judgement:
minal Appeals Nos.86 to 90 of 1968.
Appeals from the judgment and order dated January 13, 1968 of the Bombay High Court in Criminal Appeals Nos.
497 to 499, 516 and 500 of 1965 respectively.
R. Jethmalani, K.N. Mirchandani and U.P. Singh, for the appellant (in Cr. A. No. 86 of 1968).
Nur ud din Ahmed, K.N. Mirchandani and U.P. Singh, for the appellant (in Cr. A. No. 87 of 1968).
A.S.R. Chari, J.M. Mirchandani and K. Hingorani, for the appellant (in Cr.
A No. 88 of 1968).
K. Hingorani, for the appellant (in Cr. A. No. 89 of 1968).
N.H. Hingorani for K. Hingorani, for the appellant (in Cr.A. 90 of 1968).
L.M. Singhvi, B.D. Sharma and S.P. Nayar, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Mitter, J.
After stating the facts His Lordship proceeded :] The High Court dealt generally with the charge of conspiracy against all the accused and individually with respect to the charges raised against each accused and considered the explanations given by them with regard to the circumstances tending to criminal them.
Mr. Jethmalani who argued the case of the first appellant at some length raised various questions of law with regard to the admissibility of the. evidence afforded by statements before the Customs Officers under section 171 A, the conclusion of the High Court that his client had custody or possession of all the exhibits found as a result of the search of the premises of H.B. Advani Brothers on 21st July, 1950, the correctness of the finding of the High Court that exhibit F. 2 contained a complete account with regard to the consignment per s.s.
Canton, the finding of the High Court that the C.I.F. value of the goods exceeded the invoice value many times over by relying on the evidence of an appraiser of the Customs department and the absence of any 824 overt act on the part of his client after the search on 21st July 1959.
The argument with regard to the admissibility of evidence of the statements was adopted by counsel for all the other accused and need not be dealt with separately.
Mr. Jethmalani virtually conceded that if his contentions on the above heads were not accepted by this Court, it would be futile for him to argue that the High Court had gone wrong in coming to the conclusion as to the.
guilt of his client on the strength of the evidence before it and the inference which could legitimately be drawn therefrom.
We propose to deal with the other points before examining the contention with regard to the admissibility of the statements made in pursuance of powers exercised by the customs officers under section 171 A. With regard to the finding of the High Court in agreement with that of the Magistrate that accused I had the custody or possession of exhibits Exs.
B to F 2, counsel argued that except those seized from his wallet the others were found in the drawer of the table of the premises searched, there was no evidence to show that the said table was the table of his client and as there was no proof that his client had any financial proprietary interest in the firm of H.B. Advani Brothers, there was nothing to warrant the conclusion that the exhibits other than ' those in the wallet were in his custody.
The High Court dealt elaborately with this point and we do not think it necessary to reexamine the same except to note the comment made before the High Court as well as before us that the evidence of Mr. Dame, the panch witness who had said that at the time of the search accused 1 was sitting at the table in a drawer of which the incriminating exhibits were found was.
unbelievable.
It was argued that inasmuch as the panchnama did not record this fact Dame who gave evidence in 1962 should not have been believed when he claimed.
to. have remembered the.
fact of accused 1 sitting at the table mentioned.
Both the courts accepted Dame 's statement and we see no good reason to take a different view.
After all it would not be extraordinary for any person to recollect even after a considerable lapse of time that when he entered the room which was going to be searched, he found a particular person seated at a certain table inasmuch as this, would be the very first thing which would attract any_body 's attention.
With regard to exhibit F. 2 which according to the prosecution case accepted by the courts below contained an account with regard to the consignment per s.s.
Canton the prosecution case was that the figures on the left hand side indicated the rates and the figures on the right hand side indicated the total C.I.F. value of the goods of each type in that consignment.
Before us exception was taken to the two figures 80.80 and 11.02 appearing on the right hand side.
According to the prosecution the figure 11.02 was.
the amount of insurance premium in dollars paid in 825 respect of the consignment on s.s. Canton.
As the original which should have been with accused 2 was not produced, a copy of the insurance policy was put in and marked as exhibit Z. 301.
exhibit
Z 259 F 1 was a copy of the same produced by accused 2 before the customs officers on 24th July 1959 as was borne out by the statement of accused 2.
The contents of the two exhibits were found to be the same by both the courts.
The Claim Superintendent of the insurance company in Bombay produced the copy of the marine premium note in respect of the said policy showing the amount of premium as $11.02 and said to have been received by the Bombay office of the insurance company.
Objection was raised to the admissibility of evidence of one Martin, Assistant Manager of New Zealand Insurance Company Hong Kong Branch who had joined that branch in 1963 i.e. long after the issue of the policy in 1959 although he had been an employee of the said company since 1952 and claimed to be familiar with the procedure of insurance of export cargo followed by the company.
According to this witness, the company used to prepare as many copies of the policy as were required by the insurer.
A carbon copy of the original was always kept in the office record.
Martin produced an office copy of the policy in respect of the consignment on s.s.
Canton to which was attached a marine premium debit note and it was his evidence that in the usual course of business of the company such a debit note.
was, always prepared at the time when the policy was issued and a copy thereof was attached to the copy of the policy kept in the records.
Counsel objected to the reception of the copy of the premium note on the ground that there was, no proof of its making or its correctness.
The High Court accepted the evidence of Martin that the copy of the premium debit note had been attached to the policy kept in the office record relying on the presumption afforded by illustration (f) to section 114 of the Evidence Act that the practice of the insurance company of attaching such a note to the policy had been followed in this particular case.
In our view the High Court was entitled to do.
so and no objection can be allowed to be raised on the ground that there was No. proof of the preparation of that original premium note.
With regard to.
the figure.
80.80 counsel argued that there was no proof that this was the amount of the freight in dollars charged in respect of the consignment per s.s.
Canton.
Counsel argued that the freight paid was not shown in the bill of lading in this case exhibit Z 259 G and the production of the copies of the bill of lading exhibit M 3 and Z 142W on which somebody had written the figure $80.80 did not establish the prosecution case.
exhibit
M 2 was the Manifest of Cargo per s.s.
Canton and entry No. 5 therein showed that in respect of the consignment 80.80 dollars had been paid as freight.
The prosecution adduced evidence of P.W. 45 Yeshwant Shankar Keluskar of Mackjnon 826 Mackenzie & Co. who produced the Import General Manifest dated 20th July 1959 as also the Freight Manifest.
According to this witness on the consignment on s.s.
Canton 80.80 Hong Kong dollars had been paid as freight.
He had No. personal knowledge but made.
his statement on the basis of the record produced from his office.
The prosecution also relied on exhibit M 3 the shipper 's copy of the bill of lading produced before the customs officers on 24th July 1959 by accused 2 containing the rate at which the freight was charged and also the actual amount of freight charged viz., 80.80 Hong Kong dollars.
Objection was taken to this inasmuch as the amount of the freight did not appear in the bill of lading exhibit Z 259 E.
The prosecution case was that freight was paid after the preparation of the Bill of lading and just before the goods were actually put on board and the reasonable explanation was that the amount of freight had been calculated subsequent to the preparation of the bill of lading and endorsed thereon as on exhibit M 3 subsequently.
According to the High Court it could be said to be a subsequent original endorsement on a copy and the High Court relied on exhibit Z 148 W a carbon copy of the bill of lading bearing a similar endorsement and also on the fact that on both exhibit M 3 and exhibit Z 148 W the words "freight paid" appeared impressed by a rubber stamp in addition to the calculation of freight and the actual amount of freight.
In our opinion, the High Court rightly held that all this established the prosecution case that the figure 80.80 in exhibit F 2 indicated the freight that was actually paid for the consignment on s.s.
Canton.
As exhibit M 3 was produced by accused 2 the consignee :before the customs officer on 24th July 1959 and contained the said endorsement the High Court was entitled to draw the necessary inference therefrom supported as it was by exhibit Z 148 W the Captain 's copy of the bill of lading which bore a similar endorsement.
Counsel contended that the evidence of P.W. 90 the appraiser of customs with regard to the C.I.F. value and the market value of the goods was at best hearsay and should have been rejected by both the courts below.
The entries relied on in this connection appear on Ex D found in the possession of accused No. 1.
There was no evidence to show that it was written by him.
P.W. 90 J.M. Jamedar 's evidence was that he had been acting as an appraiser of customs doing valuation work for 11 years and had experience in the valuation of Japanese rayon goods, fountain pen refills, Roamer 'watches, plastic buttons,_ playing cards etc.
He had taken samples from the consignments and noted the particulars thereof and had made the valuation of the goods of the consignments in question after making enquiries from the market and on the basis thereof had stated the C.I.F. value at the relevant time.
827 This witness had been subjected to prolonged cross examination but nothing came out therein which would enable the court to hold that his testimony was unreliable.
The witness had stated that the goods had been valued by him after making necessary enquiries from the importers dealing in the same or similar goods supplied from foreign countries as well as by referring to prices offered or quotations whenever available and where it was not possible to obtain the C.I.F. value from the market he had assessed the value of such items to the best of his judgment and experience.
It was argued by counsel that as the witness was not himself a party to whom offers and acceptances had been made or communicated by others and as he did not claim to have been present when such offers and acceptances had been made, his evidence as regards the value was hearsay.
