judgement:
Civil Appeal No. 1998 of 1969.
Appeal by Special Leave from the Judgment and Decree dated 3 10 1968 of the Punjab and Haryana High Court in L.P.A. No. 348/64.
V. C. Mahajan, Mrs. Urmila Kapoor and Mrs. Shobha Dikshit for the Appellants.
Hardev Singh for the Respondent.
465 The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated October 3, 1968, of the High Court of Punjab and Haryana.
The facts leading to this appeal are that the appellants are partners of a firm, Bharat Industries, Chheharta.
By a Notification, dated May 15, 1946, the Chheharta Municipal Committee levied a profession tax under Section 61(1)(b) of the Punjab Municipal Act, 1911.
Initially, the tax was Rs. 15/ per annum and was levied on all the partners of the said firm.
By a Notification, dated July 4, 1958, the annual tax for trade, profession or calling for the owner of a factory registered under the Indian Factories Act, was raised to Rs. 200/ per annum and each of the six partners of the said firm were assessed to annual tax of Rs. 200/ by the Municipal Committee.
On October 30, 1960, the appellants filed a suit for permanent injunction restraining the defendant Committee from realising the profession tax demanded by it per letters Nos.
15 to 20, dated May 31, 1960, amounting to Rs. 1,200/ .
The appellants challenged the validity of the assessment contending that construed in the light of the definition given in section 2(40) of the Punjab General Clauses Act, the term "person" occurring in section 6(1)(b) of the Punjab Municipal Act, 1911, includes a 'firm ' and since the trade carried on by the 'firm ' is one, the tax could be levied only on the firm, and not on the partners individually.
On these premises, it was pleaded that the Municipal Committee in levying the tax on the individual partners had exceeded its statutory powers under Section 61(1)(b) of the Municipal Act.
The trial court dismissed the suit.
On appeal by the plaintiffs, the Additional District Judge, Amritsar, reversed the judgment of the trial court and decreed the suit.
The Municipal Committee carried a further appeal to the High Court.
The learned Single Judge, who heard the appeal, affirmed the judgment and decree of the first appellate court, on the reasoning which may be summed up as under: The term "person" in Section 61(1)(b) of the Municipal Act, interpreted in the light of the definition given in Section 2(40) of the Punjab General Clauses Act, includes a 'partnership '.
Under clause (b) of Section 61(1) of the Municipal Act, the basis on which the liability to pay tax arises, is the trade, profession or business; and if the 466 trade and business is one carried on by several persons collectively in partnership, then the partnership alone, and not the individual partners, are liable to pay the tax; that the liability on the partners will fall twice which is not contemplated by the scheme and language of the Municipal Act, even though all the partners are jointly and severally liable to any tax for the partnership business.
In support of his conclusion that the tax was on trade and not on persons, the learned Judge by way of analogy, referred to clauses (a), (c), (d), (e) and (f) of sub Section (1).
He also referred to two Madras decisions in The Municipal Commissioners of Nagapatam vs Sadaya Pillay(1) and Davies vs President of the Madras Municipal Commission(2): and found himself in entire agreement with the reasoning of the learned Judges in those cases.
Aggrieved, the Municipal Committee preferred a Letters Patent Appeal.
The Appellate Bench of the High Court held that to import the definition of the term "person" occuring in Section 2(40) of the Punjab General Clauses Act into Section 61(1) (b) of the Municipal Act, will be repugnant to the subject.
In the opinion of the Bench, under the scheme of the statute in question, the tax cannot be levied on a firm or factory as such, but only on the individual owners of the factory or of the firm.
On this reasoning, the Bench reached the conclusion "that under Section 61(1) (b) of the Act, it is the individual who is to be assessed and is liable to pay the tax mentioned therein and so the assessment as well as the demand of the tax from each of the plaintiffs does not suffer from any legal infirmity.
" The Bench further held that since the Committee in imposing the tax on the appellants herein, has not acted outside the provisions of the statute, "it would, on the basis of the judgment of the Supreme Court in Firm Seth Radha Kishan (Deceased) represented by Hari Kishan & Ors.
vs Administrator Municipal Committee, Ludhiana,(3) which also dealt with the provisions of the Municipal Act, follow that the impugned assessment could only be questioned under the provisions of Sections 84 and 86 of the Act, and the jurisdiction of the Civil Court in respect of tax levied or the assessment made is excluded".
In the result, the appeal was allowed and the trial court 's decision dismissing the suit was restored.
Before us, Mr. V. K. Mahajan, learned counsel for the plaintiffs appellants, has adopted the reasons given by the learned Single Judge of the High Court.
In support of his contentions, he has relied upon the 467 aforesaid Madras decisions.
His argument is that if the interpretation placed by the Appellate Bench of the High Court is allowed to stand, it will lead to anamolous and unconstitutional results.
Mr. Mahajan concedes that the individual partners are also 'persons ' within the meaning of clause (b) of Section 61(1).
He, however, maintains that the firm, also, is a 'person ' within the contemplation of this provision and as such, liable to be taxed; that if in respect of the one trade, which is being carried on by the firm, apart from each of the individual partners, the firm, also is separately assessed to Rs. 200/ per annum, not only the incidence of the tax will fall twice, the total liability therefor will far exceed the ceiling of Rs. 250/ per annum fixed by Article 276(2) of the Constitution.
In these premises, it is contended that an interpretation of Section 61(1) (b), which may lead to unconstitutional on irrational results should be eschewed.
With regard to the question of jurisdiction it is contended that since the Municipal Committee had in the exercise of its powers clearly acted beyond its jurisdiction, the suit was maintainable in the Civil Court.
Section 61(1)(b) of the Municipal Act, so far as material for this case, reads as under: "Subject to any general or special orders which the State Government may make in this behalf, and the rules, any committee may, from time to time for the purposes of this Act, and in the manner directed by this Act, impose in the whole or any part of the municipality any of the following taxes, namely: (1) (a). . . . (i) to (iii) . . . . (b) a tax on persons practising any profession or art or carrying on any trade or calling in the municipality.
Explanation.
A person in the service or person holding an office under the State Government or the Central Government or a local or other public authority shall be deemed to be practising a profession within the meaning of this sub section.
" From a plain reading of the extracted provision, it is clear that a tax leviable under clause (b) is, in terms, a tax on "persons".
The expression "persons" undoubtedly includes natural persons.
The class of such taxable persons has been indicated by the Legislature with reference to their occupational activity.
Thus, in order to be authorised, a tax under clause (b) of Section 61(1) must satisfy two conditions: 468 First, it must be a tax on "persons".
Second such persons must be practising any profession or art or carrying on any trade or calling in the municipality.
There can be no dispute that the appellants are "persons" and, as such, satisfy the first condition.
Even the learned counsel for the appellants has candidly conceded that the individual partners are also "persons" within the meaning of the said clause (b).
Controversy thus becomes narrowed down into the issue; Whether persons collectively doing business in partnership, in the municipality, fulfil the second condition ? That is to say, do such persons "carry of any trade or calling in the municipality" within the contemplation of clause (b) ? In our opinion, for reasons that follow, the answer to this question must be in the affimative. 'Partnership ' as defined in Section 4 of the , is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all.
The Section further makes it clear that a firm or partnership is not a legal entity separate and distinct from the partners.
Firm is only a compendious description of the individuals who compose the firm.
The crucial words in the definition of 'partnership ' are those that have been underlined.
They hold the key to the question posed above.
They show that the business is carried on by all or any of the partners.
In the instant case, admittedly, all the plaintiff appellants are carrying on the business in partnership.
All the six partners are sharing the profits and losses.
All the partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the course of the business.
