judgement:
minal Appeal No. 244 cf 1969.
Appeal by special leave from the judgment and order dated July 23, 1969 of the Punjab and Haryana High Court in Criminal Appeal No. 302 of 1969 and Murder Reference No. 25 of 1969.
Nur ud din Ahmad and R. L. Kohli, for the appellant.
R. N. Sachthev, for respondent No. 1.
Frank Anthony, section R. Agarwal and E. C. Agarwala, for respondent No. 2.
The Judgment of the Court was delivered by Dua, J.
In this appeal by special leave the appellant challenges his conviction and sentence under section 302, I.P.C. for the; murder of his brother in law (husband of his wife 's sister).
The occurrence is stated to have taken place on Sunday October 8, 1968 at about 4.45 p.m. near the clock tower in Ludhiana ' City.
601 It is not disputed that on August 13, 1968 the appellant Tapinder Singh, a business man and a Municipal Commissioner, had lodged a first information report (exhibit PR) with the police station, Sadar, Ludhiana against Kulwant Singh, deceased whom he described as.
his Sandhu (his wife 's sister 's husband) and one Ajit Singh, alleging that on the pretext of consulting him they had taken him in their car to the canal near the Agricultural College an after getting down from the car, when they had walked about 150 paces on the banks of the canal, the deceased Kulwant Singh, saying that he would teach the appellant a lesson, whipped out a clasp knife and attacked him.
Ajit Singh also shouted that the appellant should not be allowed to escape.
The appellant raised alarm and tried to run away.
" While endeavoring to ward off with his right hand the knife blow by Kulwant Singh the appellant 's right hand palm got wounded and started bleeding, Just at that moment Gurmel Singh, Sarpanch and Shamsher Singh, Lambardar, happened to pass that way in a car.
They stopped the car.
In the meantime Kulwant Singh and Ajit, Singh got into, their car and went away.
Pursuant to this report admittedly a criminal case was pending against the deceased when the occurrence in question took place.
Kulwant Singh, deceased, who had been arrested pursuant to that report, in a case under section 307/ 324, I.P.C., was actually on bail on the date of the occurrence.
According to the prosecution Gurdial Singh (P.W. 7), father of the deceased Kulwant Singh is employed, as Works Manager in the, Ludhiana Transport Company, which is a private concern and which plies buses on different routes in Ludhiana District.
Gurdial Singh is also a share holder of this Company.
The workshop, the office and the taxi stand of this Company are located in Sarai Bansidhar which faces the clock tower.
Gurdial Singh, in addition, owns two taxis which he runs on hire.
He also owns two private cars which are used both for personal requirements and as taxis.
The deceased used to look after these four vehicles.
The father and the son used to live together in Model Town.
The two taxis used to remain at the Taxi Stand about 100 yards away from the clock tower whereas the other two cars used to be parked at Gurdial Singh 's business premises.
On August 8, 1968 at about 4.45 p.m. the deceased was sitting on a Takhat posh at the Taxi Stand.
It being a Sunday the shops in the neighborhood were closed.
Sher Singh (P.W. 9) was standing close to the Takhat posh.
Harnek Singh, the driver of one of the taxis and Gurdial Singh were also present.
At the taxi stand there was at that time only one taxi belonging to Gurdial Singh.
The appellant came from the side of the railway station and fired at the deceased five shots from his pistol.
After receiving three shots the deceased dropped down and the remaining two shots hit him when he was lying.
The persons present there raised art 602 ,alarm, shouting 'Don 't kill; dont kill '.
The appellant, after firing the shots, briskly walked back towards the railway station.
The ,deceased who was bleeding profusely was taken in the taxi by Gurdial Singh, his father and Hamek Singh, the driver, to Dayanand Hospital where they were advised to take the injured to Brown 's Hospital because his condition was serious.
It is in evidence that some person had telephoned to the City Kotwali, Ludhiana on the day of the occurrence at about 5 30 p.m. informing the police authorities that firing had taken place at ax Stand, Ludhiana.
The person, giving the information on telephone, did not disclose his identity; nor did he give any further particulars.
When the police officer receiving the telephone message made further enquiries from him he disconnected the telephone.
This report was entered in the daily diary at 5.35 p.m.
The Assistant Sub Inspector, Hari Singh, along with_ Assistant Sub Inspectors Amrik Singh, Jagat Singh and Brahm Dev and constables Prakash ,Singh, Harbhajan Singh and Harbans Lal, left the police station in a government jeep for the Taxi Stand, Ludhiana near Jagraon Bus Stand on the Grand Trunk Road, about a furlong and a half away from the City Kotwali Police Station.
From there Hari Singh learnt that the injured man had been removed by some persons to Dayanand Hospital.
As it was rumored at the place of the occurrence that the appellant Tapinder Singh had shot at the deceased, Hari Singh deputed Amrik Singh and Brahm Dev to search for him.
Hari Singh himself, along with.sub Inspector Jagat Singh and the police constables left for Dayanand Hospital.
From there they went to the Civil Hospital and then they proceeded to C.M.C. Hospital at about 6 30 p.m.
On enquiry they were informed that Kulwant Singh had been admitted there as an indoor patient.
Hari Singh went upstairs in the Surgical Ward and obtained the report (exhibit PH/ 13) prepared by Dr. E. Pothan who was in the Surgical Ward where Kulwant Singh was lying.
The statement of Kulwant Singh (exhibit PM) was also recorded by him at about 6.50 p.m. in that ward and the same after being read out by him was thumb marked by Kulwant Singh as token of its correctness.
That statement was forwarded to the police station, City Kotwali for registration of the case under section 307, I.P.C. Exhibit PM was also attested by Dr. Sandhu, House Surgeon.
Hari Singh deputed Assistant Sub Inspector, Jagat Singh to arrange for a Magistrate for recording Kulwant Singh 's dying declaration in the hospital.
The statement of Gurdial Singh, father of the deceased was also recorded there at about 7.20 p.m. Jagat Singh, A.S.I. brought Shri Sukhdev Singh, P.C.S., Judicial Magistrate, First Class, to the Hospital at about 7.30 p.m The dying declaration was, however, recorded at about 8.30 P.m. because Kulwant Singh was not found to be in a fit 'state of health to make the statement earlier.
Kulwant Singh died 603 at the operation theatre the same midnight.
Pursuant to exhibit PH/ 13 first information report was registered and the appellant committed to stand his trial for an offence under section 302, I.P.C. The learned Additional Sessions Judge, believing Gurdial Singh (P.W. 7), Sukhdev Singh, Judicial Magistrate (p.
W. 10) and Mukhtiar Singh, H. C. (P.W. 6) held proved the motive for the crime viz., that the appellant suspected illicit intimacy between his wife and the deceased who was married to her elder sister.
According to the trial Judge the appellant for this reason bore a grudge against the deceased.
The three eye witnesses Gurdial Singh, (P.W. 7), Hamek Singh (P.W. 8) and Sher Singh (P.W. 9) were held to have given a true and correct account of the occurrence and being witnesses whose presence at the place of occurrence was natural their evidence, was considered trustworthy, which fully proved the case against the accused.
