judgement:
iminal Appeals Nos. 89 and 90 of.
Appeals by Special Leave from the Judgment and Order dated the 23rd November 1953 of the High Court of Judicature 'at Bombay in Criminal Appeal No. 1213 of 1953, and from the Judgment and Order dated the 25th August 1953 of the High Court of Judicature at Bombay in Criminal Appeal No. 1121 of 1953 arising out of the judgment and decree dated the 6th August 1953 of the Court of Sessions Case No. 36 of 1952.
section Narayanaiah and Dr. C. V.L. Narayan, for the appellant in Criminal Appeal No. 89 of 1954.
C. Sanjeevarow Nayadu and R. Ganapathy Ayyar, for the appellant in Criminal Appeal No. 90 of 1954.
M.C. Setalvad, Attorney General of India (G. N. Joshi and Porus A. Mehta, with him) for the respondent.
151 1180 1954.
December 22.
The Judgment of the Court was delivered by BOSE, J.
These two appeals arise out of the same trial.
The two appellants, Shreekantiah (the first accused in the trial Court and the appellant in Appeal No. 89 of 1954) and Parasuram (the second accused and the appellant in Appeal No. 90 of 1954) were tried with a third accused Dawson on a number of different charges centering round section 409 of the Indian Penal Code: criminal breach of trust by a public servant.
The trial was by jury and all three were found guilty of an offence under section 409 read with section 34.
They were convicted and sentenced as under: Accused No. 1.
Shreekantiah to one year and a fine of Rs. 500 with four months in default; Accused No. 2.
Parasuram to two years and a fine of Rs. 500 with six months in default; and Accused No. 3.
Dawson to six months and a fine of Rs. 200 with two months in default.
The appeal of the second accused to the High Court was dismissed summarily on 25 8 1953 with the one word "dismissed".
The first and third accused appealed separately.
Their appeal was heard by another Bench and was admitted, and a reasoned judgment followed on 23 11 1953.
This, to.
say the least, was, in the circumstances of this case, anomalous.
The ap.peals arise out of the same trial and are from one judgment and relate to the same charge to the jury, and what is more they raise substantially the same points.
This Court was constrained to express its disapproval of the summary rejections of appeals which raise issues of substance and importance.
We draw attention to the remarks in Mushtak Hussein vs The State of Bombay(1).
Those observations apply with even greater force in the present case.
The three accused are Government servants.
At all material times, the first was the Officer Commanding, the Military Engineering Stores Depot at Dehu Road near Poona.
He was in over all charge.
The (1) ; , 820. 1181 second was under him as the officer in charge of the Receipts and Issue control section.
The third worked directly under the second as the Assistant Stores Officer.
The depot is maintained by the Central Government and covers an area of some 150 acres.
Government stores worth several lacs of rupees are kept there.
On 11 9 1948 iron stores worth about Rs. 4,000 were illegally passed out of the depot and were handed over to one Ibrahim Fida Hussain, an agent of the approver Mohsinbhai (P.W. 1).
The case for the prosecution is that the three accused, who were in charge of these stores and to whom they had been entrusted in various capacities, entered into a conspiracy to defraud Government of these properties and that in pursuance of this conspiracy they arranged to sell them to the approver (P.W. 1) for a sum of Rs. 4,000.
The money is said to have been paid and then the stores were passed out of the depot.
The money is said to have been pocketed by the three accused and not credited to Government.
On these facts a number of charges were framed.
The first set was drawn up on 9 7 1953.
All three accused were jointly charged with an offence punishable under section 5(2) of the Prevention of Corruption Act, 1947 and all three were further jointly charged with having committed criminal breach of trust in furtherance of the common intention of all under section 409 of the Indian Penal Code read with section 34.
Then followed a number of alternative charges in which each was separately charged with having committed criminal breach of trust personally under section 409.
As a further alternative.
, all three were jointly charged under section 409, Indian Penal Code read with section 109 for having abetted each other in the commission of a criminal breach of trust under section 409.
Objection was at once taken to these charges and the one which concerns us now was couched in the following terms; 1182 "It is further submitted that the trial under section 5(2), Corruption Act, 1947 with Indian Penal Code section 409 is likely to embarrass the accused in their defence as it would be difficult to efface the evidence (if any) of the accused persons given on oath from the minds of the Jurors when considering the charge under section 409, Indian Penal Code.
It is therefore prayed that the charges under sec409, Indian Penal Code and section 5(2) of the Corruption Act may not be tried together in one trial".
The Assistant Public Prosecutor said he had no objection to separating the charges and leaving the one under section 5(2) for another trial.
The Court then made the following order on 10 7 1953: "Thus, though a joint trial for offence under section 5(2) of the Prevention of Corruption Act and the offences under the Indian Penal Code is legal and valid,, I think, in view of the circumstances mentioned above, it would be in the interest of justice and also in the interests of the accused themselves if the trial for the offence under section 5(2) of the Prevention of Corruption Act is separated.
I therefore grant the application to this extent and order that the charge should be amended accordingly".
In view of this the charges were re framed on 11 7 1953.
The only difference of substance is that the charge under section 5(2) was dropped.
The others remained.
Now it will be observed that the accused are all public servants and they contend that as, according to the prosecution, they purported to act in the discharge of their official duties, sanction was necessary under section 197 of the Criminal Procedure Code.
There is sanction so far as the first accused is concerned but the second accused contends that there is none in his case to justify the present trial, so his trial,, conviction and sentence are bad.
The position about this is as follows: On 27 10 1949 the Governor General, acting under section 197 of the Code of Criminal Procedure, sanctioned the prosecution of the first accused for offences tinder sections 1183 120 B, 409, 109 and so forth, for having conspired with the other two to commit criminal breach of trust in respect of the properties with which this case is concerned and thus for having abetted the commission of that offence, and also for having committed it.
Similar sanction could easily have been given against the other two accused but it was not.
The sanction for these offences was limited to the first accused.
On the same date sanction was also given for the prosecution of the first accused under section 5(2) of the Prevention of Corruption Act and a similar sanction was given against the second accused.
The question is whether this sanction against the second accused can be extended to cover his prosecution under section 409 of the Indian Penal Code.
