judgement:
ivil Appeal No. 5807 of 1983.
From the Judgment and Order dated 10.12.1982 of the Delhi High Court in L.P.A. No. 28 of 1982.
Soli J. Sorabjee, Harish N. Salve, P.H. Parekh and Dr. D.Y. Chandrachud for the Appellants.
Govind Das, Girish Chandra and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal by special leave involves an inter pretation of the proviso to section 71 of the Gold Control Act.
One Kesharimal Porwal, who had two flourishing business es a bidi factory at Kamptee and a gold and silver shop at Mandsaur died on October 7, 1952 leaving behind him surviv ing a widow Ratanbai, a daughter Shantabai and a son Nem Kumar.
Both Shantabai and Nem Kumar had each a son at the time of death of Kesharimal.
After the death of Kesharimal, Nem Kumar had four more sons.
1120 The said Kesharimal also left a will dated February 10, 1952 whereby he bequeathed certain gold and silver to his grandsons.
It was provided in the will that each grandson would receive 500 tolas of gold at the time of marriage and the remaining gold would be equally divided among them.
It may be stated here that at no stage the genuineness and validity of the will was questioned, nor have they been challenged before us.
On July, 9, 1968 the officers of the Central Excise, Nagpur, searched the residential premises of Nem Kumar and seized 10 slabs and 9 pieces of gold and 230 gold coins, weighing about 42,404 grams having at that time a market value of Rs.7,63,000, which were kept in a cupboard inside a big Godrej iron safe.
It is not disputed that the seized gold was primary gold.
On July 10, 1968, the officials of the Central Excise separately recorded the statements of Ratanbai and Nem Kumar.
It was stated by Ratanbai that the seized gold was the 'self earned property ' of her late husband, and that the same had been kept in the iron safe about 8/9 years ago.
She admitted that the keys of the shelf had all along remained in her possession.
Nem Kumar in his statement denied any knowledge about the gold.
He said that he had come to know of the existence of the gold for the first time when it was found out during the search.
A declaration in respect of seized gold was filed by Ratanbai to the Central Excise, Nagpur, on July 29, 1968.
The Collector of Central Excise, Nagpur, served two separate notices on Ratanbai and Nem Kumar calling upon them to show cause why the seized gold should not be confiscated and a penalty imposed for the violation of the provision of paragraph 9(1)(i) of the Gold Control Ordinance, 1968.
Both Ratanbai and Nem Kumar showed cause against the proposed confiscation and penalty.
The Collector came to the findings that Ratanbai had full knowledge of the gold and was in conscious possession of it for at least 8 9 years.
So far as Nem Kumar was con cerned, the Collector held that it was difficult to sustain the charge of possession, custody and control of the gold against him in view of the vagueness of the evidence and lacunae in investigation.
Accordingly, by his order dated May 15, 1970, the Collector came to the conclusion that it was only Ratanbai who had violated the provision of para graph 9(1)(i) of the Gold Control Ordinance, 1968 and di rected confiscation of the gold and imposition of penalty of Rs.38,000 on Ratanbai under paragraph 75 of the 1121 Gold Control Ordinance, 1968.
Nem Kumar was acquitted of the charges levelled against him.
The Ordinance was replaced by the GoAd Control Act, 1968.
Being aggrieved by the said order of the Collector.
Ratanbai preferred an appeal against the same to the Admin istrator under the Gold Control Act, 1968.
The Administra tor, however, dismissed the appeal by his order dated Febru ary 23, 1972.
Ratanbai filed an application for revision before the Central Government challenging the propriety of the order of the Administrator.
The appellant No. 1 Sushil Kumar, son of Nem Kumar, who had by now attained majority, also filed a revisional application before the Central Government.
Both the revisional applications were dismissed by the Central Government.
Thereafter, the appellants Nos. 1 to 5 and Surendra Kumar, since deceased, son of Shantabai, filed a writ peti tion in the Delhi High Court.
The learned Single Judge of the Delhi High Court, on an interpretation of section 71(1) of the Gold Control Act including the proviso thereto, took the view that the seized gold could not be ordered to be confiscated and no penalty could be imposed on Ratanbai.
In that view of the matter, the learned Judge quashed the order of confiscation and penalty and directed the return of gold to the petitioners.
The respondents could not accept the decision of the learned Judge and accordingly, preferred an appeal to the Division Bench of the High Court.
The Division Bench did not agree with the interpretation of the learned Judge on sec tion 71(1) of the Gold Control Act including the proviso thereto.
We shall have occasion to refer to the interpreta tion put forward on section 71(1) by the Division Bench of the High Court and it is sufficient to state here that the Division Bench set aside the judgment of the learned Single Judge and allowed the appeal of the respondents.
Hence this appeal by special leave by the sons of Nem Kumar, Shantabai and Nem Kumar himself.
Under rule 126 I of the Defence of India Rules 1962, every person other than a dealer was required to make a declaration as to the quantity, description and other pre scribed particulars of gold (other than ornaments) owned by him within thirty days from January 9, 1963, the date on which the Defence of India (Amendment) Rules, 1963 came into force.
Rule 126 H was amended by the Defence of 1122 India (Fourth Amendment) Rules, 1966.
Sub rules (1 A) to (I G) were added to rule 126 H. Sub rule (1 A) provided as follows: "(1 A) No person (other than a dealer or refiner licensed under this Part) shall, after the expiry of a period of six months from the commencement of the Defence of India (Fourth Amendment) Rules, 1966, either own or have in his possession, custody or control any primary gold.
" Clause (i) of sub rule (1 B), which is also important for our purpose, reads as follows: "(1 B) Every person who owns or has in his possession, custody or control at the com mencement of the Defence of India (Fourth Amendment) Rules, 1966, any primary gold which has been included in a declaration or further declaration made under rule 126 1 (as in force immediately before the commencement of the said Rules) or in respect of which no such declaration is required to be made under that rule, shall dispose of such primary gold in the following manner, namely: (i) If he, being the owner, is in pos session, custody or control thereof at such commencement, he shall, within a period of six months from such commencement, either sell such primary gold to a refiner or dealer licensed under this Part or deliver the same to a dealer or goldsmith licensed or certi fied, as the case may be, under this Part for conversion thereof into ornaments ;" The ground that weighed with the Central Excise Authori ties in confiscating the gold was that the acquisition, possession, custody or control of primary gold in question by Ratanbai became illegal and contraband and liable to confiscation, as she did not file any declaration required under rule 126 I of the Defence of India Rules, 1962 within thirty days from January 9, 1963 nor did she dispose of the gold by sale nor convert the same into ornaments in contra vention of clause (i) of sub rule (1 B), but possessed the same in violation of sub rule (1 A) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966.
But, after the amendment of section 71(1) of the Gold Control Act, 1968 by the addition of a proviso, the appellants have placed reliance upon the proviso.
1123 Initially section 71(1) was as follows: "71(1) Any gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened, shall be liable to confiscation." This Court in Badri Prasad vs Collector of Central Excise, [1971] Supp.
SCR 254 held that section 71 placed an unreasonable restriction on the right of a person to ac quire, hold and dispose of gold articles or gold ornaments.
In that view of the matter, this Court struck down section 71 as unconstitutional.
Thereafter, by Gold (Control) Amend ment Act, 197 1, a new section 71(1) was enacted with retro spective effect from 1 9 1968.
Sub section (1) of section 71, with which we are concerned, is as follows: "Sec.
71(1) Any gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened, together with any package, covering or receptacle in which such gold is found, shall be liable to confis cation: Provided that where it is estab lished to the satisfaction of the officer adjudging the confiscation that such gold or other thing belongs to a person other than the person who has, by any act or omission, ren dered it liable to confiscation, and such act or omission was without the knowledge or connivance of the person to whom it belongs, it shall not be ordered to be confiscated but such other action, as is authorized by this Act, may be taken against the person who has, by such act or omission, rendered it liable to confiscation.
" It is contended on behalf of the appellants that Ratan bai by her omission to dispose of the gold by sale or to convert the same into ornaments in accordance with the provision of rule 126 H, as amended by the Defence of India (Fourth Amendment) Rules, 1966, rendered the gold liable to confiscation without the knowledge or connivance of the owners thereof, namely, the grandsons of Kesharimal Porwal, the same cannot be confiscated in view of the proviso to section 71(1) of the Gold Control Act.
The learned Single Judge of the High Court upheld the contention and directed the release of the gold in favour of the appellants.
1124 On the other hand, the Division Bench of the High Court took a contrary view.
According to the learned Judges of the Division Bench, the proviso will apply only to such gold the possession of which can be retained.
As the gold in question was not converted or sold within the grace period of six months from March 1, 1967, such gold became contraband and the possession thereof by Ratanbai was illegal.
Moreover, under section 8(1) of the Gold Control Act, 1968, no person can own, acquire or possess primary gold.
In the view of the Division Bench, confiscation of primary gold is mandatory under section 8(1) of the Gold Control Act and earlier under the Defence of India Rules.
According to the Division Bench, the proviso cannot be so construed as to permit primary gold to be retained by prohibiting an order of confiscation from being passed.
The Division Bench held that possession of primary gold could never be legalised.
The principal question that falls for our consideration is whether the proviso to section 71(1) also relates to primary gold.
It is not disputed that the power of confisca tion of gold including primary gold is conferred by sub section (1) of section 71.
The expression "any gold" refers to all kinds of gold including primary gold.
Indeed, section 2(j) defines "gold" as meaning gold, including its alloy (whether virgin, melted or re melted, wrought or unwrought) in any shape or form, of a purity of not less than nine carats and includes primary gold, article and ornament.
