor inams and the introduction of the ryotwari settlement.
The Acts contain provisions reducing the liability of the tenants in the matter of payment of arrears of rent.
On the question of the validity of the Acts, HELD : (1) The impugned Acts could not be challenged as violative of Arts 14, 19 and 3 1.
They deal with 'estates ' as defined in article 31A of the Constitution, and provide for their acquisition by the State ' They seek to abolish all intermediate holders and to establish direct relationship between the Government and the occupants of the concerned lands.
They were undertaken as a part of agrarian reform and hence, the provisions relating to acquisition or extinguishment of the rights of the intermediate holders fall within the protective wings of article 3 IA.
[795 D E] B. Shankara Rao Badami & Ors.
vs State of Mysore & Anr.
, ; , followed.
(2) Assuming that as a result of the levy of full assessment under the 1956 Act, the lands cease to be inams and the intermediaries ceased to be inamdars, the lands are still 'estate ' within the meaning of article 31A, because, they fall under one of the sub cls.
1, II or III of article 79 1 3 IA(2) (a).
If the impugned legislation can be traced to a valid legislative power the fact that the Legislature wrongly described some of the intermediaries sought to be removed does not make the law invalid.
[795 E H] (3) In the Absence of any material to the contrary, the court must proceed on the basis that the President had given his assent to the bills after duly considering the implication of the provisions contained therein.
[796 E G], (4) If the arrears of rent are treated as rent then the State Legislature has power to legislate with respect to the liability of tenants to pay the arrears, under Entry 18 of List 11, VII Schedule.
If they are considered as debts due from agriculturists then the State Legislature has competence to legislate under Entry 30 of the same list.
[796 G H; 797 A] (5) In the case of the first of the impugned Acts, assuming that for some of the properties included in the inam no compensation was provided, article, 31A bars the plet that there was contravention of article 31(2).[796 C D] (6)In regard to the inams belonging to the religious and charitable institutions, the impugned Acts do not provide for payment of compensation in a lumpsum but provision is made to pay a portion of the compensation every year as tasdik.
The method adopted is not violative of Art 31(2) and is at any rate protected by Art, 31A. [7917] A C] (7) Article 26(c) and (d) of the Constitution provide that religious denominations shall have the right to own and acquire properties and administer them according to law.
But that does not mean that the properties owned by them cannot be acquired by the State.
[797 C E] (8)It is open to the inamdars to agitate before the.
Tribunal constituted under the last Act that a particular property is not an inam at all and that the Acts do not apply to them.
[798 D E]


judgement:
Appeals Nos. 2012 and 201 of 1969.
Appeals from the judgment and order dated September 23, 1968 of the Madras High Court in Writ Appeals Nos. 106 and 107 of 1968.
A.K. Sen and A. V. Rangam, for the appellants (in both the appeals).
T. A. Ramachandran, for the respondent (in both the appeals), 10 L694SupCI/71 818 The Judgment of the Court was delivered by Shah J.
Motor Lorry No. K.L.R. 3919 driven along a highway from Coimbatore in the State of Madras towards the border of the State of Kerala was when searched by the Check Post Officer found to carry 85 bags of foodstuffs 45 bags of maids, 20 bags of flour and 20 bags of Khandsari sugar.
The driver of the motor lorry was found to carry with him a bill of sale and a delivery note which covered 85 bags of flour.
On the ground that without a bill of sale or delivery note maid a and Khandsari sugar were attempted to be transported, and, suspecting that there was an attempt at evasion of sales tax, the Check Post Officer by order dated March 2, 1965, confiscated the goods and gave an option to M/s. K. P. Abdulla & Bros. the owners of the goods to pay Rs. 1,000 'as penalty in lieu of confiscation.
The owners of the goods then moved a petition in the High Court of Madras challenging the validity of section 42 (3) (a) of the Madras General Sales Tax Act, 1959, and for an order quashing the penalty, and another petition for a direction to the State of Madras and the Check Post Officer to return the goods seized and "confiscated while in transit".
Ramakrishnan, J., rejected the petitions.
In appeals filed by the owners, the petitions were allowed and the orders imposing penalty and confiscation of goods were set aside.
The State of Madras has appealed to this Court with certificate granted by the High Court.