The dying declaration was also found to be free from infirmity and being categorical and natural the court considered it sufficient by itself to sustain the conviction.
The circumstantial evidence, including that of the recovery of blood stained earth from the place of occurrence, the recovery of blood stained clothes of the deceased, the fact of the accused having absconded and the recovery of the pistol and cartridges were also held to corroborate the prosecution story.
Omission on the part of the prosecution to produce a ballistic export was considered to be immaterial and it was held not to weaken or cast a doubt on the prosecution case because the oral evidence of eye witnesses to the commission of the offence impressed the court to be trustworthy and acceptable.
The trial court also took into consideration the allegations con the course of the committal proceedings in the court of Shri Mewa Singh, Magistrate, on November 20, 1968 to the effect, inter alia, tained in an application presented by Gurdial Singh (P.W. 7) in that an attempt was being made on behalf of the accused to tamper with the prosecution witnesses.
The trial court convicted the accused under section 302, I.P.C. and imposed capital sentence.
On appeal the High Court rejected the criticism on behalf of the accused that the occurrence had nottaken place at the spot and in the manner deposed to by the eye witnesses.
On a detailed and exhaustive discussion of the arguments urged before the High Court it came to this conclusion : ". . that there was motive on the part of the appellant to commit this crime, that the three eyewitneses produced by the prosecution are reliable, they were present at the time of the occurrence and have given a correct version of the incident and that the medical 604 evidence fully supports the prosecution and no suspicion is attached to it.
The deceased made more than one dying declaration and we are satisfied that they were not induced and that the deceased gave a correct version of the incident.
The suggestion made that Tapinder Singh has been roped in on suspicion in not correct because implicit in such an argument is the suggestion that the crime was committed by somebody else.
It was broad day light, the assailant must have been identified and consequently we are satisfied that the offence has been fully brought home to the appellant.
The place of the occurrence does not admit of any doubt because there is good deal of evidence on the record that blood was recovered from where the Takhat posh was kept by GurJial Singh and there is no suggestion that the blood was found from anywhere else.
The learned counsel has then urged that the offence does not fall under section 302, Indian Penal Code, but no reasons have been given as to why this is not an offence punishable under section 302, Indian Penal Code.
Learned counsel urged that something must have happened which induced Tapinder Singh to commit this crime.
There is nothing on the record, not even a suggestion, that anything happened.
Tapinder Singh came armed with a pistol and fired as many as five shots at Kulwant Singh, two of which he fired on his back when Kulwant Singh had falled on the ground.
The appellant, therefore, does not deserve the lesser penalty contemplated by law.
Consequently, we uphold the conviction and sentence imposed upon Tapinder Singh.
The appeal is dismissed and the sentence of death is confirmed.
" On appeal in this Court under article 136 of the Constitution, Mr. Nuruddin Ahmed, learned advocate for the appellant.
ad dressed elaborate arguments challenging the conclusions of the courts below on which they have sustained the appellant 's conviction.
He started with an attack on the F.I.R. based on the dying declaration.
According to the counsel, the information in regard to the offence had already been conveyed to the police by means of a telephone message and the police had actually statrted investigation on the basis of that information.
This argument was, however, not seriously persisted in and was countered by the respondents on the authority of the decision in Sarup Singh vs 605 State of Punjab(").
The telephone message was received by Hari Singh, A.S.I., Police Station, City Kotwali at 5 35 p.m. on September 8, 1969.
The person conveying the ' information did not disclose his identity, nor did he give any other particulars and all that is said to have been conveyed was that firing had taken place at the taxi stand Ludhiana.
This was, of course, recorded in the daily diary of the police station by the police officer responding to the telephone call.
But prima facie this cryptic and annoymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report.
The mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report.
The question whether or not a particular document constitutes a first information report has, broadly speaking, to be determined on the relevant facts and circumstances of each case.
The appellant 's submission is that since the police authorities had actually proceeded to the spot pursuant to this information, however exiguous it may appear to the court , the dying declaration is hit by section 162, Cr.
This submission is unacceptable on the short ground that section 162(2), Cr.
P.C. in express terms excludes from its purview statements falling within the provisions of s.32 (1), Indian Evidence Act.
Indisputably the dying declaration before us falls within section 32(1), Indian Evidence Act and as such it is both relevant and outside the prohibition contained in section 162 (1), Cr.
The counsel next contended that the dying declaration does not contain a truthful version of the circumstances in which Kulwant Singh bad met with his death and, therefore, it should not be acted upon.
This argument is founded on the submission that the deceased did not meet with his death at the spot sworn by the prosecution witnesses and that none of these witnesses actually saw the occurrence 'because they were not present at the place and time where and when the deceased was shot at.
We are far from impressed by this contention.
The trial court and the High Court have both believed the three eye witnesses and have also relied on the dying declaration.
Normally, when the High Court believes the evidence given by the eye witnesses this Court accepts the appraisal of the evidence by that Court and does not examine the evidence afresh for itself unless, as observed by this Court in Brahmin Isharlal Manilal vs The State of Gujarat.
(1) "It is made to appear that justice has failed for reason of some misapprehension or mistake in the reading of the evidence by the High Court.
" (1) A.I.R. 1964 Punjab 508.
(1) Crl.
A. No. 120 of 1963 decided on August 10, 1965.
606 It was added in that judgment : "There must ordinarily be a substantial error of law or procedure or a gross failure of justice by reason of misapprehension or mistake in reading the evidence or the appeal must involve a question of principle of general importance before this Court will allow the oral evidence to be discussed.
" In the present case it was contended that the original document embodying the dying declaration is missing from the judicial record and it is suggested that the mysterious disappearance of this important document during the committal proceedings was intended to remove from the record the evidence which would have shown that this dying declaration could not legally constitute the basis of the F.I.R. and thereby frustrate the plea, of the accused that section 162, Cr.
P.C. operated as a 'bar to its admissibility.
The bar created by section 162(1), Cr.
P.C., as already noticed, is,inapplicable to dying declarations.
But, as the original dying declaration has somehow disappeared from the Judicial record and the case is of a serious nature, we undertook to examine the evidence in respect of the dying declaration.
The evidence of Shri Sukhdev Singh, Judicial Magistrate, as P.W. 10, is clear on the point.
The witness has repeated in court the statement made to him by Kulwant Singh which was recorded by the witness in Punjabi in his own hand.
An attempt was made by Mr. Nuruddin to persuade us to hold that Shri Sukhdev Singh 's statement is not trustworthy.
It was argued that there was no cogent reason for the Magistrate to permit the police officers to make a copy of the dying declaration.
This, according to the counsel, shows that the Magistrate acted in a manner subservient to the demands of the police officers and, therefore, his, statement should not be taken on its face value.
We do not agree.
The Magistrate, as observed by the High Court, is quite clear as to what the deceased had told him.
He has repeated the same in his statement in court.
Exhibit PJ has been proved by him as a correct account of the dying declaration recorded by.
It is not understood how the fact that the Investigating Officer was allowed to make a copy of the dying declaration could go against the Magistrate.
The dying declaration could legitimately serve as a guide in further investigation.