We may now consider the contention made on behalf of the respondents that the proviso does not relate to primary gold.
The reason for this contention is that as, in view of section 8(1) of the Gold Control Act, nobody can retain possession of primary gold, the proviso cannot relate to primary gold, for, if the conditions mentioned in the provi so are fulfilled, the gold shall not be ordered to be con fiscated.
In other words, the gold would be allowed to be retained by the owner thereof.
It is submitted that such interpretation would render section 8(1) nugatory.
Section 8(1) is in the following terms: "Sec.
Save as otherwise provided in this Act, no person shall (i) own or have in his possession, custody or control, or (ii) acquire or agree to acquire the ownership, possession, custody or control of, or 1125 (iii) buy, accept or otherwise receive or agree to buy, accept or otherwise receive, any primary gold.
" There can be no doubt that in view of section 8(1), no person can own, acquire or retain possession, custody or control or primary gold.
It has already been noticed that under clause (i) of sub rule (1 B) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966, it was enjoined that the owner in possession, custody or control of primary gold was bound to either sell such primary gold to a licensed refiner or dealer or deliver the same to a licensed or certified dealer or goldsmith for conversion thereof into ornaments within a period of six months from September 1, 1967, the date of commencement of the said Rules.
Sub rule (1 A) of rule 126 H prohibits possession, custody or control of any primary gold after the expiry of the said period of six months.
In the instant case, it was Ratanbai who had failed to either sell or convert the primary gold in question within the grace period of six months without the knowledge and connivance of owners thereof, that is, the grandsons of Kesharimal Porwal.
If the contention of the respondents is accepted, it will mean that the owner of primary gold has to lose the same on account of default committed by somebody who is not the owner.
It was perhaps one of the considerations that weighed with this Court in Badri Prasad 's case (supra), namely, that the pawnee who is the owner has to suffer confiscation or to pay a fine in lieu of confiscation not exceeding twice the value as provided in section 73 of the Gold Control Act before the same was amended, not for any fault of his, but for the omission of the pawn broker to file declarations or monthly statements and this Court struck down the unamended provision of section 71 as uncon stitutional.
Therefore, in interpreting the provision of section 71(1) including the proviso thereto, we shall have to keep in view the above decision of this Court.
It is with a view to removing the unconstitutionality of the unamended provision of section 71 that section 71(1) has been re enacted with a proviso added to sub section (1) of section 71.
In that view of the matter, it is difficult to hold that the proviso does not relate to primary gold but to other kinds of gold.
It is also difficult to accept the contention that while the substantive provision of sub section (1) of section 71 relates to all kinds of gold 1126 including primary gold, the proviso which is a part of the substantive provision, will not include within its scope and ambit primary gold.
It is true that under section 8(1) of.the Gold Control Act, retention of possession of primary gold is prohibited.
But because of that, it will not be reasonable and justified to ignore the plain meaning of the proviso and to interpret it in such a manner as to render it inconsistent with the substantive part of sub section (1) of section 71.
The proviso lays down the circumstances under which any gold which is liable to confiscation will not be confiscat ed.
Confiscation deprives the owner of his property to his loss and detriment.
Where primary gold is not to be confis cated in view of the proviso to section 71(1), the owner thereof gets it back, but it does not mean that he will be entitled to retain possession of such primary gold which is forbidden by section 8(1) of the Gold Control Act.
In such a case, the owner has to sell the primary gold to a licensed refiner or dealer or deliver the same to a dealer or gold smith, licensed or certified, as the case may be, that is to say, in the same manner and following the same procedure as was laid down in sub rule (1 B) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966 and, in our opinion, so interpreted there will be no conflict between the proviso to section 71(1) and the provision of section 8(1) of the Gold Control Act.
Indeed, the Administrator under the Gold Control Act has issued an order No. 11/76 F. 13 1/41/75 GC.II dated 30 7 1976 whereby it is directed, inter alia, that where gold is seized and confiscated and thereafter released and if such release relates to primary gold, it is further directed: (a) such primary gold shall be sold to a licensed dealer or got converted into ornaments; (b) the person concerned shall, within one month of taking back into his possession, custody or control of such primary gold, furnish to the concerned Gold Control Officer a certificate from the licensed dealer that such primary gold has been sold to him and where such primary gold has been converted into ornaments, a certificate from the licensed dealer or the certified goldsmith, as the case may be, that such primary gold has been so converted.
Thus, there will be no difficulty in not confiscating the primary gold under the proviso, for after such release the owner of primary gold will not be entitled to retain possession of the same, but will have to dispose it of or convert the same into ornaments.
We do not, therefore, agree with the view expressed by the Division Bench of the High Court that the proviso to section 71(1) of the Gold Control Act does not relate to primary gold.
The Division Bench was greatly influenced by the fact that in view of section 8(1) of the Gold Control Act, the possession of primary gold cannot be retained by any person.
But, as 1127 already discussed above, such an interpretation is not possible to be made of the proviso to section 71(1).
The interpretation that we have put on section 71(1) will not run counter to the provision of section 8(1), in view of the fact that although the primary gold is not confiscated, it will not be allowed to be possessed by the owner, but has to be disposed of by him or converted into ornaments in the manner as mentioned above or as directed by the Administra tor by his said order dated 30 7 1976.
For the reasons aforesaid, we set aside the order of the Division Bench and modify the order of the learned Single Judge of the High Court directing that the seized primary gold shall be released in favour of the appellants with a further direction that the appellants shall either sell the same to a licensed dealer or deliver possession of the same to a licensed dealer or a certified goldsmith, as may be specified by the Administrator, immediately on the release of such primary gold.
The appeal is allowed, but in view of the peculiar facts and circumstances of the case, there will be no order as to costs.
S.L. Appeal allowed.

summary/full:
One Kesharimal Porwal, who had one of his businesses as gold and silver shop, died on October 7, 1952 leaving behind surviving a widow Ratanbai, a daughter Shantabai and a son Nem Kumar.
Kesharimal left a will whereby he bequeathed gold and silver.to his grandsons sons of Shantabai and Nem Kumar providing that each grandson would receive 500 tolas of gold at the time of marriage and the remaining gold would be equally divided among them.
The genuineness and validity of the will were not challenged at any stage.
On July 9, 1968, the officers of the Central Excise, Nagpur, searched the residential premises of Nem Kumar and seized 10 slabs and 9 pieces of gold and 230 gold coins having at that time a market value of Rs.7,63,000.
The gold seized was primary gold.
The officials of the Central Excise separately recorded the statements of Ratanbai and Nem Kumar.
Ratanbai stated that the seized gold was the 'self earned property ' of her late husband, and had been kept in the iron safe about 8/9 years ago, and that keys of the shelf had all along remained in her possession.
Nem Kumar in his statement denied any knowledge of the gold and said that he had come to know of the existence of the gold for the first time during the search.
A declaration in respect of the seized gold was filed by Ratanbai with the Central Excise.
The Collector of Central Excise served separate notices on Ratanbai and Nem Kumar, calling upon them to show cause why the seized gold should not be confiscated and a penalty imposed for violation of the provision of paragraph 9(1)(i) of the Gold Control Ordinance, 1968.
The notices were re plied by both.
The Collector came to the finding that Ratan bai had full knowledge of the gold and was in conscious possession of it for at least 8/9 years.
As for Nem Kumar, the Collector held that it was difficult to sustain the charge of possession and custody of the gold against him.
Accordingly, the Collector, held that only Ratanbai had violated the provision of paragraph 9(1)(i) of the 1117 Gold Control Ordinance, 1968, and directed the confiscation of the gold and imposition of a penalty of Rs.38,000 on Ratanbai under paragraph 75 of the Gold Control Ordinance, 1968, which was replaced by the Gold Control Act, 1968.
Nem Kumar was acquitted.
An appeal preferred by Ratanbai against the order of the Collector was dismissed by the Administrator under the Gold Control Act, Ratanbai then filed an application for revision before the Central Government, challenging the order of the Administrator.
The appellant No. 1, Sushil Kumar son of Nem Kumar, who had by then attained majority, also filed a revisional application before the Central Government.
Both the revisional applications were dismissed.
Thereupon, the appellants Nos. 1 to 5 and Surendra Kumar since deceased, son of Shantabai, filed a writ petition in the High Court.
The High Court (Single Judge) quashed the order of confisca tion and penalty and directed the return of the gold to the petitioners.
The respondents preferred an appeal to the Division Bench of the High Court.
The Division Bench did not agree with the interpretation of the learned Single Judge on section 71(1) of the Gold Control Act, including the proviso thereto, and set aside the judgment of the Single Judge.
Aggrieved by the decision of the High Court, the appellants moved this court for relief by special leave.
Allowing the appeal, the Court, HELD: The ground that weighed with the Central Excise Authorities in confiscating the gold was that the acquisi tion, possession, custody or control of primary gold in question by Ratanbai became illegal and liable to confisca tion, as she had not filed any declaration required under rule 126 1 of the Defence of India Rules, 1962, nor had she disposed of the gold by sale or converted the gold into ornaments in contravention of clause (i) of sub rule (I B), but had possessed the same in violation of sub rule (I A) of Rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966.
But, after the amendment of section 71(1) of the Gold Control Act, 1968, by addition of a proviso, the appellants placed reliance upon the proviso.