Each partner is considered an agent of the other.
This being the position, it is not possible to hold that each of the six partners is not carrying on a trade or calling within the purview of clause (b) of Section 61(1) of the Municipal Act.
At the most, it can be said that each of these six persons is severally as well as collectively carrying on a trade in the Municipality.
There is nothing in the language of Section 61 or the scheme of the Municipal Act which warrants the construction that persons who are carrying on a trade in association or partnership with each other cannot be individually taxed under clause (b) of Section 61(1).
On the contrary, definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity.
As noticed already, clause (b) makes it clear in no uncertain terms that this is a tax on 'persons. ' Its incidence falls on individuals, who belong to a class practising any profession or art; or carrying on a trade or calling in the municipality.
469 To hold that persons who are collectively carrying on a trade in the municipality cannot be taxed individually, would be to read into the statute words which are not there.
There are no words in clause (b) or elsewhere in the statute which, expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals.
To attract liability to a tax under this clause, it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others.
Thus, both the conditions necessary for levying a tax under clause (b) of subsection (1) of Section 61 of the Municipal Act existed in this case.
The appellants are "persons" and they are carrying on a trade in Chheharata Municipality.
In the view we take, we do not think it necessary to go further into the question, whether the definition of 'person ' given in Section 2(40) of the Punjab General Clauses Act, can be imported into the statute under consideration, so as to include a contractual firm, also, within the purview of the expression 'persons ' used in clause (b) of Section 61(1).
Indeed, the entire effort to import the definition of 'person ' given in the General Clauses Act, into Section 61(1)(b) of the Municipal Act, is directed to find a foundation for the argument, that the construction adopted by the High Court could lead to double taxation and even unconstitutional results.
But in the instant case, nothing of this kind has happened.
The firm has not been assessed.
No question of double taxation or exceeding the Constitutional ceiling of Rs. 250/ fixed by Article 276(2) of the Constitution, arises on the facts of the present case.
The arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical, and speculative.
This takes us to the second question, whether the Civil Court had jurisdiction to hear and determine the suit.
Section 84(1) of the Punjab Municipal Act provides that "an appeal against the assessment or levy of any. tax under this Act, shall lie to the Deputy Commissioner or to such other officer as may be empowered by the State Government in this behalf".
Then, there is a proviso to this sub section which says that when the Deputy Commissioner or such other officer, as aforesaid, is or was, when the tax was imposed, a member of the Committee, the appeal shall lie to the Commissioner of the Division.
Sub section (2) is important.
It provides: "84(2).
If, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises, on which the officer hearing the appeal entertains reasonable dobut, he may, either of his own 470 motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with his own opinion on the point for the decision of the High Court.
" Section 86 mandates that "no objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.
" From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment.
The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income tax Act, 1922.
Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.
It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded.
Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication" the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act.
In the view we take, we are fortified by the decision of this Court in Firm Seth Radha Kishan vs Administrator, Municipal Committee, Ludhiana, (supra) wherein sections 84 and 86 of this very Punjab Municipal Act, 1911 came up for consideration.
Therein, the Municipal Committee, Ludhiana, imposed a terminal tax on Sambhar salt and assessed the appellant, therein, to a sum of Rs. 5,893/ towards that tax at the rate of Rs. 10/ per maund under item 69 of the Government Notification by which the terminal tax was imposed.
The assessee filed a suit against the Municipal Committee in the Civil Court, contending that Sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68, that he had been illegally assessed under item 69 at the higher rate, and claimed refund of the amount paid by him, with interest.
The Committee, inter alia, contended that Sambhar salt was not common salt, and the Civil Court had no jurisdiction to entertain the suit.
The trial court held that Sambhar salt was common salt within the meaning of item 68 of the Schedule, that 471 the imposition of tax on it under item 69 of the Schedule was illegal, and, therefore, the Civil Court had jurisdiction to hear and determine the suit by virtue of section 9 of the Code of Civil Procedure.
On appeal, the High Court held that the Civil Court had no jurisdiction, and dismissed the suit.
The assessee came in appeal to this Court by certificate granted by the High Court, and contended that since the impugned levy was not made under the Municipal Act but in derogation thereof, the Civil Court had jurisdiction to entertain and determine the suit.
Delivering the judgment of the Court, Subba Rao, J. (as he then was) repelled this contention, observing that the rate of the tax to be levied depended upon the character of the salt, and it was not possible to say that in ascertaining this fact the authorities concerned travelled outside the provisions of the Municipal Act, even if they wrongly applied item 69 of the schedule; that the mistake in applying the wrong item of the Schedule to the tax could be corrected only in the manner prescribed by the Act, and the aggrieved person cannot file a suit in the Civil Court in that regard, the Civil Court 's jurisdiction having been excluded by the provisions of Sections 84 and 86 of the Act.
The Court distinguished that class of cases where the Municipal Committee in levying a tax or committing an Act, clearly acts outside or in abuse of its powers under the Municipal Act, and explained that it is only in such cases, the bar to the jurisdiction of the Civil Court would not apply.
Can the case before us be said to belong to that class of cases where the Municipal Committee in levying a Tax acts beyond or in abuse of its powers under the Act ? The answer to this question must be in the negative.
By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and not collectively, to the tax in question, the Municipal Committee abused its powers under the Act.
We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions of Section 61(1)(b) of the Act.
In short, the present case is one where the Municipal Committee acted "under the Act".
It follows, therefore, that the Civil Court 's jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein related to the principle of assessment to be followed.
For the foregoing reasons, the appeal fails and is dismissed with costs.
V.D.K. Appeal dismissed.

summary/full:
Under section 61(1)(b) of the Punjab Municipal Act, 1911 the respondent by its Notification dated May 15, 1946 levied a profession tax of Rs. 15/ per annum on each of the partners of a firm.
Bharat Industries Chheharta i.e. the appellants in the appeal.
By the Notification dated July 4, 1958 the tax was raised to Rs. 200/ per annum.
The validity of the demand made by the respondent at the rate of Rs. 200/ from each of the partners of the firm was challenged, pleading that the Municipal Committee in levying the tax on the individual partners had exceeded its statutory powers under section 61(1)(b) of the Municipal Act in as much as the term 'person ' occurring in section 61(1)(b) of the Punjab Municipal Act, 1911, construed in the light of the definition given in section 2(40) of the Punjab General Clauses Act included a 'firm ' and since the trade carried on by the firm is one, the tax could be levied only on the firm, and not on the partners individually.
The Trial Court dismissed the suit.
First appellate court reversed the decree and the High Court in Second Appeal confirmed it.
A Letters Patent Appeal, preferred by the respondent was allowed and the Trial Court 's decision dismissing the suit was restored.
Dismissing the appeal by special leave, the Court ^ HELD: 1.
It is clear, from a plain reading of Section 61(1)(b) that a tax leviable under clause (b) is in terms, a tax on 'persons ', which expression includes natural persons.
Its incidence falls on individuals, who belong to a class practising any profession or art, or carrying on a trade or calling in the municipality.
To hold that persons who are collectively carrying on a trade in the municipality cannot be taxed individually, would be to read into the statute words which are not there.
There are no words in clause (b) or elsewhere in the statute which expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals.
To attract liability to a tax under this clause it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others.
[467G, 468H, 469A B] 2 'Partnership ' as defined in Section 4 of the , is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all.
A firm or partnership is not a legal entity separate and distinct from the partners.
Firm 464 is only a compendious description of the individuals who compose the firm.
The business being carried on by all or any of the partners, all of them are jointly and severally responsible for the liabilities incurred in the course of the business as each one is considered as an agent of the other.
Such partners can be taxed as persons, in their individual.