It was said that at best he was a mere conduit pipe of enquiries from others and was not in the position of an expert.
We find ourselves unable to accept this submission.
Jamedar according to his unshaken testimony had been working as an appraiser of customs.
for 11 years out of his 16 year ' service and was engaged in the valuation of goods and ascertaining their C./.F. value.
He had occasion to value goods which formed the subject matter of con, signments of s.s.
Canton.
He claimed to have made enquiries in the market with regard thereto.
Apart from his own experience and knowledge the record shows that the witness gave evidence as to the C.I.F. value of a very large number of articles 'and it should have been quite easy for the defence who cross examined him at great length to discredit his testimony by offering evidence from the market that the witness 's estimate as to the C.I.F. value of any particular item was unreliable.
After all what the court had to do in this case was to form an opinion as to.
whether the C.I.F. value greatly exceeded the invoice value as put forward by the prosecution and Jamedar 's evidence certainly went to show that the C.I.F, value and the market value of the contraband goods imported was far in excess of the value thereof mentioned in the invoices.
It may be mentioned here that the document exhibit D mentioned the consignments inter alia of all the three ships and the High Court held that the document related to imports in which accused 2 was interested and possession of the document by accused 1 went to show that he too was concerned in such imports.
We now come to the question as to the admissibility of the statements made to the customs officers under section 171 A of the Sea Customs Act.
At the outset it has to be noted that this section came into the Statute Book in the year 1955 and there was nothing similar to it in the Act before such inclusion.
The section ' reads: "( 1 ) Any officer of Customs duly employed in the prevention of smuggling shall have power to summon 828 any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.
(2) A summons to produce documents or other things may be made for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as, such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents an other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 shall be applicable to any requisition for attendance under this sections.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code.
" In Maqbool Hussain vs The State of Bombay (1) where provisions of the Sea Customs Act were considered at some length by this Court before the amendment of 1955 by insertion of section 171 A it was said (at p. 742): "All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties.
There is no procedure prescribed to.
be followed by the Customs Officer in the matter of such adjudication and the proceedings.
before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal Procedure Code.
The Customs Officer are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness.
All these.
provisions go to.
show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act.
(1) ; 829 We are.
of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the.
purpose of supporting a plea of double jeopardy.
" The Court in that case was dealing with the question as to whether an order of confiscation was a punishment inflicted by a court or a judicial tribunal within the meaning of article 20 (2) of the Constitution.
In Thomas Dana vs The State of Punjab(1) the provisions of the Sea Customs Act were examined again and referring to section 187 A it was said: "This section makes it clear that the Chief Customs Officer or any other officer lower in rank than him, in the Customs department, is not a "court", and that the offence punishable under item 81 of the Schedule to section 167, cannot be taken cognizance of by any court, except upon a complaint in writing, made.
as prescribed in that section.
" With regard to the use of the word 'offence ' indiscriminately all over the Act it was said: "All criminal offences are offences, but all offences.
in the sense of infringement of a law, are not criminal offences but when a trial on a charge of a criminal offence in intended under 'any one of the entries of the Schedule aforesaid, it is.
only the Magistrate having jurisdiction, who is empowered to impose a sentence of imprisonment or fine or both.
" It was argued before us that the position became entirely different as a result of the inclusion of section 171 A as sub section
(4) of the section went to show that an enquiry by customs authorities wherein statements of persons were recorded was "to be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code.
" Counsel argued that such proceeding was a judicial proceeding also for the other purposes thus attracting the operation of section 132 of the Evidence Act.
Apart from the point as to non exercise of claim of privilege (about which we express no opinion) there can be no question that if the said section of the Evidence Act is to be attracted to such a proceeding statements made by him in any such inquiry could not be proved against him in the criminal proceedings launched.
It was (1) [1959] Supp. 1 S.C.R. 274 at 286.
830 argued that sub section
(3) of section 171 A made it obligatory on the persons summoned to state the truth upon any subject respecting which he was examined and if the proceeding was judicial proceeding there was nothing to.
exclude the applicability of section 132.
Our attention was drawn to s.1 of the Indian Evidence Act which made the Statute applicable to all judicial proceedings in or before any court in the whole of India.
As 'court ' in section 3 included all Judges and Magistrates and all persons, except arbitrators, legally authorised to.
take evidence, it was contended that the customs officers being authorised by section 171.
A of the Sea Customs Act were 'courts ' within the meaning of the definition of section 3.
Reference may also be made to the definition of 'evidence ' in the said section which shows that the word means and includes inter alia all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
Reference.
also made to section 4(1) of the Code of Criminal Procedure, 1898 under which 'investigation ' for purposes of the Code includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who. is authorised by a Magistrate tiffs behalf; and cl.
(m) which defines "judicial proceeding" as including any proceeding in the course of which evidence is or may be legally taken on oath.
Counsel relied strongly on the judgment of this Court in Lalji Haridas vs State of Maharashtra(1) where this Court had to consider whether an Income tax Officer exercising powers under section 37 of the Income tax Act, 1922 was a ' court ' within the meaning of section 195 (1) (b) of the Code of Criminal Procedure making the sanction thereunder obligatory for the filing of a complaint in respect of an offence alleged to have been committed under section 193 of the Penal Code.
Sub sections
(1) to (3) of section 37 of the Income tax Act were worded somewhat differently from those of sub sections (1) to (3) of section 171 A of the Sea Customs Act.
The words in sub section
(4) of section 37 are for all practical purposes identical with those.
used in section 171 A (4).
There this Court by a majority of three to two were of opinion that the proceedings before the Income tax Officer were judicial proceedings not only under section 193 of the Indian Penal Code but were also.
be treated as proceedings.
in any court for the purpose of section 195 (1) (b) of the Code of Criminal Procedure.
The majority Judges referred to the sections in the Indian Penal Code and the Criminal Procedure Code mentioned above and to provisions in various other Acts wherein the legislature had expressly mentioned that section 195 Cr.
P.C. would apply to proceedings before diverse authorities and accepted the argument that reading section 193 I.P.C. and section 195 (1) (b) Cr.
P.C. together it would be reason (1) ; 831 able to hold that proceedings which are judicial under the former should be taken to be proceedings under the latter.
According to the minority Judges although the word 'judicial proceeding ' was wide enough to.
include not only proceedings be,fore a 'court ' but proceedings before certain tribunals it was clear from a decision of this Court in Indo China Steam Navigation Co., Ltd. vs The Additional Collector of Customs(1) that a Customs Officer "was not a court or Tribunal" and section 37(4) of the Income tax Act should not be given a meaning different to that given in section 171 A(4) of ' the Sea Customs Act.
" In our view if the Legislature intended that the inquiry under section 171 A was to. be considered a judicial proceeding not within the narrow limits therein specified but generally, it could have used suitable words.
to express its intention.
Although this Court gave a wider meaning to the expression 'judicial proceeding ' in Lalji Haridas 's case(2) there is nothing in that judgment to warrant a still wider interpretation of that definition.
Mr. Jethmalani referred to the provisions in the Indian Oaths Act (X of 1873) and on the basis of his argument that the statements under section 171 A (4) were made on oath contended that the proceeding became a judicial proceeding in the wider sense of the word.
In our view the Oaths Act has no application here.
The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths, affirmations and declarations and was enacted because the Legislature thought that it "expedient to consolidate the law relating to judicial oaths, affirmations and declarations and to repeal the law relating to official oaths, affirmations and declarations.
" Section 4 of the Act provided that: "The following Courts and persons are authorised to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law: (a) all Courts and persons having by law or consent of parties authority to receive evidence :" The relevant portion of section 5 runs "Oaths or affirmations shall be made by the following persons : (a) all witnesses, that is to say, all persons who may lawfully be examined or give or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons and to receive evidence :" (1) ; (2) ; SupCI/69 9 832 Counsel argued that a Customs Officer was a person who had authority by law to receive evidence within the meaning of section 4 of the Oaths Act and anybody who could be lawfully examined before such a person would be a witness within the meaning of section 5 and as such it would be.
necessary to administer oath to them.
in our view, the argument proceeds on a complete misconception of the provisions of the Act.
The preamble to the Act shows that the oaths referred to are only judicial oaths and section 7 shows that all such oaths had to be administered according to such forms as the High Court might prescribe.
The Customs Officers have nothing to do with such farms and nothing has been shown to us that 'any such formality was ever complied with.
Neither do the records show that any oath was administered to any person making a statement under section 171 A. In Maqbool Hussain 's case(1) this Court stated expressly that the Customs Officers were not authorised to administer oath and the position according to us is not altered by the insertion of section 171 A in 1955.
Mr. Jethmalani referred us to the decision in Queen Empress vs Tulja(2) and to certain observations of West, J. in that case.
There it was held that a Sub Registrar under the Registration Act (111 of 1877) was not a Judge, and, therefore, was not a 'Court ' within the meaning of section 195 of the Code of Criminal Procedure and as such his sanction was not necessary for a prosecution for forgery in respect of a forged document presented for registration in his office.
West, J. had however, observed that: "An inquiry is judicial if the object of it is to determine a jural relation between one person and another, or a group of persons; between him and the community generally; but, even a judge, acting without such an object in view, is not acting judicially.