Section 42 of the Madras General Sales Tax Act, 1959, provides "(1) If the Government consider that with a view to prevent or check evasion of tax under this Act in any place or places in the State, it is necessary so to do, they may, by notification, direct the setting up of a check post or the erection of a barrier or both, at such place or places as may be notified. "(2) At every check post or barrier mentioned in sub section (1), or at any other place when so required by any officer empowered by the Government in this behalf, the driver or any other person in charge of any vehicle or boat shall stop the vehicle or boat, as the case may be, and keep it stationary as long as may reasonably be necessary, and allow the officer in charge of the check post or barrier, or the officer empowered as aforesaid, to examine the contents in the vehicle or boat and inspect all records relating to the goods carried, which are in the possession of such driver, or other person in charge, who shall, if so required, 819 give his name and address and the name and address of the owner of the vehicle or boat as well as those of the consignor and the consignee of the goods.
(3)The officer in charge of the check post or barrier, or the officer empowered as aforesaid, shall have power to seize and confiscate any goods which are under transport by any vehicle or boat and are not covered by, (i) a bill of sale or delivery note, (ii)a Goods Vehicle Record, a Trip Sheet or a Log, Book, as the case may be; and (iii)such other documents as may be prescribed under section 43 and 44; Provided that before ordering confiscation the officer shall give the person affected an opportunity of being heard and make an inquiry in the prescribed manner; Provided further that the officer ordering the confiscation shall give the person affected option to pay in lieu of confiscation (a)in cases where the goods are taxable under this Act, in addition to the, tax recoverable, a sum of money not exceeding one thousand rupees, or double the amount of tax recoverable, whichever is greater; and (b)in other cases, a sum of money not exceeding one thousand rupees.
" By sub section
(2) the driver or any person in charge of the vehicle is required to stop the, vehicle and to allow the officer in charge of the check post or barrier to examine the contents in the vehicle, and to inspect all records relating to the goods carried in the vehicle.
The officer in charge of the check post or barrier is invested with power by sub section
(3) to seize and confiscate any goods which are carried and are not covered by the documents specified therein.
The officer is required when ordering confiscation to give the person affected option to pay penalty in lieu of confiscation.
Entry 54 of List II of the Seventh Schedule to the Constitution authorises the State Legislature to legislate in respect of taxes on the sale or purchase of goods.
A legislative entry does not merely enunciate powers : it specifies a field of legislation and the widest import and significance should be attached to it.
Power to legislate on a specified topic includes power to legislate in respect of 820 matters which may fairly and reasonably be said to be comprehended therein: see The United Provinces vs Mst.
Atiqa Begum and Others(1); Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City(2); and Balaji vs Income tax Officer, Special Investigation Circle(3).
, A taxing entry therefore confers power upon the Legislature to legislate for matters ancillary or incidental including provisions for preventing evasion of tax.
Subsections (1) & (2) of section 42 are intended to set up machinery for preventing evasion of.
sales tax.
But, in our judgment, the power to confiscate goods carried in a vehicle cannot be said to be fairly and reasonably comprehended in the power to legislate in respect of taxes on sale or purchase of goods.
By sub section
(3) the officer in charge of the check post or barrier has the power to seize and confiscate any goods which are being carried in any vehicle if they are not covered by the documents specified in the three subclauses.
Sub section (3) assumes that all goods carried in a vehicle near a check post are goods which have been sold within the State of Madras and in respect of which liability to pay sales tax has arisen, and authorises the check post officer, unless the specified documents are produced at the check post or the barrier, to seize and confiscate the goods and to give an option to the person affected to pay penalty in lieu of confiscation.
provision so enacted on the assumption that goods carried in a vehicle from one State to another must be presumed to be transported after sale within the State is unwarranted.
In any event power conferred by sub section
(3) to seize and confiscate add to levy penalty in respect of all goods which are carried in a vehicle whether the goods are sold or not is not incidental or ancillary to the power to levy sales tax.
A person carrying his own goods even as personal luggage from one State to another or for consumption, because he is unable to produce the documents specified in clauses (i), (ii) & (iii) of sub section
(3) of section 42, stands in danger of having his goods forfeited.
Power under sub section (3) of section 42 cannot be said to be ancil lary or incidental to the power to legislate for levy of sales tax.
The High Court was of the view that the question which fell to be determined was concluded by the judgment of this Court in The Commissioner of Commercial Taxes and Others vs R. section Jhaver and Others,(4).
That case arose under section 41(2) of the Madras General Sales Tax Act 1 of 1959, and this Court struck down the power conferred under the Madras General Sales Tax Act, 1959, upon the officer of the Government to seize such accounts, registers, records or other documents of the dealer as he may consider necessary, if he had reason to suspect that any dealer is attempted to evade payment of any tax, fee or other (1) (2) [1955] 1 S.C.R. 829 (3) ; (4) ; 821 amount.
