judgement:
N: Criminal Appeal Nos.
93 94 of 1980.
Appeals by special leave from the Judgment and order dated 30 1 1979 of the Gujarat High Court in Criminal Revision Application No. 306/78 and 305/78.
T. U. Mehta and Vimal Dave for the Appellant.
H. R. Khanna and M. N. Shroff for the Respondent.
The following Judgments were delivered: BHAGWATI, J.
This appeal by special leave is directed against a judgment of the Gujarat High Court in suo motu revision against an order passed by the Judicial Magistrate, First Class, Balasinor convicting the appellant of the offence under section 16(1)(a)(i) read with section 7 of the and sentencing him to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 125/ or in default to undergo simple imprisonment for 1039 a further period of 30 days.
The appellant was prosecuted in the Court of the learned Magistrate for an offence of adulteration of turmeric powder punishable under section 16(1)(a)(1) read with section 7 of the .
It appears from the record that after some evidence was led on behalf of the prosecution, plea bargaining took place between the prosecution, the defence and the learned Magistrate and on the basis of an understanding arrived at between these three parties, the appellant pleaded guilty and the learned Magistrate accepting this plea of guilty, recorded a finding of conviction against the appellant and let off the appellant with a nominal sentence of imprisonment till the rising of the Court and a small fine.
It is, of course true that there is no specific evidence to show that the plea for guilty was entered by the appellant as a result of plea bargaining, but two circumstances, viz., (1) that the appellant pleaded guilty, even though the sample was treated as cancelled by the public Analyst on account of its being broken and leaking and there was no evidence of the report of the public Analyst showing the sample as adulterated and (2) that the judgment of the learned Magistrate was given in a cyclostyled form, clearly lead to the inference that the plea of guilty was entered by the appellant in consequence of an assurance held out by the prosecution and acquiesced in by the learned Magistrate that he would be let off with a very light sentence.
It is highly regrettable that the prosecution as well as the learned Magistrate should have been a party to any such plea bargaining in a prosecution for adulteration involving the health and well being of the community.
Unfortunately, in our country adulteration has assumed alarming proportions and it is absolutely essential to wipe it out ruthlessly and completely by bringing to book offenders responsible for adulteration resulting in ruination of the health of the people.
The investigating agencies must intensify their efforts and catch hold of those who for some private economic gain are prepared to jeopardize the health of the community and indulge in mass murder and when such persons are arraigned before the Court and found guilty a really deterrent and punitive sentence must be imposed upon them.
If it comes to be known that even in respect of an offence of adulteration, it is possible to get away with a light sentence, the anti adulteration law will cease to have any meaning and validity.
It will be mocked at by the people as a futile legislative exercise.
Moreover, we find that here the learned Magistrate had got a cyclostyled form of judgment in which merely blanks were filled in by him and this is the clearest possible evidence that he was in the habit of encouraging plea bargaining and letting off the accused lightly if there was a plea of guilty, so that he may get quick disposal 1040 without any effort.
This was a highly reprehensible practice and we are glad to note that the High Court has expressed strong disapproval of it.
The Magistrate trying an accused for a serious offence like adulteration must apply his mind to the evidence recorded before him and, on the facts as they emerge from the evidence, decide whether the accused is guilty or not.
It must always be remembered by every judicial officer that administration of justice is a sacred task and according to our hoary Indian tradition, it partakes of the divine function and it is with the greatest sence of responsibility and anxiety that the judicial officer must discharge his judicial function, particularly when it concerns the liberty of a person.
The course followed by the learned Magistrate in the present case clearly showed that there was no application of mind by him to the case laid on behalf of the prosecution and he was a consenting party to the appellant being persuaded to enter the plea of guilty and, acting mechanically on the plea of guilty as extracted from the appellant, he appeased his insensitive conscience by recording a finding conviction against the appellant and let him off with a mere sentence of imprisonment till the rising of the Court and a nominal fine.
The High Court on its attention being drawn to the Order passed by the learned Magistrate initiated suo motu proceeding in revision by issuing notice to the appellant to show cause why the sentence imposed on him should not be enhanced.
The appellant appeared in answer to the notice and challenged the conviction recorded against him, but the High Court did not go into the circumstances in which the plea of guilty was entered by the appellant and relying on the plea of guilty proceeded on the basis that the appellant was rightly convicted and since the offence said to be established against the appellant, was with respect to an article of 'primary food ' punishable under section 16(1)(a) (i) of the , the High Court held that the appellant was liable to be sentenced to imprisonment for a minimum term of 3 months and a fine of not less than Rs. 500.
The High Court accordingly enhanced the sentenced imposed on the appellant to 3 months ' simple imprisonment and a fine of Rs. 500 or in default, further simple imprisonment for 30 days.
This order made by the High Court is challenged in the present appeal preferred by the appellant after obtaining special leave of this Court.
Now, it does not appear from the record whether the entire prosecution evidence was completed before the learned Magistrate before the plea of guilty was entered on behalf of the appellant, but one thing is clear that the finding conviction recorded by the learned Magistrate 1041 against the appellant was not based on the evidence led on behalf of the prosecution.
The conviction of the appellant based solely on the plea of guilty entered by him and this confession of guilt was the result of plea of bargaining between the prosecution, the defence and the learned Magistrate.
It is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained.
It is to our mind contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly.
Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of article 21 of the Constitution unfolded in Maneka Gandhi 's case.
It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and ardous criminal trial which, having regard to our combers and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the judge also might be likely to be defected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti adulteration statute.
This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice.
There is no doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of plea bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal.
The High Court should have therefore, set aside the conviction of the appellants and sent the case back to the learned Magistrate for trial in accordance with law, ignoring the plea of guilty entered by the appellant.
The High Court was clearly in error in not doing so.
We accordingly allow the appeal, set aside the judgments of the High Court as also the Order of conviction and sentence recorded against the appellant by the learned Magistrate and remand the case to the learned Magistrate so that he may proceed with the case from the stage at which the appellant confessed to a plea of guilty.
The learned trial Magistrate will ignore the plea of guilty entered by the appellant and proceed further with the case after giving an opportunity to the prosecution to lead such additional evidence as it thinks fit and 1042 then allowing the appellant to enter upon his defence and lead such evidence in defence as he thinks proper and then dispose of the case in accordance with law.
The appellant will continue on the same bail on which he has been released by this Court by its Order dated 30th March, 1979.
BHAGWATI, J.