It was not argued that the dying declaration being a confidential document had to be kept secret from the Investigating Officer.
Our attention was drawn by the respondents to the application dated November 20, 1968(Ex.
PZ) filed by Gurdial Singh in the court Of Shri Mewa Singh, Magistrate, for expeditious disposal of the commitment proceedings.
In that application it was suggested that the defence had got removed ' the dying declaration and statements under section 164, Cr.
P.C. which 607 had presumably been destroyed.
According to the respondent 's suggestion it was the accused who was interested in the disappearance of the original dying declaration from the record.
In this connection we may point out that on October ' 27, 1968 Shri Mewa Singh, Magistrate, had lodged a report with the police under sections 379/400/201, I.P.C., alleging theft of the F.I.R., the, dying declaration and statements Of witnesses recorded under s.164 Cr.
P.C. in the case State vs Tapinder Singh.
For the disposal of this appeal it is unnecessary for us to express any opinion as to who is responsible for the disappearance of the dying declaration.
That question was the subject matter of a criminal proceeding and we have not been informed about its fate.
The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under. section 32(1) of the Indian Evidence Act in a case in which the cause of that person 's death comes into question.
It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused.
It is, therefore, not tested by cross examination on behalf of the accused.
But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity.
The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances.
This Court in Kushal Rao vs The State of Bombay( ') laid down the test of reliability of a dying declaration as follows : "On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence .
(5) that a dying (1) at pp.
568 569. 608 declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declara tion which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the 'facts stated had not been impaired at the time he was making the statement, by Circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
Hence in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination.
But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.
Thus, the necessity for corrobo ration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the.
reported cases, but from the fact that the court, in a given case, has come to the conclusion that that parti cular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.
" This view was approved by a Bench of five Judges in Harbans Singh vs State of Punjab.
( ') Examining the evidence in this (1) [1962] Supp. 1 S.C.R. 104.
609 case in the light of the legal position as settled by this Court we find that the dying declaration was recorded by the Magistrate within four hours of the occurrence.
It is clear and concise and sounds convincing.
It records : "Today at 4.45 p.m. my Sandhu (wife 's sister 's husband) Tapinder Singh fired shots with his pistol at me in the, presence of Harnek Singh, Sher Singh and Gurdial Singh at the taxi stand.
He suspected that I had illicit relations with his wife.
Tapinder Singh injured me with these fire shots.
" Considering the nature and the number of injuries suffered by the deceased and the natural anxiety of his father and others present at the spot to focus.
their attention on efforts to save his life we are unable to hold that he had within the short span of time between the occurrence and the making of the dying declaration been tutored to falsely name the, appellant as his assailant in place of the real culprit and also to concoct a non existent motive for the crime.
It is unnecessary for us to refer to the earlier declarations contained in exhibit PM, exhibit DC and exhibit PH/ 13 because the one recorded and proved by the Magistrate seems to us to be acceptable and free from infirmity.
If the dying decla ration is acceptable as truthful then even in the absence of other corroborative evidence it would be open to the court to act upon the dying declaration and convict the appellant stated therein to be the offender.
An accusation in a dying declaration comes from the victim himself and if it is worthy of acceptance then in view of its source the court can safely act upon it.
In this case, however, we have also the evidence of eye witnesses Gurdial Singh, (P.W. 7), Hamek Singh (P.W. 8) and Sher Singh (P. W. 9) whose testimony appears to us to be trustworthy and unshaken.
No convincing reason has been urged on behalf of the appellant why these three witnesses and particularly the father of the deceased should falsely implicate the appellant substituting him for the real assailant.
It is not a case in which, along with the real culprit, someone else, with whom the complainant has some scores to settle, has been added as a co accused.
The only argument advanced on behalf of the appellant was that the deceased was shot at somewhere else and not at the place where the prosecution witnesses allege he was shot at.
It was emphasised that these three witnesses were not present at the _place and time where the occurrence actually took place.
This submission is, in our view, wholly unfounded,and there is absolutely no material in support of it on the existing record.
The probabilites are clearly against it.
The fact that Hari Singh, A.S.I. (P.W. 2) went to the place of occurrence and from there he learnt from someone, 13Sup.
Cl/70 10 610 that the injured person bad been taken to Dayanand Hospital clearly negatives the appellant 's suggestion.
The fact that the A.S.I. did not remember the name of the person who gave this information would not detract from its truth.
On the contrary it appears to us to be perfectly natural for the A.S.I. in those circumstances not to attach much importance to the person who gave him this information.
And then, the short duration within which the injured person reached the hospital also shows that those who carried him to the hospital were closeby at the time of the occurrence and the suggestion that Gurdial Singh (P.W. 7), Hamek Singh (P.W. 8) and Sher Singh (P.W. 9) must have been informed by someone after the occurrence does not seem to us to fit in with the rest of the picture.
We are, therefore, unable to accept the appellant 's suggestion that the deceased was shot at somewhere else away from the place of the occurrence as deposed by the eye witnesses.
Some minor points were also sought to be raised by Mr. Nuruddin.
He said that the pair of shoes belonging to the deceased were left at the spot but they have not been traced.
The takhat posh on which the deceased was sitting has also not been proved to bear the marks, of blood nor a* the blood marks proved ,on the seats of the car in which the deceased was taken to the hospital.
The counsel also tried to make a point out of the omission by the prosecution to ' prove blood stains on the clothes of Gurdial Singh (P.W. 7) and Harmek Singh (P.W. 8) who had carried Kulwant Singh from the place of the occurrence to the hospital.
Omission to produce a. ballistic expert was also adversely criticised.
These, according to the counsel, are serious infirmities and these omissions militate against the prosecution story.
In our opinion, the criticism of the counsel assuming it to be legitimate, which we do not hold, relates to matters which are both insignificant and immaterial on the facts and circumstances of this case.
They do not in any way affect the truth of the main ,elements of the prosecution story.
On appeal under article 136 of the Constitution we do not think it is open to this Court to allow such minor points to be raised for the purpose of showing ,defects in appraisal of the evidence by the High Court and for ,evaluating the evidence for ourselves so as to arrive at conclusions different from those of the High Court.
The eye witnesses having been believed, these points lose all importance and cannot be pressed in this Court.
Considerable stress was laid on behalf of the appellant on the submission that according to the folder exhibit DC one Trilochan Singh was present in the hospital as a friend or relation of the injured person.
From this it was sought to be inferred that Gurdial Singh, father of Kulwant Singh, had not accompanied his 611 son to the hospital and that this would show that the eye witnesses are not telling the truth.
The argument seems to us to be without any basis and is misconceived.
In the first instance the name of Trilochan Singh on the folder has not been proved.
It is the contents of exhibit DC which have been proved by Dr. E. Pothan (P.W. I at the trial) who had appeared as P.W. 10 in the court of the Committing Magistrate.
Secondly in this document, as we have verified from the original record Gurdial Singh is actually mentioned as the father of the injured person.
We are, therefore, not impressed by the submission that Ex ' DC goes against the testimony of the eye witnesses.
Incidentally, exhibit DC also contains the precise information which was the subject matter of the dying declaration.
