judgement:
minal Appeal No. 24 of 1951.
Appeal by special leave granted by the Supreme Court on the 2nd April, 1951, from the Judgment and Order dated the 5th May, 1950, of the High Court of Judicature at Allahabad in Criminal Miscellaneous Case No. 34 of 1949.
M. C. Setalvad, Attorney General for India, K. section Krishnaswamy Aiyangar and section P.Sinha (V. N. Sethi, K. B. Asthana, N. C. Sen, K. N. Aggarwala, Shaukat Hussain, K. P. Gupta, M. D. Upadhyaya and G. C. Mathur, with them) for the appellants.
Gopalji Mehrotra and Jagdish Chandra for the respondent.
May 8.
The Judgment of the Court was delivered by MUKHERJEA, J.
This appeal which has come before us, on special leave, is directed against a judgment of a Full Bench of the Allahabad High Court, dated 5th May, 1950, by which the learned judges held the appellants guilty of contempt of court; and although the apology tendered by the appellants was accepted, they were directed to pay the costs of the respondent State.
The appellants, six in number, are members of the Executive Committee of the District Bar Association at Muzaffarnagar within the State of Uttar Pradesh, and the contempt proceedings were started against them, because of certain resolutions passed by the Committee on 20th April, 1949, copies of which were forwarded to the District Magistrate and other officers by a covering letter signed by appellant No.1 as President of the Bar Association.
To appreciate the contentions that have been raised in this appeal, it would be necessary to state a few relevant facts.
The resolutions which form the basis of the contempt proceedings relate to the conduct of two judicial officers, both of whom functioned At 1172 Muzafarnagarn at the relevant time.
One of them named Kanhaya Lal Mehra was a Judicial Magistrate while the other named Lalta Prasad was a Revenue Officer.
It is said that the first appellant as President of the Bar Association received numerous complaints regarding the way in which these officers diposed of cases in their courts and behaved towards the lawyers and the litigant public.
The Executive Committee of the Association took the matter in hand and, after satisfying themselves that the complaints were legiti mate and well founded, they held a meeting on 20th April, 1949, in which the following resolutions were passed: Rsolved that "Whereas the members of the Association have had ample opportunity of forming an opinion of the judicial work of Sri Kanhaya Lal, Judicial Magistrate, and Shri Lalta Prasad, Revenue Officer, It is now their considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and the lawyers alike.
Besides the above mentioned defects common to both of them, other defects are separately catalogued as hereunder: * * * * (The complaints against each of the officers separately were then set out under specific heads).
Resolved further that copies of the resolution be sent to the Honourable Premier, the Chief Secretary of the Uttar Pradesh Government, the Commissioner and the District Magistrate for suitable action; Resolved that the District Magistrate and Collector be requested to meet a deputation of the following in this connection at an early date;" (The names of 5 members who were to form the deputation were then mentioned.
) 1173 It is not disputed that this meeting of the Executive Committee of the Bar Association was held in camera and no non member was allowed to be present ' at it.
The resolutions were typed out by the President himself and the proceedings were not recorded in the Minute Book of the Association at all.
On the following day, that is, on 21st April, 1949, the President sent a copy of the resolutions with a covering letter marked " confidential" to the District Magistrate, Muzaffarnagar.
Copies of the resolutions were similarly despatched to the Commissioner of the Division, the Chief Secretary and the Premier of Uttar Pradesh.
It is not disputed that the District Magistrate was the immediate superior of the officers concerned, and the other three were the higher executive authorities in the official hierarchy.
One paragraph of this covering letter contained the following statement: "Complaints against these officers had been mounting and a stage was reached when the matter had to be taken up formally.
The resolution is not only well considered and unanimous but represents a consensus of opinion of all practitioners in the Criminal and Revenue side.
" The post script of the letter addressed to the District Magistrate contained a prayer that he might find it convenient to fix an early date to meet the deputation of 5 members as indicated in the third resolution.
The Divisional Commissioner, by his letter dated 27th April, 1949, addressed to appellant No. 1, acknowledged receipt of the copy of the resolutions and requested the addressee to supply specific details of cases tried by these officers in support of the allegations contained in the resolution.
Without waiting for this information, however, the Commissioner on the day following wrote a letter to the Chief Secretary of the U.P. Government suggesting that the matter should be brought to the notice of the High Court inasmuch as instances were not rare where influential members of the Bar got resolutions like these passed by their associations with a view to put 152 1174 extra judicial pressure upon the judicial officers so ,as to make them amenable to their wishes which often were questionable.
On 10th May, 1949, a deputation of 5 members waited upon the District Magistrate and discussed with the latter the entire situation.
The Magistrate also told the deputation that the details of complaints as required by the Commissioner should be furnished at an early date.
These details were sent to the District Magistrate by the appellant No. I on 20th June, 1949, and specific instances were cited, the accuracy of which was vouched by a number of senior lawyers who actually conducted those cases.
On 20th July, 1949, the District Magistrate through the Divisional Commissioner wrote a letter to the Registrar of the High Court of Allahabad requesting the latter to draw the attention of the High Court to the resolutions passed on 20th April, 1949, and other remarks made by the members of the Committee and suggesting that suitable action might be taken against them under section 3 of the Contempt of Courts Act of 1926.
On 16th November, 1949, the High Court directed the issue of notices on 8 members of the Committee to show cause why they should not be dealt with for contempt of court in respect of certain portions of the resolution which were set out in the notice.
In answer to these notices, the opposite parties appeared and filed affidavits.
The case was heard by a Bench of three Judges who, by their judgment dated 5th May, 1950, came to the conclusion that with the exception of two of the opposite parties who were not members of the Executive Committee at the relevant date, the remaining six were guilty of contempt of ' court.
It was held that the opposite parties were not actuated by any personal or improper motives; the statement made on their behalf that their object was not to interfere with but to improve the administration of justice was accepted by the court, but nevertheless it was observed that the terms used in the resolution were little removed from personal abuse and whatever might have been the motive, they clearly were likely to bring the Magistrate into contempt and 1175 lower their authority.
The concluding portion of the judgment stands as follows: "We think that the opposite parties acted under a misapprehension as to the position, but they have expressed their regrets and tendered an unqualified apology.
In the circumstances, we accept their apology, but we direct that they pay the costs of the Government Advocate which we assess at Rs. 300.
" It is the propriety of this judgment that has been assailed before us in this appeal.
According to the learned judges of the High Court,, the allegations made against the judicial officers in the present case come within the category of contempt which is comniitted by "scandalising the court".
The learned judges observed on authority of the pronouncement of Lord Russell in Reg.
vs Gray(1), that this class of contempt is subject to one important qualification.
The judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could treat that as contempt of court.
In the opinion of the learned judges, the complaint lodged by the appellants exceeded the bounds of fair and legitimate criticism and in this respect the members of the Bar Association could not claim any higher privilege than ordinary citizens.
No distinction, the High Court held, could also be made by reason of the fact that the charges against the judicial officers in the present case were embodied in a representation made to authorities who were the official superiors of the officers concerned and under whose administrative control the latter acted.
The learned Attorney General who appeared in sup.
port of the appeal, characterised this way of approach of the High Court as entirely wrong.
His contention is that any act or publication which is calculated to lower the authority or dignity of a judge does not per se amount to contempt of court.
The test is whether the allegations are of such character or are made in (1) 1176 such circumstances as would tend to obstruct or interfere with the course of justice or the due administration of law.
Reliance was placed by him in this connection upon certain pronouncements of the Judicial Committee which held definitely that an imputation affecting the character or conduct of a judge, even I though it could be the subject matter of a libel proceeding, would not necessarily amount to a contempt of court.
The Attorney General laid very great stress on the fact that the resolutions passed and the representations made by the appellants in the present case were not for the purpose of exposing before the public the alleged shortcomings of the officers concerned ; the whole object was to have the grievances of the lawyers and the litigating public which were genuinely felt, removed by an appeal to the authorities who alone were competent to remove them.