The facts giving arise to this appeal by special leave are almost identical with those of Criminal Appeal No. 93 of 1980 save and except that the appellant is different and for the same reasons as are given by us in our Judgment disposing of Criminal Appeal No. 93 of 1980, we allow the present appeal, set aside the judgment of the High Court as also the Order of Conviction and sentence recorded against the appellant by the learned Magistrate and remand the case to the learned Magistrate so that he may proceed with the case from the stage at which the appellant confessed to a plea of guilty.
The learned trial Magistrate will ignore the plea of guilty entered by the appellant and proceed further with the case after giving an opportunity to the prosecution to lead such additional evidence as it thinks fit and then allowing the appellant to enter upon his defence and lead such evidence in defence as he thinks proper and then dispose of the case in accordance with law.
The appellant will continue on the same bail on which he has been released by this Court by its Order dated 30th March, 1979.
N.V.K. Appeals allowed.

summary/full:
The appellants were prosecuted for committing offences under section 16(1)(a)(i) read with section 7 of the .
After some evidence was led on behalf of the prosecution, plea bargaining took place between the prosecution, the accused and the Magistrate.
The accused pleaded guilty which plea was accepted by the Magistrate.
The accused were accordingly convicted and sentenced to undergo imprisonment till the rising of the Court and to pay a small fine.
The High Court initiated suo motu proceeding in revision.
The accused appeared and challenged the convictions recorded against them, but the High Court did not go into the circumstances in which the plea of guilty was entered, enhanced the sentences imposed on them to three months ' simple imprisonment and fine.
Allowing the appeals, ^ HELD: 1.
A conviction based on the plea of guilty entered by the accused as a result of plea bargaining cannot be sustained.
[1041E] 2.
The High Court was clearly in error in not setting aside the conviction and sending the case back to the Magistrate for trial in accordance with law, ignoring the plea of guilty entered by the appellants.
[1041F] 3.
The Magistrate trying an accused for a serious offence like adulteration must apply his mind to the evidence recorded before him and, on the facts as they emerge from the evidence, decide whether the accused is guilty or not.
[1040B] In the instant case the Magistrate had got a cyclostyled form of judgment in which merely blanks were filled in by him.
This clearly indicates that the Magistrate was in the habit of encouraging plea bargaining and letting off the accused lightly if there was a plea of guilty, enabling quick disposal without any effort.
This was a highly reprehensible practice.
The High Court had expressed strong disapproval of it.
[1039H 1040A] 4.
(i) It is highly regrettable that the prosecution as well as the Magistrate should have been a party to any plea bargaining in a prosecution for adulteration involving the health and well being of the community.
Adulteration has 1038 assumed alarming proportions and it is essential to wipe it out ruthlessly and completely by bringing to book offenders responsible for adulteration resulting in ruination of the health of the people.
The investigating agencies must intensify their efforts and catch hold of those who for private economic gain are prepared to jeopardize the health of the community.
When such persons are arraigned before the Court and found guilty a deterrent and punitive sentence must be imposed upon them.
[1039E G] (ii) If it is possible to get away with a light sentence in respect of an offence of adulteration the anti adulteration law will cease to have any meaning and validity.
[1039H] 5.
Administration of justice is a sacred task and partakes of the divine function.
It is with the greatest sense of responsibility and anxiety that the judicial officer must discharge his judicial function, particularly when it concerns the liberty of a persons.
[1040C] 6.
It would be contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly.
Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of article 21 of the Constitution.
It would have the effect of polluting the pure fount of justice because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and ardous criminal trial.
The judge also might be likely to be defected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let of a guilty accused with a light sentence, thus, subverting the process of low and frustrating the social objective and purpose of the anti adulteration statute.
This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice.
[1041B E]


judgement:
ON: Criminal Appeal No. 140 of 1954.
Appeal by special leave from the judgment and order dated the 23rd July 1953 of the Punjab High Court.
in Criminal Revision No. 487 of 1953 arising out of the judgment and order dated the 17th April 1953 of the Court of Sessions Judge at Hoshiarpur in Criminal Appeal No. D/I of 1953.
N. section Bindra and P. G. Gokhale, for the appellant.
A. N. Chona and K. L. Mehta for, the respondent, 71 570 1956.
May 8.
The Judgment of the Court was delivered by SINHA J.
This is an appeal by special leave from the judgment of a single Judge of the High Court of Judicature of Punjab at Simla in Criminal Revision No. 487 of 1953 dated the 23rd July 1953 acquitting the respondent, a constable in the police force of the State of an offence under section 7 of the East Punjab Essential Services (Maintenance) Act, XIII of 1947 (which hereinafter will be referred to as "the Act"), for which he had been convicted by a Magistrate of the First Class at Dharamsala by his judgment dated the 30th March 1953 and sentenced to 15 days ' rigorous imprisonment, which.
orders of conviction and sentence had been affirmed by the Sessions Judge of Hoshiarpur, Camp Dharamsala, by his judgment and order dated the 17th April 1953.
The facts leading up to this appeal may shortly be stated.
The respondent was prosecuted on a complaint filed by the Superintendent of Police, Kangra District, in the Court of the 1laqa Magistrate, Dharamsala, District Kangra, for an offence under section 7 of the Act.
The allegations against the respondent were that he joined the Police Department as a constable in Jullundur District in 1947, that in December 1952 he was transferred from Jullundur District to Kangra District and posted to Police 'Lines, Kangra, as a constable on general duty at Seraj police station; that in January 1953 he came to Police Lines, Dharamsala for monthly training (refresher course), that on the 2nd February 1953 at the time of roll call at 7 p.m. the appellant was assigned the duty as sentry No. 1 without rifle behind the Police Lines Armoury,Dharamsala,from9p.m.toll.p.m.
The respondent, though informed of the assignment of the aforesaid duty to him, refused to obey that order or to perform any other duty in the Lines.
Thereupon his name was struck off from the Duty Roster and another foot constable was duly placed in that post of duty.
On the night between the 2nd and 3rd February 1953 at 11 30 p.m. a surprise roll call of the employees of the Police Lines was duly made by means 571 of an alarm sounded with a bugle which was blown continuously for about 15 minutes.
The respondent was found absent on such a roll call and another constable was deputed to search for the respondent but he could not be found.
He appeared the next morning at about 9 30 a.m. after remaining absent from the Police Lines without offering any explana tion for his unauthorised absence.
The gravamen of the charge as laid in the petition of complaint was that he refused to carry out the order of his superior officer who had assigned a duty to him and that he remained absent from his official duty in the Police Lines without obtaining permission and without any cogent reasons, from 11 30 p.m. on the 2nd February 1953 till 9 30 a.m. on the day following.
Thus he was said to have committed an offence under section 7 of the Act.
On those allegations the respondent was placed on his trial before the Magistrate of the First Class at Dharamsala.