In our opinion, it cannot.
At the date of the sanction the unamended Prevention of Corruption Act (II of 1947) was in force.
Criminal breach of trust under section 409 of the Indian Penal Code was included in the definition of "criminal misconduct" under section 5(1)(c) of the Act of 1947.
Therefore, an offence under section 409 could be tried under the Act of 1947 and the question arose whether it would have to be tried under that Act, or whether it could also be tried in the ordinary way by the ordinary Courts.
The Punjab High Court held in The State vs Gurucharan Sinah(1) that it could not.
Because of this the Act of 1947 was amended in 1952 by Act LIX of 1952 and section 4 of the amending Act makes it clear that the trial can be under either law.
But in the same year the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) was passed and because of this Act trials under section 5(2) of the Prevention of Corruption Act must be before a Special Court and a special procedure must be followed.
Therefore, the position which these various Acts created was this.
First, a choice was conferred on some authority to choose whether any given accused should be tried in a special Court with a special procedure and be subject to a lesser punishment under section 5(2) or whether he should be tried in the ordi (1) A.I.R. 1952 Punjab 89, 1184 nary way under section 409 of the Indian Penal Code with the risk of a higher punishment.
The question then is who is to do the choosing.
Under section 197 of the Code of Criminal Procedure the Governor General was at that date the sanctioning authority though the words "exercising his individual judgment" had by that time been deleted.
Under the Prevention of Corruption Act the sanctioning authority was the "Central Government".
Now it may well be that the two mean the same thing because of section 8(a) of the General Clauses Act but that makes no difference at the moment.
The fact remains that either one, or two, Government authorities were given the right, and invested with the duty, of making an election.
They had the right to say whether a certain class of public servant who had committed criminal breach of trust should be tried for that offence under section 409 of the Indian Penal Code in the ordinary courts of the land according to the normal procedure obtaining there and be subject to a maximum penalty of ten years plus an unlimited fine or be tried for the same offence under another name in a special court by a special procedure and be subject to no more than seven years plus a fine which is also unlimited.
At this stage of the arguments we asked the learned counsel for the appellants whether they intended to challenge the vires of this law under article 14 of the Constitution because, if they did, the matter would have to go to a Constitution Bench as we, being only three Judges, would have no power to decide it.
The learned Attorney General at once objected because the point had not been raised at any stage and was not to be found even in the grounds of appeal to this Court.
The learned counsel for the appellants replied that they did not wish to take the point.
Accordingly, we have to proceed in this case on the assumption that the amending Act of 1952 (Act LIX of 1952) is valid.
That results in the position we have outlined above.
There is a choice, not only of forum, but also of procedure and the extent of the maximum penalty.
If two separate authorities are given the right to 1185 choose and neither can encroach upon the preserve of the other, then the Governor General has not sanctioned the present prosecution against the second accused and no other authority has the power to do so.
Therefore, in that event, the sanction given to prosecute under section 5(2) cannot be used to cover the present trial because it is given by another authority not competent to give it.
On the other hand , if the two authorities are really one, then the election has been made clearly and unequivocally.
The sanction is to proceed in the special courts with the special procedure and the second accused is not to be exposed to the risk of the higher penalty.
In that event, the present trial against the second accused is incompetent.
That a defect of this kind is fatal and cannot be cured is well settled.
See the Privy Council in Gokulchand Dwarkadas vs The King(1), the observations of Varadachariar, J. in Hori Ram Singh vs The Crown(1) and the decision of this Court in Madan Mohan vs The State of Uttar Pradesh(1).
But the learned Attorney General argued that no sanction was necessary because, according to him, despite what the second accused says, by no stretch of imagination can he be said to have been acting, or even purporting to act, in the discharge of his official duty.
The argument ran as follows: The act complained of here is the breach of trust and the prior abetment of it: the breach occurred as soon as the goods were loaded on Mohsinbhai 's lorries: it was no part of this accused 's official duties to permit an unauthorised removal of the goods: therefore.
, when he allowed that he neither acted.
nor purported to act, in the discharge of his official duties.
Reference was made to the decision of the Federal Court in Lieutenant Hector Thomas Huntley vs The King Emperor(1) where Zafrullah Khan, J. held that "it must be established that the act complained of was an official act", and to the observations of Varadachariar, J. in Hori Ram Singh vs The Crown(1) (1) A.I.R. 1948 P.C. 82.
(3) A.I.R. 1954 S.C. 637, 641.
(2) , 184.
(4) , 269.
(5) , 186.
1186 where, dealing with section 409 of the Indian Penal Code, he says "Though a reference to the capacity of the accused as a public servant is involved both in the charge under section 409 and in the charge under section 477 A, there is an important difference between the two cases, when one comes to deal with the act complained of.
In the first, the official capacity is material only in connection with the 'entrustment ' and does not necessarily enter into the later act of misappropriation or conversion, which is the act com plained of".
What this argument overlooks is that the stress in the passage quoted is on the word "necessarily" which we have underlined.
A later passage at page 187 explains this: "I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests".
With that we respectfully agree.
There are cases and cases and each must be decided on its own facts.
Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official 's duty to commit an offence and never can be.
But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
The section has content and its language must be given meaning.
What it says is " when any public servant. . is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
We have therefore first to concentrate on the word "offence".
Now an offence seldom consists of a single act.
It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be 1187 established.
In the present case, the elements alleged against the second accused are, first, that there was an "entrustment" and/or "dominion"; second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal"; and fourth, that the disposal was "dishonest".
Now it is evident that the entrustment and/ or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity.
Therefore, the act complained of, namely the disposal, could not have been done in any other way.
If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did.
He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it.
Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.
The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus "wilfully suffer" another person to use them dishonestly: section 405 of the Indian Penal Code.
In both cases, the 'offence" in his case would be incomplete without proving the official act.
We therefore hold that section 197 of the Code of Criminal Procedure applies and that sanction was necessary, and as there was none the trial is vitiated from the start.
We therefore quash the proceedings 152 1188 against the second accused as also his conviction and sentence.
We now turn to the appeal of the first accused.
He has been convicted under section 409 of the Indian Penal Code read with section 34.
The main point here concerns a vital misdirection in the charge to the jury about section 34.