It was contended on behalf of the appellants that Ratanbai by her omission to dispose of the gold by sale or to convert the same into ornaments in accordance with the provision of rule 126 H, as amended by the Defence of India (Fourth Amendment) Rules, 1966 rendered the gold liable to confiscation without the knowledge or connivance of the owners of the gold, namely, the grandsons of Kesharimal Porwal, but the same could not be 1118 confiscated in view of the proviso to section 71(1) of the Gold Control Act.
The Learned Single Judge of the High Court had upheld the contention and directed the release of the gold in favour of the appellants.
[1122F H; 1123G H] The principal question that fell for the consideration of this Court was whether the proviso to section 71(1) also related to primary gold.
[1124D] Power of confiscation of gold including primary gold is conferred by sub section (1) of section 71.
The expression "any gold" refers to all kinds of gold, including primary gold.
In view of section 8(1) of the Gold Control Act, no person can acquire or retain possession, custody or control of primary gold.
Under clause (i) of sub rule (I B) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966, the owner in possession, custody or control of primary gold is bound to either sell such primary gold to a licensed refiner or dealer or deliver the same to a licensed or certified dealer or goldsmith for conversion thereof into ornaments within a period of six months from September 1, 1967, the date of the Commencement of the said Rules, Sub rule (1 A) of Rule 126 H prohibits the possession, custody or control of any primary gold after the expiry of the said period of six months.
[1124D E; 1125B C] In this case, it was Ratanbai who had failed to either sell or convert the primary gold within the grace period of six months without the knowledge and connivance of the owners thereof, that is, the grandsons of Kesharimal Porwal.
If the contention of the respondents was accepted, it would mean that the owner of the primary gold had to lose the same on account of default committed by somebody who was not the owner.
It was also difficult to accept the contention that while the substantive provision of sub section (1) of sec tion 71 related to all kinds of gold, including primary gold, the proviso, a part of the substantive provision, would not include primary gold within its scope and ambit.
The proviso lays down the circumstances under which any gold which is liable to confiscation will not be confiscated.
Where primary gold is not to be confiscated in view of the proviso to section 71(1), the owner thereof gets it back, but it does not mean that he will be entitled to retain possession of such primary gold which is forbidden by sec tion 8(1) of the Gold Control Act.
Thus there would be no difficulty in not confiscating the primary gold under the proviso, for after such release the owner of the primary gold will have to dispose it of or convert the same into ornaments.
The Court did not agree with the view expressed by the Division Bench of the High Court that the proviso to section 71(1) of the 1119 Gold Control Act did not relate to primary Gold.
The inter pretation put on section 71 (1) by the Court would not run counter to the provision of section 8(1) as the primary gold, not confiscated, would not be allowed to be possessed by the owner but had to be disposed of by him or converted into ornaments in the manner mentioned above or as directed by order date 30.7.76 of the Administrator under the Gold Control Act.
[1125D G; 1127A B] The Court set aside the order of the Division Bench and modified the order of the Single Judge of the High Court, directing that the seized primary gold should be released in favour of the appellants and the appellants would either sell the same to a licensed dealer or deliver possession thereof to a licensed dealer or a certified goldsmith, as might be specified by the Administrator, immediately on the release of such primary gold.
[1127C] Badri Prasad vs Collector of Central Excise, [1971] Supp.
S.C.R. 254, referred to.


judgement:
tion (Criminal) No. 669 of 1986.
(Under Article 32 of the Constitution of India).
R.K. Jain, R.P. Singh and Rakesh Khanna for the petitioners.
S.C. Mahanto, C.V.S. Rao and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
The petitioners who are life convicts in this writ petition have assailed a D.O. Letter No. 4665/1983 GI/G4/R.10 84 dated 24.4.1985 issued by the re spondent No. 3, Inspector General of Prisons, Haryana, Chandigarh intimating to the Superintendent of Jail that convicts who are on bail and whose sentences are suspended, are excluded from the remissions systems in view of the provisions of Section 637 of the Punjab Jail Manual on the ground that the aforesaid letter purports to deprive the petitioners from the benefit of remissions of 19 months and 12 days granted to them during the period they were on bail, while counting the total period of sentence including remis sions undergone by them in order to consider their cases of pre mature release from imprisonment.
1110 The petitioner No. 1, Jai Prakash was convicted by the District and Sessions Judge, Bhiwani, on December 4, 1975 under Section 302 of the Indian Penal Code and he was award ed life imprisonment.
Against this judgment and order of the Sessions Judge he preferred an appeal before the High Court of Punjab and Haryana and he was granted bail on 12.1.1976.
This appeal, however, was dismissed on 28.9.1978 and he was arrested on 29.1.1979 while he was going to the Court to surrender himself to serve out the remaining part of the sentence as stated by him.
The petitioner has stated that during the period he was on bail he earned remission of 19 months and 12 days.
Similarly, the petitioner Nos. 2 to 5 were also convict ed by the District and Sessions Judge, Bhiwani, on 23.3. 1976 in a case under Section 302 of the Indian Penal Code and they were awarded life imprisonment.
Petitioner Nos. 2 to 5 were directed to be released on bail by the High Court of Punjab and Haryana during the pendency of their appeal by order dated 7.4.1976.
The appeal was however dismissed by the High Court on 8.12.
1978 and they surrendered themselves before the Magistrate on 16.2.
1979 for serving out their remaining part of sentence.
The petitioner Nos. 2 to 5 were also given remissions of 19 months and 12 days during the period they remained on bail.
It has been stated that though all the petitioners were given remissions of 19 months and 12 days and they were under the impression that the period of remission earned by them would be taken into consideration under para 637 of Punjab Jail Manual while computing their sentence under Para 516 B of the Punjab Jail Manual.
They have now been informed by the respondent No. 3 as per his letter dated 24.4.1985 addressed to the Superintendent, District Jail, Bhiwani, respondent No. 2, that the convicts who were on bail and whose sentences were suspended would be excluded from the remissions purported to be earned by them while they were on bail.
The petitioners have submitted that a number of pris oners to whom remissions were given during the period when they were on bail were also released by the State Government after taking into consideration the remissions granted to them during the period when they were on bail or that their sentence had been suspended.
Names of six persons were mentioned in the petition who were pre maturely released.
It has been submitted on behalf of the petitioners that they are entitled to have their period of remissions earned by them during the period they were on bail, to be taken into account for consideration of their pre mature release under para 637 of the Punjab Jail Manual.
It has been further submitted that the aforesaid letter issued by the respondent No. 3 laying 1111 down guidelines and instructions to respondent No. 2, that is, Superintendent of District Jail, Bhiwani, is contrary to the provisions contained in para 637 of Punjab Jail Manual.
The petitioners have also stated that since they surrendered themselves before the jail authority after dismissal of their appeals by the High Court they are entitled to have the period of remissions earned by them to be counted while considering the total period of sentence undergone for their premature release.
A counter affidavit affirmed by the Superintendent of District Jail, Bhiwani has been filed.
It has been stated therein that no remission of period of sentence is permissi ble under paragraph 637 or any other provision of the Punjab Jail Manual (as applicable in Haryana) for the period that the convict remains on bail or his sentence is otherwise under suspension.
Even the benefit of special remissions allowed to convicts under State Government orders on visits of the Hon 'ble Minister for Jail (though such orders did result in anomalous situations and on the basis of experi ence the Government is inclined to restrict such orders) cannot be available to the petitioners.
It has been further averted that a perusal of the relevant orders of 1977 would show that the orders were applicable to prisoners who had been convicted before the date of visit of the Hon 'ble Minister in 1977, were released on bail subsequently and surrendered in the jail for undergoing the unexpired portion of the sentence.
The petitioners are not entitled to the benefit claimed as they had not surrendered in the jail for undergoing the remaining period of the sentence.
The appeal of petitioner No. 1 had been dismissed on 28.9.1978 but he did not surrender for several months.
Ultimately, warrants for his arrest were issued by the Chief Judicial Magistrate on 24.1.
1979 and he was arrested and sent to jail on 29.1.
According to the petitioners ' own averments in para 2 of the petition, the other four writ petitioners remained out of jail for more than two months after the dismissal of their appeal.
It is evident that they had not surrendered in the jail for undergoing the remaining period of sentence immediately after dismissal of their appeals.
It has been further averted that even if any remission had been ordered inadvertently against relevant rules, it is in the interest of administration of justice that the mistake is rectified and not perpetuated by taking further action on its basis.
It has also been stated that similar cases of remission earned during the period of bail came up before the High Court of Punjab and Haryana and it was held by the High Court that special remissions were not available to the convicts who had not surrendered voluntarily on the expiry of the bail period.
It has been stated further that non surrender of the convict for 1112 several months after dismissal of appeal by itself showed that the surrender was not voluntary and such a convict did not merit the remission and an interpretation different from that would defeat the administration of justice.
It has been averred that petitioners could not avail of the remissions ordered erroneously and inadvertently not in accordance with the relevant rules.
As regards the six specific cases men tioned, it has been stated that the benefit was given to Tuhi Ram and Dig Ram only but not in the cases of the other four convicts referred to in the petition.
They were denied the benefit as it is being done to the petitioners.
Para 637 of the Punjab Jail Manual which is relevant for consideration of the question raised, is set out herein: "MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF JAILS IN THE PUNJAB 637.
Subject to the provisions of paragraph 634 remission under paragraph 635 shall be calculated from the first day of the calendar month next following the date of the prison er 's sentence: any prisoner who, after having been released on bail or because his sentence has been temporarily suspended is afterwards re admitted in the jail, shall be brought under the remission system on the first day of the calendar month next following his re admission, but shall be credited on his return on jail with any remission which he may have earned previous to his release on bail or the suspension of his sentence.