It appears that in order to discredit exhibit DC with respect to the information about the appellant being the assailant, the name of one Trilochan Singh (whose identity still remains unknown) was somehow made to appear on the folder but as it has not been legally proved and not referred to by any witness we need say nothing more about it.
This argument thus also fails.
The submission that the medical evidence contradicts the version given by eye witnesess also remains unsubstantiated on the record.
As a last resort it was contended that if the motive alleged by the prosecution is accepted then the sentence imposed would appear to be excessive.
In our view, the manner in which the five shots were fired at the deceased clearly shows that the offence committed was deliberate and pre planned.
We are unable to find any cogent ground for interference with the sentence.
The appeal accordingly fails and is dismissed.
G.C. Appeal dismissed.

summary/full:
The appellant was tried for murder, on the allegation that he caused the death of B by firing five shots at him from his pistol.
The testimony against him consisted of a dying declaration made by B, the statements of three eyewitnesses and some circumstantial evidence.
The trial court convicted the appellant and sentenced him to death.
The conviction and sentence were affirmed by the High Court.
In appeal by special leave before this Court the appellant contended : (i) that the information relating to the occurrence given to the police by telephone regarding which, an entry was made in the daily dairy must be treated as the first information report; (ii) that the dying declaration of deceased was inadmissible because it was hit by section 162 of the code of Criminal Procedure; (iii) that the dying declaration was unreliable; (iv) that the evidence in the case was not sufficient to justify the conviction of the appellant; (v) that, among other omissions, the non examination of the ballistic expert created a lacuna in the prosecution case; and (vi) that in view of the alleged, motive the appellant 's suspicion that the deceased had illicit relations with his wife the sentence should be reduced.
HELD : (i) The telephonic message recorded in the daily diary of the police station was a cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence and could not, therefore, be treated as first information report.
The mere fact that this information was the first in point of time could not by itself clothe it with the character of first information report.
The question whether or not a particular document constitutes a first information report, has to be determined on the relevant facts and circumstances of each case.
[605 B C] (ii)Section 162 Criminal Procedure Code in express terms excludes from its purview statements 'falling within the provisions of section 32(1) of the Indian Evidence Act.
indisputably, the dying declaration in the present case fell within section 3(1) of the Indian Evidence Act and as such it was both relevant and outside the prohibition contained in s.162(1) Cr. P. C. [605 D E] (iii)(a) In view of the evidence of the Judicial Magistrate who recorded the dying declaration the mere fact that the original dying declaration had been stolen from the file, could not destroy its value.
Nor could the fact that the investigating officer was allowed to make a copy 6 00 of the dying declaration be interpreted to mean that the Magistrate was subservient to the police.
A dying declaration is not a confidential document and can legitimately serve as a guide in further investigation.
[606 D G] (b) A dying declaration is not a deposition in Courtand it is neither made on oath nor in the presence of the accused.
Itis therefore not tested in cross examination on behalf of the accused.
But a dying declaration is admitted in evidence by way of an exceptionto the general rule against the admissibility of hearsay evidence on the principle of necessity.
The weak points of the dying declaration merely serve to put the court on its guard while testing its reliability by imposing on it an obligation to closely scrutinise all attendant circumstances.
So scrutinised.
the dying declaration in the present case must be accepted as true.
[607 D E] (iv)If the dying declaration is acceptable as true then even in the absence of other corroborative evidence it would be open to the court to act upon the dying declaration and convict the appellant stated therein to be the offender.
An accusation in a dying declaration comes from the victim and if it is accepted then in view of its sources the court can safely act on it.
In the present case not only the dying declaration but the other evidence including that of three eye witnesses justified the conviction of the appellant.
[609 E F] (v)When the eye witnesses have been believed minor points such as non production of the ballistic expert lose all importance.
[610 E F] (vi)In view of the manner in which five shots were fired at the deceased,the murder was deliberate and pre planned and the plea for reductionof the sentence could not be accepted.
[611 E] Sarup Singh vs State of Punjab, A.I.R. 1964 Punjab 508, Brahmin Ishwarlal Manilal vs State of Gujarat, Cr.
A. No. 120/63 dt.
10 8 1965.
Kushal Rao vs State of Bombay, at pp.
568 569 and Harbans Singh vs State of Punjab, [1962] Sup. 1 S.C.R. 104, referred to.


judgement:
iminal Appeal No.30 of 1970.
Appeal by special leave from the judgment and order dated June 19, 1969 of the Judicial Commissioner 's Court, Goa, Daman and Diu in Criminal Revision Application 23 of 1968.
M. C. Chagla, E. C. Agarwala and section R. Agarwal, for the appellant.
V. A. Seyid Muhammad and section P. Nayar, for the respondents.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is from the judgment and order of the Judicial Commissioner, Goa, Daman & Diu, allowing the revision application under section 435 of the Indian Code of Criminal Procedure filed by the State.
The only point involved in this appeal is whether the order passed by the Lt. Governor dated November 6, 1963, was invalid.
This order reads as under : "ORDER GAD 74 63 25007 In exercise of the powers conferred by the Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962 and notwithstanding anything to the contrary contained in any law for the time being in force in this Territory, the Lieutenant Governor makes the following order : All criminal proceedings in relation to offenses committed prior to the date of coming into force of the Criminal Procedure Code shall be carried on under the law in force in the Territory before that date.
By order and in the name of the Lieutenant Governor of Goa, Daman and Diu." Before dealing with the question of the validity of this order it is necessary to give a few facts.
On December 20, 1961, Goa, Daman and Diu became part of the territory of India.
The residence of the appellant was raided on June 25, 1963, and 72 bars of gold were seized.
On November 1, 1963, the Goa, Daman and Diu (Laws) Regulation, 1962 (Regulation No. XII of 1962) hereinafter referred to as the Regulation was promulgated by the President and published in the Gazette on November 22, 1962.
The effect of section 3 of the Regulation, read with the Schedule, was inter alia to extend the provisions of the Code of Criminal Procedure, 1898, to Goa, Daman and Diu. 716 Section 3 (2) of the Regulation enabled the Lt. Governor to fix the date of coming into force of the Act in Goa, Daman and Diu.
It appears that by notification dated September 24, 1963, the date of the coming into force of the Indian Penal Code and the Code of Criminal Procedure was changed from October 1, 1963, to November 1, 1963.
Accordingly, it is the latter date on which the Code of Criminal Procedure came into force in Goa, Daman and Diu.
Section 7 of the Regulation provides: "Until the relevant provisions of the Code of Criminal Procedure, 1898, are brought into force in Goa, Daman and Diu, all offenses under any Act shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the corresponding law in force in Goa, Daman and Diu." The effect of section 7, as is clear from the section, was that offenses committed prior to the coming into force of the Criminal Procedure Code were to be investigated, inquired into, etc., under the provisions of the corresponding law in force in Goa, Daman and Diu.
Section 8 of the Regulation provides "If any difficulty arises in giving effect in Goa, Daman and Diu, to the provisions of any Act extended by this Regulation to that Union territory, the Central Government may, by order in the Official Gazette, make such provisions or give such directions as appear to it to be necessary for the removal of the difficulty.