[468 D H] 3.
In order to be authorised a tax under clause (b) of Section 61(1) must satisfy two conditions: First, it must be a tax on persons.
Second, such persons must be practising any profession or art or carrying on any trade or calling in the municipality.
Both the conditions necessary for levying a tax under clause (b) of sub section (1) of Section 61 of the Municipal Act existed in this case.
The appellants are 'persons ' and they are carrying on a trade in Chheharata Municipality.
[467H, 468A C] 4(i) Where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded.
[470D E] (ii) From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment.
The Act further provides a particular forum and a specific mode of having this remedy, which is analogous to that provided in Section 66(2) of the Indian Income tax Act, 1922 Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.
Therefore, Sections 84 and 86 of the Municipal Act bar by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under the Act.
[470B D, E F] (iii) In the facts and circumstances of the case, it is clear (a) that in assessing the appellants individually, and not collectively to the tax in question, the Municipal Committee did not abuse its powers under the Act, (b) in levying the profession tax it did not travel beyond or act contrary to the provisions of sections 61(1)(b) of the Act, and (c) that the Committee acted under the Act.
The Civil Courts jurisdiction, therefor, to entertain and decide the suit was barred.
[471E G] Firm Seth Radhakishan vs Administrator, Municipal Committee, Ludhiana ; followed.


judgement:
N: Criminal Appeal No. 105 of 1975.
Appeal by Special Leave from the Judgment and Order dated 6 8 1974 of the Delhi High Court in Criminal Revision No. 58 of 1973.
Frank Anthony, K. C. Dua and O. P. Soni for the Appellants.
J. Sorabjee, Additional Soli.
General, B. P. Maheshwari and Suresh Sethi for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the Judgment of the Delhi High Court convicting the appellant under section 7/16 of the , read with Section 2(ix) clause (a) & (g) of the Act and sentenced to rigorous imprisonment of six months and a fine of Rs. 1,000/ .
This order was passed by the High Court in a revision filed by the Municipal Corporation of Delhi against the Order of the Trial Court which convicted the appellant under section 7/15 of the read with Section 2(ix) (k) of the Act and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 500/ , a revision against this order to the Sessions Judge was unsuccessful and hence a further revision was taken by the Delhi Administration before the High Court.
The facts of the case are detailed in the Judgment of the High Court and the Magistrate and we need not repeat the same all over again.
The food Inspectors, namely, one Mr. James and Mr. Sinha took samples of a preparation called Para Excellant and Para Asli from the shop of the appellant who according to the Food Inspectors sold these preparations as saccharin, a fact which is not admitted by the appellant.
The Trial Court after considering the evidence and the report of the Chemical Examiner found that the case of mis branding under section 2(ix) (a) & (g) was not made out by the Prosecution, but it was certainly mis branding as contemplated by section 2(ix) (k) of the Act.
He, accordingly convicted the appellant as indicated above.
Mr. Frank Anthony, Learned Counsel for the appellant has submitted that the High Court was wrong in law in interfering with the Order of the Magistrate, firstly, because the findings of fact by the 553 Magistrate was binding on the High Court in revision and secondly, because the High Court took a legally erroneous view of the law on the interpretation of Section 2(ix) (a) & (g) of the .
We have heard learned counsel for the parties and have perused the judgment of the High Court and we are of the opinion that the contentions raised by the learned counsel for the appellant is well founded and must prevail.
We have perused the original label which described the preparation sold to the food inspectors.
There is nothing to show that the appellant in any way tried to give an impression to the purchaser that either saccharin or some preparation of the type of saccharin was being sold so as to amount to misbranding as contemplated by Section 2(ix) (a) & (g) of the Act.
All that the appellant purported to convey under the label was that the preparation sold was as sweet as saccharin but not as bitter as saccharin.
This was intended merely to lay emphasis on the sweetness of the preparation when it was compared to the sweetness of saccharin.
When the label clearly described the fact that the preparation was not as bitter as saccharin it clearly intended to convey that it was neither something like saccharin nor saccharin itself, in any form or of any type.
Mr. Sorabjee appearing for the respondent submitted that the use of the word saccharin itself amounts to mis branding and gives the impression that the preparation sold was saccharin or something akin to saccharin.
We are unable to agree with this contention.
In the facts and circumstances of the present case and the contents of the label and the description of the preparation, we are satisfied that there was no misbranding, nor was there any attempt on the part of the appellant to sell his preparation as saccharin or some sort of saccharin.
Section 2.(ix) (a) runs as follows: "Misbranded" an article of food shall be deemed to be misbranded (a) "If it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character.
" According to the Additional Solicitor General of India, the sale, by the appellant, of the preparation clearly falls within (iii) clause of sub section (a), that is to say the preparation resembles saccharin so as to deceive a person who wanted to purchase the article of food 554 known as saccharin.
After having examined the label, its description and the contents of the tin and packets, sold to the food inspectors, we are unable to find any evidence of any intention on the part of the appellant to sell a preparation which resembles saccharin in any respect.
The words, as sweet as saccharin were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin at all.
That, by itself, would not attract the provision of Section 2(ix) (a) of the Act.
It was, then submitted that in one of the labels under the directions it was mentioned that the preparation was para saccharin which also shows that the appellant intended to pass on the preparation as some sort of saccharin.
In the first place, the use of the word para saccharin appears to be a mistake in the facts of the present case because this word is completely absent from the Hindi portion of the directions contained in the same label.
Secondly, the word para saccharin would not indicate that the preparation sold was saccharin in any form or of any kind.
It was just a way of describing it because according to the manufacturers the preparation was as sweet as saccharin.
This was mentioned because saccharin being 500 times sweeter than sugar, the manufacturer wanted to convey that the preparation was also much sweeter than sugar and could be used for preparing soda water bottles.
It is obvious that if any person who purchased the preparation was not conversent with the English language, he would not be misled at all.
Having regard to these circumstances we are of the opinion that the case of the appellant does not fall within the clauses (a) & (g) of Section 2(ix) of the Act and the High Court erred in law in convicting the appellant for misbranding under these provisions.
For the reasons given above, the appeal is allowed.
The order of the High Court is set aside and the sentence of imprisonment of six months is also set aside and the fine is reduced to Rs. 500/ .
In other words, the order of the Trial Court Magistrate is hereby restored.
The appeal is accordingly allowed.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant was a manufacturer of a preparation called Para Excellent and Para Asli The outer label of the package describe the contents as "as sweet as saccharin".
Under the directions for use it was mentioned on the label that the preparation was para saccharin.
The appellant was prosecuted under s.2(ix)(a) and (g) of the for misbranding the goods and for selling it as saccharin.
While the trial court convicted and sentenced the appellant to imprisonment and a fine on the ground that though a case of misbranding under section 2(ix) (a) and (g) had not been made out, it was a case of misbranding contemplated by section 2(ix) (k), the High Court, in revision, enhanced the sentence and fine under sections 7 and 16 read with section 2(ix)(a) and (g) of the Act.
On behalf of the prosecution it was contended in the appellant 's appeal to this Court that the use of the word saccharin gave the impression that the preparation was saccharin or something akin to it and it was, therefore, a case of misbranding punishable under the Act.
Allowing the appeal.
^ HELD :1.
There is nothing on the facts of the case to show that the appellant in any way tried to give an impression to the purchasers that either saccharin or some preparation of the type of saccharin was being sold so as to amount to misbranding as contemplated by section 2(iv)(a) and (g) of the Act.
Nor was there an attempt to sell the preparation as saccharin or some kind of saccharin.
When the label described that the preparation was as sweet as saccharin it merely laid emphasis on the sweetness of the preparation when compared to the sweetness of the saccharin.