The learned Additional Sessions Judge misunderstood the scope and content of this section and so misdirected the jury about the law.
The section was expounded at length in paragraphs 15 and 16 of the charge and though some of the illustrations given are on the right lines, there is much there that is wrong and which, if acted on, would cause a miscarriage of justice.
The essence of the misdirection consists in his direction to the jury that even though a person "may not be present when the offence is actually committed" and even if he remains "behind the screen" he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention.
This is wrong, for it is the essence of the section that the person must be physically present at the actual commission of the crime.
He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed.
The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by section 109, and the stage of commission when the plans are put into effect and carried out.
Section 34 is concerned with the latter.
It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of 1189 course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre arranged plan when the time comes for him to act.
The emphasis in section 34 is on the word "done": "When a criminal act is done by several persons. .
It is essential that they join in the actual doing of the act and not merely in planning its perpetration.
The section has been elaborately explained by Lord Sumner in Barendra Kumar Ghosh vs The King Emperor(1).
At page 52, he explains that "participation in action" is the leading feature of section 34.
And at page 53 in explaining section 114 of the Indian Penal Code, he says "Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else, but participation.
The presumption raised by section 114 brings the case within the ambit of section 34".
At page 55 he says about section 34 that "participation and joint action in the actual commission of crime are, in substance, matters which stand in antithesis to abetments or attempts".
The misdirection is plain and it goes to the root of the matter because the jury returned a verdict of guilty under section 409 of the Indian Penal Code read with section 34 alone and not under section 409 read with section 109.
It is part of the defence of the first accused that he was not present when the goods were loaded nor was be present when they were allowed to pass out of the gates, that is to say, that he was not present when the offence was committed.
It is true there is evidence to show that he was there when the lorries left but apart from the fact that there is a small discrepancy on the point, there is nothing to indicate that this evidence was believed.
If he was not present he (1) [1924) L.R. 52 I.A. 40.
1190 cannot be convicted with the aid of section 34.
He could have been convicted of the abetment had the jury returned a verdict to that effect because there is evidence of abetment and the charge about abetment is right in law.
But the jury ignored the abetment part of the charge and we have no means of knowing whether they believed this part of the evidence or not.
There is also non direction on an important point which may have caused a miscarriage of justice.
The case for the prosecution is that the accused disposed of the goods to Mohsinbhai for a sum of Rs. 4,000 which was duly paid to the second accused on the 10th.
The learned trial Judge told the jury that "the evidence led by the prosecution about the payment of the Rs. 4,000 is proved to be utterly useless", and in telling them why he gave them a number of reasons.
But he omitted to follow this up by telling them that if they rejected this part of the prosecution case, as he invited them to do, then the strongest part of the case against the accused collapsed because officers.
in the position of the accused do not commit illegal acts like this and expose themselves to a prosecution and possible disgrace unless they are prompted by some strong motive, usually self interest; and though a conviction can be based on evidence which does not disclose a motive if the facts proved justify such a course, yet it would ordinarily be unsafe to convict in a case like the present in the absence of proof indicating an adequate reason for criminal behavior on the part of the accused.
Had the jury been told this, as they should have been, it is possible they would not have returned a verdict of guilty.
In the circumstances, we have no alternative but to quash this conviction also.
We have now to consider whether there should be a retrial.
As the present trial cannot proceed against the second accused, and as all the accused are said to have acted in concert each playing an appointed part in a common plan, we do not think it would be right 1191 to direct a retrial though this is the normal course when a jury trial is set aside on the grounds of misdirection and non direction.
We therefore discharge (not acquit) both the appellants leaving it to Government either to drop the entire matter or to proceed in such manner as it may be advised.
We do this because the accused expressly asked that the charge under the Prevention of Corruption Act should be left over for a separate trial.
The two convictions are therefore quashed and also the sentences.
We are told that the first accused has already served out his sentence.
The fine if paid, will be refunded.
The bail bond of the second accused will be cancelled.

summary/full:
The three accused Government servants were jointly charged with an offence punishable under section 5(2) of the Prevention of Corruption Act, 1947 and all three were further jointly charged with having committed breach of trust in furtherance of the common intention of all under section 409 of the Indian Penal Code read with section 34.
Then followed a number of alternative charges in which each was separately charged with having committed criminal breach of trust personally under section 409.
As a further alternative, all three were 1178 jointly charged under section 409 read with section 109 for having abetted each other in the commission of a criminal breach of trust under section 409.
On objection taken to these charges, the trial for the offence under section 5(2) of the Prevention of Corruption Act was separated from the trial under section 409 of the Indian Penal Code.
The charges were reframed.
One under section 5(2) was dropped while others remained.
On 27 10 1949 the Governor General acting under section 197 of the Code of Criminal Procedure sanctioned the prosecution of the first accused (appellant No. 1) for offences under sections 120 B, 409, 109 for having conspired with the other two to commit criminal breach of trust in respect of properties belonging to Government and for having thus abetted the commission of that offence and also for having committed it.
Similar sanction was not given against the other two accused and was limited only to the first accused.
On the same date sanction was given for the prosecution of the first accused under section 5(2) of the Prevention of Corruption Act, 1947 and a similar sanction was given against the second accused.
The question was whether this sanction against the second accused could be extended to cover his prosecution under section 409 and whether his trial was valid.
Held, (answering the question in the negative) that under section 197 of the Code of Criminal Procedure the sanctioning authority was the Governor General.
Under the Prevention of Corruption Act, 1947 the sanctioning authority was the Central Government.
Either one, or two, Government authorities were given the right and invested with the duty of making an election.
If two Government authorities are given the right to choose and neither can encroach upon the preserve of the other, then the Governor General has not sanctioned the present prosecution against the second accused (appellant No. 2) and no other authority has the power to do so.
Therefore the sanction given to prosecute under section 5(2) of Act II of 1947, could not be used to cover the present trial, because it was given by an authority not competent to give it.
If, on the other hand, the two authorities are really one, then the election has been made clearly.
The sanction under section 5(2) of the Prevention of Corruption Act, 1947 as amended by Act LIX of 1952 and Act XLVI of 1952 is to proceed in special courts with a special procedure so the present trial against the second accused was incompetent.