" Relying on this observation counsel argued that the object of an inquiry under section 171 A was to find out and establish the jural liability of the persons making the statement, viz., whether he had committed an offence or not, and as such the inquiry was a judicial proceeding.
In our view the argument is not worthy of acceptance.
At the stage envisaged by section 171 A a Customs Officer is given the power to interrogate any person in connection with the smuggling of any goods which it is his duty to prevent.
Such a person may have nothing to do with the smuggling of any goods although he may know where such goods are or who has or had them.
Sub section
(3) of section 171 A does not compel any person to make a statement but if he makes a statement he has to state the truth so as to avoid punishment under section 193 I.P.C.
At that stage nothing may be known as (1) (1) ; (2) 12 Bombay 36 at 42.
833 0 whether an offence has been committed or who has committed t and the person interrogated at that stage certainly is not a person accused of or charged with an offence.
He is merely called upon to give evidence to facilitate the inquiry.
He is not a witness giving evidence in a court and his testimony will make him liable under section 193 I.P.C. only because of the express provision of law in sub.
section
(4) of section 171 A. Counsel also argued that as a Customs Officer according to all the decisions of this Court already mentioned, is to act judicially, a proceeding for recording evidence before him was a judicial proceeding.
This wholly without any force because even administrative officers have to act judicially.
Counsel further argued that a deeming provision in a statute was not necessarily designed to give an artificial construction to a word or a phrase but it might be used for other purposes also.
He referred to the case of St. Aubyn vs Attorney General(1) where it was said: The word "deemed" is used a great deal in modern legislation.
Sometimes it is used to impose for the purpose of a statute an artificial construction for a word or phrase that would not otherwise prevail.
Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain.
Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.
" It was argued that the Legislature might well have used the word "deemed" in sub section
(4) of section 171 not in the first of the above senses but in the second, if not the third.
In our view the meaning to be attached to the word "deemed" must depend upon the context in which it is used.
In Lalji Haridas 's case(2) this Court went elaborately into the question as to the extent of this deeming provision which would have been wholly redundant if the word 'deemed ' in section 171 A(4) was used in any sense other than to give an artificial construction.
The second branch of Mr. Jethmalani 's argument under this head was that the principle underlying section 132 of the Evidence Act was a principle of Common Law well known to criminal jurisprudence and as such was applicable even if section 132 in terms was not attracted.
In this connection, he referred us to certain observations of Subbarao, J. (as he then was) in Amba Lal vs The Union of India and Others(3) where in his dissenting judgment on the interpretation of sections 168 and 171 A of the Act his Lordship had observed that: "To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may (1) ; at 498.
(2) ; (3) ; 834 apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply.
" Counsel also referred us to the decision in Regina vs Benjamin Scott(1).
The question before the court in that case was whether the answers to the questions put to the defend,ant before the court of bankruptcy relating to his trade dealings and estate tending disclose a fraud of concealment of his property was admissible evidence against him on indictment charging him with altering, mutilating and falsifying his books with intent to defraud his creditors.
The examination was taken in conformity with section 117 of the Bankrupt Law Consolidation Act (12 and 13 Vict. c. 106) which enacted that a bankrupt may be examined by the court "touching all matters relating to his trade, dealings or estate, or which may tend to disclose any secret grant, conveyance or concernment of his lands etc.
" There was no dispute that the questions put were relevant as touching matters relating to his trade etc.
Delivering judgment in which three other Judges concurred, Lord Campbell, C.J. held that the defendant was bound to answer the questions although by his answers he might criminal himself.
According to the learned Chief Justice: " . and we think it would be contravention of the expressed intentions of the legislature to permit the bankrupt to refuse to answer such questions; for even since the reign of Elizabeth successive statutes have been passed, purporting to guard against frauds in bankruptcy and the bankrupt, when called upon to answer questions respecting his estate and effects, should not be allowed to avail himself of the common law maxim "nomo tenetur se ipsum accusare.
" With regard to the maxim relied on by the defendant 's counsel he said: "But Parliament may take away this privilege, and enact that a party may be bound to accuse himself, that is, that he must answer questions by answering which he may be criminated." He further held that the maxim could not be treated as an implied proviso to be subjoined to the 117th section.
Mr. Jethmalani however relied on certain observations of Coleridge, 1.
in his dissenting judgment.
In our view the maxim of the English Common Law can have no application here.
Our law of evidence which is a complete Code does not permit the importation of any principle of English Common Law relating (1) 169 English Reports page 909.
835 evidence in criminal cases to the contrary.
Section 2 of the Indian Evidence Act before its repeal by the Repealing Act (1) of 1938) provided as follows: "2.
On and from that day 1st September 1872) the following laws shall be repealed; (1 ) All rules of evidence not contained in any statute, Act or Regulation in force in any part of British India; (2) All such rules, laws and regulations as have acquired the force of law under the 25th section of the 'Indian Councils Act, 1861 ' in so far as they relate to any matter herein provide.d for; and (3 ) The enactments mentioned in the schedule hereto, to the extent specified in the third column in the said schedule.
But nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed.
" We may usefully refer to the judgment of the Privy Council in Sris Chandra Nandi vs Rakhalananda (deceased)(1) where the Judicial Committee approved of the statement of the law contained in the judgment of the High Court reading: "It is to be noticed in this connection that section 2( 1 ) of the Indian Evidence Act repeals the whole of the English common law on evidence so far as it was in force in British India before the passing of the Indian Evidence Act, and that provision of the law in effect prohibits the employment of any kind of evidence not specifically authorised by the Act itself." Lord Atkin who delivered the judgment of the Judicial Committee pointed out that evidence which was not admissible under the Indian Evidence Act could not be let in for the purpose of bringing out the truth and said: "What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute to define.
Once a statute is passed, which purports to contain the whole law, it is imperative.
It is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by statute, because to him it appears that the irregular evidence would throw light (1) I.L.R. [1941] 1 Calcutta, 468. 836 upon the issue.
The rules of evidence, whether contained in a statute or not, are the result of long experience, choosing no doubt to confine evidence to particular forms, and therefore eliminating others which it is conceivable might assist in arriving at truth.
" The question there related to the admissibility of evidence which according to the Judicial Committee should not have been adduced.
The question before us is somewhat different but if the Indian Evidence Act is 'a complete Code repealing all rules of evidence not to be found therein, there is, in our opinion, no scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of section 132 or some other provision of the Evidence Act.
As the Act does not apply to interrogations by a Customs Officer exercising powers under section 171 A of the Sea Customs Act section 132 of the Evidence Act cannot be attracted.
Lastly it was contended that section 171 A did not authorise interrogation of a subject to extract admissions from him which could be used against him on a future occasion.
In aid of this proposition reliance was placed on a decision of the House of Lords in Commissioners of Customs and Excise vs Harz(1).
The main question there was whether the answers given by the respondents in the course of interrogation by Customs Officer were admissible in evidence.
The power to.
interrogate was said to be derived from the Finance Act, 1946, section 20 (3 ) which provided in substance that every person concerned with the purchase or importation of goods etc.
shah furnish to the commissioners within such time and in such form as they may require information relating to the goods or to the purchase or importation thereof etc., and shall upon demand made by any officer or other persons authorised in that behalf by the commissioners produce any.
books or accounts or other documents of whatever nature relating thereto for inspection by that officer or person.
On a construction of that provision Lord Reid was of the view that there was.
nothing therein to require the trader to give answers which might incriminate him.
His Lordship also observed that the section gave the officer no right to submit the respondents to prolonged interrogation they had to.
undergo and the respondents could not have been prosecuted if they had refused to answer.
His Lordship observed that the right of the CommiSsioners to require information was quite different and said: "If a demand for information is made in the proper manner the trader is bound to answer the demand within the time and in the form required whether or not the answer may tend to incriminate him, and if he fails to comply with the demand he can be prosecuted.
If he (1) 837 answers falsely he can be prosecuted for that, and, if he answers in such a manner as to incriminate himself, I can see no reason why his answer should not be used against him.
Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not.
Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute.
Although 1 need not decide the point, it seems to me to be reasonably clear that incriminating answers to a proper demand under this section must be admissible if the statutory provision is to achieve its obvious purpose.
" Prima facie these provisions,are against the contention of the appellant.
In that case the House of Lords in effect held that the provision of law did not entitle the Commissioners "to send a representative to confront the trader, put questions to him orally and demand oral answers on the spot; and that it does not entitle them to send their representative to subject the trader to a prolonged interrogation in the nature of a cross examination.
" The provisions of section 171 A are in sharp contrast to the provision of law before the House of Lords.
Here the statute expressly authorises officers of customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with the smuggling of goods.
A limit is set to the right to obtain production in sub section (2) of the section and subsections (3) and (4) lay down that if a person summoned does not state the truth in such an examination he may be proceeded against under section 193 I.P.C. for giving false evidence.
Counsel also drew our attention to the new sections 107 and 108 of the where the power to, examine persons has been given to all officers of customs by the first of the above mentioned sections and the power to summon persons to give evidence and produce documents as in section 171 A is given to a gazetted officer of customs under section 108 of the new Act.
In our view, this difference is immaterial for the purpose of this case and there is nothing in section 171 A which limits the right of interrogation to questions the answers whereto may not incriminate the person interrogated.
