judgement:
s Nos. 468, 469 489, and 490 of 1969.
Petitions Under article 32 of the Constitution of India for enforcement of fundamental rights.
section V. Gupte, D. Sudhakara Rao and B. Parthasarathy, for the petitioners (in W. P. No. 468 of 1969).
B.ParthasarathY, for the petitioners (in W. P. Nos.
469, 489 and 490 of 1969).
Niren De Attorney General, B. D. Sharma and section P. Nayar, for respondent NO. 1 (in all the appeals).
168 P. Ram Reddy and G. section Rama Rao, for respondent No. 2 (in all the petitions).
The Judgment of the Court was delivered by Shah, J.
The petitioners who are traders in foodgrains edible oils, and other articles of food, challenge the validity of section 7 read with section 2 (v) and 2 (ix), and section 19, section 2 (i) and section 1 0 read with section 13 of the Prevention of Food Adult Iteration Act 37 of 1954 and the rules framed thereunder.
They claim that by the Act and the rules the fundamental rights guaranteed under articles 14, 19 (1) (g) and 20(3) of the Constitution are infringed.
The Parliament, with a view to control adulteration and mis branding of articles of food, enacted the .
The petitioners concede that they do not claim a fundamental right to carry on business in adulterated or misbranded foodstuffs : they claim that ,they are honest traders, and do not resort to any malpractice, still in carrying on their business in foodstuffs they are, by the Act, subjected to restrictions which are not reasonable.
They contend that the Act presumes every trader charged with an offence under section 1 6 (1) (a) to be guilty and imposes upon him the burden of proving that he is not guilty of the offence charged, by establishing facts which are not within his knowledge, or which without great expense wholly incommensurate with his means and the facility available to him, he cannot establish.
They also claim that by the Act they are denied the equal protection of the laws and the guarantee of article 20(3) of the Constitution is infringed.
The relevant provisions of the Act may first be noticed.
Section 7 of the Act provides No person shall himself or by any person on his behalf manufacture for sale,or store, sell or distribute (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food for the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health; or (V) any article of food in contravention of any other ' provision of this Act or of any rule made thereunder." 169 By s.10 a food inspector appointed under section 9 ( 1 ) of the Act is authorised to take samples of any articles of food from any person selling such article, or from any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee, or from a consignee after delivery of any such article to him, and to send such sample for analysis to, the public analyst, and with the previous approval of the health officer having jurisdiction in the local area concerned, or with the pre vious approval of the Food (Health) Authority to prohibit the sale of any article of food in the interest of public health.
Sub section (5) of section 13 provides "Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub section (3), or any document purporting to be a certificate signed by the Director of the Central Food Labo ratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein." Section 16(1) prescribes the penalties : cls.
(a) & (f) which are relevant provide "(1) If any person (a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; (ii)other than an article of food referred to in subclause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or (f) whether by himself or by any other person on his behalf gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall in addition to the penalty to which he may be liable under the provisions of section 6, be punish able with imprisonment for a term which shall not be less than L11Sup.
Cl/70 12 170 six months but which may extend to six years, and with fine which shall not be less than one thousand rupees: Provided that . . . . . .
Section 19 deals with the defences which may, and which may not, be allowed in prosecutions under the Act.
It provides "(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves ' (a) that he purchased the article of food (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
(3)Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.
" "Food" is defined in section 2(v) as meaning "any article used as food or drink for human consumption other than drugs and water and includes (a) any article which ordinarily enters into, or is used in the composition or preparation of human food, and (b) any flavouring matter or condiments".
Clauses (i) and (ix) of section 2 define the expressions "adulterated" and "misbranded".
According to counsel for the petitioners the Act imposes un reasonable restrictions, because it creates absolute liability by section 16(1) (a) and imposes severe penalties for storage and sale or distribution of articles of food found to be adulterated or misbranded, or prohibited by law; it prescribes standards which are technical, and absolute, and for the slightest departure therefrom the trader is liable to be prosecuted and punished.
Counsel submitted that it is impossible for an ordinary trader without the 171 assistance of an expert technician to ascertain whether the articles of food purchased by him comply with the prescribed standards, and that in prescribing the standards of quality the imperceptible changes which take place in foodstuffs by passage of time, are not taken into account.
In our judgment, the restrictions imposed upon the conduct of business by traders in foodstuffs cannot be deemed unreasonable.
By section 16(1) provision is made for imposing penalties, among other acts, for storage, sale or distribution of articles of food which are adulterated or misbranded, or sale of which is prohibited by the Food (Health)authority in the interest of the public health, or is in contravention of the Act or the rules.
The Act, it is true, does not make some blame worthy mental condition constituted by knowledge or intention relating to the nature of the article stored, sold or distributed, an ingredient of the offence.
Unless the case falls within sub section
(2) of section 19, if sale, storage or distribution is established, intention to sell articles or knowledge that the articles are adulterated, misbranded, or prohibited need no, be proved by the prosecutor to bring home the charge.
Sub section (1) of section 19 provides that it is no defence in a charge, for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him, or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
By that clause a bare plea of ignorance by a trader about the nature, substance or quality of the food sold by him is not a defence in a prosecution for the offence pertaining to the sale of any adulterated food nor that the article was, purchased for analysis.
But in considering whether creation of absolute liability amounts to imposing unreasonable restrictions, the Court has to strike a balance between the individual right and public weal.
The Courts will not strike down an Act as imposing unreasonable restrictions merely because it creates an absolute liability for infringement of the law which involves grave danger to public health.
The Courts will undoubtedly consider whether without imposing absolute liability the object of the statute could be reasonably secured.
For that purpose the Court will consider the object of ,the Act, apprehended danger to.
the public interest, arising out of the activity if not controlled and the, possibility of achieving the intended results by less stringent provisions.
The nature of the trade in foodstuffs, the channels of supply and the movement of goods from trader to trader and fertile sources of adulteration and misbranding make it extremely difficult in a large majority of cases to establish affirmatively that storage or sale of adulterated or misbranded foodstuff was with a guilty mind.
Provisions in the statute book creating absolute liability for sale of adulterated food are 172 fairly common.
Section 3(1) of the English "Foods & Drugs Act", 1938, imposes absolute duty on a dealer in foodstuff regardless of negligence : Lindley vs George W. Horner & Co. Ltd.;(1) and Lamb vs Sunderland and District Creamery Ltd. 2 ) The same provision is repeated in section 2 of the "Food and Drugs Act", 1955.
In Halsbury 's Laws of England, Vol. 10 (3rd Edn.) at p.273, article 508, it is stated : "A statutory crime may or may not contain an express definition of the necessary state of mind.
A statute may require a specific intention, malice, knowledge, wilfulness, or recklessness.
On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute.
In some cases, the courts have concluded that despite the absence of express language the intention of the legislature was that mens rea was a necessary ingredient of the offence.
In others, the statute has been interpreted as creating a strict liability irrespective of mens rea.