" it appears that some difficulties were experienced by the Lt. Governor and he purported to pass the impugned order which we have set out above.
It will be noticed that the impugned order does not refer to section 8 of the Regulation but refers instead, to Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962.
We have seen this Order and it is common ground that this Order did not enable the Lt. Governor to pass the impugned order.
On April 20, 1966, a complaint was filed against the appel lant in the Court of Judicial Magistrate 1st Class, Margao, under the Defence of India Rules.
The prosecution was challenged on various grounds but these grounds failed before the Judicial Magistrate.
The order of the Judicial Magistrate is not on the record.
A revision was filed to the Sessions Judge, who first discussed the question of jurisdiction.
He held that by virtue of 717 the impugned order the procedure to be followed in the case is one laid down by the Portuguese Criminal Procedure Code and not by the (Indian) Code of Criminal Procedure, 1898.
On a revision filed by the State, the learned Judicial Com missioner came to the conclusion that the impugned order was ultra vires.
He agreed with the Government pleader that the impugned order was not in conformity with the 19612 Order [Goa, Daman and Diu (Administration) Removal of Difficulties Order] passed by the Central Government.
It is common ground that if a power subsists and the Lt.
Governor call justify the impugned order under any law, the appellant is not debarred from relying on that law.
It seems to us that section 8 of the Regulation clearly authorised the Lt. Governor to pass the impugned order.
The learned counsel for the State says that the word "diffi culty" in section 8 of the Regulation has to be interpreted in a very narrow sense and in this connection relies on the following observations of Hidayatullah, I., as he then was, in Jalan Trading Co. (Private) Ltd. vs Mill Mazdoor Union( '): "The order, of course, would be passed within the four comers of the parliamentary legislation and would only apply the Act to concrete cases as the courts do when they consider the application of an Act.
" He says that there was no concrete case arising in this case and, therefore, the impugned order cannot be justified by reference to section 8 of the Regulation.
But Hidayatullah, J., was in minority and Shah, J., speaking for the majority, proceeded on the basis that the section under consideration authorised the Government to determine for itself what the purposes of the Act were and to make provisions for removal of doubts or difficulties.
Shah, J., did not give any limited, meaning to the word "difficulty" in that case.
We may mention here that neither the appellant nor the res pondent has urged before us that section 8 of the Regulation itself is invalid.
It seems to us that difficulty was bound to arise in giving effect to the Code of Criminal Procedure because, this Code contemplates investigation and trial under the Code.
If investigations had been done under the Portuguese Criminal Procedure Code, unless there was some clear provision to deem that investigation as investigation under the Code of Criminal Procedure, fresh (1) ; ,59. 718 investigations under the Code of Criminal Procedure would have to be undertaken.
Be that as it may, whatever the difficulties which impelled the Lt. Governor to act, he was competent to make provisions to remove the difficulties.
We may mention that although section 8 of the Regulation enables the Central Government to remove the difficulty, by reading the definition of the "Central Government ' in the General Clauses Act, the Administrator of Goa, Daman and Diu is en titled to exercise the powers of the Central Government, and the Lt. Governor is the Administrator of Goa, Daman and Diu.
We are accordingly of the opinion that the impugned order is valid and the prosecution must be conducted in accordance with its provisions.
in the result the appeal is allowed, the judgment and order of the Judicial Commissioner set aside and that of the learned Sessions Judge restored.
V.P.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Under section 3(2) of the Goa, Daman and Diu (Laws) Regulation, 1962.
November 1, 1963, was the date fixed for coming into force of the Indian Po" Code and the Indian Code of Criminal Procedure in Goa, Daman and Diu.
Under section 8 of the Regulation if any difficulty arises in giving effect in Goa, Daman and Diu, to any Act extended to that territory the Central Government may make provision for the removal of the difficulty.
As some difficulties were experienced regarding the law relating to criminal procedure the Lt. Governor, on November 6.
passed an Order, not under section 8 of the Regulation, but in Purported exercise of the powers conferred by the Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962, to the effect that all criminal proceedings in relation to offenses committed prior to the date of coming into force of the Indian Criminal Procedure Code shall be carried on under the law in force in the territory before that date.
On June 25, 1963, some bars of gold were seized from the residence of the appellant and a complaint was filed against him, in 1966.
On the question of the procedure to be followed, the Judicial Commissioner, in revision, held that the Order of November 6, 1963 was ultra vires the Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962, and held that the procedure laid down in the Indian Criminal Procedure Code should be followed.
in appeal this Court, HELD:(1) 'Me Goa, Daman and Diu (Administration) Removal of Difficulties Order, 1962, does not enable the Lt. Governor to Pass the Order dated November 6, 1963.
But section 8 of the 1962 Regulation autborised him to pass the Order.
If the power subsists, and the Lt. Governor could justify the order under any law, the parties are not debarred from relying on it.
[717 B D] (2) Section 8 of the Regulation authorises the Government to make provision for removal of difficulties.
The word 'difficulty ' is not to be construed in the narrow sense of a difficulty with respect to a concrete case.
[1717 F] Majority opinion in Jalan Trading Co. (P) Ltd. vs Mill Afazdoor Union, ; , 59, followed.
(3) Under the definition of 'Central Government ' in the General clause% Act, the Lt. Governor, as the Administrator of Goa, Daman and Diu is entitled to exercise the powers of the Central Government, [178 B C] 715 (4) Therefore, the procedure to be followed in the present case is the one laid down by the Portuguese Criminal Procedure Code and not by the Indian Code of Criminal Procedure.
[718 C]


judgement:
Appeals Nos. 2483 and 2484 of 1969.
Appeals by special leave from the judgment and order dated April 11, 1969 of the Allahabad High Court in Sales Tax References Nos.
580 and 581 of 1966.
J. P. Goyal and Sobhagmal Jain, for the appellants (in both the appeals).
C. B. Agarwala and 0.
P. Rana, for the respondent (in both the appeals).
The Judgment of the, Court was delivered by Shah, J. The appellants who are dealers in food grains supplied to the Regional Food Controller diverse quantities of wheat in compliance with the provisions of the U.P. Wheat Procurement (Levy) Order, 1959.
The Sales Tax Officer levied tax under the U.P. Sales Tax Act on the aggregate of the price of wheat by the appellants, rejecting the contention raised,by the appellants that the wheat supplied was not sold by them to the Controller.
In appeal the Assistant Commissioner (Judicial) Sales Tax held that the turnover resulting from supplies of wheat was not taxable since there was no "sale" within the meaning of the U.P. Sales Tax Act, 1948.
The order was confirmed by the Additional Judge (Revisions) Sales Tax.
The Additional Judge (Revisions) Sales Tax referred the following questions to the High Court of Allahabad for opinion (1) Whether the sales made to the Regional Food Controller under the U.P. Wheat Procurement (Levy) Order, 1959, are sales within the meaning of "sale" under section 2(h) of the U.P. Sales Tax Act ? (2) Whether in the circumstances of the case, the assesses are liable to pay sales tax on the sales made to the Regional Food Controller under the provisions of the U.P. Wheat Procurement (Levy) Order, 1959 ?" The questions raised were defective in form.
