judgement:
Appeal No. 688 of 1962.
Appeal by special leave from the judgment and order dated April 1, 1958 of the Bombay High Court in Misc.
Application No. 202 of 1957.
N. D. Karkhanis and R. N. Sachthey, for the appellant.
I. N. Shroff for the respondents.
January 29, 1964.
The Judgment of the Court was delivered by MUDHOLKAR J.
This is an appeal by special leave against the judgment of the Bombay High Court in a writ petition challenging the notice issued under section 34(1) of the Indian Income tax Act, 1922 by the First Income tax Officer, 439 Bombay, who is the appellant before us.
In the writ petition various grounds were urged by the respondent in support of the convention that the notice was bad in law.
The High Court, however, dealt with only one of those contentions, accepted it, and did not permit the respon dents ' counsel Mr. Mehta to put forward the other conten tions urged in the writ petition by the respondents.
The appellant had issued notice to the respondents under section 34(1)(a) of the Income tax Act in respect of an escaped income of Rs. 47,595 for the assessment year 1944 45.
This notice was issued by him on March 27, 1957.
On behalf of the respondents, it is contended that the notice was bad because, though it was in respect of an amount of less than Rs. 1 lakh it was issued after the expiry of the assessment year and that the sanction of the Central Board of Revenue for issuing that notice had not been obtained by the Income tax Officer as required by cl.
(iii) of the proviso to section 34(1) of the Act.
It is not disputed before us that the case falls under section 34(1)(a).
That provision reads thus: "(1) If (a) the Income tax Officer has reason to believe that by reason of the omission of failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depre ciation allowance has been computed, or. he may in cases falling under clause (a) at any time .
serve on the assessee a notice containing all or any of the require ments which may be included in a notice under sub section (2) of section 22 and may proceed 440 to assess or re assess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection:" We have quoted only the relevant portion.
Then follows the first proviso which runs thus: " provided that the Income tax Officer shall not issue, a notice under clause (a) of sub section (1) (i) for any year prior to the year ending on the 31st day of March 1941; (ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income tax which have escaped assessment or have been underassessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to, or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending be fore the 31st day of March 1941; (iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii), unless the Central Board of Revenue, and, in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice:" It will thus be seen that where the Income tax Officer has reason to believe that due to any act of the assessee a full and accurate declaration was not made by the assessee for any year, with the result that part of his income has escap ed assessment for that year, the Income tax Officer may issue a notice under cl.(a) at any time.
441 The respondents ' contention before the High Court was that the notice was bad because it had not complied with the two conditions laid down in the proviso to section 34(1).
Adverting to this contention the High Court has observed thus: "Before the amendment of this section which was in force on the 27th March, 1957 the period of limitation of eight years was provided with regard to the issue of notices under Section 34(1) (a) and a period of four years for cases falling under Section 34(1)(b) By the amendment the period of limitation was removed and the Legislature provided that if the case fell under Section 34(1) (a) a notice can be served at any time.
But while removing any bar of limitation, the Legislature provided some safeguards for the assessee and these safeguards were three in number and they were set out in the proviso.
The first safeguard was that a notice shall not be issued for any year prior to the year ending on the 31st day of March 1941; the second safeguard was that if eight years had elapsed then the notice should not be issued for an escaped income which aggregated to less than one lakh of rupees; and the third safeguard was that the Central Board of Revenue had to be satisfied on reasons to be recorded that this was a fit case for the issue of a notice, which was for a period beyond eight years.
Now, admittedly, this notice is for an amount which is less than a lakh of rupees and admittedly the Central Board of Revenue has not considered this matter at all.
Therefore, there does not seem to be any answer to the contention put forward by the petitioner.
" The High Court is right in saying that a notice cannot be issued where the income which has escaped assessment is less than a lakh of rupees and where more than eight years have elapsed from the assessment year.
To this, however, 442 there is one exception and that is where the matter would fall to be governed by the second proviso to section 34(3).
To this aspect we will, however, come little later.
But before that what we must consider is the view of the High Court that the sanction of the Central Board of Revenue was also necessary.
Under cl.
(iii) of the proviso to section 34(1) a notice can issue only if the Central Board of Revenue is satisfied with the reasons recorded by the Income tax Officer for issuing a notice.
For convenience we are describing this process as sanction of the Central Board of Revenue.
The sanction under this clause is, however, necessary only where the notice in question is issued under cl.
(ii) of the proviso.
That is evidently what the Legislature meant when it says "in any case falling under clause (ii)".
For, cl.
(ii) has to be read with the opening words of the proviso: "Provided that the Income tax Officer shall not issue a notice under clause (a) of sub section (1)".
So read it will be clear that the words "in any case" used in cl.
(iii) only mean a case in which notice can be issued under cl.
Such a notice can be issued only when the escaped income is of one lakh of rupees and over.
It was, however, contended by Mr. Shroff that cl.
(ii) of the proviso dealt not only with the escaped assessment of one lakh of rupees and over but also with assessments which were less than one lakh of rupees and that, therefore, even in the present case the sanction of the Central Board of Revenue was required.
By excluding action with respect to escaped assessment of less than one lakh of rupees, cl.
(ii) can, in, one sense, be regarded as dealing with escaped assessments of this kind.
But it would be wrong to say that because of this, cl.
(iii) requires the obtaining of the sanction of the Central Board of Revenue for a notice to be issued with respect to it.
As already pointed out, cl.
(iii) requires such sanction where the notice is issued under cl.
(ii) and when on a construction of cl.
(ii), no notice can be issued with respect to a class of escaped assessments, there can possibly be no requirement of the sanction of the Central Board of Revenue.
If a notice is issued by virtue of some other provision such as the second proviso to sub section
(3) of section 34, it would be a notice "in any other case" referred to in cl.
(iii) of the proviso to sub section (1) of section 34 and in such a case the sanction which is 443 required is only that of the Commissioner.
Such a sanction was obtained in this case and, therefore, the notice cannot be said to be bad because the sanction of the Central Board of Revenue has not been obtained.
Now, we will come to the other aspect of the matter.
Limitation is no doubt placed upon the power of the Income tax Officer by cl.
(ii) of the first proviso which says that if eight years have elapsed after the expiry of that year no such notice can issue unless the income which has escaped assessment is likely to amount to one lakh of rupees or more.
Here admittedly the income which has escaped assessment is below one lakh of rupees and more than eight years have elapsed since the assessment year in respect of which the income is alleged to have escaped assessment.
Clearly, therefore no notice could issue under cl.
The answer given by the Income tax Officer, however, is that limitation is taken away by the second proviso to sub section
(3) of section 34.
We would quote section 34(3) and the second proviso to it.
They run thus: "No order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub section (1) or sub section (]A) of this section shall be made after the expiry of four years from the end of the year in which the income profits or gains were first assessable: Provided further that nothing contained in this seetion limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 27 or to an assessment or re assessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B. section 66 or section 66A." 444 The second proviso to section 34(3) could be pressed in aid by the Income tax Officer because in issuing the notice he was giving effect to a direction contained in the order of a nigher Income tax authority.