Such conduct, it is argued, cannot in any way be calculated to interfere with the due administration of law and cannot be held to be contempt of court.
The points raised are undoubtedly important and require to be examined carefully.
It admits of no dispute that the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the courts.
It would be only repeating what has been said so often by various judges that the object of contempt proceedings is not to afford protection to judges, personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened.
There are indeed innumerable ways by which attempts can be made to hinder obstruct the due administration of justice in courts.
One type of such 1177 interference is found in cases where there is an act or, publication which "amounts to scandalising the court itself" an expression which is familiar to English lawyers since the days of Lord Hardwick(1).
This scandalising might manifest itself in various ways but, in substance, it is an attack on individual judges or the court as a whole with or without reference to particular cases, casting unwarranted and defamatory aspersions upon the character or ability of the judges.
Such conduct, is punished as contempt for this reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties.
There are decisions of English courts from early times where the courts assumed jurisdiction in taking committal proceedings against persons who were guilty of publishing any scandalous matter in respect of the court itself.
In the year 1899, Lord Morris in delivering the judgment of the Judicial Committee in MacLeod vs St. Aubin(2) observed that "committals for contempt by scandalising the court itself have become obsolete in this country.
Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.
" His Lordship said further: "The power summarily to commit for contempt is considered necessary for the proper administration of justice.
It is not to be used for the vindication of a judge as a person.
He must resort to action for libel or criminal information.
" The observation of Lord Morris that contempt proceedings for scandalising the courts have become obsolete in England is not, strictly speaking, correct; for, in the very next year, such proceedings were taken in Reg.
vs Gray(1).
In that case, there was a scandalous attack of a rather atrocious type on Darling J. who was sitting at that time in Birmingham Assizes and was trying a man named Wells who was indicted intter alia for selling and publishing obscene literature.
(1) Vide In re Read and Huggonoson ; , 471.
(2) (3) (1900] 2 Q.B. 36.
1178 The judge, in the course of the trial, gave a warning ,to the newspaper press that in reporting the proceedings of the court, it was not proper for them to give publicity to indecent matters that were revealed during trial.
Upon this, the defendant published an article 'in the Birmingham Daily Argus, under the heading "An advocate of Decency", where Darling J. was abused in scurrilous language.
The case of Wells was then over but the Assizes were still sitting.
There can be no doubt that the publication amounted to contempt of court and such attack was calculated to interfere directly with proper administration of justice.
Lord Russell in the course of his judgment, however, took care to observe that the summary jurisdiction by way of contempt proceedings in such cases where the court itself was attacked has to be exercised with scrupulous care and only 'when the case is clear and beyond reasonable doubt. "Because", as his Lordship said, "if it is not a case beyond reasonable doubt, the court should and ought to leave the Attorney General to proceed by criminal information".
In 1943, Lord Atkin, while delivering the judgment of the Privy Council in Devi Prashad vs King Emperor(1), observed that cases of contempt, which consist of scandalising the court itself, are fortunately rare and require to be treated with much discretion.
Proceedings for this species of contempt should be used sparingly and always with reference to the administration of justice.
"If a judge is defamed in such a way as not to affect the administration of justice, he has the ordinary remedies for defamation if he should feel impelled to use them.
" It seems, therefore, that there are two primary con siderations which should weigh with the court when it is called upon to exercise the summary powers in cases of contempt committed by "scandalising" the court itself.
In the first place, the rejection on the conduct or character of a judge in reference to the discharge of his judicial duties would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in (1) 70 1, A. 216.
1179 respect of public acts done in the seat of justice.
It is not by stifling criticism that confidence in courts can be created.
"The path of criticism", said Lord Atkin(1), "is a public way.
The wrong headed are permitted to err therein; provided that members of the public abstain, from imputing motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice, or attempt to impair the administration of justice, they are immune.
" In the second place, when attacks or comments are made on a judge or judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the judge and what amounts really to contempt of court.
The fact that a statement is defamatory so far as the judge is concerned does not necessarily make it a contempt.
The distinction between a libel and a contempt was pointed out by a Committee of the Privy Council, to which a reference was made by the Secretary of State in 1892 (2).
A man in the Bahama Islands, in a letter published in a colonial newspaper criticized the Chief Justice of the Colony in an extremely ill chosen language which was sarcastic and pungent.
There was a veiled insinuation that he was an incompetent judge and a shirker of work and the writer suggested in a way that it would be a providential thing if he were to die.
A strong Board constituting of 11 members reported that the letter complained of.
though it might have been made the subject of proceedings for libel, was not, in the circumstances.
calculated to obstruct or interfere with the course of justice or the due administration of the law and therefore did not constitute a contempt of court.
The same principle was reiterated by Lord Atkin in the case of Devi Prashad vs King Emperor(, ') referred to above.
It was followed and approved of by the High Court of Australia in King vs Nicholls(1), and has been accepted as sound by this (1) Ambard vs Attney General for Trinidad and Tobago, at P. 335.
(2) In the matter of a special referencefrom the Bahama Islands (3) 70 I.A. 216.
(4) 1180 Court in Reddy vs The State of Madras (1).
The position therefore is that a defamatory attack on a judge may be a libel so far as the judge is concerned and it would be open to him to proceed against the libellor in a proper action if he so chooses.
If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such court, it can be punished summarily as contempt.
One is a wrong done to the judge personally while the other is a wrong done to the public.
It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court 's administration of justice, or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.
It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper admi nistration of law (2).
It is in the light of these principles that we will proceed to examine the facts of the present case.
It cannot be disputed that in regard to matters of contempt, the members of a Bar Association do not occupy any privileged or higher position than ordinary citizens.
The form in which the disparaging statement is made is also not material, but one very important thing has to be noticed in the case before us, viz., that even assuming that the statement was derogatory to the dignity of the judicial officers, very little publicity was given to this statement, and in fact, the appellants made their best endeavours to keep the thing out of the knowledge of the public.
The representation was made to 4 specified persons who were the official superiors of the officers concerned; and it has been found as a fact by the High Court that the appellants (1) (1952] section C. R. 452.
(2) Mr. Mookerjea J. in In re Motilal Ghosh and Othera, I.L.R. at 283.
1181 acted bona fide with no intention to interfere with the administration of justice though they might have been under a misapprehension regarding the precise legal position.
No copies of the resolution were even sent to the officers concerned.
Apart from the contents of the representation by the appellants and the language use therein, this fact would have a bearing on the questio as to whether the conduct of the appellants brought them within the purview of the law of contempt.
The first question that requires consideration is whether in making the allegations which they did against the two judicial officers, the appellants exceeded the limits of fair and legitimate criticism.
There were three resolutions passed at the meeting; the second, and third were of a mere formal character and do not require any consideration.
The offending statement is to be found in the first resolution which again is in two parts.
In the first part, there are allegations of a general nature against both the officers, but the second part enumerates under specific heads the complaints which the Committee had against each of them separately.
With regard to Kanhaya Lal, the a legations are that he does not record the evidence in cases tried by him properly, that in all criminal matters transferred to his court, where the accused are already on bail, he does not give them time to furnish fresh sureties with the result that they are sent to jail, and lastly, that he is not accommodating to lawyers at all.
So far as the other officer is concerned, one serious allegation made is, that he follows the highly illegal procedure of hearing two cases at one and the same time, and while he records the evidence in one case himself, he allows the Court Reader to do the thing in the other.
It is said also that he is short tempered and frequently threatens lawyers with proceedings for contempt.
Some of these complaints are not at all serious and no judge, unless he is hypersensitive, would at all feel aggrieved by them.
It is undoubtedly a grave charge that the Revenue Officer hears two cases simultaneously and allows the Court Reader to do the work for him.
If true 153 1182 it is a patent illegality and is precisely a matter which should be brought to the notice of the District Magistrate who is the administrative head of these officers.