Remission under paragraph 636 shall be calculated from the first day of the next calendar month following the appointment of the prisoner as convict warder, convict overseer or convict night watchman.
" On a reading of the aforesaid provision it is manifest that a prisoner who has been released on bail or whose sentence has been temporarily suspended and has afterwards been re admitted in jail will be brought under remission system on the first day of the calendar month next following his re admission.
In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended.
The submission that the petitioners who were temporarily released on bail are entitled to get the remission earned during the period they were under bail, is not at all sustainable.
As such the remissions that were inadvertently given to these petition ers cannot be taken into account in considering the total 1113 period of sentence undergone by them while considering their premature release from imprisonment under paragraph 637 of the Punjab Jail Manual.
It also appears from the order of the Governor of Haryana dated 14th August, 1977 annexed as Annexure 'R1 ' to the writ petition that the special remis sion was granted by the Governor of Haryana to only those prisoners who were in confinement on 14th August, 1977 on the occasion of the first visit of the Chief Minister of Haryana to jail and who had been subsequently released on bail.
It is pertinent to set out paragraph 2 of the said order: "All those prisoners who have been convicted before the 14th August, 1977 but subsequently released on bail shall be enti tled to the remission only if they surrender in the jail for undergoing the unexpired portion of their sentence.
" The petitioners though convicted prior to 14th August, 1977 that is the date of visit of the Hon 'ble Minister to the Jail were granted bail before the said date.
As such they are not entitled to the said remission in accordance with the order of Governor of Haryana.
Secondly, all these petitioners did not surrender in the jail for undergoing the unexpired portion of their sentences immediately after their appeals were dismissed by the High Court.
On the other hand, the petitioner No. 1 whose appeal was dismissed on 28.9.
1978 did not surrender either to the jail or to the Magis trate for serving out the remaining part of sentence till he was arrested on 29.1.
1979 in pursuance of the warrant issued by the court.
The petitioner Nos. 2 to 5 who were released on bail by the High Court during the pendency of their appeal did not surrender in the jail immediately after their appeal was dismissed on 8.12.
They surrendered themselves to the Magistrate only on 16.2.
1979 to serve out the remaining part of their sentence.
As such, it cannot be said that they have surrendered in jail for undergoing their unexpired period of sentence immediately after their appeals were dismissed and so they are not eligible for remissions as envisaged in the said Government order dated 14.8.
1977 referred to hereinbefore.
It appears that the respondent No. 3.
the Inspector General of Police, Haryana, Chandigarh issued a letter being D.O. No. 4665/ 1983 GI/G4/R. 10 84 dated 24.4.
1985 to all Superintendents of Jails including the Superintendent of District Jail, Bhiwani, drawing their attention to paragraph 2 of the letter dated 11/14 1 1985 from the State Government to the Jail Department which is to the following effect: 1114 "Attention of all Superintendents of Jails is drawn to para 4 of the Government letter under which Government have affirmed that convicts who are on bail and whose sentences have been suspended are excluded from the remissions systems in.
view of the provisions of para 637 of the Punjab Jail Manual.
" This D.O. letter has been annexed as Annexure 'A ' to the writ petition.
The letter dated 11/14 January, 1985 issued by the Gover nor of Haryana to the respondent No. 3 is an nexed as Annexure 'R5 ' to the writ petition.
The relevant excerpt of it is set out herein below: "It has been decided that such remissions will be granted only in the following cases: (i) All the convicts, convicted by the civil courts with criminal jurisdiction in the Haryana State and were present in the jails on the date and time of the visit of the Jail Minister or other high dignitaries.
(ii) All the convicts who were on parole/furlough from that jail on the date and time of the visit of the Jail Minister subject to the condition that they surrender at the Jail on the due date after the expiry of parole/furlough period for undergoing the unexpired portions of their sentences.
. . . 4.
Your attention is also invited to para 637 of the Punjab Jail Manual which provides that convicts who are on bail and whose sentence has been suspended are excluded from the remission system.
" It is clear and evident from this letter that convicts who were on parole from jail on the date and time of the visit of the Chief Minister to the Jail will be granted remissions on condition that they surrender at the jail on the due date after expiry of parole period for undergoing the unexpired period of their sentence.
This means that a convict in order to get the benefit of remission as directed by the said order issued under Article 16 1 of the Constitu tion of India has to surrender voluntarily at the Jail after expiry of bail.
In the instant case, petitioner No. 1 did not surrender in jail or before the Magistrate after his appeal was dismissed by the High Court and the petitioner No. 1 had been 1115 arrested under warrant of arrest as he did not surrender in jail after his appeal was dismissed.
Petitioners who were on bail also did not surrender immediately after dismissal of their appeal but they surrendered themselves after two months of dismissal of their appeal.
In such circumstances, it cannot be said that the petitioners are entitled to the remissions as envisaged in the said Government order dated 11/14 January, 1985.
The letter of the respondent No. 3 the Inspector General of Prisons, Haryana, Chandigarh i.e.D.O.
Letter No. 4665/1983 GI/G4/R10 84 dated 24.4.1985 is quite in accordance with the Government order made on 11/14 Janu ary, 1985 and the respondent No. 3 in fact quoted paragraph 2 of the said letter which contains the necessary requisite for grant of remissions from sentence.
The said D.O. letter of the respondent No. 3 cannot therefore be challenged as in violation of paragraph 637 of the Punjab Jail Manual nor it is contrary to the directions contained in the aforesaid order.
In the premises aforesaid, this writ petition is dis missed.
There will be no order as to costs.
N.P.V. Petition dis missed.

dataset_name: IN-Abs

summary/full:
The petitioner No. 1 and petitioners Nos. 2 to 5, were convicted in two separate incidents for offence under Sec.
302 Indian Penal Code and were undergoing life imprisonment awarded to them.
They were directed to be released on bail by the High Court during the pendency of their appeals.
The appeal of the first petitioner was dismissed on 28.9.78 and he was arrested on 29.1.79.
The appeal of the petitioners Nos. 2 to 5 was also dismissed on 8.12.78 and they surren dered before the Magistrate on 16.2.79 for serving out the remaining part of their sentence.
By an order dated August 14, 1977, special remission was granted by the Governor of Haryana to prisoners who were in confinement on 14th August, 1977 on the occasion of the first visit of the then Chief Minister of the State to jail, and who had been subsequently released on bail.
All the petitioners were given remissions of 19 months and 12 days during the period they remained on bail.
The petitioners were informed by the third respondent, by letter dated 24.4.1985 to the second respondent that the convicts who were on bail and whose sentences were suspended would be excluded from the remissions purported to have been earned by them while they were on bail.
In the writ petition, the petitioners assailed the guidelines and instructions laid down in the impugned letter as contrary to the provisions contained in Para 637 of the Punjab Jail Manual.
They contended that since they surren dered themselves before the jail authority after 1108 the dismissal of their appeal by the High Court they were entitled to have the period of remissions earned by them during the period they were on bail to be counted for con sidering the total period of sentence undergone for their premature release, under the aforesaid para.
A counter affidavit affirmed by the second respondent was filed stating that no remission of period of sentence was permissible under paragraph 637 or any other provision of the Punjab Jail Manual, as applicable in Haryana, for the period that the convict remained on bail or his sentence was otherwise under suspension, that the special remission under State Government orders on visit of Minister for Jails was allowed only to those prisoners who were convicted before the visit and released on bail subsequently and the convicts surrendered to undergo the unexpired period of sentence and that the petitioners were not entitled to the benefit claimed as they had not surrendered in the jail.
Dismissing the writ petition, this Court, HELD: 1.1 The impugned letter of the third respondent is quite in accordance with the Government order made on 11/14 January, 1985 and, therefore, cannot be challenged as in violation of paragraph 637 of the Punjab Jail Manual nor it is contrary to the directions contained in the aforesaid order.
[1115B C] The remissions that were inadvertently given to the petitioners cannot be taken into account in considering the total period of sentence undergone by them while considering their premature release from imprisonment under para 637 of the Punjab Jail Manual.
[1112H, 1113A] 1.2 On a reading of para 637 of the Punjab Jail Manual, it is manifest that a prisoner who was released on bail or whose sentence was temporarily suspended and was re admitted in jail afterwards would be brought under the remission system on the first day of the calendar month next following his readmission.
In other words, a prisoner is not eligible for remission of sentence during the period he was on bail or his sentence was temporarily suspended.
[ 1112F G] 1.3 The special remission was granted by the order of the Governor dated 14th August, 1977, to only those peti tioners who were in confinement on 14th August, 1977 on the occasion of the first visit of the then Chief Minister of the State to jail, and who had been subsequently released on bail.
It is clear and evident from the letter dated 11/14th January, 1985 issued by the Governor that convicts who were 1109 on parole from jail on the date and time of the visit of the Chief Minister to the Jail will be granted remissions on condition that they surrender at the jail on the due date after expiry of parole period for undergoing the unexpired period of their sentence.
In order to get the benefit of remission as directed by the said order issued under Article 161 of the Constitution of India, a convict has to surrender voluntarily after expiry of bail at the jail.
[1113B, 1114G] In the instant case, the petitioners, though convicted prior to the visit to the jail of the Chief Minister, were granted bail before the said date.
Further, all the peti tioners did not surrender in jail immediately after their appeals were dismissed.
While petitioner No. 1 did not surrender till he was arrested after four months in pursu ance of the warrant issued by the Court, petitioners No. 2 to 5 surrendered themselves to the Magistrate only after 2 months.
Therefore, they were not eligible for remissions as envisaged in the Government orders dated 14.8.1977 and 11/14th January, 1985.