This Court held that tax and penalty cannot be levied before the first sale in the State, and on that account authority conferred to levy tax and penalty before the sale and to confiscate the goods for non payment was outside the legislative competence of the State That case may have no direct bearing in this case.
In the present case, however, the power to confiscate the goods and to levy penalty in lieu of confiscation, when in respect of the goods found in a vehicle the driver of the vehicle is not carrying with him the documents specified therein, is not a provision which is ancillary or incidental to the power to tax sale of goods.
The appeals therefore fail and are dismissed with costs.
One hearing fee.
Y.P. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
By sub section 3 of section 42 of the Madras General Sales Tax Act, 1959, the Officer in charge of a check post or barrier has the power to seize and confiscate any goods which are being carried in any vehicle if they are not covered by the documents specified in the three sub clauses.
On the question whether the power to confiscate goods and to levy penalty in lieu of confiscation, when in respect of the goods found in a vehicle the driver of the, vehicle is not carrying with him the documents specified therein, is a provision which is ancillary or incidental to them power to legislate in respect of taxes on the sale or purchase of goods in entry 54 of List II of the Seventh Schedule to the Constitution, HELD : A taxing entry confers power upon the legislature to legislate for matters ancillary or incidental, including provisions for preventing evasion of tax.
But the power conferred by sub section (3) to seize and confiscate and to levy penalty in respect of all goods which. are carried in a vehicle whether the goods are sold or not is not incidental or ancillary to the power to levy sales tax.
[819 H 820 B; 820 E] Commissioner of Commercial Taxes & Ors., vs R. section Jhevar & Ors., ; , held inapplicable.
United Provinces vs Mst.
Atiqa Begum & Ors., [1940] F.C.R. 110; Navinchandra Mafatlal vs Commissioner of Income tax, Bombay City, [1955] 1 S.C.R. 829 and Balaji vs Income tax Officer, Special Investigation Circle, ; , referred to.


judgement:
l Appeals Nos.
1868 to 1882 of 1969.
Appeals from the judgment and order dated July 9, 10, 1968 of the Mysore High Court in Writ Petitions Nos. 1776, 2108, 2109, 2111, 2112, 2272, 2273, 2275, 2385, 2386, 2390, 2395 and 2396 of 1966 and 728 and 990 of 1967.
Jagadish Swarup, Solicitor General, section section Javali and section P. Nayar, for the appellant (in all the appeals).
M.Mama Jois and R. B. Datar, for respondent No. 1 (in C.As.
1868 to 1871 and 1874 to 1881 of 1969).
832 The Judgment of the Court was delivered by Mitter, J.
The State of Mysore has come up in appeal from a common judgment of the High Court at Bangalore disposing of a number of writ petitions and holding void the compulsory transfer of the respondents herein to the Agricultural University under the provisions of the University of Agricultural Sciences Act, 1963.
As the same question arise Civil all these appeals it will be sufficient to state the facts in Appeal No. 1$68 of 1969 in which one H. Papanna Gowda is the respondent.
The said respondent was appointed on January 7, 1959 as an agricul tural demonstrator in the Mysore Civil Service.
His appointment was as a local candidate ' which under the Mysore Civil Service Rules means a person appointed not in accordance with the rules of recruitment.
His services were however regularised when he was selected by the Public Service Commission for appointment to that post on August 27, 1959.
By an order dated April 4, 1964 he was transferred and posted as a Chemical Assistant of the Sugarcane Research Station Mandya, in the department of agriculture.
When he was thus employed, a law made by the State Legislature called the University of Agricultural Sciences Act.
, 1963 (hereinafter referred to as the Act ') came into force on April 24, 1964.
Before the High Court the respondents to these appeals challenged the vires of section 7(5) of the Act and a notification issued thereunder.
The preamble to the Act shows that it was an Act to estab lish and incorporate a University for the development of agriculture, animal husbandry and allied sciences in the State of Mysore.
Under section 3(2) the University was to be a body corporate having perpetual succession and a common seal.
The powers given under section 6 of the Act enabled it inter alia to create administrative, ministerial and other posts and to appoint persons to such posts.
Under section 7(1) subject to the conditions therein mentioned several agricultural and veterinary colleges were disaffiliated from the Karnatak University or the University of Mysore and were to be maintained by the new University as constituent colleges.
The control and management of these colleges were to stand transferred to the Agricultural University and all its properties and assets and liabilities and obligations of the State Government in relation thereto were to stand transferred to, vest in, or devolve upon the said University.