The High Court considered at some length the question as to whether the statement of the accused under section 171 A(4) should be considered as a whole or whether reliance could be placed upon portions thereof rejecting the rest.
It was argued before the High Court that inasmuch as the statements were sought to be relied 838 upon as a confession the court was bound to take into account not only the portions containing admissions but also the explanations which followed.
The High Court held that a statement under section 171 A did not stand at par with a confession so that it had to be taken as a whole or rejected as a whole.
Even with regard to the statements portions of which are inculpatory against the maker and other portions which are not, it has been held in a recent decision of this Court that the inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable vide Nishi Kant vs State of Bihar(1).
In this case the explanations contained in the statements were considered by the courts below and for reasons given they thought fit to reject the same and we see no reason to come to a different view.
[The Court then considered the case of the other accused and held :] The net result is that all the appeals excepting that of accused No. 3, Meghraj Gopaldas Jham fail and are hereby dismissed.
Meghraj Gopaldas Jham 's appeal is allowed and he is set at liberty.
His bail bond will be cancelled.

summary/full:
The appellants and two others were prosecuted on a complaint by the Assistant Collector of Customs, Bombay for the offence of conspiracy and substantive offences punishable under section 167(81) of the Sea Customs Act and section 5 of the Imports and Exports (Control) Act, 1947.
The complaint was that all the accused knowingly and with intent to defraud the Government of India of duty payable on the import of goods and/or to evade the prohibitions and restrictions for the time being in force under or by virtue.
of the Sea Customs Act and of the Imports & Exports (Control) Act, 1947 relating to the said import entered into a conspiracy in Bombay and other places during the period commencing from August 1958 and August 1959 to.
acquire possession of and to b.e concerned in carrying, removing and concealing and otherwise dealing with prohibited and restricted goods in very large quantities of high C.I.F. value.
The Presidency Magistrate held in regard to the appellants that they were parties to a conspiracy as alleged by the prosecution and convicted them under s./20 B Indian Penal Code 'read with section 167(81) of the Sea Customs Act and section 5 of the Imports and Exports (Control) Act, 1947.
The accused were also convicted of certain other charges individually framed against them.
The High Court dismissed the appeal against the order of the Presidency Magistrate.
The appellants were however, granted a certificate under article 134(1)(c) of the Constitution.
The main legal question that fell for consideration by this Court was whether the statements made by the accused appellants before the Customs Officer were inadmissible in evidence in view of the provisions cf section 171 A. of the Sea Customs Act, section 132 of the Evidence: Act and article 20(3) of the Constitution.
Questions raised on behalf of the appellants in their individual cases regarding the admissibility of certain items of evidence and circumstances against them also arose for consideration.
HELD: (1) A Customs Officer is not a court and therefore statements made before him do not attract the provisions of section 132 of the Evidence= Act or article 20(3) oil the Constitution.
(a) If the Legislature intended that the inquiry under section 171 A was to be considered a judicial proceeding not within the narrow limits therein specified but generally, it could have used suitable words to express its intention.
Although this Court gave a wider meaning to the expression 'judicial proceeding" in Lalji Haridas ' ease there is nothing in that judgment to warrant a still wider interpretation of that definition.
[83/C] 822 Maqbool Hussain vs State of Bombay, ; , Thomas Dana vs State of Punjab, [1959] Supp. 1 S.C.R. 274, 286 Indo China Steam Navigation Co. Ltd. vs Additional Collector of Customs, ; , referred to.
Lalji Haridas vs State of Maharashtra, ; , considered.
(b) The Oaths Act had no application to.
the present case.
The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths, affirmations and declarations.
The argument that a customs officer received evidence within the meaning of section 4 of the Act and therefore a person appearing before him was a witness under section 5 could not be accepted.
Section 7 of the Act shows that oaths under the Act had to be administered according to such forms as the High Court might prescribe.
The Customs Officer have nothing to.
do with such forms and there was nothing on record to show that in the present case any oath was administered to the person making the statement.
In Maqbool Hussain 's case this Court stated expressly that the Customs Officers were not authorised to administer oath and the position was 'not altered by the insertion of section 171 A in 1955.
[832 D E; 833 A C] Observations in Queen Empress vs Tulla, 12 Bombay 36.
42 and St. Alubvn vs Attorney General, , 498, discussed.
(c) Our law of evidence which is a complete code does not permit the importation of any principle of English common law relating to evidence in criminal cases to the contrary.
There is No. scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of section 132 o.r some other provision of the Evidence Act.
[834 H; 836 B C] Amba Lal vs Union of India & Ors.
; and Ragina vs Benjamin Scott, ; , referred to.
Sris Chandra Nandi vs Rakhalananda (deceased), I.L.R. 1941 Calcutta 468, applied.
(d) The decision of the House of Lords in Harz 's case does not support the proposition that under section 171 A the right of interrogation was limited to questions the answers where to may not incriminate the person interrogated.
The section expressly authorises officers off customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with smuggling of goods.
A limit is set to the right to obtain production in sub section
(2) of the section and sub.ss.
(3) and (4) lay down that ' if a person summoned does not state the truth in such an examination he may be proceeded against under 8. 193 I.P.C. for giving false evidence.
[837 D E] Commissioners of Customs and Excise vs Harz. , explained.
(e) In view of the decision of this Court in Nishi Kant vs State Bihar, , the argument that statements of the accused under section 171 A(4) should be considered only as a whole could not be accepted.
The inculpatory position of a statement can be accepted if the exculpatory portion is found to be inherently improbable.
In the present case the explanations contained in the statement were rejected by the courts below for 'reasons.
given.
There was 'No. reason for this Court to take a different view.
[838 A B] (ii) The High Court rightly held that an office copy of a premium debit note maintained by an insurance company in the usual course of its 823 business and attached to the office copy of the insurance policy was admissible in evidence under section 114 (Illustration f) of the Evidence: Act.
No objection could be allowed to.
be raised on the ground that there was no proof of the preparation of the original premium note.
[825 H] (iii) The evidence of an appraiser of customs off long experience regarding the C.I.F. value of goods could not be rejected merely on the ground that his opinion was arrived at after making enquiries in the market and was therefore only hearsay.
His testimony as to the valuation based on his knowledge of the market and experience had remained unshaken in cross examination and was rightly relied on by the High Court.
[827 D F]


judgement:
ivil Appeal No. 1573 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated April 12, 1968 of the Allahabad High Court in Election Petition No. 19 of 1967.
The appellant appeared in person.
L.M. Singhvi, Veda Vyasa, Rishi Ram, Bishambhar Lal, H.K. Puri, U.P. Singh and K.K. Jain for respondent No. 1.
The Judgment of the Court was delivered by Ray, J.
This is an appeal against the judgment and order of the High Court at Allahabad dated 12 April, 1968 dismissing the election petition filed by the appellant.
895 The appellant contested the General Election to the Lok Sabha from Hapur Parliamentary Constituency in the year 1967.
There were seven rival candidates numbered respondents 1 to 7.
The appellant contested the election on the ticket of the Republican Party.
He was then a sitting member of Parliament.
Among the rival candidates, Prakash Vir Shastri was an independent candidate.
The election symbol of the appellant was elephant and the election symbol of Prakash Vir Shastri was lion.
Prakash Vir Shastri secured 1,49,943 votes while the appellant secured 1,01,875 votes.
The Swatantra candidate Sri Naseem secured 34,274 votes.
The Congress candidate respondent Smt.
Kamla Chaudhury secured 33,988 votes.
The appellant challenged the election on grounds of corrupt practices as mentioned in sub sections (2), (3) and (4) of the Representation of the People Act, 1951 (hereinafter referred to as the Act).
At the hearing of the appeal the appellant appeared in person after counsel on his behalf had obtained leave of this Court to withdraw and to allow the appellant to appear in person.
The various corrupt practices on which the appellant relied relate to occurrences at six places.
The appellant did not press the other occurrences.
The first occurrence relates to.
a meeting held at the Town Hall Maidan at Hapur on 7 February, 1967.
The appellant alleged that at the Hapur meeting respondent Prakash Vir Shastri and his supporters delivered inflammatory speeches against the appellant and thereafter the said respondent Shastri 's supporters entered the office of the Republican Party, to which the appellant belonged, assaulted the workers of the appellant, tore posters, abused the appellant and threatened his workers.
In support of the allegations the appellant relied on Exhibit 28 the news report in the 'Hindustan ' published on 8 February, 1967 and also on Exhibit 23 the ' news.
report in the newspaper named 'Vir Arjun ' published on 8 February, 1967 and exhibit 22 being the editorial in the Vir Arjun published on 7 February, 1967.
The newspaper report in the 'Hindustan ' Exhibit 28 published on 8 February, 1967 contains the note of the correspondent from Hapur bearing the date 7 February, 1967 stating that a big meeting was held in support of respondent Shastri Lok Sabha candidate from Hapur Ghaziabad Constituency.
In the 'Vir Arjun ' dated 8 February, 1967 Exhibit 23 it is stated that the supporters of the Republican Party were raising slogans that they were championing the cause of Harijans and Muslim youths from Aligarh University were brought for that purpose.
It was also stated in the said newspaper that Muslim students of Aligarh were raising the slogans "Harijan Muslim are brothers and where from Hindu community has come.