Dealing with this matter the High Court has observed as follows in its judgment: "Now, when there was a limitation of eight years under section 34(1)(a) the second proviso to Section 34(3) has to be resorted.
Section 34(3) had to be resorted to by the Income tax Department if it wanted to issue a notice after the period of limitation, and a notice after eight years in a case falling under section 34(1) (a) could only be issued provided it was a result of a direction contained in an order passed by an Income tax Authority.
But by reason of the recent amendment the question of limitation does not arise, but the Legislature has provided certain safeguards as already pointed out.
Therefore, whether a notice is issued as a result of a direction contained in any order of an Income tax Authority or not, if it is a notice which is issued beyond eight years the notice must satisfy the conditions laid down in the proviso to Section 34(1).
Therefore, the result is that in some respects the law has been made more rigorous against the assessee; and in other respects it has been made more lenient.
Before the amendment a notice could be issued after eight years in respect of any escaped income, whatever the amount, provided the notice was issued to give effect to a direction contained in an order of an Income tax Authority.
Now a direction is not necessary for the issue of a notice.
But as against that an assessee whose escaped income is not a lakh of rupees is completely protected and even though there may be a direction contained in an order of an Income tax Authority no notice can be issued 445 against the assessee if the escaped income is less than a lakh of rupees.
Therefore, on the one hand, the assessee whose escaped income is less than a lakh of rupees is now put in a better position than he was before the amend ment.
The assessee whose escaped income is more than a lakh of rupees is put in a worse position because he can be proceeded against even without a direction contained in an order of an Income tax Authority provided the Cen tral Board of Revenue has applied its mind to It would appear that the view of the High Court was that the provisions of the second proviso to section 34(3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed.
Apparently, the High Court has overlooked the fact that the second proviso to sub section
(3) of section 34 was amended first by Act 25 of 1953 and then by Act 18 of 1956.
As it stood prior to these amendments it read thus: "Provided further that nothing contained in this subsection shall apply to a re assessment made under section 27 or in pursuance of an order under section 31, section 33.
section 33A, section 33B, section 66 or section 66A." By the amendment of 1953, for the words "sub section", the words "section limiting the time within which any action may be taken or any order, assessment or re assessment may be made" were substituted.
By the amendment of 1956 it now stands as already quoted by us.
If the proviso in its present form applies here it would govern the whole of section 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl.
(ii) of the first proviso to section 34(1).
The result, in our opinion.
would be the same even if the case were to fall to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956, 446 We may add that the amendment of 1953 took effect from April 1, 1953 and that of 1956 from April 1, 1956.
Apart from the view expressed by the learned Judges as regards the effect of the changes made in section 34(1) with the provisos we have set out earlier a view which we have held is not correct they aid not further consider the proper construction to be placed on the second proviso to section 34(3) of the Act on which the validity of the impugned notice to the respondents must ultimately be decided.
As we have pointed out earlier, at the beginning of the judgment, the learned Judges confined their attention prac tically only to the construction of proviso (iii) to section 34(1) which was decided in favolur of the respondents and did not permit them to argue the other points raised by them.
We do not propose to decide these other points, particularly for the reason that the parties are not agreed as to what precisely were the contentions which were raised for argument.
For the reasons stated above, the decision of the High Court is clearly wrong.
We, therefore, allow the appeal, set aside the order of the High Court and remit the matter to it for the consideration of the other points which were raised before it by the respondents but upon which they were not heard.
As regards costs we think that they should abide the result of the appeal before the High Court.
Appeal allowed and cave remanded.

summary/full:
The appellant had issued notice to the respondents under section 34(1)( of the Income Tax Act, 1922 in respect of an escaped income of Rs. 47,595 for the assessment year 1944 45.
The case of the respondents was that the impugned notice was bad because the Income Tax Officer proceeded against the respondents without obtaining the necessary sanction of the Central Board of Revenue as required by cl.
(iii) of the proviso to section 34(1) of the Act.
The respondents filed a writ petition in the High Court challenging the notice issued under section 34(1) of the article The respondents succeeded before the High Court.
438 Held: (i) The sanction under cl.
(iii) of the proviso to section 34(1) is, however, necessary only where the notice in question is issued under cl.
(ii) of the proviso.
That is evidently what the legislature meant when it said "in any case failing under cl.
(ii)".
The words "in any case" used in cl.
(iii) only mean a case in which notice can be issued under cl.
Such a notice can be issued only when the escaped income is of one lakh of rupees and over.
Clause (iii) requires such sanction where the notice is issued under cl.
(ii) and when on a construction of cl.
(ii), no notice can be issued with respect to a class of escaped assessments, there can possibly be no requirement of the sanction of the Central Board of Revenue.
If a notice is issued by virtue of some other provision sub as the second proviso to sub section
(3) of section 34, it would be a notice "in any other case" referred to in cl.
(iii) of the proviso to sub section (1) of section 34 and in such a case the sanction which is required is only that of the Commissioner.
Such a sanction was obtained in this case and therefore, the notice cannot be said to be bad because the sanction of the Central Board of Revenue had not been obtained.
In the present case the income which has escaped assessment is below one lakh of rupees and more than eight years have elapsed since the assessment year in respect of which the income is alleged to have escaped assessment.
Clearly, therefore, no notice could issue under cl.
(ii) The High Court erred in holding that the provisions of the second proviso to section 34(3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed.
Apparently, the High Court has overlooked the fact that the second proviso to sub section
(3) of section 34 was amended first by Act 25 of 1953 and then by Act.
18 of 1956.
The amendment of 1956 would govern the whole of section 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl.
(ii) of the first proviso to section 34(1).
The result would be the same even if the case fell to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956.


judgement:
minal Appeal No. 210 of 1963.
Appeal by special leave from the judgment and order dated July 27, 1963, of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Appeal No. 83 of 1963 and Criminal Reference No. 4 of 1963.
K. K. Luthra, for the appellant.
I. N. Shroff, for the respondent.
January 24, 1964.
RAGHUBAR DAYAL J. Faddi appeals, by special leave, against the order of the High Court of Madhya Pradesh confirming his conviction and sentence of death under section 302 I.P.C. by the Additional Sessions Judge, Morena.
Jaibai, widow of Buddhu, began to live with Faddi a few years after the death of her husband Buddhu.
Faddi and Jaibai at first lived at Agra, but later on shifted to 314 Morena.
Jaibai had a son named Gulab, by Buddhu.
Gulab was aged 11 years and lived in village Torkheda at the house of his phupa Ramle.
He was living there from Sawan, 1961.
Gulab 's corpse was recovered from a well of village Jarah on January 21, 1963.
It reached the mortuary at Morena at 5 15 p.m. that day.
It is noted on the postmortem report that it had been despatched from the place of occurrence at 1 p.m. Dr. Nigam, on examination, found an injury on the skull 'and has expressed the opinion that the boy died on account of that injury within two or three days of the postmortem examination.
He stated in Court that no water was found inside either the lungs or the abdomen or the larynx or in the middle ear.
This rules out the possibility of Gulab 's dying due to drowning.