As regards the first part of the resolution, the alle gations are made in general terms that ' these officers do not state facts correctly when they pass orders and that they are discourteous to the litigant public.
These do not by any moans amount to scandalising the court.
Such complaints are frequently heard in respect of many subordinate courts and if the appellants had a genuine grievance,it cannot be said that, in ventilating their grievances they exceeded the limits affair criticism.
The only portion of the resolution to which 'prima facie objection can be taken is that which describes these officers as thoroughly incompetent in law and whose judicial work does not inspire confidence.
Those remarks are certainly of a sweeping nature and can scarcely be justified.
Assuming, however, that this portion of the resolution is defamatory, the question arises whether it can be held to amount to contempt of court.
To answer this question, we have to see whether it is in any way calculated to interfere with the due administration of justice in these courts, or, in other words, whether such statement is likely to give rise to an apprehension in the minds of litigants as to the ability.
of the two judicial officers to deal properly with cases coming before them, or even to embarrass the officers themselves in the discharge of their duties.
We are unable to agree with the learned counsel for the respondent that whether or not the representation made by the appellants in the present case is calculated produce these results is to be determined solely and exclusively with reference to the language or con tents of the resolutions themselves; and that no other fact or circumstance can be looked into for this purpose, except perhaps as matters which vate or mitigate the offence of content: offence is found to have been committed that pleas of justification or privilege are speaking available to the defendant in contempt 1183 proceedings.
The question of publication also in the technical sense in which it is relevant in, a libel action may be inappropriate to the law of contempt.
But, leaving out cases of ex facie contempt, where the question arises as to whether a defamatory statement directed against a judge is calculated to undermine the confidence of the public in the capacity or integrity.
of the judge or is likely to deflect the court itself from a strict and unhesitant performance of its duties, all the surroundung facts and circumstances under which the statement was made and the degree of publicity a was givine to it would undoubtedly be relevant ' circumstances.
It is true as the learned counsel for the respondent suggests that the matter was discussed in the present case among the members of the Bar, and it might have been the subject matter of discussion amongst the officers also to whom copies of the resolutions were sent.
No doubt, there was publication as, is required by the law of libel, but in contempt proceedings, that is not by any means conclusive.
What is material is the nature.
and extent of the publication and whether or not it was likely to have an injurious effect on the minds of the public or of the judiciary itself and therefore to interference with the administration of justice.
On the materials before us,, it is difficult to say that the circumstances under which the representation was made by the appellants was calculated to have such effect.
There might have been some remote possibility but that cannot be taken note of.
We are clearly of the opinion that the contempt, if any, was only of a technical character, and that after the affidavits were filed on behalf of the appellants before the High Court, the proceedings against them should have been dropped.
The result, therefore, is that the appeal is allowed and the judgment of the High Court is set aside.
There will be no order for costs either here or in the court below in favour of either party.
Appeal allowed.

summary/full:
(1) Vide Vaghoji vs Camaji, I.I. R. 117O The object of contempt proceedings is not to afford protection to judges personally from imputations to which they maybe exposed as individuals, but is intended to be a protection to the public whose interest would be very much affected if, by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which the people have in the administration of justice by it is weakened.
When the court itself is attacked, the summary jurisdiction by way of contempt 'proceedings must be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt.
There are two primary considerations which should weigh with the court in such cases, viz., first whether the reflection on the conduct or character of the judge is within the limits of fair and reasonable criticism, and secondly, whether it is a mere libel or defamation of the judge or amounts to a contempt of the court.
If it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt.
Where the question arises whether a defamatory statement directed against a judge is calculated to undermine the confidence of the public in the competency or integrity of the judge or is likely to deflect the court itself from a strict and unhesitant performance of its duties, all the surrounding facts and circumstances under which the statement was made and the degree of publicity that was given to it would be relevant circumstances.
The question is not to be determined solely with reference to the language or contents of the statement made.
The Executive Committee of a District Bar Association received several complaints against the way in which the Judicial Magistrate and the Revenue Officer of the District disposed of cases and behaved towards litigants and lawyers, and passed a resolution which stated that " it was their considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbearing and discourteous to the litigant public and lawyers alike " and gave a list of various complaints against the officers.
This resolution was passed in camera, typed out by the President himself and forwarded confidentially to the District Magistrate, Commissioner of the Division, and the Chief Secretary and Premier of the State.
The District Magistrate moved the High Court of Allahabad to take action against the appellants, who had passed the resolution, for contempt of court.
The High Court held that the appellants were guilty of contempt but accepted their apology.
On appeal: Held, that in the light of all the circumstances of the case, the contempt, if any, was only of a technical character and that after the affidavits bad been filed on behalf of the appellants before the High Court, the proceedings against them should have been dropped.


judgement:
minal Appeals Nos.
109 111 of 1963.
Appeals from the judgment and order dated May 31, 1963, of the Bombay High Court in Criminal Applications Nos. 217, 218 and 114 of 1963.
The appellants (in Cr. A. Nos. 109 & 110 of 1963) appeared in person.
Janardan Sharma and Appellant also, for the Appellant (in Cr. A. No. 111 of 1963).
N. section Bindra and R. H. Dhebar, for respondents (in Cr. A. Nos.
109 111 of 1963).
Purushottam Trikamdas and R. H. Dhebar, for the respondents (in Cr. A. No. 110 of 1963).
449 January 29, 1964.
The Judgment of the Court was delivered by WANCHOO J.
These three appeals on certificates granted by the Bombay High Court raise common questions of law and will be dealt with together.
They arise out of three habeas corpus petitions filed by the appellants in the High Court under section 491 of the Code of Criminal Procedure challenging their detention under r. 30 of the Defence of India Rules (hereinafter referred to as the Rules).
A large number of constitutional questions were raised in the applications and were decided by the High Court against the appellants.
These appeals came up for hearing in August 1963 along with some other appeals from decisions of other High Courts, and the constitutional questions were decided by this Court on September 2, 1963, (see Makhan Singh Tarsikka vs State of Punjab) (1).
It was held therein that the applications under section 491 (1) of the Code of Criminal Procedure were incompetent in so far as they sought to challenge the validity of the detention on the ground that the Defence of India Act and Rules framed thereunder suffer from the vice that they contravened the fundamental rights guaranteed by articles 14, 21, 22(4), (5) and (7).
The other points raised in the appeals were not considered at that time and it was directed that the appeals should be set down for hearing before a Constitution Bench to be dealt with in accordance with law.
Consequently, these appeals have been put up before this Bench for disposal of the other points raised therein.
A preliminary objection has however, been raised on behalf of the State to the hearing of these appeals on the ground that the orders under which the appellants were detained and which are under consideration in these appeals had been revoked by the State Government and fresh orders of detention had been passed, and in consequence these appeals had become infructuous.
Reliance in this connection is placed on the decision of the Federal Court in Keshav Talpade vs King Emperor(2).
In that case the detenu was released while his appeal was pending before the Federal Court.
It was however urged on his behalf that even (1) A.T.R. (2) 134 859 S.C. 29. 450 though he had been released and no order could thereafter be made on the habeas corpus application, the court should pronounce an opinion on the correctness of the High Court 'a ' judgment.
The Federal Court refused to do so and dis missed the appeal on the ground that no order in the appeal could be made after the release of the detenu.
Generally speaking, no useful purpose would be served by the appeal court deciding the appeal in a habeas corpus matter where the detenu has been released before the appeal comes up for final hearing.
But the facts in the present case are different.
Here what has happened is that the earlier order of detention which is the basis of the present appeals has been revoked by the Government of Maharashtra on the ground of a technical defect and a fresh order of detention was passed on the same date, and the appellants were immediately rearrested after their release from jail under the fresh order of detention.
In the Federal Court case, however, it appears that the detenu was released and there was no question of a fresh order of detention being made on the same day leading to his re arrert.