Black face be of Brahmin, barbar and lala.
Throw shoes on Bhat, Gujar and Rajput".
The appellant in paragraph 11 L15SupCI/69 13 896 Of the petition further alleged that respondent Shastri was associated with the 'Vir Arjun ' and K. Narendra, Editor of Vir Arjun who was a colleague of respondent Shastri wrote an editorial by way of an appeal to support the candidature of respondent Shastri in that newspaper on 7 February, 1967 Exhibit 22 and the said appeal was also an instance of corrupt practice.
The further allegations in the petition were that at the meeting which was held at the Town Hail Maidan at Hapur on 7 February, 1967 respondent Shastri and the said K. Narendra, Editor of Vir Arjun delivered inflammatory speeches.
The appellant generally impeached the judgment of the High Court on two grounds.
First, that there was no discussion of the entire evidence and, secondly, that there was rejection of the evidence on behalf of the appellant on consideration that the appellant 's witnesses belonged to particular castes and sects.
The criticism on behalf of the appellant with regard to Hapur meeting was that respondent Shastri in answer to the petition did not state that there was a meeting on 6 February, 1967 and thereby the appellant was denied the opportunity of meeting that case.
The appellant relied on the decision of this Court in Badat & Company vs
E. I. Trading(1) and the observations appearing at page 547 of the report in support of the contention that under the provisions of the Code of Civil Procedure 'and, in particular, the provisions contained in Order VIII of the Code, respondent Shastri should have alleged in the pleadings that the meeting was held on 6 February, 1967 and in the absence of such allegations respondent Shastri should not have been allowed to make that case.
The decision of this Court is of no aid to the appellant.
In the case of Badat & Company(1) the question was whether there was a contract between the parties and it was alleged by the plaintiff with reference to two letters that the letters would indicate some of the terms of the transaction.
The defendant in the written statement did not specifically deny the said two letters.
This Court observed that a mere denial of the contract was not sufficient and the rules of the Code enjoined denial of the existence of the letters.
In the present case, the question was whether a meeting was held at Hapur Town Hail Maidan on 7 February, 1967.
The respondent denied such a meeting.
The respondent was not called upon to state as to whether there was a meeting on 6 February, 1967.
The news item in the newspaper 'Hindustan ' Exhibit 28 gave news from Hapur under the date 7 February, 1967 that a meeting was held at Hapur.
Exhibit 23 was a news item in the newspaper 'Vir Arjun ' under the date 7 February, 1967 that Shri Narendra, Editor of Vir Arjun spoke at an election meeting 'at Hapur.
Neither (1) ; :A.I.R. 1964 S.C. 539. 897 the Vir Arjun news item dated 7 February, 1967 nor the news item appearing under the date 7 February, 1967 Hapur published in the Hindustan on 8 February, 1967 contains any intrinsic evidence that a meeting was held at Hapur on 7 February, 1967.
Further, of the witnesses on behalf of the appellant P.W. 25 Bal Kishan spoke of the meeting at the Hapur Town Hall Maidan on 7 February, 1967 and he also stated that three pamphlets were distributed and two issues of newspapers were also distributed, namely, the Vir Arjun and Pratap.
No such pamphlet was produced.
The two witnesses on behalf of respondent Shastri, Bhagwati Prasad Jain D.W. 16 and Rameshwar Prasad Goel D.W. 18 said that a Congress election meeting was held at the Town Hall Maidan, Hapur and no election meeting was held in support of respondent Shastri at the Town Hall Maidan, Hapur on 7 February, 1967.
With regard to the meeting at the Town Hail Maidan at Hapur 'alleged by the appellant to have been held on 7 February, 1967, the oral evidence on behalf of the appellant is that the meeting was held and the oral evidence on behalf of the respondent is that the meeting was not held.
In the case of conflicting oral testimony it is safer to place reliance on documentary evidence.
First, the newspaper report on which the appellant relies contained intrinsic evidence which totally nullifies the appellant 's case.
Exhibit 28 being the 'Hindustan ' dated 8 February, 1967 indicates the news about Hapur under the date 7 February, 1967 that a meeting was held "yesterday night" meaning thereby 6 February, 1967, in support of respondent Prakash Vir Shastri.
Secondly, the newspaper 'Vir Arjun ' published on 8 February, 1967 gave the news at Hapur under the date 7 February, 1967.
The news referred to an election meeting at Hapur but did not mention that the meeting was held on 7 February or on 6 February., 1967.
Thirdly, Exhibit A 12 which is an application by one Lakhi Ram seeking permission from the Municipal Board for holding a meeting on 7 February, 1967 in the Town Hall Maidan, Hapur throws light on this aspect.
The permission given by the authorities which is marked Exhibit A 13 required the persons holding the meeting to pay certain charges towards the use of the electricity.
Exhibit A 14 is a receipt for payment of Rs. 5.
These three documents indicate that the meeting which was held on 7 February, 1967 was a meeting organised by the supporters of the Congress Party.
Fourthly, Exhibit A 2 which is a General Diary of Thana Hapur bearing the date 7 February, 1967 shows that a constable was sent to the Town Hall Maidan to make arrangements in connection with the meeting which was to be 'addressed by one Kailash Prakash.
The witnesses on behalf of the respondent Shastri mentioned the name of Kailash Prakash and Smt.
Kamla Chaudhury as speakers on behalf of the Congress candidate.
It is highly improbable that two meetings of 898 the two rival candidates, namely of the Congress and of the respondent Prakash Vir Shastri would both be held on the same date and at the same place.
Fifthly, the reports which were lodged by the supporters of the appellant with regard to the attack on the office of the Republican Party on 7 February, 1967 do not mention or refer at all to any meeting on behalf of respondent Prakash Vir Shastri on 7 February, 1967 at the Town Hall Maidan, Hapur.
It would be natural if a meeting had been held on 7 February, 1967 that there would have been reference to the same.
The other allegations of the appellant were that respondent Shastri 's supporters on 7 February, 1967 attacked the office of the Republican Party, to which the appellant belonged.
There was the First Information Report dated 7 February, 1967 about the attack on the office of the Republican Party.
This report is significantly silent about any meeting having been held on 7 February, 1967 at Hapur Town Hall Maidan.
Though there was the alleged complaint about the attack on the office of the Republican Party, it appears that there was no investigation.
The attack on the party office was not proved by the appellant to have been made by respondent Shastri 's workers and supporters.
The High Court correctly came to the conclusion that no meeting was held at Hapur on 7 February, 1967 and there was no attack on the office of the Republican Party.
With regard to.
the 'attack on the office of the Republican Party to which the appellant belonged though the first information report gave the news about the art, ok it is strange that there was no investigation.
The report of the Joint Secretary of the Republican Party to the President of the Republican Party bearing the date 8 February, 1967 alleged that the supporters of Prakash Vir Shastri attacked the office of the Republican Party on 7 February, 1967, forcibly took necessary papers and a flag of the Party.
Dal Chand Nimesh, Joint Secretary of the Republican Party, P.W. 71 in his evidence stated that none of the processions went to his office and further he hid himself in an adjoining room.
He did not prove the truth of the statements contained in his report which was marked as Exhibit 11.
The attack on the office of the Republican Party was not mentioned at all either in the Vir Arjun of 8 February, 1967 or in the Hindustan dated 8 February, 1967.
It is obvious that if in fact any attack had been made on the office of the Republican Party, the supporters of the appellant would have taken steps for investigation and publication.
The second occurrence on which the appellant relied is.
alleged to have happened at a place called Nagola.
The appellant 's case was that on 18 February, 1967, Prakash Vir Shastri and his 899 supporters who were mostly Tyagi by caste asked the Tyagis to stop the Jatav voters from going to the polling station to cast their votes.
It was alleged that Thawariya made the announcement by beat of drums that the Muslim, Chamar, Bhangi and Jatav voters would not be allowed to go to the polling station to cast their votes.
The other part of the appellant 's case about the Nagola incident was that there was an assault on Shamshad Elahi, a worker of the appellant.
The appellant relied on the oral testimony of PW. 11, P.W. 12, P.W. 15, P.W. 16, P.W. 17, P.W. 19, P.W. 23, P.W. 65 and P.W. 80.
The witnesses on behalf of the respondent were D.W. 4, D.W. 12, D.W. 13, D.W. 30 'and D.W. 33.
The oral evidence is in support of the rival contentions, namely, that the Jatav voters would not be allowed to vote and the denial of the same by the respondent.
The appellant also lied on Exhibit N that the Jatav voters would not be allowed to cast their votes by the Tyagis.
In support of the case with regard to assault on Shamshad Elahi the appellant relied on the oral evidence of Shamshad Elahi P.W. 11 and the injury report Exhibit 30 and other documents, namely, Exhibits 31, 32 and 35.
The 'appellant criticised the judgment by contending that there was no discussion of the oral evidence of P.W. 17, Satya Pal Malik.
P.W. 11, Shamshad Elahi said that he went to Nagola at about 3.30 p.m. on 19 February, 1967, the date of the election and the voters told him about the proclamation by beat of drums on the previous night and the voters further said that they would be insulted and they should remain there.
Shamshad Elahi further said that he met Sevak Ram and Surajbhan Tyagi and 10 or 12 other persons were with them and they beat the witness with lathis and he received a number of injuries.