It is well settled that a defect of this nature is fatal and cannot be cured when section 197 applies and, as it did, sanction was necessary so the trial was vitiated from the start.
The proceeding,,; were accordingly quashed.
If section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied for it is no part of an official 's duty to commit an offence and never can be.
But it is not the duty of an official which has to be examined so much as his act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
The section has content and its language must be given meaning.
1179 In the case of the first accused there was misdirection in the charge to the Jury under section 34.
The essence of the misdirection consisted in the Sessions Judge 's direction to the jury that even though a person may not be present when the offence is actually committed and even if he remains "behind the screen" he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention.
This is wrong because the essence of the section is that the person must be physically present at the actual commission of the crime.
The misdirection is plain and goes to the root of the case because the jury returned a verdict of guilty under section 409 read with section 34 alone and not under section 409 read with section 109, I.P.C. Held, that in cases which raise questions of substance and importance the High Courts should not pass summary orders of rejection without giving some indication of their views on the points raised before them.
Mushtak Hussein vs The State of Bombay ([1953] S.C.R. 809), The State vs Gurucharan Singh (A.I.R. [1952] Punjab 89), Gokulchand Dwarkadas vs The King (A.I.R. , Hori Ram Singh vs The Crown ([1939] F.C.R. 159), Madan Mohan vs The State of Uttar Pradesh (A.I.R. , Lieutenant Hector Thomas Huntley vs The King Emperor ([1944] F.C.R. 262), and Barendra Kumar Ghosh vs The King Emperor ([1924] L.R. 52 I A. 40), referred to.


judgement:
No. 274 of 1971.
349 Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus.
N. N. Goswami, for the petitioner.
D. N. Mukherjee and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Shelat,J.
The order of detention,dated April 7, 1971, passed against the petitioner herein and in pursuance of which the petitioner was arrested and detained in jail the next day, recites that it was passed under sec.
3(1) and (3) of the West Bengal (Prevention of Violent Activities) Act, President 's Act 19 of 1970, the ground for which was that the District Magistrate, 24 Parganas, who passed it, was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order.
The grounds of detention served on him at the time of his arrest narrated three incidents in which he was said to have been involved.
The first ground was that on November 13, 1970 he, together with some others, committed theft of copper traction wire from a wagon lying in Naihati South Yard, and that when the railway police and the railway protection force on duty rushed at the spot, the petitioner and his associates threw bombs at them with intent to kill them.
The second ground was that on December 23, 1970, the petitioner and his associates were removing 29 pieces of rail from the same railway yard and when the members of the railway protection force attempted to stop them from doing so, the petitioner and his said associates threw bombs at them with intent to kill them.
The third and the last ground was as follows : "That on 13 1 71 in between 12.00 and 12.20, hours, you along with your associates being armed with bombs, swords, lathis, etc.
entered in a clash with, another group with a view to kill them.
Your violent activities created a serious panic in the station area and disturbed the public order.
" From the Dum Dum Central Jail where the; petitioner was detained he made a representation, dated April 29, 1971, to the State Government.
That representation together with the record of the case was placed before the Advisory Board, who it appears, also heard the petitioner in person.
The representation, dated April 29, 1971 was in general terms in which the petitioner denied the said grounds alleged against him, and maintained that he was a law abiding citizen who never indulged in activities of the kind alleged against him.
The Board, after considering the 350 said representation, the said record of the case and after hearing him, as aforesaid, reported that there was, in its opinion, sufficient cause for his detention.
It seems that thereupon the Government confirmed the said detention order and directed continuation of his detention thereunder.
So far there does not appear to be any difficulty as all the steps following the petitioner 's arrest appear to have been taken by the detaining authority in compliance with the provisions of the Act.
But two questions have been raised before us on behalf of the petitioner.
The first was raised by the petitioner himself in the written arguments submitted by him to this Court from jail and the second was raised by his counsel during the course of ,the hearing of the petition.
The point raised by the petitioner was in regard to ground No. 2 in the grounds of detention in which it was alleged that the petitioner participated in the incident said to have taken place on December 23, 1970.
The petitioner 's allegation was that on January 1, 1971 the Naihati G.R.P. police appeared before, the Magistrate, Sealdah, stating that the petitioner was arrested in a police case referred to as Naihati G.R.P. Case No. 11, dated November 23, 1970 under sees.
148, 379 and 307 of the Penal Code and sec.
6(3) of the Explosive Substances Act, but that the Magistrate, after considering the facts and circumstances of the case, released him on bail.
That case, according to the petitioner was still pending.
The contention was that the authorities, having elected to institute proceedings against him under the Code of Criminal Procedure, could not, while those proceedings were still pending, also take parallel proceedings under the present Act thereby placing, firstly, the petitioner under a double jeopardy, and secondly, conducting investigation in that case without that investigation being under the courts supervision and control.
The argument was that if the petitioner were to be kept under preventive detention under the present Act it would not be necessary as, it would otherwise be, for the police to ask for remand orders and produce the petitioner before the Magistrate whenever such orders were prayed for.
The detention order and the detention thereunder, it was argued, were on the aforesaid two grounds invalid.
The second contention concerned the third ground of the grounds of detention and related to the alleged incident, dated January 13, 1971, when the petitioner and his associates who were armed with bombs, swords, lathis etc.
were said to have clashed with another group.
In the written arguments submitted by the petitioner from jail, the petitioner made a general denial stating that, if such an incident had occurred and he had been involved in it the police were bound to file a case against him but that no such case was ' filed which indicated that he had nothing to do with the alleged incident, and had been falsely involved 351 in it.
Counsel appearing for him raised another point, and that was that ground No. 3 was vague and uncertain and was couched in such indefinite language that it would be impossible for the petitioner to effectively make a representation.
We proceed to consider this contention first because in the view we take concerning it would not be necessary for us to go into the contention regarding ground No. 2 of the grounds of detention.
Ground No. 3, no doubt, specifies the date and the time when the incident alleged therein was said to have taken place.
It also alleges that the petitioner and his associates were armed during the alleged incident with weapons such as bombs, swords, lathis etc., and that they had a clash "with another group", and that incident "created a serious panic in the station area".