Similarly when the label described the preparation was not as bitter as saccharin it was intended to convey that it was neither something like saccharin nor saccharin itself in any form or of any type.
[553 C D] 2.
Nor again was there any evidence of intention on the part of the appellant to sell a preparation which resembles saccharin in any respect.
The words "as sweet as saccarin" were merely meant to convey one of the qualities of the preparation itself and not the quality of saccharin.
That by itself would not attract the provisions of section 2(ix)(a) of the Act.
[554 B] 3.
The use of the word para saccharin appears to be a mistake.
In the Hindi portion of the directions contained in the label the words "para Saccharin" were not used.
Secondly the word "para saccharin" would not indicate that 552 the preparation sold was saccharin in any form or of any kind.
It was just a way of describing the contents because the preparation was "as sweet as saccharin. ' The manufacturer wanted to convey that the preparation wasa also much sweeter than sugar and could be used for preparing soda water.
[554 C D]


judgement:
Civil Appeal Nos.
2170 2172 of 1972 Appeals by Special Leave from the Judgment and Order dated 22 7 1971 of the Mysore High Court in T.R.C. Nos. 3, 4 and 5 of 1967.
B. B. Ahuja and Miss A. Subhashini for the Appellant.
section T. Desai, I. N. Shroff and H. section Parihar for the Respondents.
The Judgment of the Court was delivered by UNTWALIA J.
These are three appeals by special leave filed by the Commissioner of Wealth Tax, Mysore from the Judgment of the Mysore (now Karnataka) High Court.
The assessee is the Dowger Maharani of Gondal.
Her husband, His Highness Bhojjrajji Maharaja Saheb of Gondal, died intestate on 31.7.1952 leaving considerable moveable and immoveable properties.
Certain disputes and differences arose after his death between his two sons namely Maharaja Vikramsinghji and his younger brother Shivaraj Singhji in respect of the assets left by the late Maharaja Saheb.
The younger brother was contemplating legal proceedings against his elder brother.
Their mother intervened.
The idea of litigation, thereupon, was dropped because the assessee gave a letter dated 14.5.1953 to Shivaraj Singhji stating therein: "Your father had expressed in the presence of many people that he will give you rupees fifty lakhs.
To keep up his words and promise and also that I should get peace of mind I am writing to you that if your brother Vikramsinghji Maharaja of Gondal does not give you the full amount, then you 547 must get the balance of amount from me.
That is my sincere desire.
I will also press Vikram that the should give you the amount of Rs. fifty lakhs.
Vikram Singhji paid only Rs. 20,00,000/ to Shivaraj Singhji.
The latter, therefore, claimed the balance amount of Rs. 30,00,000/ from the assessee on the basis of her letter dated 14.5.1953.
On or about 12.9.1959, pursuant to her commitment made in the letter aforesaid, the assessee transferred War Stock valued at Rs. 11,00,000/ to Shivaraj Singhji and also agreed to hand over certain ornaments in full settlement of his claim.
The ornaments were however not given.
That led to disputes between the mother and the son but eventually they were also settled on 22.2.1962 which settlement was evidenced by a document setting out all the relevant facts of the history of the dispute.
By virtue of this settlement a sum of Rs. 10,00,000/ was paid by the assessee to Shivaraj Singhji.
The assessee 's wealth was assessed to wealth tax under the Wealth Tax Act, 1957 for the three assessment years in question viz. 1960 61, 1961 62 and 1962 63.
The corresponding valuation dates of the said assessment years are 31.12.1959, 31.12.1960 and 31.12.1961.
It would be noticed that the assessee, under the arrangement arrived at between the parties, became liable to pay the balance of the amount of Rs. 30,00,000/ to Shivaraj Singhji as vikramsinghji, out of the sum of Rs. 50,00,000/ mentioned in the letter dated 14.5.1953, paid only Rs. 20,00,000/ The assessee succeeded in wiping off her liability to the extent of Rs. 11,00,000/ on 12.9.1959 by transfer of War Stock.
The balance of the liability, i.e., Rs. 19,00,000/ remained due and continued to be due on all the three valuation dates aforesaid.
It could be wiped off by a further settlement only in February, 1962.
In respect of the three assessment years in question, however, a question arose as to whether while assessing the net wealth of the assessee within the meaning of clause (m) of section 2 of the Wealth Tax Act the said sum of Rs. 19,00,000/ was to be deducted.
The Wealth tax Tribunal held in favour of the assessee.
At the instance of the Revenue for all the three years a common question of law was referred to the High Court for its opinion.
The questions being in identical terms it would suffice to quote the question with respect to the assessment year 1960 61.
It reads as follows: "Whether on the facts and circumstances of the case, the sum of Rs. 19 lakhs could constitute a debt owed by the assessee and deductible under the Wealth Tax Act from the value of the total assets as on 31.12.1959?" 548 The High Court has answered the question in the affirmative, in favour of the assessee and against the department.
Hence this appeal.
Mr. Ahuja appearing in support of the appeal contended that by the letter dated 14.5.1953 no debt was created as the undertaking given by the assessee to her son agreeing to pay the deficit in respect of Rs. 50,00,000/ on his elder brother 's failure to pay any portion of the sum was an agreement without consideration and hence under section 25 of the Contract Act it was void and was not saved by any of the exceptions mentioned therein.
He, therefore, contended that it was not an enforceable liability on any of the valuation dates and could not be deducted from the valuation of the assessee 's wealth.
In our opinion the argument is not sound.
Taking the totality of the facts as found by the Tribunal and mentioned in the impugned judgment of the High Court it was a case of family settlement or family arrangement which is binding on the parties concerned.
The assessee agreed to purchase peace for the family, and to pay to her son the amount which fell short of Rs. 50,00,000/ if her elder son did not pay any portion thereof.
It is well established that such a consideration is a good consideration which brings, about an enforceable agreement between the parties.
Section 25 of the Contract Act does not hit this.
It may be further pointed out that even if it be held that the letter dated 14.5.1953 had not the effect of bringing about the family arrangement and any binding agreement between the parties, their subsequent conduct upto 12.9.1959 brought about a concluded family arrangement.
Vikramsinghji paid Rs. 20,00,000/ .
Out of the balance of Rs. 30,00,000/ the assessee discharged her liabilities to the extent of Rs. 11,00,000/ and reiterated her obligation to pay the balance of Rs. 19,00,000/ in the shape of ornaments.
That was not honoured.
Shivaraj Singhji had a right to enforce the family arrangement against his mother, as arrived at partly in writing and partly orally as evidenced by the conduct of the parties.
The assessee would have been bound to pay Rs. 19,00,000/ if a suit had been filed against her by Sivaraj Singhji as he had refrained going to the law court from against his brother on her bringing about the family arrangement.
Mr. Ahuja then submitted that at best the undertaking given by the assessee in her letter dated 14.5.1953 was a contingent contract within the meaning of section 31 of the Contract Act.
Even so, under section 32 such a contract becomes enforceable by law when future even contemplated in the contingent contract has happened.
In this case the cotingency was the liability of the mother to pay a certain sum of money 549 on the failure by her elder son to pay Rs. 50,00,000/ or any part there of.
This did happen sometime between 14.5.1953 and 12.9.1959.
In that view of the matter, if not earlier the liability of the mother became enforceable by law on the latter date.
Learned counsel for the appellant cited three decisions of this Court to support his argument viz. Kesoram Industries and Cotton Mills Ltd. vs Commissioner of Wealth Tax (Central) Calcutta;(1) Standard Mills Co. Ltd. vs Commissioner of Wealth Tax, Bombay(2) and Bombay Dyeing and Manufacturing Co. Ltd. vs Commissioner of Wealth Tax, Bombay City I(3).