The other witnesses on whose testimony the appellant relied said that people wearing lion badges which was the election symbol of Prakash Vir Shastri asked the witnesses not to cast their votes and they also said that it was announced by beat of drums that no Chamar or Bhangi should cast a vote.
Nagola is a village within the circle of Badhnauli.
R. K. Aggarwal, D.W. 33 who was the Presiding Officer at Badhnauli polling station gave evidence.
He said that the votes of village Nagola were polled and no Harijan or Mohammedan voter was stopped from casting votes and that there was no complaint that Harijan and Mohammedan voters were being stopped from casting their votes.
In cross examination the witness said that no voters from Haidernagar or Nagola were brought to the polling station under police protection.
900 P.W. 80, Sukhbir Singh who was posted as Station Officer Thana Kharkoda said that he received information from Shamshad Elahi that voters at Badhnauli were being stopped from casting their votes.
Sukhbir Singh went to Badhnauli.
He also went to Nagola.
He said that 30 or 40 Harijan voters went to Badhnauli to cast their votes.
He said that there was no voter who was taken by him to a polling station in a truck.
Sukhbir Singh proved Exhibit 35 which was a contemporaneous report to the effect that no one was stopped from voting at Nagola.
Satya Pal Malik on whose testimony the appellant relied said that Prakash Vir Shastri came to Badhnauli polling station on 19 February, 1967 and there were 40 to 50 persons around him with lion badges on.
His further evidence was that Prakash Vir Shastri asked the Pradhan to beat the voters to make them run away.
Prakash Vir Shastri however denied having asked Sheoraj Singh Pradhan to drive away the voters.
Thanwaria, P.W. 23 on whose evidence the appellant relied said that he beat the drum in Nagola village on 'a day before the polling.
He said that there were two parties of the Tyagis.
One was of Sheoraj Singh and the other was of Pyare Lal.
The Jatavs, according to his testimony, were in Pyare Lal 's party and the Bhangis were in Sheoraj 's party.
The appellant said that Thanwaria was disbelieved only because he belonged to the Chamar caste.
That is misreading the judgment.
The High Court said that the evidence of Thanwaria did not inspire confidence.
That criticism of the evidence of Thanwaria is justified because he came to support the case of the appellant and he belonged to the appellant 's camp.
Pyare Lal, D.W. 12 said that no Harijan was stopped from casting his vote at Badhnauli polling station and no worker of Prakash Vir Shastri threatened any Harijan voter at the polling station.
The appellant criticised the evidence of Pyare Lal that he did not know as to what was happening in the village.
Satya Pal Malik, P.W. 17 mentioned the name of Pyare Lal as the leader of one of the parties and Sheoraj Singh as Pradhan of the village Nagola.
The oral evidence on behalf of the appellant is not acceptable for two reasons.
First, if there had been any incident of a voter being prevented from voting 'a complaint would have been made to the polling officer of the polling station.
Secondly, Vireshwar Tyagi and Mahendra Singh Verma who were the supporters of the appellant and who are alleged to have said that voters at Nagola were prevented from voting did not lodge any report about the alleged corrupt practice particularly when it was said to be committed by Prakash Vir Shastri himself.
901 The assault on Shamshad Elahi which was also said to be an incident of corrupt practice is unacceptable for these reasons.
First the injury report Exhibit 30 has to be considered along with the statement of Shamshad Elahi being Annexure M and the report of the appellant being Exhibit 32 and the complaint of Shamshad Elahi being Annexure N being Exhibit 30.
The appellant.
, in the report dated 17 February, 1967 Exhibit 32 spoke of voters not being allowed to exercise their votes.
Shamshad Elahi in his complaint said that 10 or 12 persons beat him with lathis.
All this happened on 19 February, 1967.
The doctor 's report was about the injuries.
First it is peculiar that there was no complaint about the injuries after the injury report.
Secondly, there is no evidence that the assault was by the workers of Prakash Vir Shastri.
Shamshad Elahi in his evidence mentioned the names of Sevak Singh and Surajbhan Tyagi.
These names were not mentioned in the complaint being Exhibit 30.
In cross examination Shamshad Elahi was asked 'as to how he had obtained the names and his answer was that he met the grass cutter who gave the names.
It is curious that the grass cutter who gave the names was not examined.
The third incident on which the appellant relied took place at Chhajjupur.
The allegations are that on 2 February, 1967 an election meeting was organised in support of the candidature of the appellant 'and the supporters of respondent Prakash Vir Shastri created disturbance with the result that the meeting could not be continued and the supporters of respondent Prakash Vir Shastri are alleged to have chased the appellant.
The High Court rightly commented on the absence of any report having been made by the appellant to the Election Commissioner or the police about the alleged occurrence.
It is Obvious that if the appellant had been chased he would have made report to the Election Commission or to the police.
The appellant relied on the news item in the Patriot dated 5 February, 1967.
The news item was referred to by Mahesh Chandra Agarwal, P.W. 14 who, however, was not present at the meeting at Chhajjupur.
He referred to a conversation with the Superintendent of Police.
The Senior Superintendent of Police was not examined.
No police report was produced.
The truth of the newspaper report was not corroborated nor was the statement in the ,news item proved.
On the contrary, Mahesh Chandra Agarwal nullified the news item by admitting that he was not present at the meeting.
P.W. 18 Tejpal Singh spoke of the incident of 2 February, 1967 and mentioned about the shouting of slogans and throwing of brick bats.
P.W. 10, Som Prakash spoke of charge sheet under sections 147, and 342 of the Indian Penal Code against certain persons.
He spoke of the report of 3 February, 1967 and a report of 9 February, 1967.
The report dated 3 February, 1967 902 relates to the occurrence on 2 February, 1967 at Chhajjupur.
The report of 9 February, 1967 also relates to the alleged incident of 2 February, 1967 at Chhajjupur.
The witness Sofa Prakash P.W. 10 admitted that no investigation was made.
It is significant that the name of the appellant is not mentioned in either of complain,rs or reports.
The allegations in the report are that some disturbances was created and names of various persons are mentioned as having tried to run towards.
the jeep which carried the leaders of the Republican Party.
One of the witnesses Devi Dayal Sen, P.W. 63 said that when the appellant rose to speak some people pelted stones at him.
The alleged incident at Chhajjupur is unacceptable because, first, there was no complaint by the appellant to the Election Commissioner, secondly, there was no police case and no investigation, thirdly, the reports did not mention the name of the appellant as having been assaulted or chased and fourthly, the news item in the Patriot was not proved as to the truth of the contents therein.
The ,fourth occurrence on which the appellant relied was at a place called Opehra.
The appellant alleged that some persons were stopped from casting their votes.
The appellant relied of the oral evidence of PWs.
58, 59 and 60.
P.W. 60 is Manzoor Ahmad, M.L.A. The other two witnesses were Durga Das and Ram Prasad.
The appellant criticised the judgment that there was no mention of the name of Manzoor Ahmad.
The diaries being Exhibits A 23, A 32 and A 29 were produced to show that the election at Opehra polling station passed off peacefully and therefore no one stopped any voter from casting vote.
Manroof Ahmad his oral evidence said that he saw people armed with lathis and ballams.
He said that he made a complaint to the Presiding Officer and admitted in cross examination that there was no written complaint.
Manzoor Ahmad did not prove that any person was stopped from voting.
The fifth and the sixth occurrences on which the appellant relied took place at Datiyana and Bankhanda.
It is alleged by the appellant that at Datiyana the agents and the supporters of respondent Prakash Vir Shastri threatened the Scheduled Caste and Harijan voters and prevented them from going to the polling station.
The allegations about the occurrence at Bankhanda are to similar effect.
The appellant relied on Exhibit 18 which was a memorandum addressed by several voters who stated that they remained within the house and could not vote because the village Tyagi Kailash Chand threatened to kill them if they would vote.
P.W. 65, Vireshwar Tyagi spoke of the incidents at Nagola, Bankhanda and Hapur and his wife Smt.
Prakash Vireshwar Tyagi spoke of the alleged ;incident at Datiyana.
The respondents 903 witnesses denied that any person was prevented from casting vote at Datiyana.
The 'allegations with regard to the Bankhanda were referred to by Vireshwar Tyagi and other witnesses.
The diary which produced with regard to the polling station disproved any such incident.
The diaries are Exhibits A 19 and A 21.
D.W. 20, Chandoo Singh stated that he was at the polling station at Bankhanda and no one was stopped from exercising the right of franchise.
21 and 22 also spoke of polling at Bankhanda having been peaceful.
The appellant referred to.
religious songs which were said to be praise of respondent Prakash Vir Shastri.
Mere praise worthy songs will not be an instance, of corrupt practice.
All the allegations about the voters having been stopped from casting their franchise followed the same pattern of oral evidence.
The absence of any report either to the Election Commission or to the Police authorities is an important and noticeable feature and therefore the oral evidence is not acceptable.
The other allegations relied on by the appellant are that respondent Prakash Vir Shastri is guilty of corrupt practice under sub sections (3), (3A) and (4) of section 123 of the said Act.
The appellant contended that respondent Prakash Vir Shastri made communal propaganda against the appellant and also published false statements in relation to the personal character of the appellant.
In aid of the contentions the appellant relied on annexures KK and MM.