Under sub section
(4) of section 7 the control and management of such research and educational institutions of the Department of Agriculture, the Department of Animal Husbandry and the Department of Fisheries of the State Government were, as and from such date as the State Government 833 might by order specify, to be transferred to the University and thereupon all the properties and assets and liabilities and obligations of the State Government in relation to such institutions were to stand transferred to, vest in, or devolve upon the University.
omitting the proviso which is not relevant for our purpose, sub section
(5) provided "Every person employed in any of the colleges specified in sub section (1) or in any of the institutions referred to in sub section (4) immediate before the appointed day or the date specified in the order under subsection (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board :" The Board has been defined in section 2 clause (3) as the Board of Regents of the University.
By notification dated September 29, 1965 the control and management of a large number of research and educational institutions were transferred to the University with effect from October 1, 1965.
The Agricultural Research Institute Mandya where the respondent was working was one such institution.
Not liking the change which his future prospects were likely to undergo as a result of the notification, the respondent presented a writ petition, seeking a declaration that sub sections
(4) and (5) of section 7 of the Act Were invalid And for a further declaration that he continued to be a civil servant under the State Government.
To put in brief the argument on this head was that he had been removed from a civil post under the State in contravention of the provisions of article 311.
A further argument was put up that the respondent had been subjected to hostile discrimination inasmuch as persons who had been appointed in the same manner as himself and later in point of time than himself had been retained in the service of the State thereby infringing articles 14 and 16 of the Constitution.
It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first.
There can be no dispute as indeed the learned Solicitor General was constrained to admit that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect.
Whether the prospects of the respondent were 11 L694Sup.
CI/71 834 or were not to be prejudicially affected if he was to become an employee of the University is not in point.
However the learned Solicitor General drew our attention to paragraph 17 of the counter affidavit to the writ petition filed in the High Court where it was stated that the terms and conditions of transfer as agreed to by the Government and the University provided inter alia for the following (1)Every employee of the, Government on his transfer to the University shall enjoy the same pay scale.
(2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the Government.
(3) His claims for higher pay scales or higher positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and (4)Every employees of the Government on his transfer to the University was to be protected to the extent that the terms and conditions of his service under the University would not be altered to his detriment.
We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer.
Evidently the respondent held the view that as a civil servant of the State of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments.
For better or for worse, the notification resulted in extinction of his status as a civil servant.
The learned Solicitor General sought to rely on a judgment of the Punjab High Court in Amulya Kumar Talukdar vs Union of India and others(1) a case which was considered by the High Court of Mysore, in aid of his contention that the transfer of the kind effected in this case had been held to be valid by the Punjab High Court.
The High Court at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the , the Act impugned in the Punjab High Court and the Agricultural University Act of 1963.
Tin the Punjab case the petitioner had initially been appointed by the Director, Indian Institute of Technology Kharagpur as a peon.
As a result of the Act of 1956 the Institution declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute be fore were to hold office or service thereafter upon the (1) I.L.R. 13 Punj.
781. 835 same terms and conditions and with the same rights and Privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of.
the Act as if the Act had not been passed.
In the case before us the Act provides by sub section
(5) of section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board.
The learned Judge of the Punjab High Court on the facts of that case found it unnecessary to examine the argument whether, the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent.
The Punjab decision can not therefore apply to the case as presented before us.
In the result the appeals fail and are dismissed with costs.
There will be one set of hearing fee.
V.P.S. Appeals dismissed.

summary/full:
The University of Agricultural Sciences Act, 1963, was passed by the Mysore State Legislature, to establish a University for the development of agricultural and allied sciences in the State.
Under section 7(4) of the Act, the control and management of such research institutions of the department of agriculture as the State Government might by order specify, were to be transferred to the University as and from the date specified; and, under sub section
(5), every person employed in such an institution, were, as from the specified date, to become an employee of the University on such terms and conditions as might be determined by the State Government in consultation with the Board of Regents of the University.
The respondent was holding a civil post under the State Government, having been appointed as a chemical assistant in the Agricultural Research Institute, Mandya, in the department of agriculture of the State.
In 1965, the control and management of the Institute was transferred to the University, by a notification under the Act.
On the question whether there was a removal of the respondent from a civil post in contravention of article 311, HELD : Whether the prospects of the respondent were or were not prejudicially affected is irrelevant.
For better or for worse, the notification resulted in the extinction of his status as a civil servant, and hence, his compulsory transfer to the University was void.