In the circumstances, it is urged by the appellants that though technically the appellants were released before the present appeals came up for final hearing, in substance they are under detention even now and the points of law raised by them.
against the earlier order of detention will apply equally to the fresh order of detention.
It is therefore urged that the Court should decide the present appeals as that would settle the law and help the detenus in case they make fresh application under section 491 of the Code of Criminal Procedure against the fresh order of detention.
It is further urged that the appellants intend after the emergency is over to sue for damages for false imprisonment and the order of the Bombay High Court would stand in their way 'in case such a suit is brought, and therefore an authoritative pronouncement on the questions of law raised should be made by this Court in the present appeals, even though technically the order out of which the present appeals have arise ' in has been revoked.
We are of opinion that the circumstances of the present cases are different from the circumstances in Keshav Talpade 'scase(1) and therefore it would be in the interests of justice to decide (1) 451 the points raised in the present appeals.
We may add that there is nothing to preclude this Court from deciding the appeals even though the order from which these appeals have arisen has been revoked, though ordinarily this Court would not do so.
But as we have already indicated, it seems to us just and fair 'in view of the fact that the appellants have not been filially released and are still under detention under a fresh order of detention under the Rules that the points raised in these appeals should be decided.
The points are of general importance and are likely to arise in many cases.
We therefore over rule the, preliminary objection.
The facts in the three appeals are similar and we shall therefore briefly refer to the facts in Appeal No. 1 1 0 for the purposes of dealing with the points raised on behalf of the appellants.
The appellants were first detained on November 7, 1962 by an order made by the Commissioner of Police, Greater Bombay, under the , No. IV of 1950.
The matter was then reported to the Government.
Before this, however, the security of India had been threatened by the Chinese invasion and an Emergency had been declared under article 352 of the Constitution.
Further on October 26, 1962, the Defence of India Ordinance 1962 was passed, followed by the Rules framed thereunder.
When the matter came before the Government, it decided that the order of November 7, 1962 made by the Commissioner of Police should be revoked and ordered accordingly on November 10.
On the same day, the Government decided to detain the appellants and passed an order under r. 30 of the Rules.
This order said that with a view to preventing the appellants from acting in a manner prejudicial to the defence of India, the public safety and the maintenance of public order, it was necessary to detain them,.
and therefore in exercise of the powers conferred upon the Government by r. 30 of the Rules, the Government directed the detention of the appellants.
This order was served on the appellants in jail.
It was challenged by the appellants by filing habeas corpus petition under article 226 of the Constitution and under section 491 of the Code of Criminal Procedure.
The 452 High Court, as already indicated, dismissed the applications but granted leave to the appellants to appeal to this Court.
The constitutional points raised, as already indicated, were decided by this Court on September 2, 1963, and now we are concerned with the other points raised on behalf of the appellants.
The first contention that has been urged is that the de tention is illegal inasmuch as the detention order was served on the appellants while they were in jail, and reliance in this connection is placed on the judgments of this Court in the cases of Rameshwar Shaw vs District Magistrate, Burdwan(1), and Makhan Singh Tarsikka vs The State of Punjab(2).
In those cases, it was held by this Court that where a person is detained in jail as an under trial prisoner no order of detention either under the preventive Detention Act or under the Rules could be served on him because one of the necessary ingredients which go to make up the satisfaction of the detaining authority is necessarily absent in such a case.
It was pointed out in Rameshwar Shaw 's case(1) that "before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time.
If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention." The same principle was reiterated in the case of Makhan Singh Tarsikka(2).
There is however a vital difference between the facts of those two cases and the facts in the present appeals.
Those two cases were concerned with the service of an order of detention under the or under the Rules on a person who was in jail in one of two (1) A. I. 1964 S.C. 334.
(2) A. I. R. 453 circumstances, namely (1) where he was in jail as an under trial prisoner and the period for which he was in jail was indeterminate, or (2) where he was in jail as a convicted person and the period of his sentence had still to run for some length of time.
In those cases the service of the order of detention under the or under the Rules in jail would not be legal for one of the necessary ingredients about which the authority had to be satisfied would be absent, namely, that it was necessary to detain the person concerned which could only be postulated of a person who was not already in prison.
In the present cases, however, the appellants were not under detention either as under trial prisoners for an indeterminate time or as convicted persons whose sentences were still to run for some length of time.
They were detained under the Pre ventive Detention Act by an order of November 7, 1962 which had been reported to Government for approval and which order could only remain in force for 12 days under section 3 (3) of the unless in the meantime it had been approved by the State Government.
The State Government, however, decided on November 10, 1962, to revoke the order of the Commissioner of Police under the and to pass an order itself under the Rules.
In those circumstances, the principle of the two cases referred to above would not in our opinion apply, for the detention of the appellants depended upon the approval of the State Government.
The State Government, however, decided to revoke the order of November 7, 1962 and instead decided to pass an order under the Rules on the same day, namely November 10, 1962.
In these circumstances it would be in our opinion an empty formality to allow the appellants to go out of jail on the revocation of the order of November 7, and to serve them with the order dated November 10, 1962 as soon as they were out of jail.
Where the detention is not of the two kinds considered in the cases of Rameshwar shaw(1) and Makhan Singh Tarsikka (2 ) and is either under the or under the Rules, and its duration is dependent upon the will of the State Government, we cannot see any reason for holding that if the State Government decides 1964 S.C. 334.
(2) A. I. R. 1964 S.C. I 120.
454 to revoke an earlier order of detention it cannot pass a fresh order of detention the same day and serve it on the detenu in jail, for the two orders are really of the same nature and are directed towards the same purpose.
Further the order of the Commissioner dated November 7, 1962 was subject to the approval of the State Government without which it could only be in force for 12 days.
In these circumstances the order passed by the State Government on November 10 under the Rules when it had decided to revoke the order of November 7, 1962, would in our opinion be perfectly valid so far as the time of the making of the order was concerned and its service in jail on the persons who were detained not as under trials or as convicted persons but as detenus, could not be assailed on the ground on which the order of detention was assailed in the cases of Rameshwar Shaw(1) and Makhan Singh Tariskka(2).
The principal of those two cases cannot in our opinion be applied to a case where a fresh order of detention is passed after the cancellation or revocation of an earlier order of detention.
The contention therefore that the making of the order of detention on November 10, 1962 or its service in jail in these cases, makes the detention illegal, must be negatived.
It is next urged that the detaining authority has failed to arrive at that kind of satisfaction which the Rules require.
This contention is based on the words of the order dated November 10, 1962.
Rule 30 inter alia lays down that the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India 's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may make an order directing that the person be detained.
Now the order of November 10, 1962 is in these terms: "No. S.B.III/DOR.1162 IV Home Department (Special) (1) ; (2) A.I.R. 1964 S.C.1120. 455 ORDER "Whereas the Government of Maharashtra is satisfied with respect to the person known as Shri Shamrao Vishnu Parulekar of Bombay that with a view to preventing him from acting in a manner prejudicial to the defence of India, the public safety and the maintenance of pub lic order, it is necessary to make the following order: "Now, therefore, in exercise of the powers conferred upon it by rule 30 of the Defence of India Rules, 1962, the Government of Maharashtra does hereby direct that the said Shri Shamrao Vishnu Parulekar be detained.
By order and in the name of the Governor of Maharashtra Sd.
Deputy Secretary to Government of Maharashtra, (Home Department) Sachivalaya, Bombay, this 10th day of November, 1962".
The contention of the appellants is that the first part of the order does not say that it is necessary to detain the appellants.
The words used in the first part of the order are "it is necessary to make the following order" and then follows the second part which says that the Government directs that the said person be detained.
We are of opinion that when the first part says "it is necessary to make the following order", it in effect says that "it is necessary so to do which is what r. 30 of the Rules requires.
Reading the order as a whole, in substance it does say that it is necessary to detain the person with a view to preventing him from acting in a manner prejudicial to the defence of India, etc.