None of them is quite apposite on the point at issue before us.
In the case of Kesoram Industries it was held that "debt owed" within the meaning of section 2(m) of the could be defined as the liability to pay in praesenti or in futuro an ascertainable sum of money.
It was held that a liability to pay income tax was a present liability though the tax became payable after it was quantified in accordance with ascertainable data.
Subba Rao J., as he then was, delivering the majority opinion said at page 780 : "The said decisions also accept the legal position that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency happened.
But if there is a debt the fact that the amount is to be a scertained does not make it any the less a debt if the liability is certain and what remains is only the quantification of the amount.
In short, a debt owed within the meaning of section 2(m) of the can be defined as a liability to pay in praesenti or in futuro an ascertainable sum of money.
The other two decisions of this Court were concerned with the question as to whether the liability of the assessee to pay gratuity to its employees on determination of employment was a mere contingent liability which arose only when the employment of the employee was determined by death, incapacity, retirement or resignation and whether it could be deducted as a debt in computing the net wealth of the assessee.
The answer given was against the assessee.
In the present case we have held that the liability of the assessee was created by the family arrangement arrived at between the parties and even if it was a contingent liability the contingency did happen and the assessee became liable 550 to pay the amount as a debt before 12.9.1959, which is anterior to the relevant valuation dates.
The sum of Rs. 19,00,000/ was a subsisting debt on the said valuation dates.
For the reasons stated above, we hold that there is no merit in this appeal.
It is accordingly dismissed with costs.
N.K.A Appeal dismissed.

summary/full:
The respondent 's wealth was assessed to Wealth Tax under the Wealth Tax Act, 1957 for three assessment years 1960 61, 1961 62 and 1962 63 the corresponding valuation dates being 31 12 1959, 31 12 1960 and 31 12 1961.
On 14th May, 1953 the assessee wrote a letter to her younger son stating that his late father expressed the wish that he (the second son) should be paid Rs. 50 lakhs out of the family properties and that to keep his promise and also to get peace of mind, if his elder brother did not pay the sum of Rs. 50 lakhs, she would pay such balance that remains unpaid.
The elder brother paid Rs. 20 lakhs.
The balance liability of Rs. 19 lakhs remained due and continued to be due on all the three aforesaid valuation dates.
It was finally wiped off in February, 1962.
On the question "whether, while assessing the net wealth of the respondent within section 2(m) of the Wealth Tax Act, the sum of Rs. 19 lakhs was to be deducted" as debt owed by her, the Wealth Tax Tribunal held in favour of the respondent.
The High Court held that the sum of Rs. 19 lakhs constituted a debt owed by the assessee and was deductible under the Wealth Tax Act from the value of the total assets as on 31 12 1959.
On appeal to this Court, the appellant argued (i) that the letter dated 14 5 1953 created no debt as the undertaking given by the respondent to her son on his elder brother 's failure to pay any portion of the sum was an agreement without consideration and hence it was void and therefore it was not enforceable at law on any of the valuation dates and could not be deducted; (ii) that the undertaking given by the respondent in her letter dated 14 5 1953 was a contingent contract within the meaning of section 31 of the Contract Act.
Dismissing the appeal, ^ HELD: (1) Taking the totality of facts it was a case of family settlement or family arrangement which was binding on the parties.
The respondent agreed to purchase peace for the family and to pay to her younger son the amount which fell short of Rs. 50 lakhs if her elder son did not pay any portion thereof.
It is well established that such a consideration is good consideration which brings an enforceable agreement between the parties and is not hit by section 25.
Even if it be held that the letter dated 14 5 1953 had not the effect of bringing about the family arrangement or any binding arrangemen bewteen the parties, their subsequent conduct upto 12th September 1959 brought a concluded family arrangement.
The respondent paid Rs. 11 lakhs and reiterated her obligation to pay the balance in the shape of ornaments.
546 That was not honoured by reason of which the younger son had a right to enforce the family arrangement against his mother.
The respondent would have been bound to pay the balance if a suit had been filed against her as he had refrained from going to the law court against his brother on her bringing about the family arrangement.
[548 C G] (2) Assuming that it was a contingent contract within the meaning of section 31 of the Contract act, such a contract under section 32 of the Contract Act, becomes enforceably by law when the future event contemplated in the contingent contract had happened.
The contingency in this case was the liability of the mother to pay a certain sum of money on the failure by the elder son to pay Rs. 50 lakhs or any part thereof.
In that view, the liability of the mother became enforceable by law on the latter date, if not earlier.[548 G H, 549] Kesoram Industries and Cotton Mills Ltd. vs Commissioner of Wealth Tax (Central), Calcutta, 59 I.T.R. 767; Standard Mills Co. Ltd. vs Commissioner of Wealth Tax, Bombay, ; and Bombay Dyeing and Manufacturing Co. Lt. vs Commissioner of Wealth Tax, Bombay City I, , distinguished and held inapplicable.


judgement:
ition No. 57 of 1979.
K. Hingorani for the Petitioners.
U. P. Singh for the Respondent.
534 The Order of the Court was delivered by BHAGWATI, J.
This writ petition again comes up for hearing before us pursuant to the directions given by us on 26th February, 1979(1) and today three additional counter affidavits have been filed on behalf of the respondents: one by Mrinmaya Choudhri, Assistant Inspector General of Prisons: the other by Bageshwari Prasad Pande, Superintendent of the Patna Central Jail and the third by Pradip Kumar Ganguly, Superintendent of the Muzafferpur Central Jail.
Mrinmaya Choudhri has in his affidavit given particulars of the under trial prisoners in 48 jails in the State of Bihar in addition to the particulars of the undertrial prisoners in 17 jails already submitted on 26th February, 1979.
We directed the State of Bihar by our order dated 26th February, 1979 to file a revised chart showing a year wise break up of the under trial prisoners after making a division into two broad categories viz. minor offences and major offences but this direction has not yet been carried out by the State of Bihar.
Mrinmaya Choudhri has, however, assured us in his affidavit that several steps regarding the different directions given by the Court are being promptly implemented but due to shortage of time it has not been possible complete the same by 3rd March, 1979.
We direct that the State of Bihar will file within three weeks from to day a revised chart in regard to the under trial prisoners in all the 65 jails in a manner which would clearly show year wise as to what is the date from which each of them is in jail after making a broad division into two categories of minor offences and major offences.
We are glad to note that so far as women under 'protective custody ' are concerned, the State has assured us in the affidavit of Mrinmaya Choudhri that necessary steps for transferring women under "protective custody ' in jails to the institutions run by the welfare department have been taken and directions to that effect are issued by the Government.
We hope and trust that this direction given by us in our earlier order dated 26th February, 1979 will be carried out by Government and compliance report submitted to us within the prescribed time.
Though we directed the State of Bihar by our order dated 26th February, 1979 to intimate to the court by a proper affidavit to be filed on or before 3rd March, 1979 whether the under trial prisoners whose particulars were given in the counter affidavit filed on 26th February, 1979 were periodically produced before the Magistrates in compliance with the proviso to section 167(2), we find that the only averment made by Bageshwari Prasad Pande in his affidavit in response to this direction is that petitioners Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 17 confined in the Patna Central Jail prior to their release were 535 regularly produced before the courts "as and when required by the courts".
This averment does not at all constitute compliance with the direction given by us.
We would like to know from the State of Bihar in a proper affidavit to be filed within two weeks from today whether the under trial prisoners who were directed to be released by us on their personal bond were periodically produced before the Magistrates in compliance with requirement of the proviso to section 167(2).