[834 A, F] Amulya Kumar Talukdar vs Union of India, I.L.R. 13 Punj. 781, distinguished.


judgement:
No. 513 of 1970.
Petition under article 32 of the Constitution of India for writ in the nature of habeas corpus.
The petitioner appeared in person.
P. Ram Reddy and P. P. Rao, for the respondent.
The Judgment of the Court was delivered by Dua, J.
The petitioner, A. Lakshmanrao, an Advocate practicing at Narasipatnam in the district of Visakhapatnam in the State of Andhra Pradesh has applied under article 32 of the Constitution for a writ of habeas corpus on the following averments The petitioner, while going home from the court, was arrested on 17th July, 1970 at about 12.30 in the afternoon.
He was not shown any warrant at the time of his arrest.
He was produced before a Judicial Magistrate, First Class, on 18th July and 824 remanded to judicial custody under section 167 (2), Cr.
P.C. for 15 days.
At the time of remand he was informed by the Magistrate that he was accused of offenses under sections 120 B, 121 A 122 read with 302 and 395, I.P.C. in Crime No. 3 of 1970 (known as Parvatipuram Naxalite Conspiracy Case).
This crime had been registered in January, 1970 in which more than 148 persons were sought to be proceeded against.
The names of only 148 accused persons were specifically mentioned.
The petitioner and one Dr. C. Ramadass were not specifically named.
They were apparently included in the expression "others".
On 30th March, 1970 a report was filed by the Investigating Officer describing it as a preliminary charge sheet in which it was stated that the investigation in the case had not been completed and several accused persons had yet to be traced.
This report, according to the averments, does not fall under section 173(1), Cr.
P.C. Even in this preliminary charge sheet the names of the petitioner and Dr. Ramadass were not included.
On 1st August when the period of the petitioner 's first remand expired, again no charge sheet was separately filed against him and Dr. C. Ramadass.
The prosecution, however, sought extension of the period of remand.
When the petitioner objected to further remand a second preliminary charge sheet was presented to the court on that very day specifically including the petitioner 's name.
His remand was thereupon extended upto 6th August and thereafter upto 20th August.
On 20th August he was not produced in the court because of want of escort and the order of remand was made in his absence.
He has expressed ignorance about the period of this remand.
The present petition dated 22nd August, 1970 was forwarded to this Court through the Superintendent.
Central Jail, Rajahmundry (Andhra Pradesh).
The petitioner challenges the remand orders from the 1st August onwards and claims that his detention is illegal and that he is entitled to be set at liberty.
The remand order dated 20th August, 1970 which was made in his absence because he could not be produced before the court on the ground of lack of escort is challenged on the further ground that the law does not permit remand orders without the actual production of the accused before the court: According to the petitioner who himself argued his case, section 344(1A), Cr.
P.C. does not contain any guidelines for the court in the matter of remand orders and he added that this section is otherwise too inapplicable to the investigation stage of criminal cases.
When his attention was drawn to the explanation to section 344, according to which the likelihood of further evidence being obtained by the remand in cases of suspicion against an accused person raised by the evidence already obtained, he contended that the 825 explanation could not, as a matter of law, serve to extend the scope of the substantive provision contained in sub section
On this premise the petitioner questioned the vires of section 344(1A) and (2) and the explanation.
In the counter affidavit sworn by the Judicial Magistrate in whose court the case against the petitioner is pending, while referring to the proceedings held on 1st August, 1970, it is affirmed that the petitioner and Dr. C. Ramadass were produced in court and it was submitted by them that since their names had not shown in the preliminary charge sheet the court had no power to extend the period of reman.
On that very day the prosecution filed a second preliminary charge sheet in which the petitioner and Dr. C. Ramadass were shown as accused nos.
149 and 150 suspected of having committed offences under sections 120 B, 121A, 122 read with 302 and 395, I.P.C.
The Court thereupon passed an order of remand in respect of both of them.
A bail application filed on behalf of the petitioner and Dr. C. Ramadass was thereafter argued by the petitioner and the matter was adjourned to 6th August, 1970 for orders when that application was disposed of.
On behalf of the other respondents a lengthy affidavit has been sworn by section Veeranarayanareddi, Deputy Superintendent of Police, Crime Branch, C.I.D., Government of Andhra Pradesh, Hyderabad.
It is affirmed in this affidavit that the petitioner is an active Naxalite and along with others is accused of charges under sections 120 B read with sections 302, 395, 397, 399, 364, 365, 368 and 386, I.P.C. in P.R.C. No. 3/70, pending in the Court of the Judicial First Class Magistrate, Parvatipuram Taluk.