In r. 30 the words are "so to do" while in the order they are "to make the following order".
The two expressions in our opinion mean the same thing and we cannot 456 accept the argument that the satisfaction necessary under r. 30 of the Rules was not arrived at in these cases by the authority making the order.
Then it is urged that as the State Government is equivalant to the Governor, it is the Governor who should.
be satisfied and not the Home Minister as is the case according to the affidavit filed on behalf of the State Government.
The State Government in this connection relies on the Rules of Business, copy of which has been made available to us.
These rules have been framed by the Governor under article 166 of the Constitution for the more convenient transaction of the business of Government and for the allocation among Ministers of the said business.
In the affidavit on behalf of the State Government reliance is placed on item 2 (b) of the First Schedule to the Rules of Business dealing with subjects allocated to the Home Department (Special), entry (7) which provides for preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community.
During the hearing, our attention was drawn to item (1) of the First Schedule to the Rules of Business dealing with subjects allotted to General Administration Department, entry (44), which provides for preventive detention for reasons connected with defence, foreign affairs or the security of India.
It is obvious from the Rules of Business that preventive detention has been divided into two parts and allocated to two different departments.
Where preventive detention is for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community, it can be dealt with by the Minister in charge of item 2 (b) dealing with subjects allocated to the Home Department (Special); but where the preventive detention is for reasons connected with defence, foreign affairs or the security of India, it can be dealt with by the Minister in charge of item 1 relating to subjects allotted to the General Administration Department.
The detention order in the present cases states that it was made with a view to preventing the appellants from acting in a manner prejudicial to the defence of India, the public 457 safety and the maintenance of public order.
As the deten tion order mentions both the defence of India and the maintenance of public order, such an order could only be made by a Minister who was in charge both of item 1 relating to subjects allotted to the General Administration Depart ment and of item 2(b) relating to subjects allotted to Home Department (Special).
In the affidavit on behalf of the State the order was sought to be justified on the round that it was made by the Home Minister in charge of item 2 (b) relating to subjects allocated to the Home Department (Special).
We are of opinion that as the detention order was for reasons connected with the defence of India also, it could not be dealt with under item 2 (b), entry (7) only which item deals with subjects allocated to the Home De partment (Special) and had to be dealt by a Minister who was in charge of both item 1 relating to subjects allotted to the General Administration Department and item 2 (b) relating to subjects allotted to Home Department (Special).
In the original affidavit filed on behalf of the State it was however not clear whether the Minister who dealt with these orders was also in charge of the subjects allotted to the General Administration Department but it was stated at the bar that the Minister who dealt with the matter and passed the order on the basis of which the appellants were detained was in charge not only of item 2 (b) relating to subjects allocated to the Home Department (Special.) but was also in charge of item 1 relating to subjects allotted to the General Administration Department.
We therefore called upon the State Government to file an affidavit to that effect and an affidavit was filed on December 21, 1963.
That affidavit says that the order of November 10, 1962 was passed by the Chief Minister who was at the relevant time in charge both of the General Administration Department as well as the Home Department (Special).
We have already referred to the terms of the order of detention.
That order refers to three reasons as the basis for the order, namely, (i) the defence of India, (ii) the public safety, and (iii) the maintenance of public order.
Now preventive detention connected with the defence of India could only be ordered under the Rules of Business by the Minister who was in charge of the General Administration Department.
458 while preventive detention for reasons connected with the maintenance of public order could only be ordered by the Minister in charge of subjects allocated to the Home Depart ment (Special).
The order therefore in the present case could only be made by a Minister who was in charge both of subjects allotted to the General Administration Department and subjects allotted to the Home Department (Special).
In view of the affidavit now filed it appears that the Chief Minister was in charge of both the departments and in the circumstances he could pass the order under challenge.
The contention under this head must therefore fail.
The next argument is that there is no order of allocation made by the Governor under article 166 of the Constitution after the passing of the Defence of India Ordinance and the Rules framed thereunder and therefore the allocation of business by the, Rules of Business which were enforced by an order of the Governor dated May 1, 1960 would not be of any effect in allocating the subject of preventive detention arising under the Defence of India Ordinance Act and the Rules to the Minister and the Governor should have passed the order of detention himself.
We are of opinion that there is no force in this contention.
Allocation of busi ness under article 166 (2) of the Constitution is not made with reference to particular laws which may be in force at the time the allocation is made; it is made with reference to the three lists of the Seventh Schedule to the Constitution, for the executive power of the Centre and the State together extends to matters with respect to which Parliament and the Legislature of a State may make laws.
Therefore.
when allocation of business is made it is made with reference to the three Lists in the Seventh Schedule and thus the allocation in the Rules of Business provides for all con tingencies which may arise for the exercise of the executive power.
Such allocation may be made even in advance of legislation made by Parliament to be available when ever Parliament makes legislation conferring power on a State Government with respect to matters in List I of the Seventh Schedule.
It was therefore in our opinion not necessary that there should have been an allocation made by the Governor under article 166 (3) of the power to detain under 459 the Defence of India Ordinance, Act and Rules after they were passed; it will be enough if the allocation of the sub ject to which the Defence of India Ordinance, Act and Rules refer has been made with reference to the three Lists in the Seventh Schedule and if such allocation already exists, it may be taken advantage of if and when laws are passed.
Preventive detention is provided for in List 1, item 9, for reasons connected with defence, foreign affairs and the security of India, and in item 3 of List III for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community.
The allocation of business made under article 166 is in pursuance of these entries in the three Lists in the Seventh Schedule and would be available to be used whenever any law relating to these entries is made and power is conferred on the State Government to act under that law.
The contention of the appellants that fresh allocation should have been made under article 166 (3) by the Governor after the passing of the Defence of India Ordinance, Act and Rules must therefore fail.
Lastly reliance is placed on sections 40 and 44 of the Defence of India Act.
Section 40 gives power to the Central Government to delegate its powers under the Act or the Rules to any officer or authority subordinate to the Central Government or to any State Government or any officer or authority subordinate to such Government or to any other authority, and the argument is that before the State Government can exercise the power conferred by r. 30, there has to be a delegation by the Central Government.
This argument in our opinion is misconceived.
It is true that section 40 gives authority to the Central Government to delegate its powers under the Act or the Rules to the State Government and others.
But no delegation under that section is required for the exercise of the power under r. 30 by the State Government, for r. 30 itself lays down that the power there in can be exercised by the Central Government or the State Government.
No further delegation therefore was necessary in favour of the State Government in so far as the exercise of power under r. 30 is concerned.
460 Next it is urged that the order of detention does not show that section 44 was kept in mind when it was made.
Section 44 lays down that "any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence".
It is urged that an order of detention necessarily interferes completely with the ordinary avocation of life of the person detained and therefore before such an order could be made, section 44 should be borne in mind.
Therefore the order of detention is to be made when it is the only way of carrying out the purposes of the Act, for section 44 provides that there should be as little interference with the ordinary avocations of life as possible under the Act.
The argument further is that r. 30 (1) provides as many as eight clauses which provide for the regulation of conduct of an individual and cl.
(b) relating to detention, which amounts to complete interference with the avocation of life of the detenu could only be resorted to in view of section 44 when it is shown that no other way of regulating the conduct of the person de tained as provided in the other clauses of r. 30 (1) would meet the needs of the situation.
So it is urged that unless the order shows on the face of it that the State Government thought that the detention was the only mode in which the purposes of the Act and the Rules could be carried out, the order would be bad in view of section 44 of the Act.
We are of opinion that there is no force in this contention.
It is true that section 44 provides that there should be as little interference with the ordinary avocations of life as possible when orders are made under the Act or the Rules; but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of r. 30 (1) and had come to the conclusion that the only way in which the purposes of the Act and the Rules could be carried out was by the use of cl.
(b) of r. 30 (1).
In our opinion when the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that that was the only way which the State Government thought was necessary to adopt in order to meet the situation.