The ground does not state what the authority meant by "another group", nor does it state in which "station area" the said alleged incident was said to have taken place resulting in panic.
It will be seen that the first and the second grounds mentioned two incidents of theft said to have been committed in the yard of the Naibati railway station.
The question is, in the absence of any particulars as to the place where the incident alleged in the third ground took place, what would the expression "station area" mean to the petitioner, and whether the petitioner would not get the impression that the District Magistrate meant thereby Naihati railway station or Naihati police station area.
In his representation, the petitioner merely denied all the three grounds and maintained that he had no concern with any of the three incidents alleged in the grounds of detention.
In his written arguments submitted to this Court he, firstly, denied having anything to do with the incident of January 13, 1971 And then proceeded to state that all those allegations were made falsely against him by the Naihati railway _police, and that they were false because if the said alleged incidents had in fact occurred the police were bound to launch proceedings against him.
He further asserted that at any rate, the local police, that is, the Naihati police, were bound to make some record of them in the general diary maintained by the said police station.
It is, thus, clear that the petitioner was under the impression, in the absence, of the place or the locality where the said incident was said to have taken place, according to the District Magistrate, either in Naihati railway Station or the area under the jurisdiction of Naihati police station.
Such an impression, it appears, was likely because when read in ' the context of the first and the second grounds, the reader of the third ground in the absence of any particulars as regards the L887 Sup Cl/72 352 locality where the said alleged incident took place, might well infer the locality there alleged must be Naihati railway station area.
That such was the impression of the petitioner appears from the assertion made by him in Para 6 of his written arguments that the allegations in respect of all the grounds were made against him by Naihati Railway police, and that those were false because neither they nor the Naihati Police made any reference to them in the general diaries maintained by them, nor lodged any complaint against him.
In Para 7 of the affidavit in reply of the State, the averment for the first time made was that the alleged incident of January 13, 1971 took place not in Naihati Railway Station area but at Palta Railway Station which resulted in "panic in the said station area and disturbed public peace and tranquility".
Apart, thus, from ground No. 3 in the grounds of detention being vague by reason of its omission to mention the locality, there was in the context of the other two grounds a likelihood of the petitioner, being under a wrong impression that according to .he District Magistrate the incident there alleged had taken place in Naihati Railway Station area.
That being so, it is obvious that 'the petitioner could not make a correct and proper represen tation which must mean that the omission to mention the locality prevented him from effectively making a representation.
The omission to specify the group with whom the petitioner and his associates came into clash also renders that ground vague and indefinite, resulting once again in disabling the petitioner from effectively making a representation.
Suppose that the petitioner wanted to maintain that on January 13, 1971 he was never at or near Palta Railway Station or that the group with whom he was said to have clashed was his own group or was friendly with him, and therefore, there was no possibility of any such clash.
He could not obviously have been able to do so in the absence of particulars about the locality and the name or description of the said group.
The result of those omissions being to prevent the petitioner from effectively making representation, his detention under the said order must be found to be invalid.
The petition, for the reasons aforesaid.
succeeds and is allowed.
Accordingly we direct that the petitioner be released from jail and set at liberty forthwith.
K.B.N. Petition allowed.

dataset_name: IN-Abs

summary/full:
The petitioner was detained under section 3(i) and (iii) of the West Bengal (Prevention of Violent Activities) Act, 1970.
The first and the second ground of detention served on him mentioned two incidents of theft and throwing of bombs with intent to kill said to have been committed in the yard of Naibati Railway Station.
The third and the last ground was that on January 13, 1971 between 12 and 12.20 hrs.
the petitioner along with his associates "being armed with bombs, swords, lathis, etc.
entered in a clash with another group with a view to kill them" and that his "violent activities created a serious panic in the Station area and disturbed public order.
" The petitioner contended, inter alia that ground No. 3 was vague and uncertain and was couched in such indefinite language that it would be impossible for the petitioner to effectively make a representation and therefore his detention was invalid.
In his representation the petitioner had merely denied all the three grounds and maintained that he had no concern with any of the three incidents alleged in the grounds of detention.
In his written arguments submitted to this Court the petitioner stated that the allegations in respect of all the grounds were made against him by the Naibati Railway Police and that they were false.
In the reply affidavit of the state the averment for the first time made was that the alleged incident in ground No. 3 took place not in Naibati Railway Station area but at another railway station.
Allowing the petition, HELD : (1) Ground No. 3 is vague by reason of its omission to mention the locality.
It is clear that the petitioner was under the impression, in the absence of the place or the locality where the incident was said to have taken place having been mentioned, that the said incident had taken place either in Naibati Railway Station or the area under the jurisdiction of Naibati police.
Therefore, apart from ground No. 3 being vague by reason of its omission to mention the locality, there was in the context of the other two grounds a likelihood of the petitioner being under a wrong impression that according to the District Magistrate the incident there alleged had taken place in the Naibati Railway Station area.
That being so, the omission to mention the locality prevented the petitioner from effectively making a representation.
[352 D] (2)The omission to specify the group with whom the petitioner and his associates came into clash also renders that ground vague and indefinite, resulting once again in disabling the petitioner from effectively making a representation.
[352 E]


judgement:
Appeals Nos. 660 of 1967 and 58 of 1972.
Appeals by certificate/special leave from the judgment and decree dated August 11 / 12, 1964 of the Bombay High Court in Civil Reference No. 6 of 1959.
section T. Desai, P. C. Bhurtari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant (in both the appeals).
V. section Desai and B. D. Sharma, for respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by Hegde, J.
Both these appeals, the former by certificate and the later by special leave arise from the decision of the High Court of Bombay in a reference under section 54 of the Bombay Stamp Act.
When Civil Appeal No. 660 of 1967 came up for hearing on a previous occasion, objection was raised as to the maintainability of the appeal on the ground that the High Court was not competent to grant a certificate in the case under article 133 of the Constitution.
At that stage, the appellant sought an adjournment of the appeal so as to enable it to move this Court for special leave against the impugned decision.
That prayer was allowed by this Court.
Thereafter the appellant sought and obtained special leave of this Court to appeal against the decision in question.