The appellant relied on the upper portion of annexure KK in support of the contention that the slogans amounted to communal propaganda.
The lower portion of annexure KK was contended by the appellant to be allegations against the personal character of the appellant.
Annexure MM was said by the appellant to contain slogans amounting to communal propaganda against the appellant.
It was said by the appellant that respondent Prakash Vir Shastri promoted feelings of enmity or hatred against the appellant and further raised communal propaganda.
The appellant also relied on Exhibit 22 being the editorial in Vir Arjun dated 7 February, 1967 in support of the contention that the editorial constituted communal propaganda against the appellant.
In Guruji Shrihar Baliram Jivatode vs Vithalrao and Others,(1) this Court dealt with the scope and content of subsection (4) of section 123 of the Act.
The Act is intended to protect freedom of speech on the one hand and to restrain malicious propaganda on the other.
The provisions contained in subsection (4) of section 123 were said by this Court to be contra (1) 904 vened when "any false allegation of fact pierces the politician and touches the person of the candidate".
It is the personal character and conduct of the candidate which is to be protected from malicious or false attacks.
The statement in question has to be first a false statement bearing.
on the personal character and conduct of the candidate and secondly, the statement complained of must be one which is reasonably calculated to prejudice the prospects of the election of the person.
Under the provisions contained in sub section (3A) of the said Act the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, face, caste, community, or language, is the mischief which is sought to be avoided by making the same a corrupt practice.
The sub section further says that such promotion or attempt to promote enmity or hatred is for the furtherance of the election of the candidate or for prejudicially affecting the election of any candidate.
Th.e words "personal character or conduct" were explained by this Court in T.K. Gangi Reddy vs M.C. Anjaneya Reddy and others(1) "to be equated with his mental or moral nature.
Conduct connotes at person 's actions o.r behaviour".
Annexure KK was not proved and therefore it cannot be said to constitute any communal propaganda.
Assuming it were proved there is no appeal to vote for a person on the ground of religion nor is there any appeal not to vote for a person on the ground of his religion.
Further, the provisions contained in sub section (4) of section 123 require the publication with the consent of the candidate or his election agent.
In the present case, annexure KK has not been established to be published with the consent of the respondent Prakash Vir Shastri or his election agent.
It, therefore, follows that annexure KK offends neither the provisions contained in sub section (3A) nor in sub section (4) of section 123 of the Act.
Annexure MM was said by the appellant to be a communal propaganda.
Arnexure MM was not proved.
Even if it were proved the slogans do not offend the provisions of either subsection (3A) or sub section (4) of section 123 of the Act.
The publication in the newspaper 'Vir Arjun ' Exhibit 22 is to the effect that differences between Hindus and Harijans were being spread by the supporters of the Republican candidate meaning thereby the appellant and if students from Muslim University were brought in by them then students from Ghaziabad would be brought into the field.
The newspaper certainty (1) ; 905 Was inclined in favour of respondent Prakash Vir Shastri but the newspaper publication said that Prakash Vir Shastri would not unlike the Congress candidate preach communal hatred.
The statements in Exhibit 22 do not make any reflection on the moral or mental nature of the appellant and they do not touch the personal character of the appellant, nor do they promote enmity or hatred on grounds of religion.
The appellant failed to prove that respondent Prakash Vir Shastri committed any corrupt practice in relation to the personal character and conduct of the appellant.
The newspaper publication Exhibit 22 was an appeal on behalf of respondent Prakash Vir Shastri.
As long as the publication is not tainted by corrupt practice, such an appeal will not be an infraction of the provisions as to corrupt practices as contemplated in the Representation of the People Act.
Suggestions that attempts are made to accentuate the differences between the Hindus and Harijans in the article cannot be extracted in isolation from the entire context.
The electorate at the time of the election has to be kept in the forefront in judging whether the article can be said to offend the provisions relating to corrupt practices.
The Court is to ascertain whether the statement is reasonably calculated to prejudice the prospects of the candidate 's election.
This Court observed in Kultar Singh vs Mukhtiar Singh(1) that in reading the documents it would be unrealistic to ignore that When appeals are made by candidate there is an element of 'partisan feeling and there is 'extravagance of expression attacking one another and "it would be unreasonable to.
ignore the question as to what the effect of the pamphlet would be on the mind of the ordinary voter who reads the pamphlet".
In the light of these principles, we are of opinion that there is no infraction of the provisions contained in sub sections (3A) and (4) of section 123 of the Act.
For the reasons mentioned above, this appeal fails and is dismissed with costs.

dataset_name: IN-Abs

summary/full:
The appellant challenged the election of the respondent on the ground that the respondent committed various corrupt practices including that of publication of false statements in relation to the personal character of the appellant.
The High Court held the allegations not proved.
Dismissing the appeal, HELD: The provisions contained in sub section
(4) of section 123 are traveled when "any false allegation of fact pierces the politician and touches the person of the candidate".
It is the personal character and conduct of the candidate which is to.
be protected from malicious or false attacks.
The words "personal character and conduct" are to be equated with mental or moral nature and the word "conduct" connotes a person 's actions and behavior.
The statement in question has to be first a false statement bearing on the personal character and conduct of the candidate.
and secondly, the statement complained of must be one which is reasonably calculated to.
prejudice the prospects of the election of the person.
[903 H] T.K. Gangi Reddy vs
M.C. Anjaneya Reddy, [1965] 1 S.C.R. 175, reference to.
The electorate at the time of the election has to be kept in the forefront in judging whether a publication can be said to offend the provisions relating to corrupt practices.
The Court is to ascertain whether the statement is reasonably calculated to prejudice the prospects of the candidate 's election.
In reading the documents it would be unrealistic to ignore that when appeals are made by candidate there is an element of partisan feeling and there is extravagance of expression in attacking one another and it would be unreasonable to ignore the question as to what the effect of the pamphlet would be on the mind of the ordinary voter who reads the pamphlet.
[905 D] Kultar Singh vs Mukhtiar Singh, ; , referred to.


judgement:
ivil Appeal No. 1483 of 1958.
Appeal by special leave from the judgment and order dated May 21, 1968 of the Allahabad High Court, Lucknow Bench in Civil Misc.
Applications Nos. 41 (E) and 42(E) of 1968 in Election Petition No. 7 of 1967.
C.B. Agarwala, V.P. Joshi and S.S. Khanduia, for the appellant.
G.N. Dikshit, R.N. Dikshit and O.P. Saini, for respondents Nos. 1 and 9.
The Judgment of the Court was delivered by Hegde, J.
This appeal by special leave is directed against the order made by Sahgal, J. on May 21, 1968, permitting the 1st respondent, an elector challenging the validity of the election of the appellant to Lok Sabh 'a from 15, Shahabad Parliamentary Constituency in the general election held in 1967, to inspect the packets of ballot papers containing the accepted as well as the rejected votes of the candidates.
In the election in question as many as 10 persons contested.
The appellant, the Jan Sangh nominee was the successful candidate.
The 9th respondent, Shri Nevatia Rameshwar Prasad, the Congress nominee was his nearest rival.
In the election petition, the petitioner not only wants the appellant 's election to.
be held void, he also wants that the 9th respondent should,, be declared elected.
The election of the appellant has been challenged on various grounds, with most of which we are not at present concerned.
We are only concerned with the allegations relating to the irregularity in the scrutinising and counting of votes.
The 854 averments relating thereto are, found in paragraphs 13 and 14 of the election petition.
They are as follows: (1) only one counting agent was permitted at each table whereas three persons were doing the counting work simultaneously and it was impossible for one man to look into and detect the wrong acts of three persons at the same time.
Under this head it was further mentioned that the counting staff was from amongst the government servants who had gone on two months strike before the election and during the elections they had adopted hostile attitude towards the congress candidates and had made efforts to bring about their defeat; (2) the bundles of votes of either candidates were neither properly made nor properly scrutinised; (3) about 5,000 votes of the congress candidates were improperly rejected ignoring the protests of Mr. Malhotra, the election agent of the congress nominee; (4) invalid votes were counted in favour of the returned candidate.
The votes of the congress candidates were counted for the returned candidate.
In Sch 'E ' certain figures showing the alleged improperly rejected as well as accepted votes pertaining to.
certain booths are mentioned.
It also shows the number of votes of the congress nominee counted as the votes of the returned candidate.
Neither the petition nor the Schedule discloses the basis for arriving at those figures.
The election petitioner is neither the candidate nor his election agent.
In the election petition, it was not stated that he was even the counting agent.
In the verification appended to the election petition, it was averred that the allegations contained in paragraphs 12 to 15 of the election petition were believed by the petitioner to be true on the basis of the information received from the workers of the congress nominee and others which means that the allegations made by him in_paragraphs 13 and 14 of the election petition were based on hearsay information.
He does not and he could not vouchsafe their accuracy though he claims to have believed the information given to him to be correct.
Similarly in the verification appended to Sch. 'E ', the election petitioner stated that he has given the information contained in that Schedule on the basis of the information received from the counting agents of the congress nominee.
Neither in the election petition nor in the Schedule he mentioned that the counting agents had given him the information in question on the basis of any record made by them.
855 In the affidavit filed by the petitioner in support of his application seeking permission to inspect the ballot papers, he went one step further.