It will then 461 be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to section 44.
No such thing has been shown in the present cases and we are satisfied that the orders in question cannot be said to go beyond the needs of the situation, even assuming that section 44 is mandatory as urged on behalf of the appellants and not merely directory as urged on behalf of the State.
The appeals therefore fail and are hereby dismissed.

dataset_name: IN-Abs

summary/full:
Appellants were first detained on November 7, 1962 under .
That order was revoked by the Government and the appellants were released but re arrested under Rule 30 of the Defence of India Rules.
The orders of detention were served on appellants in Jail.
The appellants challenged those orders in the High Court by filing habeas corpus petitions under article 226 of the Constitution and section 491 of the Code of Criminal Procedure.
The writ petitions were dismissed by the High Court and the appellants came to this Court under a certificate from the High Court.
The contentions raised by the appellants were that their detention was illegal because the detention order was served on them when they were in jail, that the orders of detention were passed without the satisfaction of the authority concerned regarding their necessity, the satisfaction was to be that of the Governor and not of any Minister, that there should have been fresh allocation of business by the Governor under article 166(3) of the Constitution after the passing of the Defence of India Ordinance, Act and Rules, that before the State Government could exercise the power conferred by Rule 30, there had to be delegation by the Central Government that the order of detention did not show that section 44 of Defence of India Act was kept in mind when the order was made and that unless the order showed on the face of it that the State Government thought that detention was the only mode in which the purpose of the Act and Rules could be carried out, the order was bad.
Dismissing the appeals.
Held: The orders of detention passed by the State Government and their service on the appellants in jail were perfectly valid and did not make the detention illegal.
The appellants were detained not as undertrials or as convicted persons but as detenus and hence the cases of Rameshwar Shaw and Makhan Singh Tarsikka did not apply in the present case.
Reading the detention order as a whole, it was clear that it did Ray in substance that it was necessary to detain the appellants with a view to preventing them from acting in a manner prejudicial to the Defence of India, public safety and maintenance of public order.
There was no difference between the words "so to do" in Rule 30 and the words "to make the following order ' in the detention order.
As the detention order mentioned both the defence of India and maintenance of public order, such an order could be made on the satisfaction of a Minister who was incharge of both the subjects in view of the Rules of Business promulgated by the Governor.
It was not necessary that fresh allocation of business should be made by the Governor under article 166(3) after the passing of the Defence of India Ordinance, Act and Rules.
It Is enough if the allocation of the 448 subject to which the Defence of India Ordinance, Act and Rules refer has been made with reference to the three lists in the Seventh Schedule and if such allocation already exists, it may be taken advantage of if and when laws are passed.
Rule 30 of the Defence of India Rules lays down that the power can be exercised by the Central Government or the State Government and hence no further delegation is necessary in favour of the State Government for the exercise of power under Rule 30.
It is true that section 44 of the Defence of India Act provides that there should be as little interference with the ordinary avocation of life as possible when orders are made under the Act or the Rules, but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of Rule 30(1) and had come to the conclusion that the only way in which the purpose of the Act and the Rules could be carried out was by the use of Rule 30(1) (b).
When the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein, it means that that was the only way which the State Government thought was necessary to adopt in order to meet the situation.
It is for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to section 44.
Makhan Singh Tarsikka vs State of Punjab A.I.R. 1964 S.C: 381 Keshav Talpade vs King Emperor, , Rameshwar Shaw vs District Magistrate, Burdwan, ; , Alakhon Singh Tarasikka vs State of Punjab, A.I.R. , referred to


judgement:
minal Appeal No. 164 of 1962.
Appeal from the judgment and order dated May 2, 1962, of the Allahabad High Court in Criminal Revision No. 1579 of 1961.
O. P. Rana and C. P. Lal, for the appellant.
Harnam Singh Chadda and Harbans Singh, for the respondent.
February 6, 1964.
The Judgment of the Court was delivered by AYYANGAR J.
This appeal which comes before us on a certificate of fitness granted by the High Court of Allahabad under article 134(1)(c) of the Constitution, is against a judgment of that Court acquitting the respondent Kartar Singh of an offence under section 7 read with section 16 (1)(a) (i) of the which may be conveniently referred to as the Act.
681 The facts giving rise to the prosecution are briefly these: The respondent runs a shop at Haldwani and among the products sold by him is ghee.
On March 19, 1960 a quantity of the ghee was purchased by the Food Inspector of the area and he put samples of the purchase into three phials which were sealed in the respondent 's presence.
It may be mentioned that even in the seizure memo the Food Inspector noted the ghee purchased by him as "pahadi ghee".
One of the samples was forwarded to the Public Analyst to the Government of Uttar Pradesh for analysis forascertaining whether the said ghee was adulterated.
The analysis disclosed that in several respects the samplewas sub standard and that in particular it had a ReichertValue of 22 5 as against the prescribed minimum of 28 for ghee in Uttar Pradesh.
After setting out the details of the ana lysis, the Public Analyst expressed the opinion that the sample "contained a small proportion of vegetable fat or oil foreign to pure ghee".
On receipt of this report, the Medical Officer of Health, Haidwani sanctioned the pro secution of the respondent and a complaint was thereafter laid before the Magistrate 1st Class by the Food Inspector.
The respondent pleaded not guilty and entered on his defence.
Subsequently, the second sample was got analysed by the Director, Central Food Laboratory, who reported that his analysis disclosed a Reichert Value of 21 7 as against 22 5 of the Public Analyst.
The opinion expressed by him as regards the sample of ghee which he analysed was the same as that of the Public Analyst, viz., that the sample was adulterated.
The defence of the respondent who admitted that he had sold the ghee, samples of which were the subject of analysis, but denied it was adulterated, was two fold: (1) He had obtained the ghee which he sold from Jodhpur, (2) The sample must be held not to be adulterated on the basis of the decision of the Allahabad High Court in State vs Malik Ram(1).
The plea by the respondent regarding the ghee sold having come from Jodhpur was made because if this were established under the rules framed under the Act, to which (1) A.I.R. 1962 AU.
682 we shall later refer, the minimum Reichert value prescribed for ghee in the Jodhpur area was 21 and that minimum re quirement was satisfied by the sample analysed.
The res pondent led evidence to prove his purchase from Jodhpur but the learned Magistrate did not accept this case.
The other defence was a point of law relying on the decision of a Division Bench of the Allahabad High Court reported as State vs Malik Ram(1).
The learned Judges who decided that case drew a distinction between ghee obtained from Cattle in the hill districts of Uttar Pradesh and those from cattle in the plains.
This decision was relied on by the respondent because the ghee sold by him was noted as 'pahadi ghee ' by the Food Inspector.
The learned Judges held that notwithstanding the terms of the rules to which we shall later refer, ghee obtained from hilly areas of Uttar Pradesh like Kumaun hills, could not be held to be adulterated if its Reichert value was equal to that prescribed for Himachal Pradesh which was mostly a hilly area.
They therefore held that though the rules under the Food Adulteration Act prescribed a minimum Reichert value of 28 for ghee for the entire State of Uttar Pradesh, still if ghee from hill areas of the Uttar Pradesh State reached a minimum of 26 Reichert value, such ghee would not be "adulterated ghee".
We shall consider the correctness of this decision after completing the narrative of the proceedings.
The learned Magistrate held that this decision did not affect the present case because the Reichert value of the respondent 's ghee was less than 26.The Magistrate therefore convicted the respondent andsentenced him to rigorous imprisonment for a period of sixmonths and a fine of Rs. 500 and in default to furtherimprisonment for three months.
The respondent preferred an appeal to the Sessions Judge Kumaon, and raised the same pleas and defences as he put forward before the learned Magistrate.
The Sessions Judge concurred in the finding of the Magistrate regarding the story of the respondent having bought the ghee from Jodhpur, and he also agreed with the Magistrate about the effect of the decision of the Division Bench of the High Court which was also relied on before him.