[1113D F]


judgement:
No. 1123 of 1986.
(Under Article 32 of the Constitution of India).
R.K. Garg and J.R. Das for the petitioner.
A.K. Panda and Vinoo Bhagat for the Respondents.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This is a petition under Article 32 of the Constitution challenging the validity of the list of candidates prepared by Orissa Public Service Commission, Cuttack for appointment as Probationary Munsifs in the State Judicial Service.
The selection of candidates for subordinate judicial service is governed by the Orissa Judicial Service Rules, 1964 (the "Rules").
The Rules were flamed under the proviso to Article 309 read with Article 234 of the Constitution of India.
The State Public Service Commission (The "Commission") is the selecting authority.
The candidates are required to be selected by written test followed by viva voce test.
The written examination carries the maximum marks of 950 and the viva voce test 200.
In accordance with the Rules, the Commission issued advertisement No. 12 of 1982 83 inviting applications from eligible candidates for posts of Probationary Munsifs.
The petitioner was one of the candidates who applied in response thereof.
In the written examination conducted by the Commis sion the petitioner secured 470 marks.
He was called for viva voce test in which he was given 30 marks.
He thus secured in all 500 out of 1150.
The Commission prepared a list of candidates which we may term as 'select list ' and recommended to the Government altogether 56 candidates in four batches as desired by the latter.
The petitioner did not find a place in that list.
The candidates with less number of aggregate marks than that of the petitioner have, however, been selected.
The petitioner, therefore, chal lenges the validity of selection, on the ground among others that it is arbitrary and contrary to the Rules.
1100 The reason for exclusion of the petitioner from the select list is not obscure.
It has been at any rate now made explicit.
He did not secure the minimum qualifying marks prescribed by the Commission in the viva voce test.
In the counter affidavit filed on behalf of the Commission it has been so stated.
It is said that the Commission has taken a decision that a candidate to be suitable for the post of Munsif, should secure at least 30% at the viva voce test.
That decision was taken on the advice of the High Court Judge.
The question for our consideration is whether the mini mum marks prescribed by the Commission at the viva voce test is justified, and whether the select list prepared by the Commission is in accordance with the Rules.
Rules 16, 17, 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination: These Rules read as under: Rule 16: "The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be the (30%) of the total marks in all the papers: Provided that Government may after consulta tion with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.
Rule 17: The Chief Justice or any of the other Judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candi dates at the viva voce test from the point of view of their possession of the special quali ties required in the judicial service, but shall not be responsible for selection of candidates.
Rule 18: The marks obtained at the vive voce test shall be added to the marks obtained in the written examination.
The names of candi dates will then be arranged by the Commission in order of merit.
If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks, secured at the written examination.
Should the marks secured at the written exami nation of the 1101 candidate concerned be also equal, then the order shall be decided in accordance with the total number of marks obtained in the optional papers.
Rule 19: (1) The Commission shall then forward to the Government in the Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs to Schedule Caste or Scheduled Tribes.
(2) The list prepared shall be published by the Commission for general information.
(3) The list, unless the Governor in consulta tion with the High Court otherwise decides, shall ordinarily be in force for one year from the date of its preparation by the Commi ssion.
" The Rule making authorities have provided a scheme for selection of candidates for appointment to judicial posts.
Rule 16 prescribes the minimum qualifying marks to be se cured by candidates in the written examination.
It is 30% of the total marks in all the papers.
The candidates who have secured more than that minimum would alone be called for viva voce test.
The Rules do not prescribe any such minimum marks to be secured at the viva voce test.
After the viva voce test, the Commission shall add the marks of the viva voce test to the marks in the written examination.
There then, Rule 18 states: "The names of candidates will then be arranged by the Commission in the order of merit.
" This is the mandate of Rule 18.
The Commission shall add the two marks together, no matter what those marks at the viva voce test.
On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit.
The list so prepared shall be forwarded to the Government.
The Commission has no power to exclude the name of any candidate from the select list merely be cause he has secured less marks at the viva voce test.
Similar pattern of selection is generally found in all the rules of recruitment which prescribe written examination and also viva voce test.
There are two authorities of this Court in this aspect of the matter.
In P.K. Ramchandra Iyer & Ors.
vs Union of India & Ors.
, ; this Court considered the scope of recruitment rules 1102 governing the selection of candidates to various disciplines under the Indian Council of Agricultural Research.
There the Agricultural Scientists Recruitment Board (ASRB) was re quired to select candidates by holding competitive examina tion and viva voce test.
ASRB prescribed minimum qualifying marks which a candidate must obtain at the viva voce test before his name could be included in the merit list.
The question that fell for consideration was whether the ASRB was competent to prescribe such a minimum? Accepting the contention that ASRB has no such power, this Court observed (p. 244): "Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candi date at the viva voce test.
On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination.
The additional qualification which ASRB pre scribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the Rules.
By necessary inference, there was no such power in the ASRB to add to the required qualifica tions.
If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm.
" The closest to the facts of this case is the recent decision of this Court in Umesh Chandra Shukla etc.
vs Union of India, [19851 Supp. 2 SCR 367.
There the scope of Delhi Judicial Service Rules, 1970 came up for considera tion.
Rules 17 and 18 of the Delhi Judicial Service Rules, 1970 are similar to Rules 16 and 18 of Orissa Judicial Service Rules, 1964.
The Selection Committee constituted under these Rules consisted among others of Judges of the High Court of Delhi.
The Selection Committee apparently thought that it has got power to exclude candidates securing less than 600 marks in the aggregate as not being suitable for appointment to the Judicial Service.
Accordingly it excluded all such candidates from the select list.
It was contended before this Court that the Selection Committee would be competent to 1103 prescribe a minimum standard to be crossed by candidates at the vive voce test in order to be suitable for appointment to judicial posts.
Repelling that contention this Court ob served (pp. 382 383): "With regard to the second contention, namely, that the High Court had no power to eliminate the names of candidates who had secured less than 600 marks in the aggregate after the viva voce test, reference has to be made to Rules 17 and 18 of the Rules which provide that the Selection Committee shall call for viva voce test only such candidates who are qualified at the written test as provided in the Appendix and that the Selection Committee shall prepare the list of candidates in order of merit after the viva voce test.
There is no power reserved under rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list.
It is stated in paragraph 7 of the counter affidavit filed in Writ Petition No. 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service.
It is not neces sary to consider in this case whether any other reason such as character, antecedents, physical fitness which may disqualify a candi date from being appointed to the Delhi Judi cial Service may be taken into consideration by the Selection Committee while preparing the final list.
But on going through the Rules, we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial service.
The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix.
The question whether a candidate included in the final list prepared and forwarded by the Selection Committee may be appointed or not is a matter to be considered by the appointing authority.
In the instant case the decision that a candidate should have sec 1104 ured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee.
Moreover, recruit ment of persons other than District Judges to the Judicial Service is required to be made under Article 234 of the Constitution in accordance with the Rules made by the Governor as provided therein, in consultation with the High Court.
Article 235 which vests in the High Court the control over the District Courts and Courts subordinate thereto, cannot include the power of making rules with regard to recruitment of persons other than District Judges to the judicial service as it has been expressly dealt with in Article 234 of the Constitution.
We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix.
We are, therefore, of the view that the exclusion of the names of certain candi dates, who had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under rule 18 of the Rules is not legal." In the light of these decisions the conclusion is inevi table that the Commission in the instant case also has no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appoint ment as Munsifs.
It was, however, urged by counsel for the respondents that the principles enunciated by the aforesaid two deci sions of this Court cannot be extended to the case on hand.
The counsel sought to derive support for their contention on rule 17.
Rule 17 provides that the Chief Justice or any other Judge of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test.
He shall also advice the Commission on the fit ness of the candidates at the viva voce test.
The advice may relate to the special qualities to be possessed by candi dates for Judicial Service.
The Rule 17, however, proceeds to state that such a Judge shall not be responsible for selection of candidates.
The contention for the respondents was that a Judge of the High Court was present at the viva voce test.
He was an expert in the field.
He was primarily concerned with regard to fitness of candidates for judicial service.
He advised the Commission to determine the minimum marks to be secured at the viva voce test.
The Commission accepted the advice and determined the cut out 1105 marks in the viva voce.
It was also contended that the Judge could advise as to fitness of candidates for judicial ap pointment and his advice could also relate to the minimum which a candidate should secure in the viva voce test.
If such power is not conceded to the Judge, his presence at the interview as provided under rule 17 would totally be unnec essary.
We are not persuaded by this argument.
That does not mean that we are doubting the purpose of rule 17.
The pur pose is undoubtedly laudable and indeed, it is in accordance with the observations of this Court in Ashok Kumar Yadav and Ors.
vs State of Haryana and Ors etc.
etc., [19851 Supp. 1 SCR 657.
There it was observed: "It is therefore essential that when selec tions to the Judicial Service are being made, a sitting Judge of the High Court to be nomi nated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who, by reason of the fact that he is a sitting High Court Judge knows the quality and character of the candidates ap pearing for the interview, the advice given by him should ordinarily be accepted, unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission.
" But the crux of the matter is whether the Judge present at the viva voce test has the power to add anything to the Rules of recruitment.
He may advice the Commission as to the special qualities required for judicial appointments.
His advice may be in regard to the range of subjects in respect of which the viva voce shall be conducted.
It may also cover the type and standard of questions to be put to candidates; or the acceptance of the answers given thereof.
But his advice cannot run counter to the statutory Rules.
The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution.
Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State.
It shall be in accordance with the rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court.
The Rules in question have been made after consultation with the Commission and the State High Court.
The Commission 1106 which has been constituted under the Rules must, therefore faithfully follow the Rules.
It must select candidates in accordance with the Rules.
It cannot prescribe additional requirements for selection either as to eligibility or as to suitability.
The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority.
In the result we allow the petition and quash the selec tion made by the Orissa Public Service Commission with a direction to redo the select list on the basis of the aggre gate marks obtained by the candidates in the written exami nation and at the viva voce test and in the light of the observations made.
The list so prepared shall be forwarded to the Government as required under rule 19 of the Rules for appointments as Munsifs.
The persons who fall within the revised list, if they are already in service need not be disturbed.
Their inter se seniority, may however, be regu lated as per the rankings in the revised list.
In the circumstances, however, we make no order as to cost.
P.S.S. Petition allowed.

summary/full:
The petitioner had secured 470 marks out of 950 in the written examination conducted by the Orissa Public Service Commission for the post of Probationary Munsifs for the year 1982 83.
In the viva voce test he was given 30 marks out of 200.
But he did not find a place in the merit list though candidates with less number of aggregate marks had been selected.
In the writ petition under article 32 of the Constitution he challenged the validity of selection on the ground, among others, that it was arbitrary and contrary to rules.
For the respondents it was submitted that the Commission had taken a decision on the advice of the High Court Judge who was present at the viva voce test as provided under r. 17 of the Orissa Judicial Service Rules, 1964, that a candidate to be suitable for the post of Munsif should secure at least 30 per cent marks at the viva voce test, and that the petition er did not secure the minimum qualifying marks so pre scribed.
Allowing the writ petition, HELD: 1.
The decision of the Orissa Public Service Commission to prescribe the minimum marks to be secured at the viva voce test for the post of Probationary Munsifs in the State Judicial Service was illegal and without authori ty.
[1106B] 2.1 The Orissa Judicial Service Rules, 1964 flamed under the proviso to Article 309 read with Article 234 of the Constitution, have been made by the Governor of the State after consultation with the State 1098 Public Service Commission and the State High Court.
The Commission, which has been constituted under the Rules must, therefore, faithfully follow the Rules.
It must select candidates in accordance with the Rules.
It cannot prescribe additional requirements for selection either as to eligibil ity or as to suitability.
[1105G H; 1106A] 2.2 Rule 16 of the Rules requires a candidate to secure a minimum of 30 per cent marks in the written examination to qualify.
The candidates who have secured more than that minimum would alone be called for viva voce test.
The Rules do not prescribe any such minimum marks to be secured at the viva voce test.
Rule 18 mandates the Commission to add the marks obtained at the written examination and the viva voce test together, no matter what the marks at the viva voce test.
On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit.
The list so prepared is then to be forwarded to the Government under Rule 19.
[1101D E; F] The Commission, therefore, had no power to exclude the name of any candidate from the select list merely because he had secured less marks at the viva voce test.
[1101G] P.K. Ramchandra Iyer & Ors.
vs Union of India & Ors.
, ; ; and Umesh Chandra Shukla etc.
vs Union of India, [1985] Supp. 2 SCR 367, referred to.
Even if the minimum qualifying marks were fixed for the viva voce test by the Commission on the advice of the High Court Judge, present at the viva voce test in accord ance with r. 17 of the Rules, that cannot validate the action of the Commission, for he had no power to add any thing to the Rules of recruitment.
Rule 17 itself proceeds to state that such a Judge shall not be responsible for selection of candidates.
He may advise the Commission as to the special qualities required for judicial appointments.
His advice may be in regard to the range of subjects in respect of which the viva voce shall be conducted.
It may also cover the type and standard of questions to be put to candidates or the acceptance of the answers given thereof.
But his advice cannot run counter to the statutory Rules.
[1104F H; 1105F] Ashok Kumar Yadav and Ors.
vs State of Haryana and Ors. etc.
etc., [1985] Supp. 1 SCR 657, referred to. 4.
The Orissa Public Service Commission is directed to re do the select list on the basis of the aggregate marks obtained by the candidates 1099 in the written examination and at the viva voce test.
The list so prepared to be forwarded to the Government as re quired under r. 19 of the Rules for appointments as Munsifs.
The persons who fall within the revised list, if already in service need not be disturbed.
Their inter se seniority to be regulated as per the rankings in the revised list.
[1106B D]


judgement:
ivil Appeal No. 696 of 1973.
From the Judgment and Order dated 14.7.1972 of the Orissa High Court in First Appeal No. 117 of 1971.
B.P. Singh and Ranjit Kutnar for the Appellants.
Vijay Mohanty, P.N. Misra S.K. Jaina for the Respondents.
The Judgment of the Court was delivered by, SINGH, J.
This appeal on certificate under article 133(1)(a) of the Constitution is directed against the Judg ment and Order of the High Court of Orissa at Cuttack set ting aside the order of the Subordi 291 nate Judge, Cuttack and reducing the amount of compensation awarded to the appellants.
The appellants are owners of plots in dispute which include Plot Nos.
177/16, 177/16 A, 177/17 and 177/17 A and situate in village Jagbhairab having an area of about 12 acres.
A notification under sec.4 of the Land Acquisition Act, 1894 was 'issued on 2.2.67 and in pursuance thereof the appellants ' land along with other land was acquired by the Government for the purpose of construction of Aviation Research Centre at Charbatiya.
The Collector award compensa tion to the appellants at the rate of Rs.2,000 per acre.
On a reference made at the instance of the appellants the Subordinate Judge, Cuttack awarded compensation at the rate of Rs.15,000 per acre.
On appeal by the respondents, the High Court modified the order of the Subordinate Judge and directed that the appellants be paid compensation at the rate of Rs.7,500 per acre.
Aggrieved, the appellants have preferred this appeal after obtaining certificate from the High Court.
Learned counsel for the appellants urged that the High Court was not justified in reducing the compensation awarded by the Subordinate Judge, as there was ample evidence on record to show that the market value of the land was much more than determined by the High Court and developmental activities had taken near the land as result of which the value of the land had appreciated tremendously.
The learned counsel brought to our notice a number of judgments of the High Court where compensation for adjacent land acquired by the same Notification was determined at the rate of Rs. 15,000 per acre.
In those cases Advocate General appearing on behalf of the respondents before the High Court had conceded that the claimants were entitled to compensation at the rate of Rs.15,000 per acre in the area in question.
Learned Counsel further urged that the appellants ' land as well as the land of other claimants who have been awarded compensation at the rate of Rs. 15,000 per acre by the High Court are adjacent and there was no valid ground to award compensation to the appellants at a reduced rate.
We have been taken through the judgment under appeal and other judgments of the High Court and the evidence on record.
After hearing counsel for the parties and having perused the records we find merit in the appellants ' submis sion.
It is well settled that the owner of the acquired land is entitled to compensation on the basis of its market value.
Section 23 of the Act lays down principles for deter mining compensation according to which the owner is entitled to receive 292 market value of the land.
Market value means what a willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going on in the vicinity and the potentiality of the land.
On the evidence on record it is apparent that the land in dispute is adja cent to the Industrial area of Charbatiya where a large number of factories including Orissa Textile Mills, Kalinga Tubes Ltd., a number of other factories are situate.
The evidence on record further indicates that even though the land was being used for agriculture purposes but it was fit for non agricultural purposes and it had potentiality for future use as factory or building site.
The learned Subordi nate Judge on perusal of the oral and documentary evidence on record determined the market value of the land at the rate of Rs. 15,000 per acre.
The High Court held that since the State Government had been offering land situate in the adjacent Industrial Area to the industrialists at the rate of Rs.7,500 per acre, the appellants were entitled to com pensation at that rate.
In our opinion the High Court com mitted error in taking that approach, as it had itself observed that the State Government had offered land to the industrialists to enable them to set up industries and the price of the land was offered to them at a concessional value with a view to induce them to set up factory.
After making that observation High Court was not justified in determining the market value of the land at Rs.7,500 per acre, as the offer of land to Industrial enterprenuers at concession rate could not reflect the market value of the land.
Market value means, the prince which a purchaser is willing to pay of the similar land to a willing seller.
An offer of sale of land to industrialists on concessional rate with a view to induce them to set up their industries in a particular area do not reflect the prevailing market value of the land.
The industrialists who were offered the land at concessional rates are not the willing purchasers.
The High Court committed error in proceeding on the assumption that the concessional rate offered by the Govt.
to the Industri alists indicated the market value of similar land.
The High Court further held that since the appellants had purchased the land at the rate of Rs. 100 per acre in the year 1956, they were not entitled, in any event, to compensation more than Rs.7,500 per acre, this view is untenable.
There is evidence on record to show that the land which was purchased in the year 1956 had no potentiality at that stage, as Industrial acre had not developed near the land.
After the setting up industrial area of Charbatiya the price of the land 293 situate in its vicinity had increased tremendously.
It is a matter of common knowledge that price of land near the vicinity of industrial area is bound to rise.
Admittedly the appellants ' land is situate near the industrial area, there fore its value had increased and the High Court committed error in ignoring this aspect by determining the compensa tion.
Plot No. 177 is a big plot having various sub plots which are owned by different persons.
The appellants are owners of Plots Nos. 177/16, 177/16 A, 177/17 and 177/17 A.
The land contained in other sub plot Nos.
177/19, 177/10 and 177/7 was also acquired and the compensation in respect thereof was determined by High Court uniformally at the rate of Rs. 15,000 per acre.