As a result of the investigation, the appellant and one Banwari were sent up for trial for the murder of Gulab.
It is interesting to observe the course of the investigation.
The police knew nothing of the offence till 9 p.m. on January 20, 1963, when the appellant himself went to the police station, Saroichhola, and lodged a first information report stating therein that on peeping into the well near the peepul tree of Hadpai on the morning of January 20, 1962, he found his son lying dead in the well.
Earlier, he had narrated the events leading to his observing the corpse and that narration of facts accused Ramle, Bhanta and one cyclist of the offence of murdering the boy Gulab.
It was this information which took the police to the well and to the recovery of the corpse.
The police arrested the persons indicated to be the cul prits, viz., Ramle, Bhanta and the cyclist, who was found to be Shyama, by January 26.
These persons remained in the lock up for 8 to 11 days.
In the meantime, on January 26, the investigation was taken over, under the orders of the Superintendent of Police, by the Circle Inspector, Nazat Mohd. Khan from Rajender Singh, who was the Station Officer of Police Station, Saraichhola.
The Circle Inspector arrested Faddi on January 27.
He other arrested persons were got released in due course.
Faddi took the Circle 3I5 Inspector to the house and, after taking out a pair of shorts of Gulab, delivered them to the Circle Inspector.
Ramle, Bhanta alias Dhanta and Shyamlal have been examined as prosecution witnesses Nos. 15, 4 and 5 respectively.
The conviction of the appellant is based on circumstantial evidence, 'there being no direct evidence about his actually murdering Gulab by throwing him into the well or by murdering him first and then throwing the dead body into the well.
The circumstances which were accepted by the trial Court were these: 1.
Faddi went to the house of Ramle at about noon on 19th January, 1962 and asked Ramle to send the boy with him.
Gulab was at the time in the fields.
After meals, Faddi left suddenly when Shyama arrived and gave a message to Ramle from Gulab 's mother that the boy be not sent with any one.
Faddi caught hold of Gulab from the fields forcibly and took him away.
It may be mentioned here that one Banwari who has been acquitted is also said to have been with Faddi at this time.
Gulab had not been seen alive subsequent to Faddi 's taking him away on the afternoon of January, 19.
His corpse was recovered on the forenoon of January, 21.
Faddi had not been able to give any satisfactory explanation as to how he and Gulab parted company.
Faddi knew the place where Gulab 's corpse lay.
It was his information to the Police which led them to recover the corpse.
His statement that he had noted the corpse floating on the morning of January 20 was untrue, as according to the opinion of Dr. Nigam, the corpse could come up and float in the water approximately after two days.
The witnesses of the recovery deposed that they could not see the corpse floating and that it had to be recovered by the use of angles.
316 4.
The accused 's confession to Jaibai and two other witnesses for the prosecution viz., Jimipal and Sampatti about his killing Gulab.
The pair of shorts recovered was the one which Gulab was wearing at the time he was taken away by Faddi.
The High Court did not rely on the confession and on the recovery of the pair of shorts from the appellant 's posses sion, and we think, rightly.
The evidence about the confes sion is discrepant and unconvincing.
Bhagwan0 Singh and Ramle deposed that the deceased was wearing the pair of shorts recovered, at the time the appellant took him away.
Bhagwan Singh did not go to the test identification.
The accused was not questioned about the deceased wearing these pair of shorts at the time he was taken away from the village.
The High Court considered the other circumstances sufficient to establish that the appellant had committed the murder of Gulab.
It therefore confirmed the conviction and sentence.
Learned counsel for the appellant has taken us through the entire evidence and commented on it.
He has contended that the evidence is unreliable and should not have been accepted by the Courts below.
We have considered hi,,, criticism and are of opinion that the Courts below have correctly appreciated the evidence.
It is not necessary for us to discuss it over again.
It may be mentioned now that the.
appellant denies having gone to Ramle 's house in village Torkheda and to have taken away Gulab from that village forcibly on the afternoon of January 19, but admits his lodging the report, and the recovery of the dead body from the well with the help of the angle.
He however states that he had lodged the report on the tutoring of one Lalla Ram of Utampur.
Ile hag neither stated why he was so tutored nor led any evidence in support of his allegation.
In his report the appellant admitted the prosecution allegations up to the stage of 317 his forcibly taking away Gulab from village Torkheda.
He then stated that Ramle, Bhatta and the third person, viz., Shyamlal threatened him with life, took out the pyjama and half pant from the body of Gulab and taking the boy with them remained sitting on the well near the peepul tree of Hadpai.
The appellant kept himself concealed from their view, nearby.
He heard the sound of something being thrown into the well.
Those three persons then ran away, but he himself remained sitting there throughout the night and then, on peeping into the well next morning, observed the corpse of his son in the well,, He then went to Morena, consulted one Jabar Singh Vakil, and one Chhotey Singh and was advised to lodge the report.
He definitely accused Ramle, Bhatta and the cycle rider with killing his son Gulab by throwing him into the well.
This report is not a confessional statement of the appel lant.
He states nothing which would go to show that he was the murderer of the boy.
It is the usual first information report an aggrieved person or someone on his behalf lodges against the alleged murderers.
The learned Sessions Judge and the High Court considered the appellant 's statements in this report which went to explain his separation from Gulab on account of the conduct of Ramle and others and came to the conclusion that those statements were false.
This was in a way justified as the burden lay on the appellant to account for the disappearance of Gulab when the prosecution evidence showed that the appellant had taken Gulab with him.
Besides, what the appellant had stated in the report, he had given no explanation for the disappearance.
Of course, he had denied that he took Gulab with him.
The evidence about that aspect of the case consists of the statement of Ramle, Shyamlal and Bhagwan Singh which have been accepted by the Courts below.
The High Court also took into consideration the fact that the appellant knew where the deceased 's body was as it was on what he had stated in the report that the police went to the well of village Jarah and recovered the dead body.
The accused gave no explanation in Court as to how he came to know about it.
What he had stated in the report had been considered and found to be untrue and 318 specially in view of the appellant 's own conduct.
It has been rightly stressed that if Gulab had been forcibly taken away from him by Ramle and others, the appellant ordinarily would have gone and taken some action about it, without wasting his time in just following those people.
Even if he felt interested in following them and had heard the sound of something being thrown inside the well and had also seen those persons running away, he had no reason to remain hidden at that spot the whole night.
He should have informed people of what he had observed as he must have suspected that these persons had played mischief with Gulab.
The High Court also took into consideration the in correctness of the appellant 's statement that he observed the dead body floating in the well on the morning of January 20.
It is contended for the appellant that the first information report was inadmissible in evidence and should not have been therefore taken on the record.
In support, reliance is placed on the case reported as Nisar Ali vs State of U.P. (1).
We have considered this contention and do not see any force in it.
The report is not a confession of the appellant.
It is not a statement made to a police officer during the course of investigation.
Section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure do not bar its admissibility.
The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder of Gulab was committed, or whether the appellant 's statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not.
Admissions are admissible in evidence under section 21 of the Act.
Section 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act.
Section 21 provides that admissions are relevant and may be proved as against a person who makes them.