After recording the. prosecution evidence the learned Magistrate framed a charge under section 7 of the Act under two heads, firstly, that he had on the 2nd February 1953 at Dharamsala as a foot constable in the police force of the Kangra District had disobeyed the lawful orders given by a superior officer who had assigned to him a duty as such foot constable of a sentry without rifle in the rear of the armoury in the Police Lines from 9 p.m. to 1 1 p.m. and, secondly, that on the same date and at the same place he had absented himself from duty as a foot constable without reasonable excuse and had thus remained absent from 11 30 p.m. on the 2nd February 1953 to 9 30 a.m. of the following day.
The respondent 's defence as disclosed in his answer to questions put by the court under section 342, Criminal Procedure Code was one of denial of the charge.
His substantive defence may be stated in his own words: "On 2nd February, 1953 at 7 p.m. my duty was allotted to me and I signed at exhibit P. D./I.
I then told Raghbir Singh P.W. that according to the Civil Surgeon, Jullundur I could only be given sitting or 572 office duty.
I showed him the copy Exhibit D. E.
I also told him that the Civil Surgeon, Dharamsala, had also examined that very day on 2nd February 1953.
Thereupon Raghbir Singh P.W. cancelled my said duty.
I was lying ill in the Police Lines Barracks and did not hear the bugle In the morning of 3rd February, 1953, I came to know that my absence had been noted.
Thereupon I presented myself for duty to the Head Constable and signed at Exhibit P.E./1.
My leg was burnt in rescue work at Gujranwalla when I was in the special Police Lines".
He also examined a number of defence witnesses including the Civil Surgeon of Jullundur who deposed to having examined the respondent on the 27th February 1953 "and found that he had got extensive burn scars on the back of the right thigh and leg crossing the knee.
Hence he could not perform any strenuous duty like standing for long hours.
In my opinion he could be given some light duty in the office.
exhibit D.W.
I/D is a true copy of my medico legal report of this case".
The learned Magistrate acquitted the accused in respect of the first part of the charge relating to his alleged disobedience of the lawful orders of his superior officer to perform sentry duty.
But he convicted him of the second part of the charge, namely, absence from duty and sentenced him to 15 days ' rigorous imprisonment.
On appeal by the accused, the learned Sessions Judge affirmed the findings of the trial Magistrate and held that the appellant before him was absent from duty without permission during the night between the 2nd and 3rd February 1953.
He accordingly dismissed the appeal.
On a revisional application made by the convicted person, the learned single Judge who heard the case, came to the conclusion that the accused had not offended against any provisions of the Act.
Accordingly he acquitted him.
The ratio of his decision may be given in his own words as follows: "This Act does not appear to me to apply to the kind of act which the constable is said to have done.
He had been called to Dharamsala on a refresher 573 course and on the night in question and in the early morning he appears to have been not present at the time when he according to the prosecution should have been present.
This, in my opinion, does not attract the attention of the Essential Services Maintenance Act.
It is possible that if he is guilty be is liable to some disciplinary punishment, but his prosecution under the East Punjab Essential Services Maintenance Act is in my opinion not justified.
I hold that he has not offended against the provisions of this Act and therefore he has not committed any offence under this Act".
Against this order of acquittal the State of Punjab obtained special leave to appear to this Court, apparently because the judgment of the learned Judge of the High Court involved very important questions as to the scope and effect of the Act and the question of law decided by the High Court was of great public importance.
This case was first placed on the 11th April this year before another Bench of this Court and learned counsel for the respondent raised a preliminary objection to the maintainability of the prosecution on the ground, it was alleged, that there was no proper complaint under section 7(3) of the Act and as this question bad not been raised in any of the courts below and as counsel for the appellant was taken by surprise, the Bench granted two weeks time to enable him to satisfy the court that there was a proper compliance with the provisions of section 7(3) of the Act.
When the matter came up before us for hearing, the learned counsel for the appellant placed before us the following notification.
by the Punjab Government authorising all police officers above the rank of Deputy Superintendent of Police and the Heads of the various Government Departments to make complaints in writing to a court in respect of alleged offences against the Act: " Dated Simla 2, the 20th January, 1948.
No. 1248 H Camp 48/2075.
In exercise of the powers conferred by sub section (3) of section 7 of the East Punjab Essential Services (Maintenance) Act 574 1947 the Governor of the East Punjab is pleased to authorise all police officers of and above the rank of Deputy Superintendent of Police and the Heads of the various Government Departments to make complaints in writing to a court against persons of their respective Departments, who are alleged to have committed offences against the Act.
Nawab Singh Home Secretary to Govt.
of East Punjab".
On a reference to the notification quoted above, it is clear that the complaint filed by the Superintendent of Police Kangra District; in the court of the Ilaqa Magistrate, Dharamsala in the district of Kangra, was filed in compliance with the provisions of sub section (3) of section 7 of the Act which is in these terms: "No court shall take cognisance of any offence under this Act except upon complaint in writing made by a person authorised in this behalf by the State Government".
But it was argued on behalf of the respondent that there was nothing to show that the complaint on the basis of which the prosecution had been initiated in this case had been authorised by the State Government.
The law does not require that the particular complaint should have been authorised by the State Government.
What is required is that the complaint should have been filed by a person authorised by the State Government to do so.
The notification has authorised a Superintendent of Police to file a complaint in respect of a contravention of the provisions of the Act by a person in his department.
It is not denied that the respondent was such a person.
Hence the preliminary objection must be overruled ' Coming to the merits of the decision, it is a little surprising that the learned Judge below should have completely ignored the opening words of section 3 of the Act which completely answer the ratio of the decision under appeal.
"This Act shall apply to all employment under the State Government. . (omitting words not material for the present case).
575 The learned Judge of the High Court has quoted the provisions of sections 5 and 6 of the Act in support of his conclusion that the Act is "intended to be applied in special cases of dislocation of essential services because of extraordinary events such as strikes of because of political agitation or similar circumstances".
The relevant portion of section 5 is in these terms: "Any person engaged in any employment or class of employment to which this Act applies who(a) disobeys any lawful order given to him in the course of such employment, or (b)without reasonable excuse abandons such employment or absents himself from work, is guilty of an offence under this Act".
The opening words of section 5 have reference to the opening words of section 3 so far as an employee under the State Government is concerned.
As the learned Judge missed these opening words as indicated above, he fell into the error of supposing that a person in the position of the respondent was not intended to be governed by the Act.
It is mainfest that the learned Judge has acquitted the appellant, not on a misreading of the provisions of the Act, but by ignoring the opening words of section 3.