There are five judgments of the High Court on record in respect of various sub plots of Plot No. 177.
On a perusal of those judgments, it is evident the High Court has awarded compensation at the rate of Rs. 15,000 per acre for the land which is quite adjacent to the appellants land.
The High Court has observed in its Judgment in First Appeal No. 173 of 1971 connected with First Appeal No. 174 of 1971, Collector, Cuttack vs Karunakar Mahanty, decided on October 21, 1975, that the Advocate General appearing on behalf of the State conceded that in view of the decision of the High Court in respect of the similar land in the vicini ty it was not possible on his part to question the valuation of the acquired land as fixed by the Subordinate Judge at the rate of Rs. 15,000 per acre.
In that case plot No. 177/13 was the subject matter of the acquisition.
We have also perused a copy of the map which is on record.
We find that the appellant 's land is quite adjacent to those plots which were the subject matter of the decision in the appeals decided by tile High Court where compensation has been awarded at the rate of Rs. 15,000 per acre.
In the circum stances there is no valid reason to award compensation to the appellant at a reduced rate specially so when the re spondents have failed to point out any material difference in the situation, topography, lay out of the appellants ' land with that of the adjacent land in respect of which compensation has been awarded at the rate of Rs. 15,000 per acre.
If the impunged order of the High Court under appeal is upheld an anomalous position would arise inasmuch as the appellants will be denied that amount of compensation which has been awarded to other claimants in respect of similar adjacent land.
We are therefore of the opinion that the High Court committed error in interferring with the order of the Subordinate Judge and in determining the compensation at the rate of Rs.7,500 per acre.
We hold that the appellants are entitled to compensation at the rate of Rs. 15,000 per acre as determined by the learned Subordinate Judge.
The High Court has awarded solatium at the rate of 15% in 294 consideration of compulsory nature of acquisition and it has further awarded interest at the rate of 6% per annum from the date of taking over the possession till the date of deposite of amount of compensation Learned counsel for the appellants urged that in view of the amendment made in Section 23 and 28, of the Act by the Amending Act of 1984 appellants were entitled to solatium at the rate of 30% of the compensation and they are further entitled to interest at the rate of 9% per annum.
He placed reliance on the decision of this Court in Bhag Singh vs Union Territory, Chandigarh, [1985] Suppl.
2 115 where it was held that in view of Sec.
30(2) of the Amending Act the amended Sec.
23(2) which provided for solatium at the rate of 30% is applicable to all pending proceedings whether they may be pending before the Collector, Court, High Court or the Supreme Court.
We are informed that this question has been referred to a larger Bench and a Constitution Bench has heard argument and the judgment is reserved.
In this view we refrain from expressing any opinion on the question, if and when judgment is delivered in the matter and if the appel lants are found entitled to the increased amount of solatium and interest they would also be entitled to receive the same in accordance with law.
We accordingly allow the appeal, set aside the judgment and order of the High Court and direct that the appellants shall be paid compensation at the rate of Rs. 15,000 per acre.
The appellants are entitled to their costs.
The re spondents are directed to pay the costs of the appeal to the appellants which we quantify Rs.5000.
A.P. S Appeal allowed.

summary/full:
Certain plots of land owned by the appellants were acquired by the Government for the purpose of construction of Aviation Research Centre.
The Collector awarded compensa tion at the rate of Rs.2,000 per acre.
On a reference, the Subordinate Judge enhanced the compensation and awarded at the rate of Rs. 15,000 per acre.
On appeal by the respond ents, the High Court reduced the compensation holding that since the State Government had been offering land situate in the adjacent Industrial Area to the industrialists at the rate of Rs.7,500 per acre, the appellants were entitled compensation at that rate and that the appellants had pur chased the land at the rate of Rs. 100 per acre in the year 1956, they were not entitled to compensation more than Rs.7,500 per acre.
In the appeal to this Court, on behalf of the appellants it was contended that the High Court was not justified in reducing the compensation as there was ample evidence or record to show that the market value of the land was much more than determined by the High Court and developmental activities had taken place near the land as a result of which the value of the land had appreciated tremendously and that for adjacent land acquired by the same Notification was determined by the High Court itself at the rate of Rs. 15,000 per acre.
Allowing the appeal, HELD: 1.
The judgment and the order of the High Court is set aside and R is directed that the appellant shall be paid compensation at the rate of Rs. 15,000 per acre.
[294E] 2.
Section 23 of the Land Acquisition Act, 1894 lays down principles for determining compensation according to which the owner is entitled to receive the market value for the land.
[291H] 290 3.
Market value means what a willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activi ties which may be going on in the vicinity and the potenti ality of the land.
[292A B] 4.
An offer of sale of land to industrialists on conces sional rates with a view of induce them to set up their industries in a particular area does not reflect the pre vailing market value of the land.
The industrialists who were offered the land at concessional rates were not the willing purchasers.
[292F] 5.
The High Court committed error in proceeding on the assumption that the concessional rate offered by the Govern ment to the industrialists indicated the market value of similar land.
[292F G] 6.
In the instant case, on the evidence on record it is apparent that the land in question is adjacent to the indus trial area where a large number of factories are situate.
Even though the land was being used for agricultural pur poses but it was fit for non agricultural purposes and it had potentiality for future use as factory or building site.
[292B C] 7.
There is no valid reason to award compensation to the appellants at a reduced rates specially so when the respond ents have failed to point out any material difference in the situation, topography, lay out of the appellants ' land in respect of which compensation has been awarded at the rate of Rs. 15,000 per acre.
[293F]


judgement:
ition (Criminal) No.668 of 1986.
(Under Article 32 of the Constitution of India).
R.K. Jain and R.P. Singh for the Petitioner.
C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
The petitioner who was aged about 18 years along with one Subeh Singh was involved in a case of murder of one Ranbir Singh and he was convicted for an offence U s 302 34 I.P.C. and sentenced to life imprisonment by judgment and order dated 22nd May, 1980.
The petitioner being admit tedly below 21 years of age at the time of alleged commis sion offence was sent to Borstal Institution in accordance with the provisions of Punjab Borstal Act, 1926.
It has been stated that the petitioner has already undergone a period of about 6 years, 10 months and 11 days detention in jail and together with remissions earned by him it comes to over 10 years.
It has been further stated that he is entitled to be released both under the Punjab Borstal Act as well as under paragraph 5 16 B of the Punjab Jail Manual and has therefore prayed for his pre mature release as provided under the Punjab Borstal Act and also under paragraph 5 16 B of the Punjab Jail Manual.
In the counter affidavit filed on behalf of the respondent sworn by one Shri Ram Chander Sarwan, Superintendent of District Jail at Rohtak it has been stated that the petitioner was convicted and sentenced to life imprisonment U,S 30234 I.P.C. on 22.5.
1980 by the Sessions Judge, Rohtak and he was sent to District Jail, Rohtak to undergo the sentence passed upon him.
It has been further stated that at the time of conviction he was 19 years of age and as such he was sent to B.I. & J. Jail, Hissar.
He was transferred back to this Jail (Rohtak District Jail) on 16.12.
1981 for trial in IInd case (FIR No.
III,78 U/s 452/325/34 I.P.C.).
He was acquitted in this IInd case and as he was about 21 years of age so he was kept in the Jail to undergo the life imprisonment imposed upon him on 22.5.
It has 1064 been further averred that after the amendment of the Crimi nal Procedure Code the petitioner being sentenced to life imprisonment has to undergo 14 years of substantive sentence U/s 433 A of the Code before his case can be considered for pre mature release.
The detail of sentence undergone by the petitioner as on 22.12.
1986 was also given in the said affidavit wherefrom it appears that he has already undergone 7 years, 3 months and 3 days actual sentence upto 22.12.
It has therefore been stated that the petitioner having not undergone 14 years of actual sentence, he can not be released pre maturely.
It is evident from the averments made in the writ peti tion as well as in the said counter affidavit that the petitioner who was admittedly adolescent at the time of his conviction was sent to Borstal Institute at Hissar.
Subse quently, he has been transferred to the District Jail at Rohtak and is undergoing the sentence of imprisonment for life.
It appears from the objects and reasons of Punjab Borstal Act, 1926 that the object of the Act is to provide for segregation of adolescent prisoners from those of more mature age, and their subsequent training in separate insti tutions.
These Borstal Institutions are meant for detaining adolescent offenders and to impart to them such industrial training and other instructions and subject them to such disciplinary and moral influence as will conduce to their reformation.
This is evident from the provisions of section 2(1) of Punjab Borstal Act, 1926.
Sub section (2) of section 2 defines 'detained ' as detained in and 'detention ' as detention in a Borstal Institution.
Section 5 of the said Act which is very vital for the purpose of decision of this case is quoted hereinbelow: "5.
Powers of courts to pass a sentence of detention in a Borstal Institution in the case of a convict under twenty one years of age in lieu of transportation or rigorous imprison ment (1) When any male person less than twenty one years of age is convicted of an offence by a court of sessions, a Magistrate specially empowered under section 30 of the Code of Criminal Procedure, 1898, or a Judi cial Magistrate of the first class, or is ordered to give security for good behaviour and fails to give such security, and when by reason of his criminal habits or tendencies or associations with persons of bad character it is expedient in the opinion of the Judge or Magistrate, that he should be detained, such Judge or Magistrate may, in lieu of passing a sentence of transportation or rigorous impris onment, pass an order of detention for a term which shall not be less than two years and shall not exceed seven years when the order 1065 is passed by a court of sessions or a Magis trate specially empowered under Section 30 of the Code of Criminal Procedure, 1898, and shall not be less than two years nor exceed three years, when the order is passed by a Judicial ' Magistrate of the first class not so empowered.