Illustrations (1)[1957] S.C.R. 657. 319 (c), (d) and (e) to section 21 are of the circumstances in which an accused could prove his own admissions which go in his favour in view of the exceptions mentioned in section 21 to the provision that admissions could not be proved by the person who makes them.
It is therefore clear that admissions of an accused can be proved against him.
The Privy Council in very similar circumstances, held long ago in Dal Singh vs King Emperor(1) such first information reports to be admissible in evidence.
It was said in that case at p. 142: "It is important to compare the story told by Dal Singh when making his statement at the trial with what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated.
The report is clearly admissible.
It was in no sense a confession.
As appears from its terms, it was rather in the nature of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbulpore.
As such the statement is proper evidence against him. .
It will be observed that this statement is at several points at complete variance with what Dal Singh afterwards stated in Court.
The Sessions Judge regarded the document as discrediting his defence.
He had to decide between the story for the prosecution and that told for Dal Singh.
" Learned counsel for the appellant submits that the facts of that case were distinguishable in some respects from the facts of this case.
Such a distinction, if any, has no bearing on the question of the admissibility of the report.
The report was held admissible because it was not a confession and it was helpful in determining the matter before the Court.
(1) L. R. 44 1.
A. 137.
320 In Nisar Ali 's case(1) Kapur J. who spoke for the Court said, after narrating the facts: "An objection has been taken to the admissibility of this report as it was made by a person who was a co accused.
A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under section 157, Evidence Act, or to contradict it under section 145 of that Act.
It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.
In this case, therefore, it is not evidence.
" It is on these observations that it has been contended for the appellant that his report was inadmissible in evidence.
Ostensibly, the expression 'it cannot be used as evidence the maker at the trial if he himself becomes accused supports the appellant 's contention.
But it appears to us that in the context in which the observation is made and in the circumstances, which we have verified from the record of that case, that the Sessions Judge had definitely held the first information report lodged by the co accused who was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its.
judgment, this observation really refers to a first information report which is in the nature of a confession by the maker thereof.
of course, a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co accused.
Further, the last sentence of the above quoted observation is significant and indicates what the Court meant was that the first in formation report lodged by Qudratullah, the co accused, was not evidence against Nisar Ali.
This Court did not meanas it had not to determine in that case that a first informa tion report which is not a confession cannot be used as an admission under section 21 of the Evidence Act or as a relevant statement under any other provision of that Act.
We find also that this observation has been understood in this way by the Rajasthan High Court in State vs Balchand(2) and (1) [1957]S.C.R.657.
(2) A.I.R. 1960 Raj 101 321 in State of Rajasthan vs Shiv Singh(1) and by the Allahabad High Court in Allahdia vs State(2).
We therefore hold that the objection to the admissibility of the first information report lodged by the appellant is not sound and that the Courts below have rightly admitted it in evidence and have made proper use of it.
The circumstances held established by the High Court are sufficient, in our opinion, to reach the conclusion that Gulab was murdered by the appellant who was the last person in whose company the deceased was seen alive and who knew where the dead body lay and who gave untrue explanation about his knowing it in the report lodged by him and gave no explanation in Court as to how he separated from the deceased.
We therefore dismiss the appeal.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
On the first information report lodged by the appellant, the corpse of his step son was recovered.
The police arrested three other persons indicated to be the culprits, but as a result of the investigation, the appellant (1) A.I.R. 1961 Orissa, 131.
313 was sent up for trial for the murder and sentenced to death.
The High Court confirmed the conviction and sentence.
On appeal by special leave it was contended that the first information report was inadmissible in evidence and should not have been, therefore, taken on the record.
Held:There was no force in the contention.
The report was neither confession of the accused nor a statement made to a police officer during the course of investigation.
Section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure do not bar its admissibility.
The report was an admission by the accused of certain facts which had a bearing on the question to be determined by the Court viz., how and by whom the murder was committed or whether the accused 's statement in court denying the correctness of certain statements of the prosecution witnesses was correct or not.
Admissions ire admissible in evidence under section 21 of the Evidence admission of an accused can be proved against him.
Dal singh vs King Emperor, L. R. 44 I.A. 137, applied.
Nisar Ali vs State of U.P. , considered and distinguished.
State vs Balachand A.I.R. 1960 Raj. 101, State of Rajasthan V. shiv Singh A.I.R. 1962 Raj. 3 and Allohdia vs State, 1959 All.
L.J. 340, referred to.


judgement:
s Nos. 79 and 80 of 1963 and 140 of 1962.
Petitions under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
section N. Andley, Rameshawar Nath and P. L. Vohra, for the petitioner (in Petition Nos. 79 and 80 of 1963).
Sarjoo Prasad, Ajoy Kumar Gajdhar Mahapatra and A. D. Mathur for the petitioner (in Petition No. 140/1962).
section V. Gupte Additional Solicitor General, section B. Misra, R.Ganapathi lyer and R. N. Sachthey, for the respondents (in all the petitions).
M. C. Setalvad, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the interveners (in Petition No. 140/ 1962).
January 23, 1964.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
The petitioners in these three petitions have moved this Court under article 32 of the Constitution and claimed a declaration that the operative provisions of the Orissa Private Lands of Rulers (Assessment of Rent) Act,, 1958 (hereinafter called `the Act ') and the Rules framed thereunder are unconstitutional and ultra vires.
The private lands in the possession and enjoyment of the three respective petitioners have been assessed by the Revenue Officers in conformity with the Rules framed under the Act.
The petitioners claim a writ or direction, or order 304 in the nature of certiorari quashing the said orders of assessment.
The petitioner in Writ Petition No. 140/1962 is the Patrani Saheba of Keonjhar and is in possession and enjoyment of eight villages, viz., Mangalpur; Barigan; Nua Rampas; Nilung; Ghutru; Mohadijore; Patang and Anara in the district of Keonjhar.
These villages were granted to her for maintenance a long time ago and as such, they have been recorded in the village papers as Khoraki Posaki (Maintenance Grant) Lands since the last settlement of 1918.
She has held these lands without paying assessment; and her case is that the relevant provisions of the Act which authorise the levy of assessment in respect of her lands are unconstitutional and invalid.
In her petition, she has referred to the fact that from time to time, the Government of the day had refrained from levying any assessment in respect of her lands and thereby recognised her right to hold the said villages on assessment free basis.
The Revenue Officer of Keonjhar levied an assessment in respect of the said villages purporting to act under the Rules framed under the provisions of the Act.
The petitioner then preferred appeals to the Board of Revenue against the said assessment orders but these appeals were dismissed.
The assessment levied against the petitioner in respect of these lands is of the order of Rs. 9,000 and odd and it has to be paid by her from 1958 retrospectively.
The petitioner in W.P. No. 79/1963 is Smt.
Rani Ratna Prova Devi who is the wife of Raja Sankar Pratap Singh Deo Mahindra Bahadur, ex Ruler of Dhenkanal State in Orissa.
At the time when the State of Dhenkanal.
merged with India, the petitioner was in possession and enjoyment of lands in five villages as a Proprietor.