We would suggest that the State should furnish to this Court the dates on which these under trial prisoners were remanded to judicial custody from time to time by the Magistrates, so that we can satisfy ourselves that the requirement of the proviso was complied with.
We also find an averment in the affidavit of Pradeep Kumar Ganguly that Petitioners Nos.
10, 11, 12, 13, 15, 16 and 18 who were previously confined in the Muzaffarpur Central Jail prior to their release were regularly produced before the Court "as and when required by the courts".
This averment, as we have pointed out, is wholly unsatisfactory and it does not inform the Court as to what were the dates on which these under trial prisoners were remanded from time to time by the Magistrates.
It is only if these particulas are furnished to us that we can satisfy ourselves in regard to compliance with the requirement of the proviso to section 167(2) and we would, therefore, direct the State of Bihar to furnish these particulars to us in an affidavit to be filed within two weeks from today.
We should also like to have the particulars in regard to the dates on which remand orders were made from time to time by the Magistrates in regard to under trial prisoners at items Nos. 4, 5, 6, 7, 8, 13, 21, 22, 24, 28, 29, 30, 43, 56, 69, 71, 72, 79, 85, 92, 96, 97, 101, 129, 133, 136 to 142, 165 to 167, 170 to 174, 177, 191, 199, 210, and 236 in the list of under trial prisoners in Ranchi Central Jail submitted on behalf of the respondents.
These under trial prisoners have been in jail for a period of over six to seven years and we would like to satisfy ourselves that the requirement of the proviso to section 167(2) was complied with in their case.
The affidavit giving these particulars should be filed by the State Government within three weeks from today.
There are quite a larg number of under trial prisoners who are languishing in jail for long periods of time and it is not possible for us to examine the individual cases of these under trial prisoners for the purpose of satisfying ourselves in regard to compliance with the proviso to section 167(2), but we woudl request the High Court of Patna to pick out a few names from the lists of under trial prisoners which have been filed before us by the State of Bihar on 26th February, 1979 and 5th March, 1979 and satisfy itself 536 whether these under trial prisoners have been periodically remanded from time to time by the Magistrates as required by the proviso to section 167(2).
We would direct the State of Bihar to furnish copies of these lists of under trial prisoners to the Chief Justice of the Patna High Court within ten days from today.
We find from the lists of under trial prisoners filed before us on behalf of the State of Bihar that the under trial prisoners whose names are set out in the chart filed by Mrs. Hingorani to day have been in jail for periods longer than the maximum term for which they could have been sentenced; if convicted.
This discloses a shocking state of affairs and betrays complete lack of concern for human values.
It exposes the callousness of our legal and judical system which can remain unmoved by such enormous misery and suffering resulting from totally unjustified deprivation of personal liberty.
It is indeed difficult for us to understand how the State Government could possibly remain oblivious to the continued incarceration of these under trial prisoners for years without even their trial having commenced.
The judiciary in the State of Bihar also cannot escape its share of blame because it could not have been unware of the fact that thousands of under trial prisoners are languishing in jail awaiting trial which never seems to commence.
We fail to see how the continued detention of these under trial prisoners mentioned in the list of Mrs. Hingorani can be justified when we find that they have already been in jai for a period longer than what they would have been sentenced to suffer, if convicted.
They have in fact some jail term to their credit.
We, therefore, direct that these under trial prisoners whose names and particulars are given in the list filed by Mrs. Hingorani should be released forthwith as continuance of their detention is clearly illegal and in violation of their fundametal right under Article 21 of the Constitution.
Then there are several under trial prisoners who are charged with offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or being too poor they are unable to furnish bail.
It is not uncommon to find that under trial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf.
Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty 537 the under trial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pretrial detention.
This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programme, but so far, these cries do not seem to have evoked any response.
We do not think it is possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation wide legal service programme to provide free legal services to them.
It is now well settled, as a result of the decision of this Court in Maneka Gandhi vs Union of India(1) that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure unnder which a person may be deprived of his life or liberty should be 'reasonable, fair and just '.
Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable fair and just.
It is an essential indegredient of reasonable, fair and just procedure to a prisonel who is to seek his liberation through the court 's process that he should have legal services available to him.
This Court pointed out in M. H. Hoskot vs State of Maharashtra (2).:"Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supporteve skill is absent for one side.
Our judicature, moulded by Anglo American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer power for steering the wheels of equal justice under the law".
Free legal services to the poor and the needy is an essential element of any 'reasonable, fair and just ' procedure.
It is not necessary to quote authorative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied 'reasonable, fair and just ' procedure.
Black, J., observed in Gidian vs Wainwright(3): "Not only those precedents but also reason and reffection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.
This seems to us to be an obvious 538 truth.
Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime.
Lawyers to prosecute are every where deemed essential to protect the public 's interest in an orderly society.
Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences.
That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessties, not luxuries.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours.
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.
This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him.
" The philosophy of free legal service as an essential element of fair procedure is also to be found in the following passage from the judgment of Douglas, J. in Jon Richard Argersinger vs Raymond Hamlin(1) "The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and sometimes no skill in the science of law, if charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad.
He is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one.
He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
If that be true of men of intelligence, 539 how much more true is it of the ignorant and illiterate or those of feeble intellect.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours.
From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.
This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
Both Powell and Gideon involved felonies.
But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty.
x x x x x x The court should consider the probable sentence that will follow if a conviction is obtained.
The more serious the likely consequences, the greater is the probability that a lawyer should be appointed. .
The court should consider the individual factors peculiar to each case.
These, of course would be the most difficult to anticipate.
One relevant factor would be the competency of the individual defendent to present his own case.
(emphasis added)" We may also refer to Article 39A the fundamental constitutional directive which reads as follows: "39A. Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
(emphasis added)" This Article also emphasises that free legal service is an inalienable element of 'reasonable, fair and just ' procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just, procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.
This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the 540 needs of justice so required, provided of course the accused person does not object to the provision of such lawyer.
We would, therefore, direct that on the next remand dates, when the under trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such under trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated 12th February, 1979.
The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today.
There are also various under trial prisoners who have been in jail for periods exceeding one half of the maximum punishment that could be awarded to them, if convicted, for the offences with which they are charged.
To take an example, Budhu Mahli, who is at item No. 1 in the list of undertrial prisoners in Ranchi Central Jail has been in jail since 21st November, 1972 for offences under Section 395 of the Indian Penal Code and Section 25 of the Indian Arms Act.
The maximum punishment for the offence under Section 395 of the Indian Penal Code is 10 years while that for the offence under Section 25 of the Indian Arms Act is much less.
Yet Budhu Mahli has been in jail as an under trial prisoner for over six years.
So also Jairam Manjhi, Somra Manjhi, Jugal Munda and Gulam Munda at Item Nos.
2 to 7 in the list of under trial prisoners confined in Ranchi Central Jail have been in jail as under trial prisoners from 21st February, 1974 that is, for a period of over five years for the offence under Section 395 of the Indian Penal Code which is punishable with a maximum term of imprisonment of ten years.
There are numerous other instances which can easily be gleaned from the lists of under trial prisoners filed on behalf of the State of Bihar, where the under trial prisoners have been in jail for more than half the maximum term of imprisonment for which they could be sentenced, if convicted.
There is no reason why these undetrial prisoners should be allowed to continue to languish in jail, merely because the State is not in a position to try them within a reasonable period of time.
It is possible that some of them, on trial may be acquitted of the offences charged against them and in that event, they would have spent several years in jail for offences which they are ultimately found not to have committed.