It must therefore be held that the judgment of the High Court cannot be sustained.
But it still remains to consider whether the orders passed by the High Court acquitting the respondent should be interfered with.
The courts below have acquitted the respondent of the first part of the charge which could have come within clause (a) of section 5 which lays down offences under the Act.
The respondent had been convicted by the first two courts of an offence referred to in the second part of the charge, namely, of his, having absented himself from duty.
Under section 22 of the , V of 1861, every police officer is to be considered to be always on duty and may at any time be employed as a police officer, and on the findings of the courts of fact that the res pondent had absented himself from the Police Lines 576 during the night between the 2nd and 3rd February 1953 he may have made himself liable to the penalty for neglect of duty under section 29 of the , or may have made himself liable to departmental punishment for absence from the police lines without permission.
But we are not concerned here with these provisions.
The respondent bad been found guilty under clause (b) of section 5, that is to say, for the offence of absenting himself from work.
Neglect of duty as contemplated by section 29 of the is quite different from abandoning an employment or of absenting oneself from work without reasonable cause which is the particular offence contemplated by clause (b) of section 5.
As already indicated, on account of the respondent 's physical infirmity or deficiency the work assigned to him had been cancelled and he was expected to be in police lines during the material time without apparently doing any "work".
It is clear from the record that he had not been assigned any "work" within the meaning of clause (b) of section 5.
Hence his absence from Police Lines during the relevant time may have amounted to neglect of duty; but, in our opinion, is not synonymous with absence from work or abandonment of employment which has been made penal under clause (b) of section 5.
For the reasons aforesaid it must be held that the respondent bad been rightly acquitted, though for wholly wrong reasons.
The appeal must therefore stand dismissed.
Appeal dissmissed.

dataset_name: IN-Abs

summary/full:
Section 7(3) of the East Punjab Essential Services (Mainten ance) Act, 1947, provides that "no court shall take cognisance of any offence under this Act except upon complaint in writing made by a person authorised in this behalf by the State Government".
Held, that the law does not require that the particular com plaint should have been authorised by the State Government and it is sufficient if it has been filed by a person authorised by the State Government to do so.
Neglect of duty as contemplated by section 29 of the , is quite different from abandoning an employment or absenting oneself from work without reasonable cause within the meaning of section 5(b) of the East Punjab Essential Services (Maintenance) Act.
The respondent, a constable, on account of physical infirmity was not assigned any "work" in the Police Lines within the meaning of el.
(b) of section 5 of the East Punjab Essential Services (Maintenance) Act.
He absented himself from the Police Lines without permission.
Held, that his absence from Police Lines during the relevant time may have amounted to neglect of duty but he could not be convicted under section 5(b).


judgement:
Civil Appeal No. 811 of 1979.
Appeal by special leave from the Judgment and Order dated 18 12 1970 of the Allahabad High Court in Crl.
Revision No. 170 of 1975.
O. P. Rana and M. Ramachandran for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The Officer who was investigating into offences under Section 120 B, 420, 468 and 471 Indian Penal Code alleged against the respondent, Ram Babu Misra, moved the Chief Judicial Magistrate, Lucknow, to direct the accused to give his specimen writing for the purpose of comparison with certain disputed writings.
The learned Magistrate held that he had no power to do so when the case was still under investigation.
His view has been upheld by the High Court.
The State has preferred this appeal by Special Leave of this Court.
Shri O. P. Rana, learned Counsel for the appellant, contended that Section 73 of the Evidence Act conferred ample power on the Magistrate to direct the accused to give his specimen writing even during the course of investigation.
He also urged that it would be generally in the interests of the administration of justice for the Magistrate to direct the accused to give his specimen writing when the case was still under investigation, since that would enable the investigating agency not to place the accused before the Magistrate for trial or enquiry, if the disputed writing, as a result of comparison with the specimen writing, was found not to have been made by the accused.
While we agree with Mr. Rana that a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interests of the administration of justice, we find ourselves unable to agree with his submission that section 73 of the Evidence Act enables the Magistrate to give such a direction even when the case is still under investigation.
1069 Section 73 of the Evidence Act is as follows: "73.
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications to finger impressions".
The second paragraph of section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person.
The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings.
The direction is to be given for the purpose of 'enabling the Court to compare ' and not for the purpose of enabling the investigating or other agency 'to compare '.
If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings.
The language of section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court.
Further section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court.
Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not ? Obviously not.
If not, why should it make any difference if the investigating agency seeks the assistance of the Court under section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings ? 1070 We may also refer here to Section 5 of the , which provides: "5.
If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding".
Section 2(a) of the Act defines "measurements" as including "finger impressions and foot print impressions".
There are two things to be noticed here.
First, signature and writing are excluded from the range of section 5 of the and, second, 'finger impression ' are included in both section 73 of the Evidence Act and section 5 of the .
A possible view is that it was thought that section 73 of the Evidence Act would not take in the stage of investigation and so section 5 of the made special provision for that stage and even while making such provision, signature and writings were deliberately excluded.
As we said, this is a possible view but not one on which we desire to rest our conclusion.
Our conclusion rests on the language of section 73 of the Evidence Act.
Section 73 of the Evidence Act was considered by us in State (Delhi Administration) vs Pali Ram(1), where we held that a Court holding an enquiry under the Criminal Procedure Code was entitled under section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to compare it with disputed writings.
The present question whether such a direction, under section 73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceeding before the Court was expressly left open.
The question was also not considered in State of Bombay vs Kathi Kalu Oghad,(2) 1071 where the question which was actually decided was that no testimonial compulsion under article 20(3) of the Constitution was involved in a direction to give specimen signature and hand writing for the purpose of comparison.
The view expressed by us in the earlier paragraphs, on the construction of section 73, Evidence Act was the view taken by the Madras High Court in T. Subbiah vs section K. D. Ramaswamy Nadar(1), the Calcutta High Court in Farid Ahmed vs the State(2) (Mitter J., at page 32).
and Priti Ranjan Ghosh & Ors.
vs The State(3), the High Court of Punjab and Haryana in Dharamvir Singh vs State(4), the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad vs The State(5), the Orissa High Court in Srikant Rout vs State of Orissa(6) and the Allahabad High Court in the judgment under appeal.
A contrary view was taken by the Patna High Court in Gulzar Khan & Ors.
vs State(7) and the High Court of Andhra Pradesh in B. Rami Reddy & Ors.
vs State of Andhra Pradesh.(8) We do not agree with the latter view.
We accordingly dismiss the appeal and while doing so we would suggest the suitable legislation may be made on the analogy of section 5 of the , to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings.
section R. Appeal dismissed.