Instances of this strict liability have arisen on the legislation concern ing food and drugs, liquor licensing, and many other matters".
In Mousell Brothers vs London and North Western Rail Co.(3) Atkin, J., observed : ". yet the legislature may prohibit an act or enforce a duty in such words to make the prohibitions or the duty absolute :. .
To ascertain whether a particular Act of Parliament has that effect or not, regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed." In Quality Dairies (York) Ltd. vs Pedley 4 ) the Court of Appeal held that Regulation 26(1) of the Mill and Dairies Regulation, 1949, requiring a distributor to ensure that every vessel used as a container for milk shall be in a state of thorough cleanliness, imposed an absolute liability.
It is true that for the protection of the liberty of the citizen, in the definition of offences, blameworthy mental condition is ordinarily an ingredient either by express enactment or clear implica (1) (3) (2) (4) 173 tion : but in Acts enacted to deal with a grave social evil, or for.
ensuring public welfare, especially in offences against public health, e.g., statutes regulating storage or sale of articles of food and drink, sale of drugs, sale of controlled or scare commodities, it is often found necessary in the larger public interest to provide for imposition of liability without proof of a guilty mind.
If from the scheme of the Act it appears that compliance with the regulatory provisions will be promoted by imposing an absolute liability, and that it cannot otherwise be reasonably ensured, the Court will be justified in holding that the restriction on the right of the trader is in the interest of the general public.
Adulteration and misbranding of foodstuffs is a rampant evil and a statute calculated to control that evil is indisputably in the interest of the general public : The statute imposing restrictions upon traders will not be deemed unreasonable merely because it makes a departure from the normal structure of statutes enunciating offences and prescribing punishments.
By sub section
(2) of section 19, even in respect of the absolute offence, the Parliament has enacted that on proof of certain facts, criminal liability will be excluded.
Thereby a vendor is not deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that the purchased the article of food from a duly licensed manufacturer, distributor or dealer in a case where a licence is prescribed for the sale thereof, and in any other case from any manufacturer, distributor of dealer with a written warranty in the prescribed form, provided the article of food while in his possession was properly stored and that he sold it in the same state as the purchased it.
The argument of counsel for the petitioners that the provision that a retail seller who opens a container of a branded article of food loses even the limited protection under section 19(2) is without substance.
Clause (b) of sub section
(2) of section 19 does not provide, nor does it imply, that if the container of a branded article is opened, the article of food ceases to be in them same state in which the vendor purchased it.
If the article of food ' is sold in the same condition in which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of sub section
(2) of section 19 merely because he opened the container.
If the vendor has obtained the article from a licensed manufacturer, distributor or dealer or from a manufacturer, distributor or dealer with a warranty, he is protected, provided he has property stored the article and sells it in the same state as he purchased the article, even if it turns out that the article was adulterated or misbranded.
The Act does not dispense with proof that the article of food is adulterated, misbranded or that its sale is prohibited: it enacts that a vendor selling articles of food adulterated or misbranded cannot plead merely that he was ignorant of the nature, substance or quality 174 of the goods.
A statute enacted by the Parliament in the interest of public health (which is generally made in similar statutes elsewhere) imposing liability for an offence without proof of a guilty mind does not per se impose restrictions on the, freedom to carry on trade which are unreasonable.
It is true that stringent penalties are provided under section 16 (1)(a).
A vendor of adulterated, misbranded or prohibited articles of food is punishable with imprisonment for a term which shall not, in the absence of adequate and special reasons, be less than six months, and which may extend to six years, and with fine which shall not be less than one thousand rupees.
But for the protection of the public by ensuring the purity of articles of.
food supplied to the people and preventing malpractices by the traders in articles of food, severity of the penalties is not so disproportionate to the gravity of the offence that it may be deemed unreasonable.
We are again unable to accept the argument that under the Act even when an article is purchased not as an article of food, but for use otherwise, the vendor will be deemed guilty if the article does not conform to the 'prescribed standards, or is as an article of food adulterate or misbranded.
Counsel said that coconut oil is used in the State of Kerala as a cooking medium, and sale of adulterated coconut oil may in Kerala be an offence under section 16, but in other parts of the country where coconut oil is not used as a cooking medium and is used as a component of hair oil or for other purposes, it amounts to imposing an unreasonable restriction to penalise the vendor who sells coconut oil knowing that the, purchaser is not buying it as a cooking medium.
But there are no articles which are used as food only in one part, and are not at all used as food in another part of the country.
Even coconut oil is used as a cooking medium by certain sections of the people in parts of India other than Kerala.
In any event it is always open to a person selling an article capable of being used as an article of food as well as for other purpose, to inform the purchaser by clear notice that the, article sold or supplied is not intended to be used as an article of food.
What is penalised by section 16(1) is importation manufacture for sale, or storage, sale, or distribution Of any article of food.
If what is imported manufactured or stored, sold or distributed is not an article of food, evidently S.16 can have no application.
The various items in the Schedule seting out standards of quality use technical expressions with which an ordinary retail dealer may not be familiar, and also set out percentages of components which the dealer with the means at his command 175 cannot verify.
But by section 3, the Central Government has to set up the Central Committee for Food 'Standards to advise the Central and the State Governments on matters arising out of the administration of the Act.
The Committee consists of experts and representatives of the Central Government and of the State Governments and the Director General of Health Services is its Chairman.
Under section 23 (1) (b) the Central Government makes rules prescribing the standards of quality and the limits of variability permissible in any article of food.
The rules are made after consultation with the Committee for Food Standards.
The standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for Food Standards.
It has not been even urged that the standards have been fixed arbitrarily. ' Apart from a general argument that small retail dealers may not, be in a position to ascertain whether goods purchased by them or in their possession are according to the standards, no specific argument was advanced that the standards, are not normal, or that the variations in quality during the course of storage are unreasonably restricted.
This Court in State of Uttar Pradesh vs Kartar Singh(1) in which in dealing with an argument of invalidity of the rule setting out standards under the observed : "The standards themselves, it would be noticed, have been prescribed by the Central Government on the advice of a Committee which included in its composition persons considered experts in the field of food technology and food analysis.
In the circumstances, if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the Court by way of scientific analysis.
That where a party seeks to impeach the validity of a rule made by a competent authority .
the burden is on him to plead and prove the infirmity is too well established to need elaboration.
If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification of the zones and the, prescription of the minimum (1) ; 176 standards to each zone, and where we have a rule framed with the assistance of a Committee containing ex.
perts such as the one constituted under section 3 of the Act, that presumption is strong, if not overwhelming.
" In the petitions a plea was raised that by the Act and the Rules, the guarantee of article 14 was infringed, but no argument was presented before us independently of the argument relating to infringement of the guarantee under article 19(1)(g), in support of the contention that the Act infringed the guarantee of equality before the law or equal protection of the laws.