What faith would these people have in our system of administration of justice ? Would they not carry a sense of frustration and bitterness against a society which keeps them in jail for so many years for offences which they did not commit ? It is, therefore, absolutely essential that persons accused of offences 541 should be speedily tried, so that in cases where bail, in proper exercise of discretion, is refused, the accused persons have not to remain in jail longer than is absolutely necessary.
Since there are several undertrial prisoners who have been in jail for periods longer than half the maximum term of imprisonment for which they could if convicted, be sentenced, we would direct that on the next remand dates when they are produced before the Magistrates or the Sessions Courts, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such lawyer on their behalf and if any application for bail is made, the Magistrates or the Sessions Courts, as the case may be should dispose of the same in accordance with the broad guidelines indicated by us in our judgment dated 12th February, 1979.
The State Government will comply with this direction as far as possible within a period of six weeks from today and submit report of compliance to the High Court of Patna.
We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man.
Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them.
The poor in their contract with the legal system have always been on the wrong side of the law.
They have always come across "law for the poor" rather than "law of the poor".
The law is regarded by them as something mysterious and forbidding always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them.
The result is that the legal system has lost its credibility for the weaker sections of the community.
It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.
We may remind the Government of the famous words of Mr. Justice Brennan "Nothing rankles more in the human heart than a brooding sense of injustice.
Illness we can put up with.
But injustice makes us want to pull things down.
When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because 542 democracy 's very life depends upon making the machinery of justice so effective that every citizen shall believe in an benefit by its impartiality and fairness." And also recall what was said by Leeman Abbot years ago in relation to affluent America.
"If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the courtroom, the seeds of revolution will be sown, the fire brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which will follow.
" We would strongly recommend to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country.
That is not only a mandate of equal justice implicit in Article 14 and right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39A.
We find from the counter affidavit filed on behalf of the respondents that no reasons have been given by the State Goverment as to why there has been such enormous delay in bringing the under trial prisoners to trial.
Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just ' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused.
The State cannot be permitted to deny the constitutional right of speedy trial to the accused on he ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial.
The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem vs Malclm(1): "The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty".
It is also interesting to notice what Justice, then Judge, Blackmum said in Jackson vs Bishop(2): "Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considerations. " 543 So also in Holt vs Sarver(1), affirmed in 442 F. Supp. 362, the Court, dealing with the obligation of the State to maintain a Penitentiary System which did not violate the Eighth Amendment aptly and eloquently said "Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed upon what Respondents may actually be able to accomplish.
If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States.
" The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inabiltiy.
The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State.
It is also the constitutional obligation of this Court as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial.
We find that in fact the courts in the United States have adopted this dynamic and consructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment.
The courts have ordered substantial improvements to be made in a variety of archaic prisons and jails through decisions such as Hot vs Sarver (supra), Jones vs Wittenberg(2), Newman vs Alabama(3) and Gates vs Collier(4).
The Court in the last mentioned case asserted that it "has the duty of fashioning a decree that will require defendants to eliminate the conditions and practices at Parchman here in above found to be violative of the United State 's constitution" and in discharge of this duty gave various directions for improvement of the conditions of those confined in the State Penitentiary.
The powers of this Court in protection of the Constitutional rights are of the widest amplitude and we do not see why this 544 Court should not adopt a similar activist approach and issue to the State directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial.
But in order to enable the Court to discharge this constitutional obligation, it is necessary that the Court should have the requisite information bearing on the problem.
We, therefore, direct the State of Bihar to furnish to us within three weeks from today particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving yearwise breakup of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months.
We would appreciate if the High Court of Patna also furnishes the above particulars to us within three weeks from today since the High Court on its administrative side must be having records from which these particulars can be easily gathered.
We also direct the State of Bihar to furnish to us within three weeks from today particulars as to the number of cases where first information report have been lodged and the cases are pending investigation by the police in each sub division of the State as on 31st December, 1978 and where such cases have been pending investigation for more than six months, the State of Bihar will furnish broadly the reasons why there has been such delay in the investigative process.
The writ petition will now come up for hearing and final disposal on 4th April, 1979.
We have already issued notice to the Supreme Court Bar Association to appear and make its submissions on the issue arising in the writ petition since they are of great importance.
We hope and trust that the Supreme Court Bar Association will respond to the notice and appear to assist the Court at the hearing of the writ petition.

summary/full:
At the resumed hearing of the petition for release of under trials in the State of Bihar.
^ HELD: (1) The procedure under which a person may be deprived of his life or liberty should be 'reasonable fair and just. ' Free legal services to the poor and the needy is an essential element of any 'reasonable fair and just 'procedure.
A prisoner who is to seek his liberation through the court 's process should have legal services available to him.
[537 C, D] Meneka Gandhi vs Union of India, [1978] 1 SCC 248; M.H. Hoskot vs State of Maharashtra, ; ; Gideon vs Wainwright; , ; 9 L. ed.
at 799; John Richard Argersinger vs Raymond Hamlin, ; 35 L. ed.
2d 530 at 535 36; referred to (2) Article 39A also emphasises that free legal service is an inalienable element of 'reasonable, fair and just 'procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
The right to free legal service is therefore, clearly an essential ingredient of 'reasonable, fair and just ' procedure for a person accused of, an offence and it must be held implicit in the guarantee of article 21.
This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services, on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.
[539 F 540 A] (3) The poor in their contact with the legal system have always been on the wrong side of the law.
They have always come across "law for the poor" rather than "law of the poor".
The law is regarded by them as something mysterious and forbidding always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them.
The result is that the legal system has lost its credibility for the weaker sections of the community.
It is, therefore, necessary to inject equal justice into legality and that can be done only by a dynamic and activist scheme of legal services.
[541 E F] 533 4.
The urgent necessity of introducing a dpnamic and comprehensive legal services programme impressed upon the Government of India as also the State Governments.
That is not only a mandate of equal justice implicit in article 14 and right to life and liberty conferred by article 21 but also the compulsion of the constitutional directive embodies in article 39A. [542 D] 5.
The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability.
The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State.
It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, appointment of additional judges and other measures calculated to ensure speedy trial.
[543 D E] (6) The courts in the United States have adopted a dynamic and constructive role in regard to prison reform by utilising the activist magnitude of the Eighth Amendment.
The courts have ordered substantial improvements to be made in a variety of archaic prisons and jails through its decisions.
[543 F] Rhem vs Malclm, , Jackson vs Bishop, 571, Holl vs Sarver, ; ; Jones vs Wittenberg, ; Newman vs Alabama, ; Gates vs Collier, 349 F. Suppl. 881; referred to.
(7) The powers of this Court in protection of the Constitutional rights are of the widest amplitude and this Court should adopt an activist approach and issue to the State, directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial.
But in order to enable the court to discharge this constitutional obligation, it is necessary that the court should have the requisite information bearing on the problem.
[543 H 544 A] Directed that: (a) On the next remand dates when the under trials are produced before the Magistrates or the Sessions Courts the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such a lawyer on their behalf.
[540 B] (b) The State Government and High Court to furnish particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving year wise break up of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months.
[544 D]


judgement:
les tax could be imposed retrospectively.
Therefore, even though in this case the tax was levied retrospectively by a validation ordinance, the respondent would be deemed to have entered the trade and carried it on the basis that it would be liable to pay sales tax.
[571 D] 569 (b) Even assuming that the respondent carried on the trade thinking that it would not be liable to pay sales tax, the area of concensuality still left for the purpose of agreeing to the final terms of the transactions between the respondent and its retail dealers was quite sufficient for the application of the ratio of Vishnu Agencies.
[571 F G] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2028 of 1974.
Appeal by Special Leave from the Order dated 6 9 1975 of the Punjab and Haryana High Court in L.P.A. No. 516/73.