summary/full:
Dismissing the appeal by special leave, the Court: ^ HELD: Though a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interests of the administration of justice, Section 73 of the Evidence Act does not enable the Magistrate to give such a direction when the case is still under investigation.
[1068G H] The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person.
The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings.
The direction is to be given for the purpose of 'enabling the Court to compare ' and not for the purpose of enabling the investigating or other agency 'to compare '.
If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings.
The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court.
[1069D F] (ii) Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court.
It would not be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not.
That being the position, it should not make any difference if the investigating agency seeks the assistance of the court under section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings.
[1069G H] State (Delhi Admn.) vs Pali Ram, ; and State of Bombay vs Kathi Kalu Oghad, ; ; distinguished.
State of Bombay vs Kathi Kalu Oghad, ; ; T. Subbaiah vs section K. D. Ramaswamy Nadar, AIR 1970 Mad. 85; Farid Ahmed vs The State, AIR 1960 Cal. 32; Priti Ranjan Ghosh and others vs The State, 77 C.W.N. 1068 865; Dharamvir Singh vs State, & Haryana); Brij Bhushan Raghunandan Pd.
vs The State, AIR 1957 M.P. 106; and Srikant Rout vs State of Orissa, 1972 (2) Cuttack Weekly Reporter 1332; approved.
Gulzar Khan and Ors.
vs State, AIR 1962 Patna 255 and B. Rami Reddy and Ors.
vs State of A.P., ; over ruled.
[The Court suggested that suitable legislation may be made on the analogy of section 5 of the Identification of Prisoners Act, to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings.]


judgement:
: Special Leave Petition (Crl.) No. 405 of 1980.
Appeal by special leave from the judgment and Order dated 31 10 1979 of the Punjab & Haryana High Court in Crl.
Appeal No. 986/77.
N. C. Talukdar, Shrinath Singh and M. section Dhillon for the Petitioner.
The Judgment of the Court was delivered by DESAI, J.
While we decline to grant special leave in this case, an unsavoury feature of the judgment which rather stares into our 1154 face, and surfaces at regular intervals, makes it obligatory to make a few observations.
Petitioner was convicted for having committed offences under Section 161 of the I.P.C. and Section 5(2) of the Prevention of Corruption Act and was sentenced to suffer R.I. for one year on each count and on the second count, also to pay a fine of Rs. 400/ or in default to suffer further R.I. for three months by the learned Special Judge.
Both the Substantive sentences of imprisonment were directed to run concurrently.
Petitioner preferred Criminal Appeal No. 989 of 1977 against his conviction and sentence to the High Court of Punjab and Haryana at Chandigarh.
This appeal came up for final hearing before a learned single judge of the High Court on 31st October, 1979.
When the appeal was taken up for hearing, learned counsel for the petitioner appearing in the High Court did not question either the correctness or the legality of the conviction.
This is unquestionable as the High Court has observed while disposing of the appeal that "no arguments on merits are advanced".
The High Court then proceeded to consider adequacy or otherwise of sentence imposed on the appellant before it.
The High Court then proceeded to reduce the substantive sentence of the appellant of rigorous imprisonment for one year to the sentence undergone till the date of the judgment of the High Court.
While so reducing the substantive sentence the High Court noticed the following circumstances which in the opinion of the High Court were sufficient to enable it to interfere with the sentences imposed upon the present petitioner.
It would be advantageous to extract the relevant observations: "The learned counsel for the appellant has only submitted that the appellant has already been dismissed from service; that he is a family man, and that his sentence may be reduced to that already undergone.
In my view no useful purpose will be served by sending him again to jail to serve his unexpired period of sentence.
He has already lost his job.
The ends of justice will be amply met if his sentence of imprisonment is reduced to that already undergone and instead sentence of fine is enhanced from Rs. 400 to Rs. 4000 (four thousand) or in default to suffer further R.I. for one year.
I order accordingly.
" The judgment of the High Court throws no light on the question as to how much sentence the appellant had undergone by the time the 1155 High Court released him on bail while admitting his appeal.
But it cannot be more than a few days only.
Petitioner as pointed out earlier is convicted for committing offences under Section 161 IPC and 5(2) of the Prevention of Corruption Act.
Section 5(2) of the Prevention of Corruption Act reads as under: "Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year." (underlining ours) The language of the proviso makes it abundantly clear that court is under an obligation to impose a minimum punishment once the conviction is recorded under Section 5(2) and the minimum punishment of imprisonment is for a term not less than one year.
Undoubtedly the proviso confers power on the Court to award less than the minimum punishment, if the Court convicting and sentencing the accused, is of the opinion that for any special reasons which the court is under an obligation to record in writing, sentence of imprisonment for a term less than the minimum is called for.
Conceding that the quantum of sentence is in the discretion of the trial court, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposition of a minimum sentence, the court can exercise its discretion within the limited sphere left open by legislature.
The Legislature circumscribed the discretion by requiring the court to impose minimum sentence but left it open to award less than the minimum statutorily prescribed for special reasons.
The reasons have to be special reasons.
The words 'special reasons ' in the context in which they are used could only mean special to the accused on whom sentence is being imposed.
The court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence.
The word 'special ' has to be understood in contradistinction to word 'general ' or 'ordinary '.
Now what does term 'special ' connote ? "Special" means distinguished by some unusual quality; out of the ordinary.
(See Words and Phrases, Permanent Edition, Volume 39A p. 82.) Webster defines "special" as particular; peculiar; different from others; designed for a particular purpose, occasion, or person; limited in range; confined to a definite field of action.
Thus anything which is common to a large class 1156 governed by the same statute cannot be said to be special to each of them.
It would thus unquestionably appear that "special reasons" in the context of sentencing process must be special to the accused in the case or special to the facts and the circumstances of the case in which the sentence is being awarded.
The High Court then was under an obligation to award minimum sentence unless the accused advanced special reasons, i.e. special to him in the facts and circumstances of the case and successfully invoked the discretion vested in the Court to award less than the minimum sentence prescribed by law.
The Court observes that this appellant corrupt officer whose corruption was proved to its satisfaction because the High Court declined to interfere with the conviction of the appellant for corruption and who must consequently or of necessity be dismissed from service, considered his dismissal from service as a special reason.
Frankly speaking the High Court honestly did not expect any corrupt officer to be retained in service.
Ordinarily a corrupt official whose corruption is proved to the hilt is liable to be dismissed, and therefore, this aspect is not special to the appellant.
Accordingly if an officer proved to be corrupt to the satisfaction of the court is liable to be dismissed it cannot influence the question of sentence.