The Act deals with the regulation of a class of traders, and in view of the widespread malpractices, and the practical difficulties of controlling those malpractices, stringent provisions have been made by the Act.
The classification is founded on an intelligible differentia and the differentia has a rational relation to the object sought to be achieved.
The provisions of the Act again do not invest arbitrary authority upon those who are to administer the Act.
nor can it be said that the standards prescribed are arbitrary.
The Act does not infringe the guarantee of Art.20(3) of the, Constitution.
By that clause no person accused of any offence shall be compelled to be a witness against himself.
But by enacting that a plea by the vendor in a prosecution for an offence pertaining to sale of adulterated or misbranded article of food, that he was ignorant of the nature, substance or quality will not be a defence, the guarantee under article 20(3) is not infringed.
The vendor when charged with an offence is not thereby compelled to be a witness against himself.
Nor can it be said that by making the report of the Director of Central Food Laboratory conclusive evidence of the facts stated therein, any such infringement is intended.
The provision has been made with a view to secure formal evidence of facts without requiring the Director to remain present, and in ' the interest of effective administration of the Act, the certificate signed by the Director of the Central Food Laboratory is made final and conclusive evidence of the facts stated therein.
The Director is a highly placed official, an expert in determining the nature, substance and quality of food, and is wholly disinterested in the result of any case coming before the Courts.
It is difficult to appreciate how con clusiveness attributed to the certificate of the Director compels the vendor charged with an offence under the Act to be a witness The petitions fail and are dismissed with costs.
One hearing fee Y.P. Petition dismissed.

summary/full:
The petitioners are traders in foodgrains, edible oils and other articles of food.
In a petition under Art.32 they challenged the validity of sections 7, 10 and 19 of the .
They contended that: (1) sections 7 and 10 of the Act are violative of articles 14 and 19(1)(g) because, (a) section 16(1)(a) of the Act read with section 19(1) imposes an absolute liability on dealers; (b) the standards of quality and limits of variability Of quality prescribed by the Act are unreasonable and that small dealers would not be in a position to ascertain whether the goods purchased by them or in their possession are according to those standards as required by section 7 of the Act; (c) even when an article is purchased not as an article of food, but for other use, the vendor would be deemed guilty if the article did not conform to the prescribed standards; (d) if a retail seller opens a container of branded article of food he loses even the limited protection provided by section 19(2); and (e) that the penalties which may be imposed under section 16(1) (a) are unduly severe; and (2) the non availability to the vendor of the plea of his ignorance and the conclusiveness of the certificate of the Director of Central Food Laboratory under section 13(5) of the Act, violate the guarantee under article 20(3).
HELD : (a) The Act does not make mens rea an ingredient of the offence.
Ordinarily, for the protection of the liberty of a citizen, in the definition of offences, blame worthy mental condition is made an ingredient: but in Acts enacted to deal with a grave social evil or for ensuring public welfare especially in offences against health, it is often found necessary in the larger public interest to provide for imposition of liability without proof of a guilty mind.
If from the scheme of an Act, it appears that compliance with the regulatory provisions will be promoted by imposing such absolute liability and that it cannot otherwise be reasonably ensured, the court will be justified in holding that the restriction on the right of the trader is in the interest of the general public.
[172 H 173 C] Adulteration and misbranding of food is a rampant evil in our country.
The channels of supply and the movement of goods from trader to trader, and fertile sources of adulteration and misbranding, make it extremely difficult in a large majority of cases to establish affirmatively that storage or sale of adulterated or misbranded food stuffs was with a guilty mind.
Therefore, a statute calculated to control that evil is in the interest of the general public and merely because it makes a departure from the normal structure of statutes enunciating offences and prescribing punishments, the restrictions on traders will not be deemed unreasonable.
The defences set out in section 19(2) are open to the vendor and the act does not dispense with proof that the article of food is adulterated, misbranded or that its sale is prohibited : it only enacts that a vendor selling adulterated and misbranded articles of food cannot merely plead that he was ignorant of the nature and quality of the goods.
[171 G H; 173 C D] 167 (b) The schedule to the Act uses technical expressions in relation to standards of quality and an ordinary retail dealer may not be familiar, with them.
But the rules, made under section 23(1)(b) prescribe clearly the standards of quality.
The standards are arrived at after consultation.
with the Committee for Food Standards which.
consists of experts in the field of food technology and food analysis and representatives of the Central and State Governments.
Hence the standards cannot be, challenged as arbitrary or unreasonable.
[175, C] (c) What is penalised by section 16(1) is the importation, manufacture for sale or storage, sale or distribution of any article of food.
It is always open to a person selling an article capable of being used as an article of food as well as for other purpose, to inform the purchaser by clear notice that the article sold or supplied was not intended to be used as an article of food and in such cases section 16 would, not apply.
[174 G] (d) Under section 19(2) if the vendor has obtained the article of food from a licensed manufacturer, distributor or dealer or from a manufacturer, distributor or dealer With a warranty, he is protected, provided he.
has properly stored the article and sold it in the same state as he purchased it, even if it turns out to be adulterated or misbranded.
By merely opening the container the article of food does not cease to be in the same state in which the vendor purchased it.
Therefore, the vendor will not lose the protection of the sub section merely because he opens the container. [173 G H] (e) The severity of the penalty is not so disproportionate to the gravity of the offence that it may be deemed unreasonable, because, the penalties are imposed as a deterrent to prevent malpractices by traders in articles of food and to ensure the purity of articles of food.
[174 C] The Act deals with the regulation of a class of traders and in view of the widespread malpractices and the practical difficulties of controlling the malpractices, stringent provisions have been made in the Act.
The classification is founded on an intelligible differentia and has a rational relation to the object sought to be achieved.
[176 C] (2) Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself.
By providing that a plea of ignorance of the vendor wilt not be a defence and that the certificate of the Director of Central Food Laboratory, who is a disinterested and high placed official as conclusive, article 20(3) is not violated.
[176 D C]


judgement:
iminal Appeal No.24 of 1968.
Appeal by special leave from the judgment and order dated December 13, 14, 1967 of the Bombay High Court in Criminal Appeal No. 380 of 1966.
A. section R. Chari and A. G. Ratnaparkhi, for the appellant.
G. L. Sanghi and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Dua, J.
In this appeal by special leave we are only concerned with the conviction of one out of four accused persons jointly tried for the murder of one Mohd. Yahya.
The appellant Noor Mohammed Mahamed Yusef Momin, accused No. 4, in the trial court was jointly tried with three others in the court of the second Additional Sessions Judge, Thana on the following three charges "That you accused nos.
1 to 4 on or about the 16th day of April, 1965 at Bhiwandi entered into an agreement to commit the murder of Mohamed Yahya and that the same illegal act was done in pursuance of the said agreement and thereby you committed an offence punishable under section 120B of the Indian Penal Code and within my cognizance.
That You accused nos.