Therein he averred that on one of the days when the counting was going on, he acted as one of the counting agents for the congress nominee.
Hence he claims to have personal knowledge of the rejection of some valid votes 'and the acceptance of some invalid votes.
No affidavit of either the congress nominee or his election agent or any of the persons who could have had personal knowledge of the matter was filed in support of that application.
No. oral evidence has been taken in the case till now.
The returned candidate has denied the allegations referred to earlier.
It is true that some of the defeated candidates in their written statements have lent support to the ,allegations made by the election petitioner.
The reason for the same is obvious.
But even they have not filed any affidavit in support of the concerned allegations.
Solely on the basis of the averments made in the election petition and the facts sworn to in the affidavit filed by the election petitioner in support of his application seeking scrutiny of the ballot papers, the trial court had issued the impugned direction.
Before proceeding to.
consider the material in support of the impugned order, it is necessary to mention that it is not the case of the election petitioner that any written objection had been filed during the counting either to the acceptance or to the rejection of any vote.
In the petition, it is averred that "the Returning Officer on being pointed out by the election 'agent of respondent No. 9, Shri P.C. Malhotra, said his decision was final and can be questioned through Election Petition".
Evidently this averment relates to the objections said to have been taken by Shri Malhotra in respect of the orders made by the returning officer as to the validity.
of some of the votes.
Apart from the fact that the allegation in question.
is very vague and lacking in details, not even an affidavit of Shri Malhotra has been filed in support of that allegation.
Admittedly no application was made to the returning officer for recounting the votes.
We have to examine the facts of this case bearing in mind these circumstances.
The importance of maintaining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases.
In particular we may refer to the decisions of this Court in Ram Sewak Yadav vs Hussain Kamil Kidwai and ors.
(1) and Dr. Jagjit Singh vs Giani Kartar Singh(2).
These and other decisions of this Court 'and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers.
They are: (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the peti (1) (2) A.I.R. 1966 S.C. 773.
856 tioner relies in support of h/s case and (2) the tribunal must be prima facie satisfied that k1 order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.
The trial court was of the opinion that if an election petitioner in his election petition gives some figures 'as to the rejection of valid votes and acceptance of invalid votes, the same must be considered as an adequate statement of material facts.
In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures.
His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis.
He did not say in the petition who those workers were and what is the basis of their information ? It is not his case that they maintained any notes or that he examined their notes, if there were any.
The material facts required to be stated are those facts which can be considered 'as materials supporting the allegations made.
In other words they must be such facts as to afford a basis for the allegations made in the petition.
The facts stated in paragraphs 13 and 14 of the election petition and in Schedule 'E ' are mere allegations and are not material facts supporting those allegations.
This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form.
Unfortunately the trial court has mistaken the form for the substance.
The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.
The learned trial judge while deciding the point in issue overlooked certain important circumstances.
The election petition is silent as regards certain important aspects.
This omission has bearing on the point to be decided.
The allegation that the returning officer did not permit the appellant more than one counting 'agent for each counting table is an extremely vague allegation.
It is not the election petitioner 's case that the congress nominee had appointed more than one counting agent for any counting table but the returning officer did not accept their appointment.
Under section 47 of the Representation of People Act, 1951, a contesting candidate or his election agent may appoint in the prescribe manner one or more persons but not exceeding such number as may be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such 'appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.
Rules framed under that Act prescribe the number of counting agents that a candidate may appoint.
The form of the notice required to be given trader section 47 of the Act is given in the rules.
The appointment of the counting agents 857 is to be made in the prescribed forms in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to.
the counting agent.
Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein.
The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting.
Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated.
In other words the material facts relating to the allegations made have not been stated.
Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper.
Therefore it was quite easy for them to note down the serial number of the concerned ballot papers.
The election petition is silent as to the inspection of the ballot 'papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections.
These again are the material facts required to be stated.
As seen earlier the allegations made in the election petition are purported to have been rounded on the information given by others.
No one takes direct responsibility for those allegations.
No oral evidence was given in support of them, not even affidavits were filed in support of the allegations.
The scrutiny of ballot papers was sought on the basis of assertions which were neither accompanied by a statement of material facts nor supported by any evidence.
The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.
It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied.
A judge can be satisfied only on the basis of proof and not on the basis of mere allegations.
There is absolutely no proof in this case to.
support the allegations on the basis of which the scrutiny of the ballot papers was prayed for.
The trial court did not mention in its order even a single reason in support of its satisfaction as to the need for 858 inspecting the ballot papers.
Every judicial order must be based on reasons and those reasons must be disclosed in the older itself.
Unfortunately the learned trial judge had overlooked the importance to be attached to the secrecy of the ballot papers.
We have earlier referred to the principles enunciated by this Court to be followed before ordering the scrutiny of ballot papers.
The legal position in England is the same as in this country.
In fact our election, law is patterned on the basis of the English Election Law.
In Halsbury 's Laws of England (Vol. 14 at page 310, paragraph 559), it is observed: "The usual practice is for an application for a recount to.
be made by summons to.
a judge on the rota for the trial of parliamentary election petitions before the trial on an affidavit showing the grounds on which the application is based.
A recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer.
" In Rogers on Elections (Vol. II at p. 199) it is observed that an application for recount should be made by summons supported by affidavits showing grounds.
Fraser in his Law of Parliamentary Elections and Election Petitions observes at p. 222: "A strong case must be made on affidavit before an order can be obtained for inspection of ballot papers or counter foils".
Even before the Representation of the People Act, 1951 was enacted the law in this country relating to.
inspection of ballot papers was as stated earlier.
The election tribunals in this country have refused to permit the scrutiny of ballot papers unless there was prima facie evidence in support of the allegations made in the election petition see Tanjore, N.M.R. (Hammond 's Election Cases 673); Punjab North Case (Hammond 's Election.
Cases 569), Karnal Mohammadan Constituency Case (2 Doabia 235 );Karnal (South) General Constituency Case (2,Doabia 80); Chingleput Case (Hammond 's Election Cases 307); see also R. Swaminath 's Case ; Seshaiah vs Koti Reddi and Lakshumanayya vs Rajam Aiyar For the reasons mentioned above we allow this appeal and set aside the order made by the learned trial judge.
He with now proceed with the trial of the case in accordance with law.
The 1 st respondent, the election petitioner shall pay the costs of the appellant in this appeal.
V.P.S. Appeal allowed.

summary/full:
The first respondent, an elector, challenged the election of the appellant to the Lok Sabha.
He alleged inter alia, in the election petition that: (1) only one counting agent of the defeated candidate was permitted at each table where three persons were counting simultaneously, and hence, it was impossible 'for the counting agent to detect the wrong acts of the counting staff who had adopted an attitude hostile to the defeated candidate; and (2) several votes of the defeated candidate were improperly rejected ignoring the protests of the election agent of that candidate, while invalid votes and votes of the defeated candidate were counted in favour of the appellant.
The Schedule to the petition gave some figures of such improper rejection and improper acceptance.
In the verification to the petition it was stated that the allegations were made on the basis of information 'received from the workers and the counting agents of the defeated candidate and that the election petitioner believed the information to be correct.
It was however not stated in the petition who the workers were and what was the basis of their information.
No written objection was flied during the counting, either to the acceptance or the rejection of any vote, nor was any such application made for a recount.
Before the trial of the election petition the election petitioner filed an application for permission to.
inspect the packets.
of ballot papers containing the accepted as well as rejected votes of the candidates.
In the affidavit in support of the petition he averred that on one of the days of counting.
he was the counting agent of the defeated candidate and had personal knowledge of Such improper rejection and acceptance.
No other affidavit of persons who could have had personal knowledge of the matter was flied.
The High Court allowed the application and permitted scrutiny solely on the basis of the allegations in the election petition and the affidavit in support of the application seeking scrutiny.
In appeal to this Court, HELD.
: In view of the importance of maintaining the secrecy of the ballot papers, scrutiny can only be ordered if the election petition contains an adequate statement of the material facts on which the petitioner relies, that is, the material facts disclosed must afford an adequate basis the allegations; and, the election tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
[855 G H; 856 A] In the present case, the High Court stated that it was so.
satisfied on the mere statement of 'some figures in the petition and affidavit.
It also did not give any reason in support of its satisfaction as to the need for inspection.
[857 G H] (1) The petitioner had not stated that any.
of the counting agents appointed by the defeated candidate or his election agent, in accordance 853 with the rules, had been refused admission to the place of counting.
Therefore, the allegation that enough number of counting agents were not permitted was not supported by any statement of material facts.
[857 B C] (2) Similarly, with regard to the rejection of the votes polled in favour of the defeated candidate, under the rules, before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper, and therefore, the serial numbers of the concerned ballot papers could have been noted.
The election petition, however, is silent as to the inspection and notes of the ballot papers and other material facts such as raising objections and asking for a 'recount.
[857 C E] Therefore, the scrutiny of the ballot papers was sought on the basis of mere assertions and allegations which were neither accompanied by a statement of material facts nor were they supported by any evidence; and hence, the High Court should have rejected the application for scrutiny.
[857 F] Ram Sewak Yadav vs Hussain Kamil Kidwai, [1964] 6 S.C.R. 238 and Dr. Jagjit Singh vs Giani Kartar Singh, A.I.R. 1966 S.C. 773, followed.