Hence Civil Appeal No. 58 of 1972 came to be filed.
In view of this appeal, we may now proceed on the basis that Civil Appeal No. 660 of 1967 stands withdrawn and the same is disposed of accordingly.
Hereafter we shall only deal with Civil Appeal No. 58 of 1972.
334 The facts leading up to this appeal are as follows On November 18, 1950, plot No. 79 at Palton Road, Bombay, admeasuring about 1,368 square yards was leased by the Government of Bombay for a period of 999 years from June 26, 1942 to one Lily Investment Corporation Ltd. On December 11, 1950, the said Lily Investment Corporation Ltd. gave a sub lease of the said plot of land to Uttamchand Tulsidas for a term of 999 years (less one day), from June 26, 1942.
thereafter Uttamchand constructed a building called "Himalaya House" on that plot consisting of several flats, shops and offices.
Under various agreements, he appears to have assigned the right of occupation in those flats, shops and offices to several persons.
One such agreement was with one Motiram Shewarama Vallicha.
That was in respect of one flat.
That agreement is in the record.
As the High Court has placed considerable reliance on that document, it is necessary to quote the relevant clauses therein viz. 2, 5 and 16.
Those clauses read thus : "2.
That the Party hereto of the Second Part hereby agrees to acquire the block bearing No. 12 on the ground floor of the said building for the total sum of Rs. 10,000 (Rupees ten thousand only).
That the possession of the said block shall be delivered to the party hereto of the Second Part provided all the amounts due under this agreement and particularly indicated in condition No. 3 hereof are paid by the party hereto of the Second Part to the Party hereto of the First Part and upon the delivery of such possession the party hereto of the Second Part shall be entitled to the use and occupation of the said block without hindrance PROVIDED NEVERTHELESS that nothing contained in these presents shall be construed as a demise in law of the said leasehold lands or any part thereof or the buildings thereon, such demise to take place only upon the transfer by a formal conveyance to a Co opera tive Society or Incorporated body to be formed as hereinafter agreed.
That the party hereto of the First Part shall form a co operative society or any other incorporated body recognized in law and the party hereto of the Second Part shall join such co operative society or any other incorporated body.
The party hereto of the First Part agrees to convey transfer or assign to the said society or any other incorporated body as the case may be the aforesaid lands and buildings provided that the costs and expenses in connection with the 335 requisition of such society or incorporated body, as well as the costs of preparing, approving, engrossing and stamping the Assignment, Transfer, or Deed of Conveyance required to be, executed by the party hereto of the First Part shall be borne by such society, or the incorporated body as the case may be." On June 28, 1955, the appellant company was incorporated and registered under the provisions of the Indian Companies Act, 1913.
On December 30, 1955, Uttamchand purported to assign all his rights in the building to the appellant company under a deed.
In the preamble to that Deed after tracing, Uttamchand 's title to the property, it is recited "AND WHEREAS the Assignee Company has been formed for the better administration of the said building and for the protection of the interests of the persons occupying flats, offices and shops therein AND WHEREAS the Assignor has agreed to assign to the Assignee all his interests in the said piece of land and building.
" Clause 1 of that Deed provides as under : 1.
The Assignor (i.e. Respondent No. 2) doth hereby for no consideration assign into the Assignee (i.e. the Appellant Company) ALL THAT the piece of land comprised in the before recited Lease together with the buildings and erections now standing and being thereon together with all rights easements and appurtenances thereto belonging and together with all the right title and interest whatever of ' the Assignor in the building known as Himalaya House EXCEPT AND RESERVED as in the before recited Lease more particularly mentioned TO HOLD the same unto the Assignee or all the residue now unexpired of the term of years granted by the before recited Lease SUBJECT to the rent reserved by and to the Agreements covenants and conditions contained in the before recited Lease henceforth on the part of the Assignee to be paid observed and performed.
" The said document bore a stamp of annas 12 only.
When the same was presented for registration, the Sub Registrar of Bombay impounded the same and sent it to the Assistant Superintendent of Stamps, Bombay.
That officer by his letter dated June 26, 1956 informed the appellant company that "as it was formed of and for the persons who had purchased the flats in the building.
the real consideration for the Assignment was made up partly of what was paid by the flat holders and the status of the appellant company was that of the nominee of the flat holders so far as the Assignment was concerned." He further stated that in the absence of any mention of consideration in the document, the then value 887 SUP@CT/72 336 of the premises was an index of the consideration.
He purporting to act under section 40 of the Indian Stamp Act, determined the stamp duty at Rs. 95,997 after valuing the building at Rs. 16,00,000.
Further he imposed a penalty of Rs. 20,000.
He called upon the appellant company to pay the stamp duty as well as the penalty.
On receipt of that communication, the appellant company applied to the Chief Controlling Revenue Authority to revise the order of the Assistant Superintendent of Stamps or in the alternative refer the matter to the High Court for its opinion.
Thereafter the Chief Controlling Revenue Authority made the reference referred to earlier to the High Court.
He submitted two questions for the opinion of the High Court, viz : "(1) Whether Himalaya House Co. Ltd. the Assignee in the Assignment dated 30th December 1955 is the nominee of the several flat holders who have purchased the flats in the Himalaya House and whether the Assignment in question is a Conveyance or a sale for a price which has passed from the hand of the flat holders long before the date of assignment.
(2) Whether it was competent to the Assistant Superintendent of Stamps, under section 40 of the Indian Stamp Act, 1899 (now section 39 of the Bombay Stamp Act, 1958) to go beyond the terms of the document when it is mentioned in the document that no consideration is passed and assess the stamp duty in the manner men tioned by him in his order dated the 26th June 1956.
" The matter came up for hearing before a bench of three Judges of the Bombay High Court presided over by the learned Chief Justice.
At the hearing, the learned Judges opined that the questions submitted by the Chief Controlling Revenue Authority were not appropriate and, therefore, they recast those questions as follows : "1.
Under which article in Schedule 1 to the Stamp Act should the Assignment Deed in question be stamped ? 2.
If Article 23 applies in this case, what is the consideration for the Assignment Deed ?" All the Judges unanimously held that the Article applicable to the case is Article 23 in the First Schedule to the Indian Stamp Act, which will be hereinafter referred to as "the Stamp Ace '.