1, 2 and 3 on or about the 17th day of April, 1965 at about 11 p.m. at Bhiwandi 121 in furtherance of common intention of you all and accused No. 4 to commit the murder of the deceased Mahamed Yahya did commit his murder by intentionally causing his death by assaulting him by knife and thereby committed an offence punishable under section 302 read with section 34 of the Indian Penal Code and within my cognizance.
In the alternative you accused No. 4 on 17th of April, 1965 at Bhiwandi abetted the commission of the offence of murder of Mahamed Yahya by accused nos.
1 to 3 which offence was committed in consequence of your abetment and that you thereby committed an offence punishable under sections 109 and 302 of the Indian Penal Code and within my cognizance.
" The trial court convicted Mohd. Taki Haji Hussein Momin, accused No. 1 under section 302, I.P.C. and sentenced him to imprisonment for life.
He was acquitted of the other charges.
His three co accused were acquitted of all the charges. 'Accused No. 1 appealed to the Bombay High Court against his conviction whereas the State appealed against the acquittal of the other three.
The High Court, after considering the evidence on the record, upheld the conviction of accused No. 1 and reversed the order of acquittal of the other three.
Accused nos.
2, 3 and 4 (Chinwa Ca, Ahmed Hessan Momin, Abdul Rahamen Bacchu Momin, and Nur Mahamed Mahamed Yusef Momin respectively) were held guilty of the offence under section 120 B, I.P.C. as also of the offence under section 302, read with section 34, I.P.C. Accused No. 4 was in addition held guilty of the offence under section 302 read with section 109, I.P.C. Accused nos.
2, 3 and 4 were sentenced to imprisonment for life both under section 120 B, I.P.C. and section 302 read with section 34, I.P.C. Accused No. 4, appellant in this Court, was also separately sentenced to imprisonment for life for the offence under section 302 read with section 109, I.P.C. Incidentally it may be mentioned that Jaitunbi, widow of the deceased Mohd. Yahya, had also appealed to the Bombay High Court challenging the acquittal of accused nos.
2, 3 and 4 on all charges and of accused No. 1 on the charges other than that of murder under section 302, I.P.C.
This appeal which was treated as an application under section 417(3), Cr.
P.C. was held not to be maintainable.
As already indicated, this Court granted special leave only to the appellant who was accused No. 4 in the trial court.
Before narrating the prosecution story the inter se relationship of the accused persons may be stated.
Abdul Rehman Bacchu Momin.
accused No. 3, is the husband of the sister of the appellant Noor Mohammed 's wife.
Chinwa alias Ahmed Hessan L11 Sup.
CI/70 9 122 Momin, accused No. 2, is the brother of Kallu, who is the son in law of the appellant, accused No. 4.
Mohd. Taki, accused No. 1, is the servant of Kallu.
All these persons are the residents of the same place and the deceased Mohd. Yahya was a close neighbour of the appellant.
According to the prosecution there were constant disputes between the, appellant and the deceased over the right of passage and the right to tap water, and it is not disputed that both sides had made reports and counter reports with the police against each other.
The climax reached on April 16, 1965 in the morning at 7 O ' clock.
On that day Mohd. Yahya, when going out of his house, found that there was a heap of earth and a cot belonging to the appellant obstructing his way.
A cow belonging to the appellant was also standing in the passage.
In order to clear his way the deceased picked up a stone and hurled it at the cow.
This offended the appellant and he in retaliation threw a glass which he was holding towards the deceased and also abused him.
The deceased reported this incident to the police station.
The appellant also went to the police station and made a counter complaint against the deceased.
When the deceased :and the appellant had gone to the police station the two wives of the appellant abused Jaitunbi, wife of the deceased, with the result that Jaitunbi also went to the police.station to lodge a report.
But this report was not recorded.
A little later, the wives, sisters and children of the appellant again abused Jaitunbi and pelted stones at her.
Jaitunbi went to the police station again to lodge a complaint, the same day at about 10 a.m. When the deceased was lying on a cot in his house the appellant came up to the door of the former 's house asking him to get down.
On enquiry by the deceased as to why he should get down the appellant replied that he would serve the deceased with his last tea.
At that time the appellant was accompanied by four or five persons including Chinwa, accused No. 2.
It is said that all of them abused the decreased.
Chinwa, accused No., 2, held a knife in his hand which he is stated to have opened by pressing the button and as he tried to enter the house of the deceased, the latter 's daughter, Noorjahan, went by the back door to the police station to lodge a complaint.
This part of the story is not admitted by the accused.
On Noorjahan 's complaint the police came to the spot in a van and after interrogating the persons present the police party took with them accused nos.
2 and 3.
The appellant is stated to have offered to reach the police station himself a little later.
In view of these incidents Jaitunbi apparently felt somewhat frightened and advised her husband, deceased Mohd. Yahya, to go to Bombay to avoid further clashes with the appellant.
Mohd. Yahya, acting on his wife 's advice, went away to Bombay but 123 returned on the evening of April 17, 1965 bringing with him some female guests.
In those days an Urus was being held near Par Naka and it appears that it was to attend this Urus that the female guests came with him.
Seeing Mohd. Yahya back from Bombay, the appellant asked his nephew Latif, who was sleeping on a cot outside the house, to go in, loudly uttering that a dead body was to be kept on that cot.
The deceased who had reached home at about 9.30 P.M. a little later went out to a pan shop near the Navyug Hotel.
The deceased accompained by two unidentified persons followed him.
Soon after, Mohd. Yahya was stabbed with a knife and this news reached his house.
At the Par Naka two constables, Bhika Bahiram and Suvamasing, who were on duty in connection with the Urus, on learning of some disturbance near the Navyug Hotel and noticing some commotion, proceeded to the lane where a crowd had collected.
On the way, accused No. 3 told them that nothing untoward had happened; but the two constables nevertheless proceeded further and reached the spot where Mohd. Yahya was lying in injured condition.
Someone from the upper storey of a house nearby shouted that the assailants were running away.
Constable Bhika Behiram asked Suvarnasing to attend to the injured person and he himself chased the two persons trying to escape.
He caught Mohd. Taki, accused No. 1, in a lane near the municipal office.
The other person who could not be caught was identified by Bhika Bahiram as Chinwa, accused No. 2, who was known to him.
Suvamasing in the mean time, feeling that Bhika Bahiram would need his help also followed him and found him grappling ' with Mohd. Taki.
Both the constables over powered Mohd. Taki, who had a knife in his pocket and whose clothes were bloodstained.
Mohd. Taki was brought back to the place where Mohd. Yahya was lying injured.
Mohd. Yahya was taken to the hospital in a bullock cart but he expired soon thereafter.
In the report ' lodged by constable Bhika Bahiram, the names of accused nos.
1 and 2 were mentioned and accused No. 3 was described as an old man with moustaches, wearing a lungi.
The appellant was not arrested, though his statement was recorded during the investigation on April, 19, 1965.
He appears to have absconded soon thereafter and was arrested on June 18, 1965.