A separate complaint under sections 121 A and 120 B read with 121, 122, 123 and 124A, I.P.C. is also stated to have been filed against the aforesaid persons including the petitioner in the same court in P.R.C. 8 of 1970.
These two cases are known as Parvatipuram Naxalite Conspiracy Cases and relate to 46 murders, 82, dacoities, 99 attacks on police and 15 abductions committed by the accused persons in Andhra Pradesh.
The accused persons are also alleged to have committed several offences of the types just mentioned in the Agency Tracts of Orissa bordering Andhra Pradesh.
The Government of Andhra Pradesh had on account of the gravity of the situation declared certain areas affected by the Naxalite menace in Srikakulam and Warangal Districts as disturbed areas Under section 3 of the Andhra Pradesh Suppression of Disturbances Act, 1948.
In the affidavit certain incidents have been traced from 1964 and it is affirmed that as a result of various political developments certain volunteers were recruited from various parts of Andhra Pradesh and the petitioner helped them in creating revolutionary bases in the agency tracts of Visakhapatnam District.
There is also reference to one of the accused persons having become an approver and another having made a confes 826 sional statement.
After stating various facts discovered during investigation it is affirmed that the investigation of this case is limited not only to the State of Andhra Pradesh but it extends to several States where naxalite, movement has spread, including West Bengal and Orissa, and as many as 900 witnesses have already been examined during the course of investigation which has taken nearly nine months.
Sanction of the State Government has also been ob tained for the prosecution of the petitioner and the other accused persons under section 196, Cr.
On 12th October, 1970 the investigation was completed and a final charge sheet filed in the court of the Judicial Magistrate in P.R.C. No. 3 of 1970.
The separate complaint against the petitioner and other accused persons mentioned earlier was also filed in the court of the Judicial Magistrate under sections 121A, 120B read with 121, 123 and 124A, I.P.C. on the same day.
It is admitted that the preliminary charge sheet is not covered by section 173(1), Cr.
But it is averred that it is only a report pending further investigation seeking extension of remand under section 344, Cr.
The long period of investigation has been ascribed to the fact that there was an organised attempt on the part of the accused and their followers to thwart the, efforts of the authorities in bringing the accused to book.
It is admitted that the peti tioner is lodged in Central Jail, Rajahmundry and that on 20th August, 1970 he could not be produced before the court for lack of escort.
The; remand is also admitted to have been extended by the Magistrate, respondent No. 1, from time to time on 3rd and 17th September and 1st October, 1970.
The court, it is pleaded, is empowered to pass an order of remand even in the absence of the accused under section 344, Cr.
P.C. unlike the remand order under section 167, Cr.
Incidentally, in this counter affidavit there is a reference to the prejudicial activities in which the petitioner has been indulging in connection with Naxalite movement.
The initial non inclusion of his name in the array of accused persons ' has been explained on the ground that sufficient corroboration of the approver 's testimony incriminating the petitioner was not forthcoming at that stage.
In so far as, the question of legality of the remand order dated 20th August, 1970 without producing the petitioner before a Magistrate is concerned, the point is concluded by a recent judgment of this Court in the case of Rai Narain vs Supdt.
Central Jail, New Delhi(1).
In that case this Court by majority expressed the view that as a matter of law personal presence of an accused person before a Magistrate is not a necessary requirement for the purpose of his remand under section 344, Cr.
P.C., at the instance of the police, though as a rule of caution it is highly desirable that the accused should be personally produced before the Magistrate so that he may, (1) 827 if he so chooses, make a representation against his remand and for, his release on bail.
The Court on a review of the decided cases, observed "There is nothing in the law which required his personal presence before the Magistrate because that is a rule of caution for Magistrates before granting remands at the instance of the police.
However, even if it be desirable for the Magistrates to have the prisoner produced before them, when they recommit him to further custody, a Magistrate can act only as the circumstances permit.
" The order of remand dated 20th August, 1970 was in the circumstances not contrary to law so as to render the petitioner 's, custody illegal justifying his release by this Court on habeas corpus.
It is unnecessary to point out that it was and still is open to the, petitioner to apply for his release on bail to the appropriate court in accordance with law there being no illegal obstacle in his way in this respect.
The challenge to the constitutional validity of section 344(1A), Cr.
P.C. is also in our opinion misconceived.
Section 344 reads " (1) In every inquiry or trial, the proceedings.
shall be held as expeditiously as possible and in particular, when the examination of witnesses, has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(1 A) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time Provided further that when witnesses are in attendance.
no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
828 (2)Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate. ' Explanation.