But while answering the second question, the learned Chief Justice and Naik.
J. opined that "the consideration for the Assignment Deed is 337 the total amount which was payable to the Assignor Tulsidas under the agreements between him and the persons to whom he had, under those agreements, given the right to occupy the Rats, offices and shops in the building." But Mody J. differed from his colleagues and came to the conclusion that "the consideration is ,as mentioned in the Deed of Assignment itself i.e. no consideration All the Judges unanimously came to the conclusion that the consideration mentioned in the document is nil.
This conclusion is obvious because Clause I of the Assignment Deed says that the Assignor assigns his rights 'for no consideration '.
All of them were also unanimous in their conclusion that for finding out the consideration, the concerned authorities (who will be hereinafter referred to as 'Revenue ') cannot travel outside the document; it should be 'as set forth therein '.
But the majority took the view that the Revenue was not bound to accept the quantum of consideration mentioned in the document; it could determine the same by taking into consideration the facts available from the impounded document.
They further held that the impounded document incorporates into itself the various agreements entered into between Uttamchand and the various persons to whom he had assigned certain rights in respect of flats, offices and shops referred to earlier.
In their view, the consideration paid by those persons to Uttamchand formed part of the consideration for the Assignment Deed in.
question.
Naik J. went a little further and held that alternatively the Deed in question can be considered as a "gift" under article 33 of Schedule 1 to the Stamp Act Mody J. opined that there is no basis to hold that the agreements entered into between Uttamchand and the various persons to whom the flats, offices and shops had been assigned were similar to the agreement entered into between him and Motiram Shewarama Vallicha.
He held that on the basis of the material before the Court, it was not possible to come to the conclusion that they had entered into agreements with Uttamchand similar to the agreement entered into between Uttamchand and Motiram Shewarania Vallicha.
He further held that on a plain reading of the Assignment Deed, it is not possible to come to the conclusion that the terms and conditions in the agreements entered into by Uttamchand with those to whom he had assigned flats, offices and shops, were incorporated into the Assignment Deed.
None of the Judges upheld the conclusion of the Assistant Superintendent of Stamps that the appellant company is a nominee of the persons to whom the flats, offices and shops had been assigned; nor did they agree with his conclusion that if in a document, the value of the rights assigned is not mentioned, it is permissible, for the Revenue to assess their value independently.
338 The contention that the appellant company is a nominee of the various persons to whom flats, offices and shops had been assigned was not pressed before us; nor was it urged before us that the Revenue is competent to make an independent assessment of the value of the rights assigned.
Though at one stage, it was feebly suggested that the Deed of Assignment may be considered as a gift but that contention was not elaborated; nor do we see any merit in that contention because in the first place, it does not purport to be a gift; secondly, the valuation of "gift" under Article 33 of the First Schedule has to be made on the same basis as the valuation of a "conveyance" under Article 23 of that Schedule.
Article 33 specifically says that the duty payable on a gift deed will be "same as a conveyance for a consideration equal to the value of the property as set forth in such instrument.
" For the purpose of this case, we shall proceed on the assumption, without deciding, that the charging words in Article 23 of the Stamp Act "where the amount or value of the consideration for such conveyance as set forth therein" do not mean that the Revenue must have regard only to what the parties to the instruments have elected to state the consideration to be, but the duty must be assessed upon the amount or value of the consideration for the transfer as disclosed upon an examination of the terms of the instrument as a whole.
We are of the opinion, that the learned Chief Justice and Naik J. were not justified in holding that the Deed of Assignment incorporates into itself the various agreements entered into between Uttamchand and the persons to whom he assigned flats, offices and shops.
The only reference to those persons in the Deed of Assignment is in the preamble wherein it is stated "AND WHEREAS the Assignor having erected a building known is Himalaya House on the said piece of land had granted to certain persons the right to occupy flats, offices and shops in the said building AND WHEREAS the Assignee Company has been formed for the better administration of the said building and for the protection of the interests of the persons occupying the flats, offices and shops therein.
" These clauses merely refer to the earlier transactions.
They do not incorporate into the Assignment Deed the earlier agreements with the persons referred to therein.
Mere reference to some earlier transactions in a document does not amount to an incorporation in that document, of the terms and conditions relating thereto.
From the language used in the Assignment Deed it is not possible to come to the conclusion that the terms and conditions of the earlier transactions have been made a part of that Deed.
Further barring one particular agreement, other agreements were not before the Court.
Therefore, it is not possible to know what the terms and conditions of those agreements were.
Before the terms and conditions of at, 339 agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended ,to incorporate them.
No such intention in available in this case.
It was urged that in view of section 27 of the Stamp Act, it was permissible for the Revenue to look into the terms and conditions of the agreements entered into by Uttamchand with the various persons to whom he had assigned flats, offices and shops, particularly in view of the fact that the impounded document makes reference to those agreements.
We are not able to accept that contention.
Section 27 prescribes that "The consideration (if any) and all other facts and circumstances affecting the charge ability of any instrument with duty, or the amount of the duty with which it is chargeable shall be fully and truly set forth therein.
" It is true that in view of this provision, the parties to a document are required to set forth in the document fully and truly the consideration (if any) and all other facts and circumstances affecting the chargeability of that document with the duty or the amount of the duty with which it is chargeable.
But a failure to comply with the requirements of that section is merely punishable under section 64 of the Stamp Act.
No provision in the Stamp Act empowers the Revenue to make an independent inquiry of the value of the property conveyed for determining the duty chargeable.
Article 23 is the Article that governs the charging of Stamp duty on "conveyance".
That Article to the extent relevant for our present purpose reads : "23.
Conveyance (as defined by section 2(10) not being a transfer charge or exempted under section 52Where the amount or value of the consideration for such conveyance as set forth therein. . " This Article has come up for consideration before various High Courts on a number of occasions.
In Ramen Chetty vs Mohamed Ghouse(1) the Calcutta High Court held that in determining whether a document is sufficiently stamped for the purpose of deciding upon its admissibility in evidence, the document itself as it stands, and not any collateral circumstances which may be shown in evidence must be looked at.