The word "sales" when it first occurs in Question No. (1 ) should be "supplies".
The expression "sales made" in Question No. (2) should be "on the price for wheat supplied".
We modify the questions accordingly.
The High Court of Allahabad, following their earlier judgment in Commissioner of Sales Tax,, U.P. Lucknow vs ) an Bilas 673 Ram Gopal(1) answered the two questions in the affirmative.
The appellants have appealed to this Court with special leave.
The expression "sale" is defined in section 2(h) of the U.P. Sales Tax Act, 1948 as meaning any transfer of property in goods for cash, deferred payment or other valuable consideration, but not including a mortgage, hypothecation, charge or pledge.
Power of the Provincial Legislature by virtue of Entry 48 List 11 of the Government of India Act, 1935, was restricted.
The, Legislature was competent to legislate for levy of tax only on transactions which were "sales" within the meaning of the Indian : State of Madras vs Gannon Dunkerley and Co. (Madras) Ltd.( ') M/s. New India Sugar Mills Ltd. vs Commissioner of Sales Tax, Bihar( ').
It was observed in M/s. New India Sugar Mills ' case( ') : "In popular parlance 'sale ' means transfer of property from one person to another in consideration of price paid or promised or other valuable consideration.
But that is not the meaning of 'sale ' in the .
Section 4 of the provides by its first sub section that a contract of sale of goods is a contract where the seller agrees to transfer the property in goods to the buyer for a price.
"Price" by cl.
(10) of section 2 means the money consideration for sale of goods, ,and "where under a contract of sale property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the 'property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell" [sub section (3) section 4].
It is manifest that under the a transaction is called sale only where for money consideration property in goods is transferred under a contract of sale.
Section 4 of the was borrowed almost verbatim from section I of the English 56 & 57 Vict.
c. 71.
As observed by Benjamin in the 8th Edn. of his work on 'Sale ', "to constitute a valid sale there must be a concurrence of the following elements viz. (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised".
It was also observed that the expression "sale of goods" in the Constitution must be understood in the same sense in which it is (1) (1969) All L.J. 424.
(2) ; (3) [1963] Suppl.
2 S.C.R. 459.
13Sup.
C 1/70 14 674 used in the .
The U.P. Legislature could therefore legislate for levy of sales tax on a transaction which amounted to a sale within the meaning of the , and not on any other transaction which was deemed by fiction to be a sale.
It is necessary then to determine whether the stocks of wheat supplied by the appellants in compliance with the provisions of the U.P. Wheat Procurement (Levy) Order, 1959 to the Regional Food Controller were sold to that Officer within the meaning of the definition of the word 'sale ' in section 2(h) of the U.P. Sales Tax Act, 1948.
The relevant provisions of the U.P. Wheat Procurement (Levy) Order, 1959, may first be read.
The preamble to the Order states : "Whereas the State Government is of the opinion that it is necessary and expedient so to do for maintaining the supplies of wheat and for securing its equitable distribution and availability at fair prices Now, THEREFORE, in exercise of the powers conferred by clauses (e), (f), (h), (i) and (j) of sub section (2) of section 3 of the (10 of 1955), the Governor of the State of Uttar Pradesh is pleased to make the following order Clause 3 provides "(1) Every Licensed dealer shall sell to the State Government at the controlled prices (a) Fifty (50%) per cent if wheat held in.
stock by him at the commencement of this Order; and (b) Fifty (50%) per cent of wheat procured or purchased by him every day beginning with the date of commencement of this Order and until such time as the State Government otherwise directs.
(2) The wheat required to be sold to the State Government under sub clause (1) shall be delivered by the licensed dealer to the Controller or to such other person as may be authorised by the Controller to take delivery on his behalf.
" Clause 4 confers powers of entry, search, seizure upon Enforcement Officers : insofar as it is material it provides "(1) Any Enforcement Officer may, with a view to securing compliance with this Order or to satisfying himself that this order has been complied with 675 (i) enter with such assistance as may be necessary any premises where he has reason to believe that wheat is procured, purchased or stocked , (ii)ask of any person all necessary questions; (iii) examine any books or documents; (iv) search any premises, vehicles, 'vessels and aircraft and seize wheat in respect of which he has reasons to believe that a contravention of the order has been, is being, or is about to be committed and thereafter take or authorise the taking of all measures necessary for securing the production of stocks so seized in a court and for their sale custody, pending such production.
By cl. 3 of the Order every licensed, dealer is directed to "sell" to the State Government 50% of the wheat held in stock by him on the date of the commencement of the Order at the "controlled prices".
Again out of the stock of wheat procured or purchased by him every day beginning with the date of commencement of the Order he is directed to "sell" 50% of that stock.
The Order enjoins the licensed dealer to deliver the quantities specified in subcl.
(1) of cl. 3 either to the Controller or to such other person as may be authorised by the Controller to take delivery on his behalf.
To ensure that the licensed dealer carries out his obligation the Enforcement Officers may enter any premises where they have reason to believe that wheat is procured, purchased or stocked, and may make necessary enquiries, examine any books or documents and search any premises, vehicles, vessels and aircraft and seize wheat in respect of which they have reason to believe that a contravention of the Order has been, is being, or is about to be, committed.
Obligation to deliver wheat of the quantity specified arises out of the statute.
The Order takes no account of the volition of the licensed dealers and until the State Government directs otherwise, of the Controller or the authorised officer.
The Order imposes an obligation upon the licensed dealer who is defined in cl. 2(d) as meaning a person holding a valid licence under the U.P. Food grains Dealers Licensing Order, 1959, to deliver the quantities of wheat specified in the Order.
The State Government is directed by the Order to pay for the wheat supplied at the controlled rate.
The source of the obligations to deliver the specified quantities of wheat and to pay for them is not in any contract, but in the statutory order.
In our judgment cl.
3 sets up a machinery for compul 676 sory, acquisition by the State Government of stocks of wheat belonging to the licensed dealers.
The Order, it is true, makes no provision in respect of the place and manner of supply of wheat and payment of the controlled price.
It contains a bald injunction to supply wheat of the specified quantity day after day, and enacts that in default of compliance the dealer is liable to be punished; it does not envisage any consensual arrangement.
It does not require the State Government to enter into even an informal con tract.
A sale predicates a contract of sale of goods between persons competent to contract for a price paid or promised : a transaction in which an obligation to supply goods is imposed, and which does not involve an obligation to enter into a contract, cannot be called a 'sale ', even if the person supplying goods is declared entitled to the value of goods, which is determined or determinable in the manner prescribed.
Assuming that between the licensed dealer and the Controller, there may be some arrangements about the place and manner of delivery of wheat, and the payment of " controlled price", the operation of cl. 3 does not on that account become contractual.
The High Court relied upon the following observations in Ram Bilas Ram Gopal 's case( ') "Analysing clause 3 of the Levy Order it is clear that a licensed dealer is obliged to sell to the State Government fifty, per cent of the wheat held in stock by him at the commencement of the Order, and thereafter fifty per cent of the wheat daily procured or purchased by him beginning with the date of commencement of the Order until such time as the State Government otherwise directs.