The case against the appellant is to be considered in the background of the order of conviction against the other three co accused which has become final, this Court having declined special leave against their conviction.
The High Court, on a consideration of the entire evidence, came to the conclusion that all the accused (nos. 1 to 4) had hatched a plan to commit the murder of Mohd. Yahya after his return from Bombay and it was in pursuance of that conspiracy 124 that he was murdered on the night of April 17, 1965.
The appellant, along with accused nos.
2 and 3, was also held guilty of an offence under section 302 read with section 34, I.P.C. He was further held guilty of an offence under section 302 read with section 109, I.P.C. The appellants ' conviction on all these counts is challenged in this Court.
So far as section 34, I.P.C. is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability 'being the existence of a common intention.
Participation in the commission of the offence in furtherance of the common intention invites its application.
Section 109, I.P.C. on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission.
Turning to the charge under section 120 B, I.P.C. criminal conspiracy was made a substantive offence in 1913 by the introduction of Chapter V A in the Indian Penal Code.
Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal, by illegal means.
It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement.
Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by section 107, I.P.C. A conspiracy from its very nature is generally hatched in secret.
It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested, quarters or from utter strangers.
But, like other offences, criminal conspiracy can be proved by circumstantial evidence.
Indeed, in most cases proof of conspiracy is largely inferential though the inference, must be founded on solid facts.
Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material.
In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto.
In the present case the High Court, after referring to the evidence of Laxmibai, (P.W. 7) and Hari Chavan (P.W. 13) (whom 125 that court expressly described as independent witnesses) and also of Murlidhar (P.W. 12), expressed its opinion in these words "All this evidence would show that at least since the 16th of April, 1965 the accused nos.
2, 3, and 4 were acting in concert and had something common in their mind.
It would also show the presence of the accused No. 2 with a knife, at the incident of the 16th April, 1965 and his threatening the deceased with the knife and the acts and words used by the accused No. 4 Mohammad Noora inspiring the accused No. 2 and some other persons who were with him to beat and kill Mohammad Yahya, the subsequent utterances of the accused No. 4 when the deceased returned from Bombay on the night of the 17th of April, 1965, the following of the deceased Mohammad Yahya by the accused No. 4 alongwith two persons when Mohammad Yahya went out to have a pan, the death of Mohammad Yahya soon thereafter, then running of the four persons from the scene of the offence the accused No. 3 misleading the police constable with respect to the incident, the accused nos.
1 and 2 running away from the scene of the offence eluding the police constables, the accused No. 1 being caught after some struggle near the Municipal Office and found with his clothes stained with blood and having a knife in his shirt pocket, all these circumstances, taken together, would show that the accused nos.
1 to 4 must have met previously before causing of the injuries to deceased and must have hatched out a plan of causing the death of the deceased or causing at least grievous injuries to the deceased.
Otherwise the presence of all the four accused near the scene of the offence at the time the incident occurred cannot be satisfactorily explained.
The accused No. 4 had known that the deceased had returned from Bombay and the ominous words he used while asking his nephew Lateef to get down from the cot would suggest that he had still in mind that idea of doing away with the deceased and must have collected the other colleagues of his to carry out the plan which must have been hatched out prior to the incident.
That inference can reasonably be drawn from the circumstances established in the case and it is in pursuance of that pre planning to do away with the deceased, all the four accused must have followed the deceased when he went out that night and the deceased was stabbed by at least some of these accused persons.
" The High Court also believed the evidence of Noorjehan (P.W. 11) and Jaitunbi, (P. W. 5).
In its opinion though these two 126 witnesses were, to a certain extent, interested their evidence appeared to it to be natural and its tenor did not show that they were deposing falsely.
On a consideration of the entire material on the record the High Court felt that all the four accused persons must have hatched a plan to commit the murder of Mohd. Yahya after his return from Bombay and it was in pursuance of this conspiracy that Mohd. Yahya was murdered on the night of April 17, 1965.
The court took into account the facts that accused No. 1 was caught after some chase near the scene of occurrence, accused No. 2 was identified though he made good his escape, accused No. 3, who was also identified by description, tried to mislead the police constables, and that accused No. 4 was seen following the deceased just before the murder with two or three persons.
On this material the High Court upheld the appellant 's conviction.
Under article 136 of the Constitution this Court does not normally proceed to review and appraise the evidence for itself and the conclusions of the High Court on questions of fact on appreciation of evidence are considered to be final.
This is so even if this Court were to feel that a different view of the evidence is possible.
But in this case, as it was represented that the evidence on the record does not support the conclusion of the High Court and that grave and substantial injustice had been caused, we undertook to go into the evidence, with the help of the counsel for the parties, to satisfy ourselves if there is any sufficient ground for interference on appeal by special leave.
Hari Chavan, (P.W. 13), has deposed that on April 16, 1965 at about 10.30 a.m. the appellant, while standing near the steps of Mohd. Yahya 's house, exported three of his companions, one of whom was accused No. 2 who had a knife in his hand, to beat the deceased, the actual words used being, "Beat him : Kill him : I shall look to the consequences".
This evidence is corroborated by Laxmibai, (P.W. 7) and both of these witnesses have been believed by the High Court.
Laxmibai (P.W. 7) actually saw the appellant with the two others following the deceased about 15 or 20 minutes before the murder.
We are unable to find any cogent ground for disagreeing with the High Court.
On this evidence not only animus on the part of the appellant but also instigation by him must be held to be fully established.
This evidence would also support the charge of criminal conspiracy against the appellant.
Indeed, the evidence of Jaitunbi (P.W. 5) and Noorjehan (P.W. 1) also shows that the appellant on April 16, 1965 and on the evening Of April 17, on Mohd. Yahya 's return from Bombay and a short time before his murder, openly gave expression to his strong feelings of animosity against the deceased which leaves little doubt that he was thinking of doing away with Mohd. Yahya 's life.
The admitted strained relations between the parties which reached the climax on April 16, 1965 and the evidence just discussed, in our opinion, clearly 127 establishes the complicity of the appellant in the murder of the deceased.
The charges under section 302 read with section 109, I.P.C. and of conspiracy are thus fully supportable on the evidence.
In regard to the 'charge under section 302 read with section 34, I.P.C. also Jaitunbi (P.W. 5) has deposed that on the date of the occurrence at about 9.30 p.m. the appellant asked his nephew Latif who was sleeping on the cot outside to go inside the house because a dead body was to be kept on that cot.
Thereafter it is in the evidence of Laxmibai (P.W. 7), that the appellant accompanied by two persons followed the deceased when the latter went to the Pan shop.
About 20 minutes later the news of Mohd. Yahya 's murder reached his house.
From this evidence it seems highly probable that at the time of the actual murder of Mohd. Yahya the appellant was either present with the other three co accused or was somewhere nearby.
But this evidence does not seem to be enough to prove beyond reasonable doubt his presence at the spot in the company of the other accused when the murder was actually committed.