In respect of these lands, assessment had never been levied; but purporting to give effect to the relevant provisions of the Act, the Revenue Officer Dhenkanal assessed rent in respect of all the lands which are in possession and enjoyment of the petitioner.
The appeals preferred by the petitioner against the said order of assessment failed; and so, the petitioner filed the present writ petition challenging the validity of the Act as well as the validity of the assessment order.
305 The petitioner in W.P. No. 80 of 1963 is the ex Ruler of Dhenkanal.
On the date of merger he held and was in possession of 89 acres 18 dec.
and 5 kadis of land in Niz garh Town as his private lands.
These lands were never subjected to the payment of rent and yet the Revenue Offi cers assessed rents in respect of these lands under the provisions of the Act.
The petitioner failed in persuading the Appellate Authority to set aside the order of assess ment, and so, has filed the present writ petition challenging the validity of the Act and the order of assessment.
Thus, the facts on which the three petitions claim relief are substantially similar and they have raised common points of law for our decision.
That is why the three petitions have been heard together and would be disposed of by a common judgment.
The Act which is challenged in the present proceedings was passed by the Orissa Legislature because "it was thought expedient to provide for assessment of rent with respect to the private lands of Rulers in the State of Orissa".
It received the assent of the Governor on the 21st May. 1958 and was published in the State Gazette on the 6th June, 1958.
It consists of 15 sections and the main object of the Act is to authorise the levy of rent in respect of the private lands of persons included in the definition of the word "Ruler" prescribed by section 2(h) of the Act.
Section 2(e) defines 'Private land ' as meaning any land held on the date of merger by a Ruler free from payment of rent, while section 2 (h) defines a "Ruler" as meaning the Ruler of a merged territory in the State of Orissa and includes his relatives and defendants.
Thus, the definition of the word "Ruler" is an inclusive definition and takes within its sweep the re latives of the Ruler and his dependents, with the result that private lands held by such relatives or dependents by virtue of the grants made by the ruling Prince or otherwise come within the mischief of the operative provisions of the Act.
Section 2(i) provides that all other expressions used and not defined in the Act shall have the same meaning as are respectively assigned to them under the tenancy laws in force in the concerned areas.
Section 3 contains the main operative provision and it lays down that notwith 134 159 S.C. 20 306 standing anything contained in any other law, custom, con tract or agreement to the contrary, the private lands field by a Ruler shall, with effect from the date of commencement of this Act, be liable to assessment and levy of rent as provided in the Act.
Thus, the effect of this provision is that private lands held by Rulers which till then were not liable to pay rent or assessment, were made liable to pay the same.
In other words the exemption from the payment of assessment or rent which the private lands of Rulers enjoyed till then ceased to be operative, and the said lands were treated like other lands in the State liable to pay assessment and rent.
Section 4 provides for the appointment of Revenue Officers, and sections 5 and 6 deal with the classification of lands and prescribe the maximum rates of rent, and the procedure in determining the rent respectively.
Under section 5, the lands have to be classified as irrigated wet land, rainfed wet land, and dry land; this section provides that subject to the provisions of section 6, the rates at which the fair and equitable rent shall be assessed with respect to the said three categories of land shall not exceed the amount as may be prescribed from time to time by the State Government.
The proviso to section 5 deals with the special category of cases where the tenants of the Ruler have already acquired rights of occupancy, and lays down that the rent payable by the Ruler in respect of such lands shall be such proportion of the rent received by him from the tenants as may be prescribed.
Under section 6, the considerations which have to be borne in mind in determining the rates of fair and equitable rent are specified by clauses (a) to (e), viz., the nature of the soil and general productivity of such land; the class under which the land is assessable; market value of the land; the prevailing rates of rent obtaining for similar lands in the neighbourhood; and such other matters relating thereto as may be prescribed.
It is thus clear that whereas section 5 requires the classification of the Ruler 's private lands to be made and provides for the prescription of the maximum of the rent which may be levied in respect of them, section 6 indicates the factors which have to be borne in mind in determining the rates of fair and equitable rent.
Clause (e) 307 shows that in addition to the factors mentioned in clauses (a) to (d), other matters may also be specified by the Rules.
The rest of the sections deal with matters relating to the levy and recovery of assessment with which we are not concerned in the present petitions.
The first contention which has been raised before us by the petitioners is that the provisions contained in sections 5 and 6 are invalid inasmuch as they contravene article 14 of the Constitution.
It is convenient to refer to some facts set out in W.P. No. 79/1963 in support of this argument.
We have already noticed that under section 6 certain considerations which the Act considers to be relevant have been prescribed, and so, the Revenue Officer has to bear those considerations in mind in determining the fair and equitable rent in respect of a given land.
W.P. No. 79/1963 points out that as a result of the consideration of the relevant factors mentioned in section 6, the rates fixed by the preliminary pattas in respect of the petitioner 's lands are in every case higher than the rates of rent which are in operation in res pect of the Revisional Settlement Khatian.
Basing them selves on the fact that in the calculation of the rent made by the Revenue Officers in respect of the private lands of Rulers they have arrived at a figure of rent which is gene rally higher than the rent which would be determined in case the rates current under the Settlement prevailing in respect of the other lands were applied, the petitioners contend that in their operation the relevant provisions of the Act have introduced an illegal discrimination as between their lands and the other lands liable to assessment of rent in the State of Orissa.
It is also urged in support of this argument that it would not be a valid consideration for levying higher assessment in respect of the private lands of Ruler that they were not required to pay assessment until the Act was passed.
The legislature may in its authority make the private lands of Rulers liable to assessment of rent, but when these lands are brought within the class of assessable lands, they should be treated in the same way as the other assessable lands are treated in Orissa.
That, briefly stated, is the contention on which the validity of the Act is challenged under article 14.
Prima facie, there is 308 some force in this contention.
But, on the whole we are not satisfied that the plea thus raised by the petitioners can be said to displace and rebut the initial presumption of constitutionality in favour of the impugned statute.
In dealing with the question raised before us, it is neces sary to bear in mind the fact that in regard to other assessable lands, a survey settlement which had already been made was in operation and was expected to continue in opera tion for a certain specified period; usually, when a settle ment has been made and assessment levied in pursuance of it, it cannot be revised merely by an executive order during the stipulated period, though, of course, the legislature can, if it so desires, make a law prescribing for a fresh assess ment even during the said specified period.
But, in the present case, the legislature appears to have taken the view that it was not necessary or expedient to introduce a fresh settlement in regard to all the other assessable lands, and so, it has passed the present statute only in regard to the private lands of Rulers.
That is one relevant and historical fact which cannot be ignored.
Proceeding to deal with the private lands of Rulers on this basis, the legislature had to prescribe the method of determining the rent payable by the said lands; and the re levant factors specified by section 6 appear to be just and substantially similar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands.
There has been some argument at the Bar before us as to whether the market value of the land which has been prescribed as a relevant consideration by section 6 was also treated as relevant on the occasion of the earlier settlement.
No material has, however, been placed before us in that behalf, and so, it is not possible to decide whether this consideration was taken into account on the earlier occasion or not, and if it was not, what the effect of the said circumstance would be on the validity of the impugned statute.