Also because it would be true of all public servants dealt with under Section 5(2) of the Prevention of Corruption Act.
Another special reason that appealed to the High Court is that appellant is a 'family man '.
Possibly the High Court considered marriage and children of the appellant as special to him.
An unusually large number of the Government officers from amongst those charged with corruption and convicted for the same would be married men with family, unless they joined service before marriage and became corrupt very soon at the inception of the career.
And ordinarily speaking a family of corrupt officer in some cases if not all benefits by the corrupt activity unless shown to the contrary which is not the case.
If large number of public servants from those convicted under section 5(2) of the Prevention of Corruption Act are married men with children it passes comprehension how this fact can be styled as special to the appellant influencing his sentence.
It may be mentioned without fear of contradiction that the only two reasons, special according to the High Court for awarding less than the minimum sentence are (i) appellant has lost his job and (ii) he is a married man with children.
These two reasons would be common to ninety nine per cent of cases tried under Prevention of Corruption Act and if they can be styled as special reasons for awarding less than the 1157 minimum sentence the proviso would be rendered wholly nugatory.
The Court should not be oblivious to the fact that while conferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the Legislature finding cases of misplaced sympathy in sentencing process fettered the Court 's discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum.
If still the notice of encroachments on court 's discretion is not taken, time may not be far when the Legislature out of exasperation may resort to what it has done in Section 16 of Prevention of Food Adulteration Act where minimum sentence is prescribed and Courts ' discretion to award less in any case is wholly taken away.
In this context it would be timely to recall the warning uttered by this Court in Jagdish Prasad vs West Bengal This Court said: "Offences under the Act being anti social crimes affecting the health and well being of our people, the Legislature having regard to the trend of courts to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases where a severe sentence was called for, a more drastic step was taken by it in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence.
" In this case, there was no justification, much less special reasons statutorily required, for awarding less than the minimum sentence.
stricto sensu Court exceeded its jurisdiction while interfering with the quantum of sentence.
And with this observation we dismiss the special leave petition.
S.R. Petition dismissed.

summary/full:
Section 5(2) of the Prevention of Corruption Act, 1947 prescribes a minimum sentence of one year, in all cases of conviction under the Act, with a proviso that the Court may for any special reasons recorded in writing impose a sentence of imprisonment of less than one year.
The petitioner was convicted for having committed offences under section 161 I.P.C. and Section 5(2) of POCA and was sentenced to suffer R.I. for one year on each count and on the second count, also to pay a fine of Rs. 400/ or in default to suffer further R.I. for three months by the learned Special Judge.
Both the substantive sentences of imprisonment were directed to run concurrently.
In appeal the High Court, while maintaining the conviction, reduced the substantive sentence of rigorous imprisonment for one year to the sentence undergone till the date of the Judgment of the High Court and increased the fine to Rs. 4,000/ (Rupees four thousand) or in default to suffer further R.I. for one year.
The High Court, while so altering the sentence, took into consideration two facts, namely, (i) that the petitioner was dismissed from service and (ii) that he is a family man.
Dismissing the special leave petition of the convict against his conviction, there being no appeal by State, the Court ^ HELD: 1.
The language of the proviso to Section 5(2) of the Prevention of Corruption Act makes it abundantly clear that court is under an obligation to impose a minimum punishment once the conviction is recorded under Section 5(2) and the minimum punishment of imprisonment is for a term not less than one year.
Undoubtedly the proviso confers power on the Court to award less than the minimum punishment if the Court convicting and sentencing the accused, is of the opinion that for any special reasons which the Court is under an obligation to record in writing, sentence of imprisonment for a term less than the minimum is called for.
Conceding that the quantum of sentence is in the discretion of the trial Court, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposing of a minimum sentence, the court can exercise its discretion within the limited spheres left open by legislature.
The Legislature circumscribed the discretion by requiring the Court to impose minimum sentence but left it open to award less than the minimum statutorily prescribed for special reasons.
The reasons have to be special reasons.
The words 'special reasons ' in the context in which they are 1153 used could only mean special to the accused on whom sentence is being imposed.
The Court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence.
[1155C G] In the instant case, there was no justification much less special reasons statutorily required, for awarding less than the minimum sentence.
Stricto sensu court exceeded its jurisdiction while interfering with the quantum of sentence.
[1157E] Jagdish Prasad vs West Bengal, [1972] 2 S.C.R. p. 845 @ 851, relied on.
The word "special" has to be understood in contradistinction to word "general" or "ordinary".
"Special" means distinguished by some unusual quality, out of the ordinary.
Again "special" means 'particular '; peculiar; different from others; designed for a particular purpose, occasion, or person; limited in range; confined to a definite field of action.
Thus, anything which is common to a large class governed by the same statute cannot be said to be special to each of them.
And, "special reasons" in the context of sentencing process must be special to the accused in the case or special to the facts and circumstances of the case in which the sentence is being awarded.
[1155G H, 1156A] 3.
In the instant case, the only two reasons special according to the High Court for awarding less than the minimum sentence are (i) appellant before it has lost his job and (ii) and he is a married man with children.
These two reasons would be common to ninety nine percent of cases tried under Prevention of Corruption Act and if they can be styled as "special reasons" for awarding less than the minimum sentence the proviso would be rendered wholly nugatory.
[1156G H, 1157A] Observation: The Court should not be oblivious to the fact that while conferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the Legislature finding cases of misplaced sympathy in sentencing process fettered the Court 's discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum.
If still the notice of encroachments on court 's discretion is not taken, time may not be far when the Legislature out of exasperation may resort to what it has done in Section 16 of Prevention of Food Adulteration Act where minimum sentence is prescribed and Court 's discretion to award less in any case is wholly taken away.
[1157A C]


judgement:
etition (Crl.) No. 1323 of 1979.
(Under Article 32 of the Constitution.) Ram Jethamalani and Harjinder Singh and M. M. Lodha for the Petitioner.
U.R. Lalit, A. V. Rangam and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
The Petitioner Ramchandra A. Kamat has preferred this petition under article 32 of the Constitution of India praying for the issue of writ of Habeas Corpus directing his release by quashing the order of his detention dated 31 8 1979 passed by second respondent, Additional Secretary to the Government of India, Ministry of Finance.
The petitioner was directed to be detained by an order dated 31st August, 1979 under section 3(1) of the .
In pursuance of the order, the petitioner was arrested on 5 9 1979.
He was served with the grounds of detention on the same day.
The Petitioner through his advocate by a letter dated 7 9 1979 wrote to the second 1074 respondent stating that it was found that the detaining authority relied upon a number of statements of various persons including the detenu as well as documents referred to in the grounds, but the detenu was not furnished with the copies of the same.