The price at which the wheat is sold is the maxi mum price fixed in the Wheat (Uttar Pradesh) Price Control Order, 1959 as notified by the Government of India.
Delivery of the wheat has to be given by the dealer to the Regional Food Controller or a person authorised by him in that behalf.
The dealer has no option but to sell the specified percentage of wheat to the State Government.
The State Government has also no option but to purchase fifty per cent of the wheat held in stock by the dealer at the commencement of the Levy Order.
As regards the wheat procured or purchased daily by the dealer thereafter, it is open to the State Government to say that from any particular date it will not purchase any or all of the specified percentage of wheat.
Therefore, as regards that wheat the Levy Order leaves it open to one of the parties, namely the State Government to decide when it will stop purchasing wheat from the dealer.
That in substance is clause 3 of (1961) All.
L.J. 424 677 the Levy Order and it embodies the total sum of obligations imposed on the dealer and the State Government.
All other details of the transaction are left open to negotiation.
It leaves it open to the parties to negotiate in respect of the time and the mode of payment of the price, the time and mode of delivery of wheat, and other conditions of the contract.
" Clause 3 of the Order compels the licensed dealer to deliver to the Controller or his authorised agent every day 50% of the wheat procured or purchased by him.
There is no scope for negotiations there.
Assuming that the Controller may designate the place of delivery and the place of payment of price at the controlled rate, and the licensed dealer acquiesces therein, or even when in respect of those two matters there is some consensual arrangement, in our judgment, supply of wheat pursuant to cl. 3 of the Order and acceptance thereof do not result in a contract of sale.
The High Court observed that ". .whatever compulsive or coercive force is used to bring about a transaction under clause 3 of the Levy Order, it must be traced to legislation.
It cannot be attributed to the State Government as a party to the transaction.
This, then, is clear.
There is nothing in the Levy Order which can be accused of vitiating the free consent of the parties as defined under Sec.
14 of the Indian Contract Act, when entering into the contract of sale.
" But these observations assume a contract of sale which the Order does not contemplate.
If there be a contract, the restrictions imposed by statute may not vitiate the consent.
But the contract cannot be assumed.
We may refer to certain decisions of this Court on which reliance was placed at the Bar.
In M/s. New India Sugar Mills ' case( ') under the Sugar and Sugar Products Control Order, 1946, a scheme was devised for equitable distribution of sugar.
The consuming States intimated to the Sugar Controller of India their requirements of sugar and the factory owners sent statements of stocks of sugar held by them.
The Controller made allotments to various States and addressed orders to the factory owners directing them to supply sugar to the States in question in accordance with the despatch instructions from the State Governments.
Under the allotment orders, M/s. New India Sugar Mills Ltd., in Bihar despatched stocks of sugar to the State of Madras.
The State of Bihar treated the transaction as a sale and levied tax thereon under the (1) [1963] Supp. 2 S.C.R. 459.
678 Bihar Sales Tax Act, 1947.
The tax payer contended that the supplies of sugar; pursuant to the directions of the Controller, did not result in sales, and that no tax was exigible on such transactions.
A majority of the Court observed that despatches of sugar pursuant to the directions of the Controller were not made in pursuance of any contract of sale.
There was no offer by the tax payer to the State of Madras, and no acceptance by the latter; the tax payer was under the Control Order compelled to carry out the directions of the Controller and it had no volition in the matter.
Intimation by the State of its requirements of sugar to the controller or communication of the allotment order to the assessee did not amount to an offer.
Nor did the mere compliance with despatch instructions issued by the Controller, which the assessee had not the option to refuse to comply with, amount to acceptance of an offer Or to making of an offer.
A contract of sale of goods postulates a voluntary arrangement regarding goods between the contracting parties.
It was held that in the case before the Court there was no such voluntary arrangement.
In two later decisions of this Court the true character of transactions in which supplies of commodities were made pursuant to Control Orders was examined.
In Indian Steel & Wire Products Ltd. vs State of Madras( ') the tax payer supplied certain steel products to various persons in the State of Madras pursuant to the directions given by the Steel Controller exercising powers under the Iron and Steel (Control of Production and Distribution) Order, 1941.
The authorities of the State of Madras assessed the turnover of the tax payer resulting from those transactions to sales tax under the Madras General Sales Tax Act.
The tax payer contended that the transactions of supply did not result in sales and were on that account not exposed to sales tax, because steel products were supplied pursuant to the directions of the Iron and Steel Controller made under cl.
10B of the Order there being no mutual assent between the parties to the transaction.
This Court held that the supplies were made pursuant to the directions issued under cl. 5 of the Order and not pursuant to the directions issued under cl.
10B of the Order.
It was observed that the Orders were in respect of goods not yet manufactured, whereas under cl.
10B directions could be given only in respect of goods already in stock, and since cl. 5 did not require the Controller to regulate or control every facet of a transaction between a producer and the person to whom the taxpayer supplied iron and steel products the transactions were consensual.
Clause 5 of the Order read as follows "No producer or stock holder shall dispose of or agree to dispose of or export or agree to export from British India any iron or steel, except in accordance with (1) ; 679 the conditions contained or incorporated in a general or special written order of the Controller.
" Clause 10B provided "The Controller may, by a written order require any person holding stock of iron and steel, acquired by him otherwise than in accordance with the provisions of clause 4 to sell the whole or any part of the stock to such person or class of persons and on such terms and conditions as may be specified in the Order." Comparing the terms of cl. 5 with the terms of cl. 10, the Court observed that liberty of contract in large measure was reserved to the producer or stockholder and to the purchaser in the matter of disposal of iron & steel.
The obligation imposed by cl. 5 was, it was said, not to dispose of or agree to dispose of or export or agree to export any iron or steel except in accordance with the conditions contained or incorporated in the order of the Controller and that since there was liberty of contract between the parties but subject to restrictions, the transaction could be regarded as a sale.
It was observed at p. 489 : "But under clause 5 he can authorise a producer or a stockholder to dispose of any iron or steel whether the same is in stock or not in accordance with the conditions contained or incorporated in a sp ecial or general written order issued by him.
In the instant case, as can be gathered from the correspondence already referred to, the order issued by the Controller could be complied with only after manufacturing the required material.
Hence, the order issued by the Controller could not have been issued under clause 10B." The Court then observed : ". . the area within which there can be bargaining between a prospective buyer and PA intending seller of steel products, is greatly reduced.
Both of them have to conform to the requirements of the order and to comply with the terms and conditions contained in the order of the Controller.
Therefore they could negotiate only in respect of matters not controlled by the order or prescribed by the Controller.
" The Court also observed : "It would be incorrect to contend that because law imposes some restrictions on freedom to contract, there is no contract at all.
So long as mutual assent is not completely excluded in any dealing, in law it is a con tract.
On the facts of this case for the reasons already 680 mentioned, it is not possible to accept the contention of the learned counsel for the appellant that nothing was left to be decided by mutual assent.
" The Court in that case distinguished the case in M/s. New India Sugar Mills ' case( ') and expressly reserved their opinion on the question whether supplies of goods pursuant to the directions issued under cl.