The (1) A.I.R. 1962 All.
683 Sessions Judge, however, while upholding the conviction reduced the sentence of imprisonment from six months to one month and the fine to Rs. 200.
The respondent thereupon filed a Criminal Revision petition to the High Court under sections 435 and 439 of the Criminal Procedure Code.
The learned Judge of the High Court agreed with the Courts below on the finding of fact as regards the Jodhpur origin of the ghee observing "as the file stands I am satisfied that this ghee was of local origin".
There was, of course, no point raised before him as regards the correctness of the analysis. 'Me learned Judge, however, held that the basis on which the Reichert value had been prescribed for the several areas in the country was not based on any rational classification and he therefore held that it was sufficient if any vendor of ghee in the country satisfied the minimum standards prescribed for any area under these rules.
As there were areas in the country in regard to which a minimum Reichert value of 21 had been prescribed, he held that the respondent was not guilty of adulteration and so directed his acquittal.
It is from this decision that the present appeal has been filed by the State.
Before considering the point about the standards prescribed under the Food Adulteration Act being violative of article 14, an Article which though not specifically mentioned, is apparently the ground upon which the learned Judge has held that the prescription of the Reichert value of 28 for Uttar Pradesh was unenforceable, it would be necessary to set out the statutory provisions on which the decision of the present appeal turns.
The preamble to the Act describes it as one "to make provision for the prevention of adulteration of food".
Section 2 defines the word 'adulterated ' as follows : "An article of food shall be deemed to be adulterated (i) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability;" 684 to read only the portion that is material.
Section 3 enables the Central Government to constitute a committee for food standards and it runs "3.(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute a Committee called the Central Committee for Food Standards to advise the Central Government and the State Governments on matters arising out of the administration of this Art and to carry out the other functions assigned to it under this Act.
(2) The Committee shall consist of the following members, namely: (a) the Director General, Health Services, ex officio, who shall be the Chairman; (b) the Director of the Central Food Laboratory, ex officio; (c) two experts nominated by the Central Government; (d) one representative each of the Central Ministries of Food and Agriculture, Commerce and Industry, Railways and Defence nominated by the Central Government; (e) one representative each nominated by the Government of each State; (f) two representatives nominated by the Central Government to represent the Union territories; (g) two representatives of Industry and Com merce nominated by the Central Government; (h) one representative of the medical profession nominated by the Indian Council of Medical Reserch".
685 Section 7 which prohibits the manufacture and sale of adulterated food reads: "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food;. " Section 8 makes provision for State Governments appointing Public Analysts and section 9 for the appointment of Food Ins pectors.
The next material provision is that contained in section 13 which deals with the reports of the analysis of food for the purpose of ascertaining whether there are adulterat ed or sub standard etc.
Its first sub section directs the Public Analyst to make a report and under sub section
(3) the Certificate issued by the Director of the Central Food Laboratory under sub section
(2) is to supersede the report given by a Public Analyst under sub section
Section 16 provides for the penalties for offences under the ' Act.
Section 23 confers on the Central Government power to make rules but these rules have to be framed after consultation with the Committee established under section 3 and among the rules which might be made are Section 23(1)(b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;. . . "23.
(2) All rules made by the Central Government under this Act shall as soon as possible after they are made be laid before both Houses of Parliament.
" Under the power conferred by section 23, the Prevention of Food Adulteration Rules, 1955, were promulgated.
Rule 5 which occurs in Part III of the rules headed "Definitions and Standards of quality" specifies that "the standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix.
" Ghee is one of the articles of food whose standards are prescribed in Appendix B, milk and milk products being listed under head A 1 1.
Ghee is dealt with in item 14 of A 11 and the standard prescribed for it runs: Ghee means the pure clarified fat derived solely from milk or from curds or from cream to 686 which, no colouring matter or preservative has been added.
It shall conform to the following specifications in Punjab, Uttar Pradesh, Bhopal Vindhya Pradesh, Bihar, West Bengal (except Bishnupur) and PEPSU (except Mahendragarh): (a). . . (b) Reichert Value Not less than 28.
(c). . . . (d). . . .
In Madras, Andhra, Travancore Cochin, Hyderabad, Mysore, Orissa, Assam, Tripura, Manipur, Madhya Bharat, Bombay, Himachal Pradesh, Mahendragarh District of PEPSU, Madhya Pradesh (except cotton tract areas) and Rajasthan (except Jodhpur) the specifications will be the same as above except that Reichert value shall be not less than 26.0.
In Saurashtra, Kutch, cotton tract areas of Madhya Pradesh, Jodhpur Division of Rajasthan and Bishnupur Sub division of West Bengal the Reichert value shall not be less than 21 and the Butyro refractometer reading at 40 degree C shall be between 41 5 to 45.0.
The limits for free fatty acids and moisture shall be the same as for ghee in Punjab, PEPSU etc.
given above.
Explanation.
By cotton tract is meant the areas in Madhya Pradesh where cotton seed is extensively fed to the cattle.
The learned counsel for the State has urged before us that the learned Judge was not justified in striking down or re drafting the rules framed by the Central Government in the manner in which he has done, purporting to invoke article 14 of the Constitution, and in virtually setting up what he considered was the reasonable standard of quality which should determine whether the ghee sold by the respondent was adulterated or not.
We entirely agree with this submission.
Now, it is common ground that if the rules were valid and the standards prescribed enforceable, the ghee 687 sold by the respondent was 'adulterated ' with the result that the respondent was guilty of an offence under section 7 read with section 16 of 'the Act.
The only question is whether there was any material placed before the Court for refusing to apply the rules for determining the standards of quality.
The standards themselves, it would be noticed, have been prescribed by the Central Government on the advice of a Committee which included in its composition persons considered experts in the field of food technology and food analysis.
In the circumstances, if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any apriori reasoning but only as a result of materials placed before the Court by way of scientific analysis.
It is obvious that this can be done only when the party invoking the protection of article 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations.
That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend article 14 the burden is on him to plead and prove the infir mity is too well established to need elaboration.
If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formu lating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under section 3 of the Act, that presumption is strong, if not overwhelming.
We might in this connection add that the respondent cannot assert any fundamental right under article 19(1) to carry on business in adulterated foodstuffs.
Where the necessary facts have been pleaded and established, the Court would have materials before it on which it could base findings, as regards the reasonableness or otherwise or of the discriminatory nature of the rules.
In 688 the absence of a pleading and proof of unreasonableness or arbitrariness the Court cannot accept the statement of a party as to the unreasonableness or unconstitutionality of a rule and refuse to enforce the rule as it stands merely because in its view the standards are too high and for this reason the rule is unreasonable.
In the case before us there was neither pleading nor proof of any facts directed to that end.
The only basis on which the contention re garding unreasonableness or discrimination was raised was an apriori argument addressed to the Court, that the division into the zones was not rational, in that hilly and plain areas of the country were not differentiated for the prescription of the minimum Reichert values.
That a distinction should exist between hilly regions and plains, was again based on apriori reasoning resting on the different minimum Reichert values prescribed for Himachal Pradesh and Uttar Pradesh and on no other.
It was, however, not as if the entire State of Himachal Pradesh is of uniform elevation or even as if no part of that State is plain country but yet if the same minimum was prescribed for the entire area of Himachal Pradesh, that would clearly show that the elevation of a place is not the only factor to be taken into account.
At this stage it might be pointed out that the test for Reichert or Reichert Meissl value of ghee is one of the important tests for detecting adulteration with certain vegetable oils by determining the proportion of the volatile soluble acids in the ghee.
The presence of the adulterant disturbs the ratio existing in normal butter fat or ghee between soluble and insoluble acids and volatile and non volatile acids.
The Reichert value of pure ghee is not constant, but is dependent on several factors among them the breed of the cattle to be found in an area, whether the cattle are pasture fed or stall fed, and the nature of the additional feed given, the nature of the terrain, the rain fall and climatic conditions etc.