Hardev Singh and R. section Sodhi for the Appellants.
L. N. Sinha, P. P. Singh and E. C. Agarwala for the Respondent.
The Judgment of the Court was delivered by UNTWALIA J.
The respondent company in this appeal by special leave has a Distillery and Brewery at Jammu.
It maintains wholesale depots at various places in the State of Punjab, the main depot being at Ludhiana.
As a whole seller it supplied Indian made foreign liquor to permit holders on the permits issued by the respective Excise and Taxation Officers, the competent authorities under the Punjab Excise Act and the Rules framed thereunder.
Sales tax under the Punjab General Sales Tax Act, 1948 was imposed in respect of the sales aforesaid by an order of assessment dated the 30th November, 1972.
The respondent, thereupon filed a Writ Petition in the High Court for the quashing of the said order and to restrain the appellants from recovering the amount of Rs. 46,396.22 paise from the petitioner.
The main ground of attack on the imposition of sales tax was that the alleged sales were not sales in the eye of law as the respondent had no volition in the distribution of liquor which was received from the manufacturing concern at Jammu.
The prices were fixed by the competent authorities and the respondent had to charge the fixed price from its retailers holding L 2, L 4, L 5 and L 10 licences.
The respondent company holds L 1 licence which is meant for whole sale dealers.
The State contested the application and in its counter asserted that the excise trade like many other trades, or even more, had to be regulated and controlled by various Rules and Regulations and in spite of all the restrictions placed thereby an area was still left where the whole seller and the retail purchaser had to arrive at an agreement by their volition.
According to the case of the appellants "the quality and brand of Foreign Liquor, lifting of the specified quantity in bulk liter or in instalments, the size of packages (i.e. Bottles, pints, or Nips) and mode of payment (cash or credit or part payment) and 570 the prices, are the matters which are decided by the petitioner and his purchasers and there is no law or rule restricting the volition or liberty of the petitioner in this respect.
" Following a Division Bench decision of the Punjab & Haryana High Court in Jagatjit Distilling and Allied Industries Ltd. vs The State(1) a learned single Judge of that Court allowed the writ application and quashed the assessment order.
A Letters Patent appeal from the said order was dismissed in limine.
Hence this appeal.
This case, in our opinion, is squarely covered by a recent decision of this Court delivered by a Bench of seven Judges in M/s Vishnu Agencies (Pvt.) Ltd. etc.
vs Commercial Tax Officer and others etc.(2) The High Court in the case of Jagatjit Distilling and Allied Industries Ltd. (supra) had mainly relied upon two decisions of this Court to hold that the transactions in that case were not sales.
The said decisions are M/s New India Sugar Mills Ltd. vs Commissioner of Sales Tax, Bihar(3) and Chittar Mal Narain Das vs Commissioner of Sales Tax U.P.(4).
In the case of Vishnu Agencies (supra) the former case was considered in paragraph 36 to 39 of A.I.R. volume at pages 463 464 and it was held that the view expressed in the majority judgment was not good law and the one contained in the minority judgment was approved.
Chittar Mal 's case was also considered in paragraph 44 45 at page 467 and it was distinguished on the ground that the said decision "can be justified only on the view that clause 3 of the Wheat Procurement Order envisages compulsory acquisition of wheat by the State Government from the licensed dealer.
" But then the criticism in that case of the Full Bench decision of the Allahabad High Court in Commr.
Sales tax, U.P. vs Ram Bilas Ram Gopal(5) "which held while construing cl. 3 that so long as there was freedom to bargain in some areas the transaction could amount to a sale though effected under compulsion of a Statute" was not endorsed.
It is, therefore, plain that to that extent Chittar Mal 's case is also not good law.
The decision of the High Court in Jagatjit 's case is no longer good law.
We have examined the various relevant provisions of the Punjab Excise Act and the Rules framed thereunder.
We find that an area of agreement sufficient enough for the parties to cover by their volition to bring the transactions in question within the ambit of sales was left in the field.
Broadly speaking the stand taken on behalf of the 571 appellants in their counter was correct, except that in regard to the fixation of price we assume in favour of the respondent company that the price had been fixed, as usually it is so in the excise trade.
Even so the decision of this Court in Vishnu Agencies (supra) and the various other previous decisions reviewed therein justifies in law the imposition of sales tax by the impugned order in question.
Mr. Lal Narayan Sinha tried to distinguish the decision in Vishnu Agencies (supra) by pointing out that sales tax for the period in question was imposed by the Punjab General Sales Tax (Amendment and Validation) Ordinance, 1972 which was promulgated on the 15th November, 1972 with retrospective effect.
The respondent company, counsel submitted, cannot be said to have entered into the trade and carried it on during this period by a volition as it did not know that sales tax would be chargeable for this period and, therefore, it had not realised sales tax from its customers.
He drew our attention to paragraph 33 of the judgment of this Court in Vishnu Agencies at page 461.
In our opinion the argument of the learned counsel is not sound and for two reasons.
Firstly, it is well settled and it was not disputed that sales tax could be imposed retrospectively.
That being so the respondent company will be deemed to have entered the trade and carried it on the basis that it would be liable to pay sales tax.
Secondly, even assuming it was not so, what has been pointed out in the begining of paragraph 33 as a primary fact of willingness to trade in the commodity strictly on the terms of Control Orders is only one of the reasons which led to the decision that an area of agreement between the parties was left to their consensus.
In our opinion such a part of the area as the one hinted at is not very important and does not form the whole and sole basis of the conclusions arrived at in the case of Vishnu Agencies.
Even assuming in favour of the respondent company that it did not carry on the trade thinking that it would be liable to pay sales tax, the area of consensuality still left in the field for the purpose of agreeing to the final terms of the transactions between the company and its retail dealers was quite sufficient for the application of the ratio of Vishnu Agencies.
Having considered all that was submitted on behalf of the respondent company we find that there is no escape from the conclusion in this case that the transactions in question were sales exigible to sales tax.
For the reasons stated above, we allow this appeal with costs in this Court only.
The judgment and order of the High Court are set aside.
P.B.R. Appeal allowed.

summary/full:
The sales tax authorities levied tax on the sales of liquor effected by the respondent who was a wholesaler in that commodity.
Impugning the levy, the respondent contended in the High Court that when it sold liquor against permits issued by the authorities there was no volition because the price and the quantity of goods to be sold and the person to whom sold were all fixed and therefore there was no sale in the eye of law which would attract tax.
The Department, on the other hand, contended that even when goods were sold against a permit there was still an area of volition in that the parties could decide on the quality and brand of liquor, the quantity, whether in bulk or in instalments, the size of the package and so on, all of which showed that there was no restraint on the volition of the parties and therefore there was sale which attracted tax.
A single judge of the High Court, following a decision of the Division Bench of the same High Court in Jagatjit Distilling and Allied Industries Ltd. vs The State [28 STC 709], quashed the order of assessment.
A Division Bench dismissed the appeal in limine.
Allowing the State 's appeal ^ HELD: The transactions were sales exigible to tax.
[571 G] 1.
The decision of this Court in Vishnu Agencies (Pvt.) Ltd. vs Commercial Tax Officer, ; justifies imposition of sales tax on the sale of liquor on permits.
A conspectus of the provisions of the Punjab Excise Act and the Rules shows that there is an area of agreement sufficient enough for the parties to bring, by their volition, the impugned transactions within the ambit of sales.
[570 G; 571 A] Vishnu Agencies (P) Ltd. etc.
vs Commercial Tax Officer Jagatjit Distilling and Allied Industries Ltd. vs The State, 28 STC 709 overruled.