Having regard to the relevant factors prescribed by section 6, it would, however, not be unreasonable to take the view that fair and equitable tests have been laid down for determin 309 ing the rent which should be assessed in respect of the pri vate lands of the Rulers, and in the absence of any proof that there has been a material departure in that behalf, we find it difficult to uphold the plea that section 6 can be attacked on the ground that it has contravened article 14 of the Constitution.
The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad hoc basis.
The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, strictly speaking, these lands cannot be treated as comparable in every respect with the lands which were governed by the rates prescribed under the previous settlement and that may help to meet the argument that the impugned Act contravenes article 14.
If the two categories of lands do not constitute similar lands in all particulars, no valid complaint can.
be made on the ground that there has been discrimination as between them.
That is another aspect which may be relevant.
There is yet another factor which may be mentioned in this connection.
It appears that in 1959, the Orissa Legislature has passed an Act, No. 3 of 1959 with a view to consolidate and amend the laws relating to survey, record of rights and settlement operations in the State of Orissa, and so, it appears that after the settlement operations are duly conducted and completed under the relevant provisions of this latter Act, assessment in regard to all the assessable lands, including the private lands with which we are con cerned in the present proceedings would be made on the basis prescribed by it.
The operation of sections 3, 5 and 6 of the impugned Act is, therefore, limited to the period between June, 1958 when the Act came into force and the date when the assessment determined under the provisions of the subsequent Act actually come into operation in respect of all the lands.
That is another factor which has to be considered in dealing with the question about the validity of the impugned Act.
The allegations made by the petitioners, in challenging the validity of the Act are somewhat vague and the mate 31O rials placed by them in support of their challenge are in sufficient, inadequate and unsatisfactory.
The reply made by the State is also not very helpful or satisfactory.
It is precisely where a challenge to the validity of a statute is made by a party under Article 14 and he fails to adduce satisfactory evidence in support of his challenge that the task of the Court to decide the issue becomes very difficult.
In considering the validity of a statute under article 14, we cannot ignore the well established principle that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it, and so, on the failure of the party to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid.
In all cases where the material adduced before the Court in matters relating to article 14 is unsatisfactory, the Court may have to allow the State to lean on the doctrine of initial presumption of constitutionality and that is precisely what has happened in these cases.
On the whole therefore we must hold that the petitioners have failed to show that the impugned Act contravenes article 14 of the Constitution.
it is then argued that the Act is invalid because the definition of the expression "Ruler" is inconsistent with the definition of the said word prescribed by article 366(22) of the Constitution.
article 366(22) defines a "Ruler" in relation to an Indian State as meaning the Prince, Chief, or other person by whom any such covenant or agreement as is referred to in clause (1) of article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler.
There is no doubt that the definition of the word " Ruler" prescribed by section 2(h) of the Act is wider than that prescribed by article 366(22).
The dependents of the Ruler and his relatives are not included in the latter defini 311 tion, though they are expressly included in the former.
But it must be remembered that the definitions prescribed by article 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires, and so, the argument that the definition of the word "Ruler" prescribed by the Act is inconsistent with the definition prescribed by article 366(22), has really no substance or meaning.
Besides, it is fallacious to assume that the Act has made any provision in respect of Rulers as such; what the Act has purported to do is to authorise the levy of assessment and rent in respect of lands situated in Orissa; these lands are the private lands of the Rulers as defined by section 2 (h), and so, there is no doubt that the whole object of defining the word "Ruler" is to specify and describe the lands in respect of which the operative provisions of the Act would come into play.
The subject matter of the levy consists of the private lands and the compendious way adopted by the legislature in describing the said lands is that they are the private lands of the Rulers.
It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner.
If the legislature had said that the private lands of the Rulers as well as the private lands of the dependents and relatives of Rulers were liable to the levy permitted under section 3, the petitioners would not have been able to raise any objection because, then, it would have been unnecessary to define the word "Ruler" in a comprehensive.
Once it is conceded, as it must be, that the Orissa Legislature was competent to pass the Act under Entry 18 of List II of the Seventh Schedule, it is idle to suggest that the method adopted by the Act in describing the lands which are made liable to pay assessment, introduces any infirmity in the Art itself.
Therefore, we are satisfied that the contention that the definition of the word "Ruler" is inconsistent with article 366(22) and that makes the whole Act void, is without any substance.
The third argument which was faintly urged before us is that the Act contravenes the provisions of article 31 of the Constitution.
This argument is wholly misconceived.
article 31(1) deals with the deprivation of property save by autho rity of law, and cannot obviously be invoked against any 312 of the provisions of the Act; and article 31(2) deals with compulsory acquisition or requisition which also is entirely inapplicable to the present Act.
What the Act has purported to do is to authorise the levy of assessment in respect of lands which till then had been exempted from the said levy, and as article 31(5)(b)(i) provides nothing contained in clause (2) shall affect the provisions of any law which the State may make for the purpose of imposing or levying any tax or penalty.
If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as such, it is entirely outside the purview of article 31.
It appears that in Pratap Kessari Deo vs The State of Orissa & Ors.(1) the validity of the Act was challenged before the Orissa High Court and the said High Court has repelled the challenge and upheld the validity of the Act.
In our opinion, the view taken by the Orissa High Court is right.
The result is.
the petitions fail and are dismissed with costs.
One set of hearing fees.
Petition dismissed.

summary/full:
The petitioners in these three writ petitions challenged the operative provisions of the Orissa Private Lands of Rulers (Assessment of Rent) Act, 1958 and the, Rules framed thereunder.
These petitioners possess 302 private lands in the State of Orissa, which before the impugned Act were not subjected to the payment of rent, but which were assessed by the Revenue Officers in conformity with the Rules framed under the Act.
The petitioners claims a writ in the nature of certiorari quashing the said orders of assessment.
The Act was passed by the Orissa Legislature because it was thought expedient to provide for assessment of rent with respert to the private lands of Rulers in the State of Orissa.
The main object of the Act is to authorise the levy of rent in respect of the private lands of persons included in the definition of the word "Ruler" prescribed by section 2(h) of the Act.
Section 2(h) defines a "Ruler" as meaning the Ruler of a merged territory in the State of Orissa and includes his relatives and dependants.
The petitioners attacked the pro visions of the Act mainly on the ground that they contravened article 14 of the Constitution.
Held:(i) that section 6 of the Act does not contravene article 14 of the Constitution for the reason that fair and equitable tests have been laid down under section 6 of the Act for determining the rent which should be assessed in respect of the private lands of the Rulers.
In the present case the legislature had prescribed the method of determining the rent payable on the private lands; and the relevant factors specified by section 6 appear to be just and substantially similar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands.
The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad hoc basis.
The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, these lands could not be treated as comparable in every respect with the lands which were governed by the rates prescribed under the previous settlement.
(ii)In considering the validity of a statute under article 14 the wellestablished principle is that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it.
If the party fails to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid.
In all cases where the material adduced before the court in matters relating to article 14 is unsatisfactory, the court may have to allow the State to lean on the initial presumption of constitutionality.