If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
" Sub section (1 A) was originally numb. red as sub section 1 The present sub section (1) of section 344 was added by the Amending Act 26 of 1955 when the original sub section (1) was renumbered as sub section (1 A).
The impugned sub section vests in the court seized of a criminal case power to postpone the commencement of or adjourn any inquiry or trial before him by order in writing stating the reasons therefore from time to time on such terms as the court thinks fit and for such time as it considers reasonable.
When the case is so postponed or adjourned the court may also by a warrant remand the accused, if in custody.
This judicial power to postpone or, adjourn the proceedings is to be exercised only if from the absence of witnesses or any other reasonable cause the court considers it necessary or advisable to do so.
Reasonable cause for remand according to, the explanation to this section covers a case where sufficient evidence is obtained to raise a suspicion about the complicity of an accused person in the offence and it appears likely that more evidence may be obtained by remand.
The court has in the exercise of its judicial discretion in granting or declining postponement or adjournment of the case and in ordering remand of the accused, to keep in view all the relevant facts and circumstances of the case.
The petitioner strongly contended that this section clothes the court with an unfettered, arbitrary and unguided power.
A plain reading of the section shows the untenability of the submission.
Apart from the fact that it is only when either from the absence of a witness or some other reasonable cause the court, considers it either to be necessary or advisable to postpone the commencement of, the inquiry or trial or adjourn the hearing of the case that the order can be made, the court is also required to record the order in writing giving the reasons why it thinks fit that the case should be postponed or adjourned.
It is further open to the court to impose terms and to fix the period which cannot exceed 15 days at one time.
This discretion being vested in a court of law has to be exercised _judicially on well recognised principles, and is in our view immune from challenge on the ground of arbitrariness or want of guidelines.
In our opinion, therefore, not only are the guidelines clearly contained in the statute but the discretion being judicial is required to be exercised on general principles guided by rules of reason and justice on the facts of each case, 829 and not in any arbitrary or fanciful manner.
It may also be remembered that if the discretion is exercised in an arbitrary or un judicial manner remedy by way of resort to the higher courts is always open to the aggrieved party.
The second limb of the challenge is based on the contention that section 344 falls in Chapter 24, Cr.
P.C. which contains general provisions as to inquiries and trials.
According to this submission this section cannot apply to a case which is at the stage of investigation and collection of evidence only.
This argument appears to us to be negatived by the express language both of sub section
(1A) and the explanation.
Under sub section
(1A) the commencement of the inquiry or trial can also be postponed.
This clearly seems to refer to the stage prior to the commencement of the inquiry.
The explanation makes it clear beyond doubt that reasonable cause as mentioned in sub section
(1A) includes the likelihood of obtaining further evidence during investigation by securing a remand.
The language of section 344 is unambiguous and clear and the fact that this section occurs in Chapter 24 which contains general provisions as to inquiries and trials does not justify a strained construction.
Indeed, postponement of an inquiry also seems to be within the contemplation of the general provisions as to inquiries and trials.
So this challenge also fails.
The suggestion that the explanation could not extend the substantive provisions of sub section
(1A) has merely to be stated to be rejected because the explanation merely serves to explain the scope of the expression reasonable cause.
The last submission that there is in any event no guideline for making a remand order and, therefore, the power to remand an accused person under section 344 is ultra vires being arbitrary and ' unguided is wholly unacceptable.
When a case is postponed or adjourned and the accused is in custody the court has to exercise its judicial discretion whether or not to continue him in custody by making a remand order.
The court is neither bound to make an order of remand nor is it bound to release the accused person.
The period of remand is in no case to exceed 15 days at a time.
The discretion to make a suitable order is to be exercised judicially keeping in view all the facts and circumstances of the case including the nature of the charge, the gravity of the alleged offence, the, area of investigation, the antecedents of the accused and all other relevant factors which may appropriately help the court in determining whether to keep the accused in custody or to release him on bail.
The court has to ensure the presence of the accused and ' a just, fair and smooth inquiry and trial of the offence charged.
The order of remand is thus subject to judicial discretion and the, order is also subject to review by the superior courts in accordance, 830 with law.
The power conferred being judicial the absence of an express, precise standard for determination of the question would not render the section unconstitutional.
Detention pursuant to an order of remand which appropriately falls within the terms of section 344 is accordingly not open to challenge in habeas corpus.