10B of the Order may be regarded as sales.
The decision in Indian Steel & Wire Products Ltd. 's case( ') does not justify the view that even if the liberty of contract in relation to the fundamentals of the transaction is completely excluded a transaction of supply of goods pursuant to directions issued under a Con trol Order may be regarded as a sale.
In Andhra Sugars Ltd. & Anr.
vs State of Andhra Pradesh & Ors.(3) again, in the view of the Court liberty of contract between parties to transactions relating to supply of sugarcane was not ruled out.
Under the Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1961, the occupier of a sugar factory had to buy sugarcane from cane growers in conformity with the directions of the Cane Commissioner.
Under section 21 of the Act the State Government had power to tax purchases of sugarcane for use, consumption or sale in a sugar factory.
Certain owners of sugar factories contended that "section 21 was invalid." They contended that they were compelled by law to buy cane from the cane growers, and since purchases made by them were not under agreements, the price paid for sugarcane could not be taxed under a statute enacted in exercise of the power in Entry 54 List II of the Seventh Schedule to the Constitution.
This Court held that under Act 45 of 1961 and the rules framed thereunder, the cane grower in the factory zone was free to make or not to make an offer of sale of cane to the occupier of the factory; if the cane grower made an offer, the occupier of the factory was bound to accept it, and the agreement resulting therefrom was recorded in writing and was signed by the parties.
,, The consent of the occupier of the factory was free as defined in section 14 of the Indian Contract Act.
The compulsion of law is it was said not coercion as defined in section 15 of the Act.
The agreements were enforceable by law and were regarded as contracts of sale as defined in section 4 of the Indian .
In a later decision of this Court, State of Rajasthan & Anr.
vs M/s. Karam Chand `happar & Bros. Ltd., (4) the assessee who had acquired monopoly rights to supply coal in Rajasthan and sold coal to the State of Rajasthan.
The Sales Tax Officer sought to (1) [1963] Supp. 2 S.C.R. 459.
(3) ; , (2) ; (4) , 681 tax the turnover from supplies of coal made to the State of Rajasthan.
It was held by this Court that the colliery Control Order super imposed upon the agreement between the parties the rate fixed by the Control Order and by reason of such super imposition of the rate fixed by the Control Order the mutual assent of the parties and the voluntary character of the transactions were not affected.
The decision of this Court ' in M/s. New India Sugar Mills ' case( ') was distinguished on the ground that there was in the case then in hand mutual assent between the parties, to the transaction of supply of coal.
The decision of the House of Lords in Kirkness (Inspector of Taxes) vs John Hudson & Co. Ltd.( ') is instructive.
In that case liability to pay income tax on the difference between the compensation received for requisition of certain wagons by the Minister of Transport was in issue.
A majority of the House held that there was no sale of the wagons and no income tax was payable.
Viscount Simonds observed ". the taxpayers ' wagons were not sold, and it would be a grave misuse of language to say that they were sold.
To say of a man who has had his property taken from him against his will and been awarded compensation in the settlement of which he has had no voice, to say of such a man that he has sold his property appears to me to be as far from the truth as to say of a man who has been deprived of his property without compensation that he has given it away.
Alike in the ordinary use of language and in its legal concept, a sale connotes the mutual assent of two parties.
So far as the ordinary use of language is concerned, it is difficult to avoid being dogmatic but, for my part, I can only echo what Singleton, L.J., said in his admirably clear judgment (1954)1 All E.R. at page 32): "What would any one accustomed to the use of the words 'sale ' or 'sold ' answer ? It seems to me that every one must say 'the taxpayer did not sell '." " On the date of the commencement of the U.P. Wheat Procure ment (Levy) Order, upon the licensed dealer was imposed a liability to deliver half the quantity of wheat on hand, and he had also to supply to the State Government 50% of the quantity of wheat procured or purchased by him every day beginning with the date of commencement of the Order.
If he failed to carry out the obligation he was liable to be penalized.
To ensure that he carried out his obligation his premises were liable to be searched and (1) [1963] Supp. 2 S.C.R. 459.
(2) 682 his property sequestered.
The order ignored the volition of the dealer.
We are unable to hold that there was any contract between the assessee and the State pursuant to which the goods were sold within the meaning of the U.P. Sales Tax Act.
The appeals are allowed.
The order passed by the High Court is set aside.
The answer to the two questions as reframed by us will be in the negative.
The appellants will be entitled to their costs in this Court and in the High Court.
One hearing fee.
Y.P. Appeals allowed.

summary/full:
The, assesses who were dealers in food grains supplied to the Regional Food Controller diverse quantities of wheat in compliance with the provisions of the U.P. Wheat Procurement (Levy) Order, 1959.
The Sales tax Officer levied tax under the U.P. Sales tax Act on the aggregate of the price of wheat supplied by the assesses, rejecting the assesses ' contention that the wheat supplied was not sold to the Controller.
In appeal, the Assistant Commissioner (Judicial) Sales Tax held the supply was not taxable since there was no "sale" within the U.P. Sales tax Act.
This order was confirmed by the Additional Judge (Revision) Sales Tax.
On reference, the High Court answered the question against the assesses.
Allowing the assesses ' appeal by special leave, this Court.
HELD : The supply, pursuant to cf. 3 of the U.P. Wheat Procurement (Levy) Order, 1959 and acceptance thereof, does not result in a contract of sale.
Clause 3 of the order sets up a machinery for compulsory acquisition by the State Government of stocks of wheat belonging to the licensed dealers.
The Order contains a bald injunction to supply wheat of the specified quantity day after day, and enacts that in default of compliance the dealer is liable to be punished; it does not envisage any consensual arrangement.
To ensure, that the dealer carries out his obligation his premises are liable to be searched and his property sequestered.
The order does not require the State Government to enter into even an informal contract.
Sale of goods predicates a contract of sale between persons competentto contract for a price paid or promised : a transaction.
in which an obligation to supply goods is imposed, and which does not involve an obligation to enter into a contract, cannot be called a 'sale ', even if the person supplying goods is declared entitled to the value of goods, which is determined or determinable in the manner prescribed.
Assuming that between the licensed dealer and the Controller, there may be some arrangement about the place and manner of delivery of wheat, and the payment of "controlled price," the operation of cl. 3 does not on that account become contractual.
[675 H 676 D] Commissioner of Sales Tax, U.P. Lucknow vs Ram Bilas Ram Gopal, [1969] All.
L.J. 424; State of Madras vs Gannon Dunkerlev and Co.,(Madras) Ltd; [1959]S.C.R. 379 M/s.
New India Sugar Mills Ltd. vs
Commissioner of Sales Tax, Bihar, [1963] Suppl.
2 S.C.R. 459; Indian Steel & Wire Products Ltd., vs State of Madras, ; ;Andhra Sugars Ltd. &Anr.
vs State of Andhra Pradesh & Ors.
; ; State ofRajasthan & Anr.
vs M/s. Karan Chand Thappar & Bros. Ltd. [1969] IS.C.R. 861, Kirkness (inspector of Taxes) vs john Hudson & Co. Ltd., [1955] A.C. 696 referred to. 672