(iii)There is no substance in the contention that the impugned Act is void because the definition of the word "Ruler" is inconsistent with Art, 366(22) of the Constitution.
There is no doubt that the definition of the word "Ruler" prescribed by section 2(h) of the Act is wider than that prescribed by article 366(22) of the Constitution.
303 The definitions prescribed by article 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires.
The whole object of defining the word "Ruler" in the Act is to specify and describe the lands in respect of which the operative provisions of the Act would come into play.
It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner.
(iv) The impugned Act is entirely outside the purview of article 31 of the Constitution as it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property.
It is a simple measure authorising the levy of a tax in respect of agricultural lands.
Pratap Kesari Deo vs The State of Orissa, A.I.R. 1961 Orissa 131, relied on.


judgement:
Criminal Appeals Nos. 48 and 80 of 1960.
Appeals by special leave from the judgment and orders dated December 11, 1959 and March 2, 1960 of the Bombay High Court Rajkot (Now Gujarat High Court) In criminal Revision Application No. 100 of 1959.
855 N.N. Keswani, for the appellants (in both the appeals).
D.R. Prom and R.N. Sachthey, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Wanchoo, J.
The two appeals by special leave arise out of the same criminal trial before a magistrate at Porbunder and will be dealt with together.
The three appellants along with one more person, namely, Keshavlal Nagjibhai were prosecuted under section 167 (81) of the , No. 8 of 1878, (hereinafter referred to as the Act).
The prosecution case briefly was that Vallabhdas Liladhar, who is now dead, came in contact with an Arab from whom he purchased smuggled gold weighing a little more than 84 tolas on December 1, 1956.
Before this, Vallabhdas Liladhar had borrowed Rs. 3,600/ from the other two appellants and Keshavlal about November 28, 1956, in order to make the purchase.
After making the purchase, Vallabhdas Liladhar came to Porbunder to the house of the other two appellants and Keshavlal and informed them of the purchase and wanted their help in the disposal of the gold.
The other two appellants namely, Narandas Nagjibhai and Vallabhdas Nagjibhai are brothers.
Keshavlal was also the brother of these two appellants.
The prosecution case further was that Narandas Nagjibhai asked Vallabhdas Nagjibhai to take the gold to Bantwa and sell it at the rate of Rs. 103/ or so per tola.
Vallabhdas Nagjibhai was also instructed that in case he could not sell the gold at that rate he should contact Vallabhdas Liladhar and Narandas Nagjibhai at Bantwa bus stand from where they were to go to Junagadh to dispose of the gold if no suitable buyer could be found in Bantwa.
Consequently Vallabhdas Nagjibhai proceeded to Bantwa by bus on December 2, 1956 in the afternoon.
In the meantime information was received by Mehta who was Inspector of Customs about the smuggling of this gold.
He consequently followed the bus in which Vallabhdas Nagjibhai was travelling and intercepted him at Kutiyana bus stand at about 3 p.m.
The Deputy Superintendent of Customs was also with Inspector Mehta and Vallabhdas Nagjibhai was taken down from the bus at Kutiyana.
On search in the presence of witnesses, five bars of gold weighing about 84 tolas were recovered from his possession.
All these five bars bore marks of foreign origin and were taken in possession by the customs authorities after preparing a recovery list.
Further investigation was made in the matter and eventually on October 7, 1957, the Collector of Central Excise Baroda confiscated the gold bars under section 167 (8) of the Act read with section 23 of the Foreign Exchange Regulation Act, 1947 and also imposed a penalty of Rs. 1,000/ each on the three appellants and a penalty of Rs. 500/ on Keshavlal.
Thereafter a complaint was filed by the Assistant Collector of Customs under section 167(81) of the Act before the magistrate at Porbunder on June 27.
856 The case of Vallabhdas Liladhar was that he had not purchased the gold from any Arab but had brought it with him from Karachi in the year 1946.
Vallabhdas Nagjibhai admitted the recovery of gold from him but said that it belonged to Vallabhdas Liladhar and he was carrying it at the request of the latter and that he did not know that it was smuggled gold.
Narandas Nagjibhai also, admitted that Vallabhdas Liladhar had come to their house with the gold but added that it was not smuggled gold and that Vallabhdas Liladhar had told him that it belonged to him and was for sale.
Keshavlal, the fourth person, who has been acquitted, said that he did not know anything about the matter and had no connection with it.
It may be added that the three appellants had made statements before the customs authorities and those statements were also put in evidence in support of the prosecution case.
In those statements, they practically admitted the prosecution case that the gold was smuggled gold and they were trying to dispose it of.
The magistrate convicted all the four persons under section 167 (81) of the Act and sentenced them to rigorous imprisonment for six months and a fine of Rs. 500/ He relied on the statements made by the appellants and Keshavlal before the customs authorities and also on the evidence produced before him, which was mainly about the recovery of gold.
All the four convicted persons appealed to the Sessions Judge.
The appeal was heard by the Additional Sessions Judge, Porbunder who acquitted Keshavlal.
The appeal of the other three (namely, the three appellants now before us) was dismissed and their convictions and sentences Were upheld.
The three appellants then went in revision to the High Court.
The High Court rejected the revisions of Vallabhdas Liladhar and Vallabhdas Nagjibhai summarily.
The revision application of Narandas Nagjibhai was admitted but was eventually dismissed.
The three appellants then applied for leave to appeal to this Court which was refused.
They then prayed for special leave from this Court, which was granted, and that is how the matter has come up before us.
Vallabhdas Liladhar, one of the appellants in Cr.
A 48 of 1960, is dead.
So far therefore as he is concerned, his appeal abates.
It only remains to consider the appeal of Vallabhdas Nagjibhai (Cr.A.48) and Narandas Nagjibhai (Cr.A.80).
Before however we consider the points raised before us on behalf of the appellants we may refer to the circumstances which have been found established by all the courts and on the basis of which the conviction of the appellants has been upheld.
These circumstances are (1) Though the price of gold at the relevant time was over Rs. 105/ per tola, the appellant were intending to sell these gold bars at a lower price of about Rs. 103/ per tola.
857 (2) The two appellants were working as goldsmiths at Porbunder and there was no reason why the gold had to be sent elsewhere for disposal.
As Porbunder is a fairly large town, there was no reason why the gold could not be sold in the market at Porbunder.
(3) The two appellants displayed undue haste in the disposal of gold.
(4) The surreptitious manner in which the gold bars were kept by Vallabhdas Nagjibhai as shown at the time of recovery shows that the appellants knew that they were dealing with smuggled gold.
(5) The amount of Rs. 3,600/ was advanced to Vallabhdas Liladhar but the entries in the account book of the appellants were made in the name of the brother of Vallabhdas Liladhar who is the brother in law of the two appellants.
(6) The markings on the gold made it quite clear that it was of foreign origin and the two appellants could not be unaware of this, particularly as they work as goldsmiths.
In addition to the above circumstances, all the courts relied on the statements made by the two appellants before the customs authorities and the presumption under section 178 A of the Act was raised and on that basis convicted the appellants, though the High Court held that even without the presumption under section 178 A the evidence was sufficient to convict the appellants.