The Advocate stated that detenu desires to make a representation against the order of detention but found that without the copies of documents referred to in the grounds of detention order it is not possible to make an effective representation.
A reply to his letter was sent to the Advocate by Mr. Thawani, Deputy Secretary to the Government of India, wherein he acknowledged the receipt of the letter of the Advocate dated 7 9 1979.
By this letter the Deputy Secretary requested the Advocate to contact the Deputy Director, Directorate of Enforcement, Bombay, who it was stated, had been suitably advised regarding supply of copies of statements and documents, relied upon in the detention order dated 31 8 1979.
It may be noted that the detaining authority, the second respondent did not acknowledge the letter from the detenu 's advocate or take any action by himself but directed the Deputy Secretary to address the communication dated 10 9 1979 referred to above.
Though the letter states that the Deputy Director, Bombay has been suitably advised regarding the request for supply of copies of statements and documents relied on in the detention order nothing further was done by the Deputy Director of Enforcement, Bombay.
On the 14th September, 1979, the advocate not having received any communication, addressed a letter to the Deputy Director enclosing a copy of the letter which he received from the Deputy Secretary and requested the Deputy Director to supply him on behalf of his client copies of the relevant statements and documents referred to and relied upon in the order of detention at an early date.
In reply to the letter of 14 9 79 by the Advocate, the Deputy Director in his communication dated 22 9 1979 requested the advocate to see the Deputy Director on 24 9 1979 at 1430 hours to take inspection of the documents.
On inspecting the documents the advocate was not satisfied and insisted on supply of copies of documents and ultimately copies were supplied on 3 days, namely, on 26 9 79, 28 9 79 and 29 9 79.
The representation was made by the detenu on 5 10 79.
It is settled law that the appropriate authority is bound to give an opportunity to the detenu to make representation and to consider the representation of the detenu as early as possible.
There should not be any delay in the matter of consideration.
The Constitutional Bench of this Court in Jayanarayan Sukul vs State of West Bengal(1) has held that the fundamental right of the detenu to have representation considered by the appropriate Govern 1075 ment will render meaningless if the Government will not deal with the matter expeditiously.
The Court observed: "It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible.
The appropriate Government itself is bound to consider the representation as expeditiously as possible.
The reason for immediate consideration of the representation is too obvious to be stressed.
The personal liberty of a person is at stake.
Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.
The same view has been expressed by this Court in a number of cases vide Seervai 's Constitutional Law of India, Vol.
I, page 542, paragraph 12.82.
The right to make a representation is a fundamental right.
The representation thus made should be considered expeditiously by the Government.
In order to make an effective representation, the detenu is entitled to obtain information relating to the grounds of detention.
When the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation.
When the detenu makes a request for such documents, they should be supplied to him expeditiously.
The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition.
What is reasonable expedition will depend on the facts of each case.
It is alleged by the detenu that there had been unreasonable delay in furnishing of the statements and documents referred to in the grounds of detention.
It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of these documents.
We are in this context not referring to the statements and documents not referred to in the grounds of detention for it may be that they are not in the possession of the detaining authority and that reasonable time may be required for furnishing copies of the relevant documents, which may not be in his possession.
1076 If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied.
The detention cannot be said to be according to the procedure prescribed by law.
When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order to detention, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition.
It will have to be considered on the facts of the case whether there was any unexplained delay in furnishing the statements and documents relied on in the grounds of detention.
The detenu was arrested on 5 9 1979 and his advocate by a letter dated 7 9 1979 Annexure 'C ' to the writ petition wrote to the detaining authority stating that for making an effective representation, he must have copies of statements and documents referred to in the detention order.
He prayed that the copies of the statements and documents may be furnished to him.
This letter was received by the detaining authority on the 10th of September, 1979 and a communication was addressed not by the detaining authority but by Mr. Thawani, Deputy Secretary on the same date.
It is not clear whether the detaining authority applied his mind and realised the necessity for furnishing of the documents to the detenu expeditiously.
The communication was addressed by the Deputy Secretary to the Advocate of the detenu informing him that the Deputy Director of Enforcement at Bombay had been suitably advised regarding the request for supply of copies of statements and documents relied on in the detention order.
One would have expected that the detaining authority or the Deputy Secretary acting on his behalf, to have directed the Deputy Director of Enforcement, Bombay to furnish the necessary documents expeditiously to the Advocate as requested or to the detenu himself.
The direction in the communication from the Deputy Secretary was not immediately complied with.
The Advocate for the detenu wrote again on the 14th September, 1979 reminding the Deputy Director of the communications, he had received from the Deputy Secretary.
The Advocate requested that the copies of the relevant statements and documents referred to and relied upon in the detention order may be supplied to him.
This letter was replied by the Deputy Director on the 22nd September, 1979 in which the Advocate was asked to have inspection of the documents in his premises, between 1430 hours on 24 9 1979.
The copies of the statements and documents requested by the Advocate for the detenu and directed by the Deputy Secretary to be furnished to the Advocate were not furnished to him instead the Deputy Director asked the Advocate to 1077 have inspection at the Deputy Director 's office.
After inspecting the documents on 22/24/25 9 1979, he insisted of having copies which were supplied on the 26th, 27th and 28th of September, 1979.
The explanation given by the detaining authority regarding the delay in furnishing copies as seen in his counter affidavit is that the constitutional right of the petitioner to make effective representation had not been infringed.
According to the detaining authority "it was not incumbent upon the detaining authority to supply copies of all the documents relied upon in the grounds of detention to the petitioner alongwith the grounds within 5 days of detention as petitioner has contended.
In this context it would be relevant to state that the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention." He further stated that all steps were taken to comply as expeditiously as possible.
It may not be necessary for the detaining authority to supply copies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have copies of the statements and documents referred to in the grounds of detention, it is the duty of the detaining authority to furnish them with reasonable expedition.
The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation.
In this case, the detaining authority should have taken reasonable steps to provide the detenu or his advocate with the statements and documents as early as possible.
The reply to the detenu was not sent by the detaining authority and it is not clear whether he appreciated the necessity to act expeditiously.
As noted already, a communication was sent by the Deputy Secretary to the Deputy Director, who did not comply with the direction and furnish copies of the statements and documents.
After a lapse of 12 days i.e. on 22 9 1979, the Deputy Director offered inspection.
Taking into account the facts and circumstances of the case and explanation furnished by the detaining authority, we are of the view that the detaining authority failed to act with reasonable expedition in furnishing the statements and documents referred to in the grounds of detention.
On the facts of the case, therefore, we are satisfied that the detention is not in accordance with the procedure contemplated under law.