After we had reserved orders the petitioner forwarded to this ;Court through jail supplementary affidavit containing written arguments.
We have gone through the affidavit but we do not find any new point requiring discussion.
It only discloses a further attempt to reopen the majority decision of this Court in Rai Narain 's case (supra) by relying on the minority judgment and by submitting that section 344(1A), Cr.
P.C. offends article 19(1)(d) of the Constitution.
All that we need Say at this stage is that the majority view :is binding on us.
This petition accordingly fails and is dismissed.
G.C. Petition dismissed.

summary/full:
The petitioner was arrested on July 17, 1970 and was produced before a first class Magistrate next day when he was remanded to judicial custody under section 167(2) Cr.
P.C. for 15 days.
He was informed at the time of remand that his arrest was in connection with a case relating to dacoity and murder and conspiracy to commit the same.
Although a charge sheet had been submitted against about 148 persons accused in the case the petitioners ' name was not among them, because as the police later explained, investigations against him had not been completed.
The petitioner objected to a second remand on August 1, 1970 but that very day the prosecution filed a supplementary charge sheet including his name.
Remand was then extended upto August 6 and thereafter upto August 20, 1970.
On the last mentioned date he was not produced before the magistrate because of alleged want of escort and the remand was extended in his absence.
In a petition under article 32 of the Constitution the petitioner challenged his detention from August 1 onwards.
The remand order of August 20 was challenged on the ground that it was made in his absence and it was urged that the law does not permit remand without actual production of the accused before the Court.
The constitutional validity of section 344(1A) and of the Explanation to the section was also challenged.
HELD : (1) In view of this Court 's decision in Rai Narain 's case it could no longer be urged that the production of an accused before the magistrate for the purpose of remand was a necessary requirement.
though as a rule of caution it is highly desirable that the accused should be personally produced before the magistrate so that he may if he so chooses make a representation against his remand.
The order of remand dated August 20, 1970 was in the circumstances not contrary to law so as to render the petitioner 's custody illegal justifying his release by this Court on habeas corpus.
It was still open to the petitioner to apply for bail to the appropriate court in accordance with law.
Rai Narain vs Supdt.
Central Jail, New Delhi, ; applied.
[826 G 827 C] (ii)Sub section (1A) of section 344 of the code vests in the court seized of a criminal case, power to postpone the commencement of or adjourn any inquiry or trial before him by order in writing stating the reasons therefore from time to time on such terms as the court thinks fit and for such time as it considers reasonable.
When the case is so postponed or adjourned the court may also by a warrant remand the accused, if in custody.
The discretion to adjourn being vested in a court of law has to be exercised judicially on well recognised principles and is therefore immune from challenge on the ground of arbitrariness or want of guidelines.
The judicial power to postpone or adjourn the proceedings is to be exer 823 cises only it from the absence of witnesses or any other reasonable cause the court considers it necessary or desirable to do so.
It has to record its reasons for so doing.
Similarly the discretion to order remand of the accused is to be exercised judicially keeping in view all the facts and circumstances of the case including the nature of the charge the gravity of the alleged offence, the area of investigation, the antecedents of the accused and all other relevant factors which may appropriately help the court in determining whether to keep the accused in custody or to release him on bail.
Reasonable cause for remand according to the explanation covers a case where sufficient evidence is obtained to raise suspicion about the complicity of an accused person in the offence and it appears likely that more evidence may be obtained by remand.
[828 C E] Further, both the order of adjournment as well as the order of remand are subject to review by the superior courts in accordance with law.
The challenge to the validity of section 344(1A) on the ground of want of guidelines must therefore fail.
[829 H 830 A] (iii)The suggestion that the explanation could not extend the substantive provisions of sub section
(1A) has merely to be stated to be rejected because the explanation merely serves to explain the scope of the expression reasonable cause.
[829 E] (iv)The argument that since section 344 falls in Ch.
24 Cr.
P.C. which contains general provisions as to inquiries and trials and therefore it cannot apply to a Case at the stage of investigation and collection of evidence is negatived by the express language of sub section
(1A) and the explanation.
Under sub section
(1A) commencement of the inquiry or trial can also be postponed.
This clearly seems to refer to the stage prior to the commencement of the inquiry.
The explanation makes it clear beyond doubt that reasonable cause as mentioned in sub section
(1A) includes the likelihood of obtaining further evidence during investigation by securing a remand.
Indeed a postponement of an inquiry on trial also seems to be within the contemplation of the general provisions as to inquiries and trials.
[829 C D] [Plea to reopen Rai Narain 's case rejected.]