Learned counsel for the appellants has very properly not challenged the concurrent findings of fact by all the courts.
He has raised four points for our consideration, which are these (1) The statements made to the customs authorities were inadmissible in evidence as they were not properly proved.
(2) The statement made before the Collector of Customs were inadmissible in evidence under sections 24 and 25 of the Indian Evidence Act.
(3) As the gold had already been confiscated and penalty had been imposed under section 167(8) of the Act, there could be no further trial in a criminal court in view of section 186 of the Act.
(4) The ingredients of section 167(81) are not satisfied in this case.
858 Re.
So far as the first point is concerned, the only argument is that the lawyer who signed the statements made before the customs authorities was not produced to prove them, and therefore the statements cannot be held to have been properly proved.
It is however clear that the statements were not only signed by the lawyer of the appellants but also by the appellants.
In their statements in court, the appellants admitted that they had signed the statements, though they said.
that they did not know what the statements contained and they signed it on being asked by their lawyer.
This part of the statements of the appellants has not been believed by the courts below and in our opinion rightly.
As the statements bore the signature of the appellants which are admitted, they must be held to be proved by this admission and it was not further necessary to examine the lawyer who signed the statements along with the appellants.
The contention on this head must there fore fail.
As to the second point, we are of opinion that section 25 of the Indian Evidence Act has no application on the facts of the present case which are on all fours with the facts in The State of Punjab vs Barkat Ram(1).
In similar circumstances it was held by this Court in that case that customs officers are not police officers and statements made to them were not inadmissible under section 25.
Section 24 would however apply, for customs authorities must be taken to be persons in authority and statements would be inadmissible in a criminal trial if it is proved that they were caused by inducement, threat or promise.
But the finding of all the courts is that the statements were not made on account of any inducement threat or promise as required by section 24 of the Indian Evidence Act.
In the face of this finding, therefore, it cannot be said that the statements are inadmissible under section 24 of the Indian Evidence Act.
Next the appellants rely on section 186 of the Act.
which reads as follows: "The award of any confiscation, penalty or increased rate of duty under this Act by an officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law.
" It is urged that when section 186 lays down that the award of any confiscation, penalty or increased rate of duty under the shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law, it necessarily forbids by implication infliction of any punishment to which (1) ; 859 the person affected thereby is liable under the itself.
In this connection our attention is drawn to certain observations in Leo Roy Frey vs The Superintendent District Jail(1).
It is true that in that case this Court referred to section 186 of the Act; but that case was not directly concerned with the question whether a prosecution under section 167(81) of the Act is permissible after the award of confiscation, penalty or increased rate of duty under section 167(8) of the Act in view of section 186.
Clause (81) in section 167 was introduced by the Amending Act No. 21 of 1955.
Before that there were 80 clauses in the section, and the scheme of those clauses was that a person could either be dealt with by the award of confiscation, penalty or increased rate of duty, or by a prosecution before a magistrate.
It was in those circumstances that section 186 provided that the award of confiscation, penalty or increased rate of duty would not bar infliction of any other punishment under any other law.
The intention of the legislature by this provision in section 186 was clearly to allow a prosecution under any other law even though there might be award of confiscation, penalty or increased rate of duty under the Act.
Section 186 was thus meant for permitting prosecutions in addition to action under the Act in the shape of confiscation, penalty or increased rate of duty; it was never intended to act as a bar to any prosecution that might be permissible after the award of confiscation, penalty or increased rate of duty.
It was merely an enabling section and not a barring section and seems to have been put in the Act ex abundanti cautela.
When however, cl.
(81) was introduced in section 167, it became possible in some cases where goods had been confiscated; and penalty inflicted under the Act by the customs authorities to prosecute persons also under cl.
(81) of the Act.
That however would not change the nature of the provision contained in section 186 which was an enabling provision and not a barring provision.
If the intention was to bar prosecutions in consequence of the award confiscation, penalty or increased rate of duty, the words of section 186 would have been very different.
We cannot therefore read in section 186 a bar by implication to a prosecution under the Act simply because section 186 enables prosecution under any other law.
In this view of the matter, section 186 is no bar to the prosecution for an offence under the Act in connection with a matter in which the award of confiscation, penalty or increased rate of duty has been made.
Next it is contended that the ingredients of cl.
(81) of section 167 are not satisfied inasmuch as it is not proved that the intention of the appellants was to defraud the government of any duty payable on the gold which was the subject matter of the charge in this case or to evade any prohibition or restriction for the time (1) ; , 827. 860 being in force.
It is true that before cl.
(81) can apply it has to be proved inter alia that the person charged thereunder with possession of any dutiable or prohibited or restricted goods or concerned in carrying, removing, depositing, keeping or concealing such goods, has the intention of defrauding the government of any duty payable thereon or of evading any prohibition or restriction thereon for the time being in force.
So it is said that the prosecution has failed to prove by positive evidence that the intention was to defraud the government of the duty payable on the gold in this case or to evade the prohibition or restriction on the import thereon for the time being in force.
We have not been able to understand this argument at all.
Once it is proved that the gold is smuggled gold, it follows that it was brought into the country without payment of duty or in violation of the prohibition or restriction in force.
and whosoever brought it and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the section must be held to have the intention of evading the payment of duty or violating the prohibition or restriction.
There is no force in this contention also.
Lastly it is urged that the substantive sentence of imprisonment in the case of the two appellants before us may be reduced to the period already undergone, particularly, as the appellants, have been on bail since March 1960 and it would not be in the interest of justice to send them back to jail for a short period after four years when about half the sentence has already been served out.
We however see no reason to interfere with the sentence in cases of this nature.
The appeals therefore fail and are hereby dismissed.
Appeal dismissed.

summary/full:
Smuggled gold recovered from the appellants was confiscated and a penalty imposed on them.
Thereafter the appellants were tried and convicted under section 167(81) of the Sea ' Customs Act.
In their statements made to the customs authorities, the appellants had practically admitted the prosecution case and these statements were put in evidence.
An appeal to the Sessions Judge and a revision to the High Court were dismissed.
In appeal to this Court: HELD: (i).Since the statements made to the customs authorities bore the signature of the appellants which were admitted, they must be taken to be proved by such admission and no further evidence was necessary.
[858C] (ii) Customs officers are not in the circumstances arising in this case police officers and statements mad.e to them were not inadmissible under section 25 of the Evidence Act.
Section 24 would apply, as customs authorities are persons in authority; and such statements would be inadmissible if vitiated by inducement, threat or promise.
[858E F] State of Punjab vs Barkat Ram, ; , followed.
(iii) Section 186 of the , which is merely an enabling section, is no bar to a prosecution for an offence under the Act in connection with a matter in which the award of confiscation, penalty or increased rate of duty has been made.
[859F, G] Leo Ray Frey vs Superintendent of District Jail ; , referred to.
(iv) Once the gold recovered is proved to be smuggled whosoever is found to have brought it and dealt with it, thereafter, knowing it to be smuggled must be held to have had the intention of evading duty or violating the prohibition or restriction.
[860C D]