For, it may be that after leaving the house he stayed away and the persons actually taking part in the murder were only the other three co accused.
We are, therefore, inclined to give to the appellant the benefit of doubt in regard to the charge under section 302 read with section 34, I.P.C. This would, however, be of little practical benefit to the appellant because he has already been given the lesser sentence.
This appeal is, therefore, accepted only to the extent that the appellant 's conviction under section 302 read with section 34 is set aside.
In all other respects this appeal fails and is dismissed.
R.K.P.S. Appeal allowed in part.

dataset_name: IN-Abs

summary/full:
Four accused were charged with the offences under section 120 B (conspiracy to commit murder) and section 302 read with section 34.
The fourth accused was also charged under section 302 read with section 109 for the offence of abetting the murder committed by the other three accused.
The accused 2 to 4 were related to one another while the first accused was a servant of the brother of the second accused.
There were constant disputes between the fourth accused and the deceased over a right of passage and the right to tap water.
The day before the murder the fourth accused, went to the house of the deceased and exhorted his companions, one of whom was the second accused, to kill the deceased.
On the next day (the day of the murder) the fourth accused threatened to kill the deceased and later, accompanied by the 1st and 2nd accused, followed the deceased when he went out at about 10 p.m. Fifteen minutes after the deceased was thus seen being followed by the accused, the deceased was stabbed.
The third accused tried to persuade the two constables who were proceeding towards the scene when they heard the disturbance that nothing untoward had happened, but the constables proceeded to the scene, and, on noticing the wounded body of the deceased, chased and caught the first accused and recognised the second accused who had escaped.
One of the constables lodged the first information against the accused 1 to 3.
The fourth accused was absconding and after he was arrested, all the accused were put up for trial.
The High Court convicted the first accused under section 302 I.P.C., and accused two to four for offences under section 120 B and section 302 read with section 34, I.P.C. The fourth accused was also convicted for the offence under section 302 read with section 109.
In appeal by special leave to this Court by the 'fourth accused, this Court examined the evidence, contrary to its usual practice, as it was represented that the evidence did not support the conclusion of the High Court, and HELD : The evidence clearly established the complicity of the appellant in the murder of the deceased, and the charges under section 302 read with section 109 I.P.C. and of conspiracy were fully supported by the evidence.
As regards the charge under section 302 read with section 34, though, it was highly probable that at the time of the actual murder the appellant was either present with the other three co accused or was somewhere nearby, the evidence did not establish beyond reasonable doubt his presence at or near the spot when the murder was actually committed, and therefore, he must be given the benefit of doubt in regard to that charge.
Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention.
Participation in the commission of the offence in furtherance of the common intention invites its application.
120 Section 109, on the other hand, may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal emission takes place or has intentionally aided the commission of an offence by an act or illegal omission.
Criminal conspiracy is a substantive offence under section 120 B I.P.C. It differs from the other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement.
Though there is close association of conspiracy with incitement and abetment, the substantive offence of criminal conspiracy is wider in amplitude than abetment by conspiracy as contemplated by section 107 I.P.C. Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming, but like other offences it can be proved by circumstantial evidence.
Surrounding circumstance and antecedent and subsequent conduct, among other factors constitute relevant material.
In fact, because of the difficulties of having direct evidence of criminal conspiracy, once 'reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by any one of them in reference to their common intention after the same is entertained becomes, according to the law of evidence relevant for proving both conspiracy and the offences committed pursuant thereto.
(124B H]


judgement:
Appeal No. 265, of 1966.
Appeal by special leave from the judgment and order dated January 10, 1966 of the Assam and Nagaland High Court in Civil Rule No. 266 of 1965.
Naunit Lal, for the appellants.
R. Gopalakrishnan, for respondent No. 1.
The Judgment of the Court was delivered by Shah, J.
Daksha Prasad Deka hereinafter called 'the res pondent ' was appointed Assistant Sub Inspector of Police with 688 effect from January 17, 1929.
On a representation made by the respondent the date of his birth was entered in the service record as July 1, 1910.
Under F.R. 56(a) the respondent was liable to be compulsorily retired on July 1, 1965.
In 1956 the respondent applied that the date of birth entered in his service record 'be showing as August 1 191 1.
That application was rejected.
The respondent again applied in 1963 for correction of his date of birth.
The application was, rejected and by order dated June 26, 1965, the respondent was informed that he win stand superannuated on June 30, 1965.
His representation made to the Government of Assam against that order was unsuccessful.
The respondent then applied to the High Court of Assam praying for a writ in the nature of mandamus requiring the State ,of Assam to forbear from giving effect to the order dated June 26, 1965.
The High Court quashed the order dated June 26, 1965 and directed the State of Assam to give an opportunity to the respondent to show cause against the order directing compulsory retirement and an opportunity to prove his true date of birth.
Against that order, this appeal is preferred with special leave.
In the opinion of the High Court if the true date of birth of the respondent was August 1, 1 9 1 1, the order compulsorily retiring the respondent on June 30, 1965, without giving him an opportunity to prove his true age, infringed the guarantee of article 311(2) of the Constitution.
In our judgment, the High Court was wrong in holding that there was any infringement of article, 311(2) of the Constitution.
In the service record of the respondent his date of birth was recorded as July 1, 1910 and under F.R. 56(a) the respondent was liable to be compulsorily retired on the date on which he attained the age of 55 years.
The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure.
A public servant may dispute,.the date of birth as entered, in the service record, and may apply for correction of the record.
But until the record is corrected, he cannot, claim that he has been deprived of the guarantee under article 311(2) of the Constitution by being compulsorily retired on attaining the age of ' superannuation on the footing of the date of birth entered in the service record.
is true that the State authorities did not give to the respondent an opportunity to support his case that he was born on 689 August 1, 1911, and that the service record was erroneous.
But in view of S.R. 8 Note, which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of "actual supernuation".
S,R. 8 Note provides "No alteration in the date of birth of a Government servant should be allowed except in very rare cases where a manifest mistake has been made.
Such mistakes should be rectified at the earliest opportunity in the course of (1) periodical re attestation of the entries in the first page of service book, and (2) preparation of the annual detailed statement of a permanent establishment (Financial Rule Form No. 11) in which is noted the date of, incumbent 's birth.
In no case the request for change in the date of birth of a Government servant made on a date with three years of the date of ' his actual.
superannuation ' should be entertain ed.
" Validity of the Rule is not challenged by the respondent.
are unable to agree with the view of the High Court that the date of "actual superannuation" within, the meaning.
of S.R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the date as entered in the service record.
If such an interpretation be accepted, S.R. 8 Note would prove in a majority of cases of no practical utility.
It is intended by S.R. 8 Note that any error 'in the service record shall be rectified at the, earliest opportunity and in no case should an application for rectification be entertained within three years of the "date of actual super annuation".
i.e. the date of superannuation according to the service record.