In Sakharam Shankar and Others vs Ramchandra Babu ohire,(2) it was held that in determining the question whether a particular document is sufficiently stamped, the Court should look at the instrument as it stands.
A Full Bench of the Allahabad High Court in the matter of Muhammad Muzaffar Ali(3) held that if in a deed of gift the value of the property dealt with is not set forth, the deed does not require any stamp, and it is not within the competence of the Collector to have the said property valued in order to assess the duty (1) (ILR 2 (ILR (3) (ILR 44 All. 339).
340 payable.
If, however, the value of the property is intentionally omitted with a view to defraud the Revenue, a prosecution will lie under section 64 of the Stamp Act.
A Division Bench of the Patna High Court in Sri Sitaram Ramalia and Another vs State of Bihar(1) held that the Collector had no power under section 40 of the Stamp Act to embark upon an inquiry with regard to the market value of the properties covered by the document and require the payment of further stamp duty in accordance with his finding as to valuation and, therefore, that the impugned orders of the Collector, Commissioner and the Board were ultra vires and were liable to be set aside under Article 227 of the Constitution.
Therein the Court was considering the scope of section 58 of the Stamp Act which requires that an instrument of settlement should be stamped with the same duty as a bond "for a sum equal to the amount or value of the property settled as set forth in such settlement.
" The Court observed that the words 'as set forth in the settlement" in the section refer back to the word "value" and not to the words "property settled".
Recently the same view was taken by the Andhra Pradesh High Court in Bharpet Mohammad Hussain Sahib and Another vs District Registrar, Kurnool(2).
No decision taking a contrary view was brought to our notice.
The question arising for decision in this case is settled by stare decision.
We are entirely in agreement with the view expressed in those decisions.
Even if we had been inclined to place a different interpretation on Article 23, we would have hesitated to do so in view of the long line of decisions to some of which we have already made reference.
The Legislature may have had.
good reasons for not empowering the Revenue to make an independent inquiry as regards the valuation of the right sought to be assigned.
Under any circumstance, there was no basis to hold that the consideration for the impounded Deed is the total amount received by Uttamchand under the agreements entered into between him and the persons to whom he had assigned certain rights in the flats, offices and shops in the building.
Those persons had an independent right of their own.
Their rights did not flow from the impounded Assignment Deed.
Whether the title obtained by them was perfect or not, there is no denying of the fact that they had acquired valuable rights even before the impounded Deed was executed.
For the reasons mentioned above, we allow this appeal and in place of the answers given by the High Court, we answer the question formulated by that Court thus "1.
The Article applicable in this case is Article 23 in the First Schedule to the Stamp Act, and (1) (ILR 39 Pat.
(2) TLR.
341 2.
the consideration is as mentioned in the Deed of Assignment itself i.e. no consideration.
" The first respondent shall pay the costs of the appellant in Civil Appeal No. 58 of 1972.
There will be no order as to costs in Civil Appeal No. 660 of 1967.

summary/full:
The lessee of a plot of land from Government sub leased it and the sub lessee built a building on it consisting of Rats, shops and offices.
The sub lessee assigned the rights of occupation of those flats etc.
under various .agreements.
Thereafter, the appellant company was incorporated and the sub lessee purported to assign all his rights in the building to the appellant company.
In the preamble to the deed it was recited that the company had been formed for the better administration of the building and for the protection of the interests of the persons occupying the flats etc., and that ;the sub lessee had agreed to assign to the appellant company all his interests in the, land and the building.
The consideration, mentioned in the document was nil and the document bore a stamp% of 12 annas.
When it was presented for registration, the authority impounded the deed, held that the appellant company was formed of and for the persons who had purchased the flats etc., that the real consideration for the assignment was .made up partly of what was paid by the occupiers of the flats etc., and determined the stamp duty and penalty under section 40 of the Stamp Act, 1899.
On a reference to the High Court it was held, that the article in the ,Schedule to the St amp Act applicable is article 23.
On the question of consideration, 'however, while one Judge held that the consideration was ,nil ' as mentioned in the deed, the majority held that the Revenue was not bound to accept the quantum of consideration mentioned in the deed, that the deed incorporated into itself the various agreements entered into between the sub lessee and the persons to whom rights were assigned in the flats etc., and that the consideration was the total amount payable to the sub lessee by those assignees.
Allowing the appeal to this Court, HELD: (1) Before the terms and conditions of an agreement can be said to have been incorporated into another document, it must be shown that the parties intended to do so.
In the present case, the mere reference to the earlier transactions in the deed did not amount to an incorporation in it of the terms and conditions of those transactions.
[338 F H] (2) In view of section 27 of the Stamp Act the parties to a document are required to set forth in the document fully and truly, the consideration (if any) and all other facts and circumstances affecting the chargeability of that document with duty.
But a failure to do so is merely punishable under section 64 of the Stamp Act.
There is no provision empowering the Revenue authorities to make an independent inquiry of the value of the property conveyed for determining the duty, even assuming that the charging words in article 23 do not mean that the Revenue must have regard 333 only to what the parties to the instrument have elected to state the consideration to be, but can assess the duty upon the value of the consideration as disclosed upon an examination of the terms of the instrument as a whole.
[339 A D] (3) There is a long line of decisions of the High Courts holding that the Legislature had not empowered the Revenue to make an independent inquiry as regards the valuation of the right sought to be assigned.
That view is correct and the question must also be held to be settled by state decision.
[340 D F] Ramen Chetty vs Mohomed Ghouse, I.L.R. , Sakharam Shankar vs Ramchandra Babu Mohire, I.L.R. , Muhammad Muzaffar Ali, In re.
I.L.R. 44 All.
339, Sri Sitaram Ramalla & Anr.
vs State of Bihar, I.L.R. 39 Pat.
228 and Bharpet Mohammad Hussain Sahib & Anr.
vs District Registrar, Kurnool, I.L.R. , approved.
(4) In any event, there was no basis for holding that the consideration for the deed was the amount received by the sub lessee from the persons to whom he assigned rights in the flats etc.
Those persons acquired an independent right and title whether perfect or not en before the impounded deed was executed, and their rights did not flow from the impounded deed.
[340 F G]