(2) When any Judicial Magistrate not empowered to pass such order, is of opinion that an offender convicted by him is a person in respect of whom such order should be passed in accordance with the provisions of sub section (1), he may, without passing any sentence, record such opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subor dinate.
(3) The Chief Judicial Magistrate to whom the proceedings are so submitted may make such further enquiry (if any) as he may deem fit and pass such order for the detention of the offender or such other sentence or order, as he might have passed if the trial had been held by him from its commencement.
" Thus it is manifest from Section 5 of the said Act that either a Sessions Judge or a Magistrate of first class or a Magistrate specially empowered under Section 30 of the Code of Criminal Procedure after convicting any male person who is less than twenty one years of age, of an offence punisha ble with imprisonment for life or transportation or other rigorous imprisonment or a convict is ordered to give secu rity for good behaviour and fails to give such security, may in lieu of passing a sentence of transportation or rigorous imprisonment pass an order of detention which shall not be less than two years and shall not exceed seven years when an order is passed by a court of sessions or a Magistrate specially empowered under the Code of Criminal Procedure.
The petitioner who was adolescent admittedly being less than twenty one years of age at the time of his conviction though convicted U/s 302/34 I.P.C. and sentenced to imprisonment for life, was sent to the Borstal Institute in accordance with the provisions of Punjab Borstal Act, 1926.
On his attaining the age of about twenty one years he was trans ferred back to the Jail.
There is no provision except sec tion 20 under the said Act for transferring back an adoles cent convict on his attaining the age of twenty one years from the Borstal Institute to Jail for undergoing the unex pired term of imprisonment.
On the other hand on a plain reading of section 5 it is clear that the adolescent convict under twenty one years of age after expiry of his period of detention 1066 has to be released from detention and he is not to be trans ferred to Jail for undergoing the unexpired period of his sentence of imprisonment.
Section 20 of the said Act is in the following terms: "20.
Incorrigibles Where an inmate is report ed to the State Government by the visiting committee to be incorrigible or to be exercis ing a bad influence on the other inmates of the institution or is convicted under section 19 of this Act or is reported by the Superin tendent to have committed an offence which has been declared to be major Borstal Institution offence by rules made by the State Government in pursuance of the provisions of sub section (14) of section 34 of this Act, the State Government may commute the residue of the terms of detention to such term of imprison ment of either description not exceeding such residue as the State Government may direct, and may order the transfer of the inmate to any jail in Punjab in order to complete the said term of imprisonment.
" This section empowers the State Government to commute the residue of the term of detention of an inmate in Borstal Institute to such term of imprisonment of either description not exceeding the residue as the State Government may direct and also to order transfer of the inmate to any jail in Punjab in order to complete the said term of imprisonment when such an inmate is reported to be incorrigible or his exercising bad influence on the other inmates of the Insti tution or such an inmate has committed a major Borstal Institution offence as provided in the rules.
There is nothing to show that the petitioner was ever found to be incorrigible or to be exercising a bad influence on the other inmates of the Institution or is found to have commit ted any major Borstal Institution offence and the State Government has not passed any order for his transfer from the Borstal Institution to Jail for undergoing the residue of his term of imprisonment.
This Court while considering an identical case in the State of Andhra Pradesh vs Vallabhapuram Ravi ; has observed that "a person detained in a Borstal School under section 10 A has to be released after he has served the full term of 5 years of detention or on his completing 23 years of age.
He cannot be retransferred thereafter to prison.
Such a retransfer would defeat the very object and purpose of the Act of providing for deten tion of young offenders in Borstal School for the purpose of reformation and rehabilitation of such offenders.
" It is to be noted in this connection that 1067 sentence of detention is passed in lieu of sentence of imprisonment which may have been passed.
Hence the detention order U/s 5 of the said Act is not imprisonment and Borstal School where the adolescent offender is detained is not a prison.
It has also been observed further that "Section 433 A, Cr. PC would not operate where a person is detained by an order under Section 10 A of the Act.
Section 433 A of the Code was introduced not to set at naught provisions like 10 A of the Act which dealt with a special class of offend ers like adolescent offenders but only to regulate capri cious and arbitrary decisions under Section 432 of the Code and the remission rules sometimes reducing the sentence of imprisonment for life imposed on persons who had been con victed of capital offences but had been sentenced to impris onment for life to short periods like five to six years.
" On a conspectus of the aforesaid decision as well as on a consideration of the facts and circumstances the only conclusion follows that the petitioner who has already undergone actual imprisonment for seven years is entitled to be released from detention and from imprisonment.
Paragraph 5 16 B of the Punjab Jail Manual is not applicable in this case as the petitioner who was an adolescent convict below twenty one years of age was sent to the Borstal Institute at Hissar for detention in accordance with the provisions of Section 5 of the Punjab Borstal Act, 1926.
He being convict ed by the Sessions Judge the maximum period of detention as prescribed by the Act is seven years.
We have already said hereinbefore that such an inmate of the Borstal Institute cannot be transferred to Jail on the ground that he has attained the age of twenty one years as the said Act does not provide for the same.
The only provision for transfer to Jail is in the case of incorrigible inmate or inmates con victed of major Borstal Institution offence.
The petitioner who was ' detained in a Borstal Institute is entitled to be released and to be set free as he has already undergone detention for a period of seven years.
The Writ Petition is therefore allowed.
The respondents are directed to release the petitioner from imprisonment forthwith.
There will be no order as to costs.
S.L. Petition allowed.

summary/full:
The petitioner, aged about 18 years, was convicted for an offence u/s 302/34 I.P.C. and sentenced to life imprison ment by judgment and order dated 22nd May, 1980, and being admittedly below 21 years of age at the time of commission of the offence, was sent to Borstal Institution in accord ance with the provisions of the Punjab Borstal Act, 1926.
The Petitioner filed this writ petition in this Court, stating that the total period of detention under gone by him, together with the remissions earned by him, came to over ten years, and he was entitled to be released both under the Punjab Borstal Act as well as under paragraph 516 B of the Punjab Jail Manual.
The petitioner, therefore, prayed for his premature release as provided under the Punjab Borstal Act and the paragraph 516 B of the Punjab Jail Manual.
On behalf of the respondents, a counter affidavit was filed by the Superintendent, Rohtak District Jail, where the petitioner was first sent after his conviction and sentence u/s 302/34 I.P.C., and where he was brought again from the Borstal Institute in connection with another case and was now being kept, as he had attained the age of 21 years.
Allowing the writ petition, the Court, HELD: The petitioner was sent to Borstal Institute at Hissar as he was admittedly adolescent at the time of his conviction, and was subsequently transferred to the District Jail at Rohtak to undergo the sentence of imprisonment for life.
[1064C] It appears from the objects and reasons of the Punjab Borstal Act, 1926, that the object of the Act is to provide for the segregation of the adolescent prisoners from those of more mature age, and their subsequent training in sepa rate Borstal Institutions meant for detaining the adolescent offenders and for imparting to them industrial training and 1062 subjecting them to such disciplinary and moral influence as will conduce to their reformation.
[1064C E] Under section 5 of the Act above said, either a Sessions Judge or a Magistrate of first class or a Magistrate spe cially empowered under section 30 of the Code of Criminal Procedure, after convicting any male person, less than twenty one years of age, of an offence punishable with imprisonment for life or transportation or other rigorous imprisonment, or in the case of a convict who is ordered to give security for good behaviour and he fails to give such security, may in lieu of passing a sentence of transporta tion or rigorous imprisonment pass an order of detention which shall not be less than two years and more than seven years when an order is passed by a Court of Sessions or a Magistrate.
The petitioner, when he was convicted u/s 302/34 I.P.C. and sentenced to imprisonment for life, was adoles cent being less than twenty one years of age and was sent to the Borstal Institute in accordance with the provisions of the Punjab Borstal Act, 1926.
On his attaining the age of about twenty one years, he was transferred back to the jail.
There is no provision except section 20 in the said Act for transferring back an adolescent convict on his attaining the age of twenty one years from the Borstal Institute to jail for undergoing the unexpired term of imprisonment.
On the other hand, under section 5 of the Act an adolescent convict under twenty one years of age, after the expiry of his period of detention, has to be released from detention and he is not to be transferred to jail for undergoing the unexpired period of his sentence of imprisonment.
Section 20 empowers the State Government ' to commute the residue of the term of detention of an inmate of the Borstal Institute, and also order his transfer to any jail in Punjab to complete the said term of imprisonment when such an inmate is report ed to be incorrigible or is exercising bad influence on the other inmates of the Institution or has committed a major Borstal Institution offence as provided in the rules.
There was nothing to show that the petitioner had been even found to be incorrigible or to be exercising a bad influence on the other inmates of the Institution, etc., as stated above, and the State Government had not passed any order for his transfer to the jail as mentioned above.
[1065E H; 1066A, D F] On a conspectus of the decision of this Court in the State of Andhra Pradesh vs Vallabhapuram Rani, ; , and on a consideration of the facts and circum stances of the case, the only conclusion that followed was that the petitioner, who had already undergone actual im prisonment for seven years, was entitled to be released from detention and imprisonment.
Paragraph 516 B of the Punjab Jail 1063 Manual was not applicable in this case.
The Court directed the respondents to release the petitioner from imprisonment forthwith.
[1067C D; G] State of Andhra Pradesh vs Vallabhapuram Rani, [1984]4S.C.C. 410, referred to.