Again, if the contention of the respondent were correct, on the date on which he entered service he was a minor.
If on a representation that he had attained the age of majority on the date on which he entered service, it would not be open for him, after being admitted to the service, to contend that under the appropriate service rules he could not have been admitted to the service, but for the misrepresentation made by him.
Counsel for the respondent relied upon the judgment of this Court in State of Orissa vs Dr. (Miss) Binapani Dei & Ors.
(1) in support of the contention that a public servant must be given an opportunity to prove his true date of birth before he is superannuated, and any order passed without such opportunity is illegal.
In our judgment Dr. (Miss) Binapani 's case(1) enunciates no such proposition.
In that case in the service record of a pub (1) 1967 2 section C. R. 625 2 L 694 Sup.
C.I/171 690 lic servant, April 10, 1910 was entered as the date of 'her An enquiry was, held and the public servant was required to show cause why her date of birth should not be accepted as April 1907.
Thereafter the Government of Orissa determined her of birth as April 16, 1907, and declared that she should deemed to have been superannuated on April 16, 1962.
order was challenged by the public servant in a petition to High Court of Orissa.
The High Court held that the order the State Government amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of article 311 of the Constitution, and since :she was not given a reasonable opportunity of showing cause against the action proposed to ';be taken in regard to her, the order was invalid.
This Court confirmed the order passed by the High Court of Orissa.
It was observed by this Court that ,even an administrative order which involved civil consequences must be made consistently with the rules of natural justice 'The person concerned must be informed of the case of the State and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken The public servant, according to the service record, could not be superannuated before April 10, 1965.
But by an enquiry which was not held in a manner consistent with the rules of natural justice an order was made altering the date of birth as entered in the service record, and declaring that she was born in 1907 That was plainly an order passed to the prejudice of the public servant without giving an opportunity to meet the case of the State.
In the present case, however, the State did not seek to modify the service record: it was the respondent who sought modification of the service record and claimed that he declared only on the basis of the rectification prayed for by him.
It is true that ordinarily when an application is made for rectification of age by a public servant, the State should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought before it.
But in the present case, since the application for rectification was made within three years of the date of actual superannuation, according to S.R. 8 Note the application could not be, entertained.
The principle of Dr. (Miss) Binapani 's case(1) has no application to this case.
The appeal is allowed and the order passed by the High Court is set aside.
The petition filed by the respondent shall stand dismissed.
There will be no order as to costs throughout.

summary/full:
The respondent was appointed Assistant Sub Inspector of Police with effect from January 17, 1929, and on his own representation his date of birth was entered in the service record as July 1, 1910.
Under F.R. 56(a) he was liable to be compulsorily retired on July 1, 1965. 'In 1963 he applied that the date of birth in the service record may be corrected as.
August 1, 1911.
The application was rejected without giving him an opportunity to support his case and he was informed on June 26, 1965.
that he would stand superannuated on June 30, 1965.
He filed a writ petition in the High Court and the High Court quashed the order dated June 26, 1965.
In appeal to this Court HELD : Until the service record of a public servant is corrected he cannot claim that he has been deprived of the guarantee under article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the basis of the service record.
A public servant may dispute the correctness of the date of birth as entered in the service record and may apply for its correction, but in view of S.R. 8 Note, which governed the employment of the respondent, an application for such a correction could not be entertained if it was made within three years before the date of 'actual superannuation '.
The words 'actual superannuation ' mean the date of superannuation according to the service record, and not according to the date of birth claimed by the public servant.
The respondent represented that he had attained the age of majority on the date on which he entered service.
It was not open to him to contend that under the appropriate service rule he could not have been admitted to the service.
[688 G H, 689 A B, F G] State of Orissa vs Dr. (Miss) Bimapani Dei, [1967] 2 S.C.R. 625 explained.


judgement:
Appeal No. 2003 of 1966.
Appeal from the judgment and order dated December 18, 1964 of the Calcutta High Court in Appeal No. 254 of 1963.
Ram Janiavani and section P. Nayar for the appellants.
The respondent did not a pear.
The Judgment of the Court was delivered by Shah, J.
On March 31, 1959 the Ministry of Commerce and Industry, Government of India, granted to the respondents a licence permitting them to import from West Germany certain machinery described therein of the maximum C.I.F. value of Rs. 45,000/ .
Condition No. 1 of the licence provided that: "The .
application is accepted and import licence is hereby granted having quantity and value as the limiting factors and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than 5%.
" The respondents submitted a bill of entry dated July 1, 1960, disclosing the C.I.F. value of the consignment as Rs. 45,179 92 inclusive of landing charges, and cleared the consignment after paying duty assessed by the Customs authorities on the real value of the goods as disclosed in the bill of entry.
On June 20, 1961 the Customs authorities issued a notice requiring the respondents to show cause why penal action should not be taken against them under section 167(8) of 'the , as being persons concerned in the unauthorised importation of the goods.
This notice was amended by notice ,dated September 21, 1961, whereby the respondents were charged with having committed offences under section 167(8) read with section 3(2) of the Imports and Exports (Control) Act, 1947, for 683 illegally importing the machinery.
The respondents claimed that no breach of the conditions of the licence was committed.
The Additional Collector of Customs, Calcutta, by order dated March 17, 1962, directed confiscation of the machinery under section 167(8) of the read with section 3 (2) of the Imports and Exports (Control) Act, 1947, and permitted the respondents to pay a fine of Rs. 20,000/ in lieu of confiscation.
A personal penalty of Rs. 25,000/ was also imposed on the respondents.
The respondents then moved a petition before the High Court of Calcutta under article 226 of the Constitution praying for a writ quashing the adjudication order dated March 17, 1962.
A Single Judge of the Calcutta High Court dismissed the petition, but in appeal under the Letters Patent the High Court reversed the decision and issued a Writ of certiorari quashing the order dated March 17, 1962.
The Additional Collector of Customs, Calcutta, has appealed to this Court with certificate granted by the High Court.
The only question which falls to be determined is whether for breach of a condition of the licence penalty may be imposed under section 5 of the Imports and Exports (Control) Act, 1947, read with the .
The relevant statutory provisions may first be noticed.
Under section 167 of the , the offences mentioned in the first column of the Schedule are punishable to the extent mentioned in the third column of the same with reference to such offences respectively: Section of this Act to which offence Offences.
has reference.
Penalties 8.
If any goods, the importation or 18 & 19 such goods shall be liable to be exportation of which is for the confiscated ; and any person con time being prohibited or resting herded in any such offence, shall acted by or under Chapter IV of be liable to a penalty not exceed this Act, be imported into or axing three times the value of the ported from India contrary to goods, or not exceeding one such prohibition or restriction; or thousand rupees, Chapter IV of the , contains three sec tions : sections 1 8, 19 & 19A.
By section 18 an absolute prohibition is unposed in respect of importation of goods by land or by sea specified therein.