The continued detention is not warranted.
The order of his release has already been issued by this Court.
N.V.K. Petition allowed.

summary/full:
The petitioner was directed to be detained by an order dated August 31, 1979 under section 3(1) of the and in pursuance thereof was arrested on September 5, 1979.
He was served with the grounds of detention on the same day.
The petitioner 's advocate wrote a letter dated September 7, 1979 to the detaining authority second respondent stating that it was not possible to make an effective representation without the copies of statements and documents referred to in detention order.
The detaining authority did not take any action on the letter but forwarded it to the Deputy Secretary to the Government of India who by a communication dated September 10, 1979 acknowledged its receipt and requested the advocate to contact the Deputy Director, Directorate of Enforcement, Bombay regarding the supply of copies of statements and documents.
As no further communication was received, the advocate addressed a letter dated September 14, 1979 to the Deputy Director to supply him copies of the statements and documents.
The Deputy Director in his communication dated September 22, 1979 requested the advocate to see him on September 24, 1979 to take inspection of the documents.
On inspecting the documents the advocate was not satisfied and insisted on supply of copies of documents, which were supplied on three days, September 26, 1979, September 28, 1979 and September 29, 1979.
On October 5, 1979 the petitioner made his representation against the detention.
In the writ petition, it was contended on behalf of the petitioner that as there was unreasonable delay in furnishing of the statements and documents referred to in the grounds of detention and the right to make an effective representation was denied, the detention could not be said to be according to the procedure prescribed by law.
On behalf of the detaining authority it was contended that the constitutional right of the petitioner to make an effective representation had not been infringed and that it was not incumbent upon the detaining authority to supply copies of all documents relied upon in the grounds of detention and that the grounds of detention were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention.
Allowing the petition, ^ HELD: 1.
The detaining authority failed to act with reasonable expedition in furnishing the statements and documents referred to in the grounds of detention.
The detention is therefore not in accordance with the procedure contemplated under law, and the continued detention is not warranted.
[1077G] 2.
It is settled law that the appropriate authority is bound to give an opportunity to the detenu to make representation and to consider the representation 1073 of the detenu as early as possible.
There should not be any delay in the matter of consideration.
[1074G] Jayanarayan Sukul vs State of West Bengal, ; , referred to.
(i) The right to make a representation is a fundamental right.
The representation thus made should be considered expeditiously by the Government.
In order to make an effective representation, the detenu is entitled to obtain information relating to the grounds of detention.
When the grounds of detention are served on the detenue he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation.
When the detenu makes a request for such documents, they should be supplied to him expeditiously.
[1075E] (ii) When the Act contemplates the furnishing of grounds of detention within five days of the order of detention, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu should be furnished with reasonable expedition.
[1076B] 4.
If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make an effective representation is denied.
It is the duty of the detaining authority to satisfactorily explain the delay, if any, in furnishing of the documents.
[1076A, 1075G] 5.
It may not be necessary for the detaining authority to supply copies of the documents relied upon in the grounds of detention at the time when the ground are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have copies of the statements and documents referred to in the grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition.
The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation.
[1077D E]


judgement:
Civil Appeal No. 2497 of 1969.
From the Judgment and Decree dated 14th October, 1966 of the Allahabad High Court in Special Appeal No. 441/66.
G. N. Dikshit, M. V. Goswami and O. P. Rana for the Appellant.
B. Datta for the Respondent.
132 The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal by certificate.
The Allahabad High Court decided that the date of the communication of the order will be the starting point of limitation for filing an appeal under Section 15 of the U.P. Motor Vehicles Taxation Act.
The respondent wanted exemption of tax in respect of his motor vehicle for a certain period.
He applied to the Taxation Officer, Kanpur.
The order rejecting his prayer was communicated in the letter of Taxation Officer dated October 20/24, 1964 through the Regional Transport Authority, Kanpur.
The respondent received that letter on October 29, 1964.
His appeal was within 30 days of October 29, 1964 but beyond 30 days of October 24, 1964.
If October 24, 1964 could be taken to be the date of the order then obviously the appeal was out of time.
If, however, the date of the order in Section 15 of the U.P. Motor Vehicles Taxation Act, in the context, meant the date of the communication of the order, then the appeal was within time.
Following the decision of this Court in Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer & Another,(1) the High Court has held in favour of the respondent hence this appeal.
In our opinion, the judgment of the High Court is right and cannot be interfered with by this Court.
Apart from the reasons given by this Court in the earlier judgment to the effect that the order must be made known either directly or constructively to the party affected by the order in order to enable him to prefer an appeal if he so likes, we may give one more reason in our judgment and that is this: It is plain that mere writing an order in the file kept in the office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant.
The order must be communicated either directly or constructively in the sense of making it known, which may make it possible for the authority to say that the party affected must be deemed to have known the order.
in a given case, the date of putting the order in communication under certain circumstances may be taken to be the date of the communication of the order or the date of the order but ordinarily and generally speaking, the order would be effective against the person affected by it only when it comes to his knowledge either directly or constructively, otherwise not.
On the facts stated in the judgment of the High Court, it is clear that the respondent had no means to know about the order of the Taxation Officer rejecting his prayer until and unless he received his letter on October 29, 1964.
Within the meaning of Section 15 of the U.P. Motor Vehicles Taxation Act that was the date of the order 133 which gave the starting point for preferring an appeal within 30 days of that date.
For the reasons stated above, we hold that there is no substance in this appeal.
It is accordingly dismissed but in the circumstances without costs.
P.B.R. Appeal dismissed.

summary/full:
The respondent 's application under section 15 of the U.P. Motor Vehicles Taxation Act for exemption of tax in respect of his motor vehicle was rejected by the Taxation Officer by his letter dated October 20/24, 1964 and this was received by him on October 29, 1964.
The limitation for filing an appeal is 30 days.
On the question whether the period of limitation starts from the date of the order or the date of communication of the order.
Dismissing the appeal, ^ HELD: Apart from the reasons given by this Court in Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer & Anr. [1962] 1 SCR 676 that an order must be made known either directly or constructively to the party affected by it to enable him to prefer an appeal, mere writing of an order in the file kept in the office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant.
The order must be communicated directly or constructively in the sense of making it known, which may make it possible for the authority to say that the party affected must be deemed to have known the order.
Generally speaking the order would be effective only when it comes to his knowledge directly or constructively, otherwise not.
[132E G] In the instant case the respondent had no means to know the order of the Taxation Officer until he received his letter on the 29th October 1964.
That was the date from which the starting point of limitation for preferring an appeal commenced.