Section 19 provides that the Central Government may from time to time, by notification in the Official Gazette prohibit or restrict the bringing or taking by ' sea or by 684 land goods of any specified description into or our of India across any customs frontier as defined by the Central Government.
The Central Legislature enacted the Imports and Exports (Control) Act, 1947, with the object of authorising prohibition and control on imports and exports.
By section 3 of that Act it was provided.
"(1) The Central Government may, by order pub lished in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions if any, as may be made by or under the order (a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified description; (b) the bringing into any port or place in India or goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried.
(2) All goods to which any order under sub section (1) applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the , and all the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted.
(3) Section 5 of the Imports and Exports (Control) Act, 1947, as originally enacted, provided : "If any person contravenes any order made or deemed to have been made under this Act, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the , as applied by sub section (2) of section 3, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both" 6 85 In exercise of the power conferred by sections 3 and 4 A of the Imports and Exports (Control) Act, 1947, the Central Govern ment issued the Imports (Control) Order, 1955.
Clause 3 of the Imports (Control) Order prevented importation of any goods of the description specified in Sch.
I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Sch.
By sub cl.
(2) of cl. 3 it was provided that if in any case, it was found that the goods imported under a licence did 'not conform to the description given in the licence or were shipped prior to the date of issue of the licence under which they were claimed to have been imported, then, without prejudice to any action that may be taken against the licensee under the , in respect of the said importation, the licence may be treated as having been utilised for importing the said goods.
By cl. 5 certain conditions could be imposed by the Licensing Authority issuing a licence.
It may be recalled that one of the conditions of the licence issued by the respondent was that the value of any item shall not exceed the C.I.F. value indicated in the licence by more than 5 %.
It was the, case of the Customs I authorities that the real value of the machinery imported exceeded the declared value, and on that account the respondents had infringed the conditions of the licence.
In East India Commercial Company Ltd., Calcutta & Anr.
vs The Collector of Customs, Calcutta(") this Court held that section 167 cl. 8 of the , read with section 3(2) of the Imports and Exports (Control) Act, 1947, authorised the imposition of penalty, if goods were imported in con travention of any order under the Imports and Exports (Control) Act, 1947 : but the section did not, expressly or by implication authorise confiscation of goods imported under a valid licence on the ground that a condition of the licence not imposed by the order was ' infringed.
This view was reiterated by this Court in Boothalinga Agencies vs T. C. Poriaswami Nadar (2).
These cases were decided on the interpretation of section 5, of the Imports and Exports (Control) Act, 1947, as it stood before it was amended by Act 4 of 1960.
By the Imports and Exports (Control) Amendment Act 4 of 1960, in section 5, after the words ',any order made or deemed to have been made under this Act," the words "or any condition of a licence granted under any such order" were inserted.
Contravention of any condition of a licence granted under any order was therefore liable to be punished under section 5 as amended.
(1) L196313S.C.R.338.
(2) 19591 1 S.C.R. 65. 686 In the present case the Customs authorities did not direct section for contravention of any condition of a licence directed confiscation of the machinery and imposed penalty lieu thereof.
But on the terms of section 5 as amended, the right impose penalty for contravention of any condition of a may be exercised under the , and under the Imports and Exports (Control) Act, 1947.
For are of any condition of a licence, it is open to the authorities direct prosecution, but no order confiscating goods and ring penalty in lieu thereof could be made.
The order of fiscal could only be made under section 167 cl. 8 of the Sea atoms Act, 1878 : in terms cl. 8 of section 167 provides for action of the goods importation or exportation of which is the time being prohibited or restricted by or under Ch.
IV the .
The notification of which contravention is said to have began made, is not issued under 19 of the , but under the Imports and (Control) Act, 1947.
It has not been urged before us, a rightly, that penalty of confiscation is incurred under the pro sons of the , for breach of the con lions of the licence.
In our judgment, the High Court was right in holding the scope of power under the was not enlarged by the amendment to section 5 of the Imports and Exports (Control) Act, and there is nothing in the amended section 5 of the Imports and Exports (Control) Act which warrants the view that provisions of the , may be invoked punish the breach of a condition of a licence granted under Imports and Exports (Control) Act, 1947.
The appeal fails and is dismissed.
There will be no order as to costs.

summary/full:
Under section 3 of Imports & Exports Control Act 18 of 1947 all goods to which any order under sub section
(1) applied shall be deemed to be goods of which the Import & Export has been prohibited under section 19 of the Sea.
Customs Act 8 of 1878, and all the provisions of.that Act shall have effect accordingly.
In exercise of power conferred by sections 3 and 4A of the Act 18 of 1947 the Central Government issued the Imports control) Order 1955.
Clause 3 of the Order prevented the importation of any goods of the description specified in Schedule except under and in accordance with a licence or a customs clearance permit granted by the Central Government or by any officer specified in Sch.
Section 5 of Act 18 of 1947 as originally enacted provided : "If any person contravenes any order made or deemed to have been made under the Act, he shall without any prejudice to any confiscation or penalty to which he may be liable under the provisions of the , as applied by sub section
2@ of section 3 be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
" By the Imports & Exports (Control) Amendment Act 4 of 1960 contravention of any conditions of a licence ranted in accordance with The terms of any order passed under the Act was also made punishable under section 5.
The respondents imported certain goods from West Germany under licence granted by the Ministry of Commerce.
According to the Government the goods imported were in excess of the terms of the licence and accordingly the respondents were charged with having committed ' offences under section 167(8) 'read with section 3(2) of Act 18 of 1947 and the a good s imported by them were confiscated.
In lieu of the confiscation, however, a fine of Rs. 20,000/ was imposed an the respondents.
A personal penalty of Rs. 25000/ was also imposed.
The respondents filed ' a writ petition in the High Court which was dismissed by the Single Judge but 'allowed by the Division Bench.
With certificate the Collector of Customs appealed.
The only question for consideration was whether for breach of a condition of the licence penalty may be imposed under section 5 of Act 18 of 1947 read with section 167(8) of Act 8 of 1878.
HELD: The appeal must be dismissed.
For breach of any condition of a licence it is open to the authorities.
under section 5 of Act 18 of 1947 as amended, to direct prosecution but no, 682 order confiscating goods and imposing penalty in lieu thereof could be made.
The order of confiscation could only be made under section 167 cl. 8 ,of Act 8 of 1878 : in terms cl. 8 of section 167 provides for confiscation of the goods importation or exportation of which is for the time being prohibited or restricted by or under Ch.
IV of the .
The notification of which the contravention was alleged was not issued under section 19 of the but under the Imports & Exports (Control) Act 1947.
The High Court was therefore right in holding that the scope of power under the was not enlarged by the amendment to section 5 of the Imports & Exports (Control) Act.
There is nothing in the amended section 5 of the imports & Exports (Control) Act which warrants the view that the provisions of the , may be invoked to punish the breach of a condition of a licence granted under the Imports & Export , (Control) Act, 1947.
[686 B C]