That the feed available for the cattle is a very material and determining factor is apparent even from the rules, for a distinction is drawn between different areas of Madhya Pradesh depending on cotton seed being available for feeding the cattle.
It is on the basis of the conjoint effects of these and other factors which 689 obtain in the different areas, some pointing to a higher Reichert value and others neutralising it and after extensive survey conducted from samples collected and analysed during various seasons, that the country has been divided into zones under the rule in Appendix 'B ' and the minimum Reichert value ascertained and prescribed for each.
From the fact that certain areas included in some of the zones are hilly, it does not automatically follow that was the potent factor or the only factor which was taken into consideration for prescribing the standard for that region.
Without appreciating the several factors which bear upon the Reichert value of the ghee produced in a locality and the value attributed to each of these several relevant factors, it would not be possible to pronounce upon the reasonable ness or correctness of the classification of the areas and the prescription of different standards to each of them.
In State vs Malik Ram (1) a Division Bench of the High Court held that because certain areas of Uttar Pradesh were hilly, the Reichert value prescribed for the hilly areas like those in Himachal Pradesh should be adopted and be given effect to notwithstanding there was no ambiguity in the rules as regards the area where the prescribed standards should be applicable.
Except a principle which the Court deduced from the rules themselves there was no material before the Court that the minimum standard prescribed for Uttar Pradesh was defective in any respect.
The approach adopted by the learned Judges in Malik Ram 's case appears to us to be a reversal of the well recognised principle that it is for those who challenge the constitutionality of a statute or a statutory rule to allege and prove the grounds of invalidity and the adoption of the contrary rule that when a party makes such a challenge it is for those who seek to support it to sustain it by positive evidence of its reasonableness and legality.
The Court evolved from a reading of the rules a principle that the standards vary with the elevation of the place, without having before it any materials for such a conclusion save what it considered was the rationale underlying the division into zones.
As already explained, even in Himachal Pradesh the elevation of every place is not the same and there are areas which (1) A.I.R. 1962 All.
134 159 S.C. 44 690 are higher than others and so the test adopted does not even satisfy logic.
We do not consider that the Court was justified in practically legislating and laying down what the rules should be rather than give effect to the law by adherence to the rules as framed.
In the case now under appeal the learned Judge took the matter a step further and he adopted the lowest Reichert value prescribed for any area in the country as that which he would adopt for every other area in the country disre garding the rules.
We find no justification for this either and, in fact, if the learned Judges in Malik Ram 's case(1) were in error in applying the Himachal standard to hilly areas of Uttar Pradesh, the judgment now under appeal discloses even more error.
We might add that if one could legitimately discard the standard prescribed in the rules, as the learned Judge has done, we do not see any principle in holding, as he seems to indicate, that where the Reichert value is below 21 the ghee should be treated as adulterated.
We, therefore, hold that the learned Judge was not justified in allowing the revision of the respondent and acquitting him.
The result is that the appeal is allowed, the acquittal of the respondent is set aside and his conviction restored.
It was stated to us on behalf of the respondent that of the imprisonment for one month to which the sentence passed on him by the Magistrate was modified by the Sessions Judge, he had already undergone a sentence of 18 days.
He has been on bail practically since the admission of his Revision Petition in the High Court.
In the circumstances, we consider that the sentence of imprisonment passed on him might be reduced to the period already undergone.
The sentence of fine imposed will, however, stand.
Appeal allowed.
1) A.I.R. 1962 All.

summary/full:
The respondent was tried for the commission of an offence under section 7 read with section 16(1)(a)(i) of the for selling adulterated ghee.
The analysis of the ghee had disclosed that it had a Reichert Value of only 22 5 whereas the minimum Reichert value fixed for Uttar Pradesh, where the respondent sold the ghee, was 28.
The defence of the respondent was that he had obtained the ghee which he sold from Jodhpur where the Reichert value fixed was only 22 and that the sample must be held not to be adulterated on the basis of the decision of the Allahabad High Court in State vs Malik Ram, A.1,R. 1962 All.
This decision laid down that a distinction should be made between ghee obtained from cattle in the hill districts and ghee obtained from cattle in the plains and that ghee obtained from the hill districts of U.P. cannot be held to be adulterated if its Reichert value was equal to that prescribed for Himachal Pradesh which is a hilly area.
It was the contention of the respondent that his ghee was admittedly pahadi ghee and therefore this decision would apply.
The First Class Magistrate rejected these contentions and convicted him and sentenced him to six months ' R.I. and a fine of Rs. 500.
On appeal the Sessions Judge concurred in the findings of the trial court but reduced the sentence.
The respondent thereupon filed a Criminal Revision Petition before the High Court.
The High Court agreed with the courts below that the ghee was not Jodhpur ghee but it was produced locally.
But it held that the Reichert values as fixed were not based on any reasonable classification and therefore it was sufficient if a vendor satisfied the minimum standard prescribed for any area in the country and since the minimum prescribed for certain areas is 21 and since the ghee in question had 22 2 the respondent was not guilty of the offence charged.
The State thereupon appealed to this Court by way of a certificate under article 134(1)(e) of the Constitution.
It was urged by the appellant that the High Court was wrong in striking down or re drafting the rules framed by the Central Government in the manner in which the High Court has done purporting to invoke 680 article 14 of the Constitution and virtually setting up what the High Court considered was the reasonable standard.
Held: (i) Where the Government have prescribed certain standards after taking into considerations various factors the court cannot strike down these standards as unreasonable or discriminatory merely on some priori reasoning.
It can do so only by basing its decision on materials placed before it by way of scientific analysis.
The party invoking article 14 must make averments with details to sustain such a plea and lead evidence to establish his allegations.
In the absence of such plea and evidence the court cannot accept the statement of a party as to the unconstitutionality of a rule and refuse to enforce that rule as it stands merely because in its view the standards are too high and for this reason the rule is unreasonable.
(ii) Applying these principles it is found that the case State vs Malik Ram (A.I.R. 1962 All. 156) was wrongly decided by the Allahabad High Court.
In the case under appeal the High Court took the matter a step further and adopted the lowest Reichert value prescribed for any area in the country as what should be adopted for every other area in the country disregarding the rules.
Hence the High Court was wrong in allowing the revisions.


judgement:
Appeal No. 9 of 1964.
Appeal from the judgment and order dated September 9, 1964 of the Patna High Court in Election Appeal No. 2 of 1963.
C.B. Agarwala, L.M. Sarma and D.N. Mukherjee, for the appellant.
Sarjoo Prasad and K.K. Sinha, for the respondent No. 1.
The Judgment of the Court was delivered by Dass Gupta, J.
The appellant Brij Mohan Singh and the resportdent Priya Brat Narain Sinha were among the candidates who contested the Aurangabad Constituency seat for the Bihar Legislative Assembly at the General Election held in 1962.
The polling took place on February 21, 1962.
The appellant received a majority of votes and was declared elected.
The respondent Priya Brat Babu who was the sitting member was defeated on April 9, 1962, he filed a petition challenging the validity of the appellant 's election.
He prayed for a declaration that the election of the appellant Brij Mohan Singh be declared void and that he (Priya Brat Narain Sinha) be declared to have been duly elected to the Bihar Legislative Assembly from the Aurangabad Constituency.
Among the grounds on which the appellant 's election was challenged were these three : (1) That the appellant was born on October 15, 1937 and was thus under 25 years of age on the date of filing the nomination papers and therefore disqualified under article 137 of the Constitution from being a member of the Bihar Legislative Assembly; (2) That he held subsisting contracts under the Bihar Government in his individual and personal capacity and was thus disqualified under section 7(d) of the Representation of the People Act; (3) That the appellant, and with his consent, his party men Rameshwar Prasad Singh and others (whose names are mentioned) were directly responsible for publication and distribution of copies of leaflets containing direct insinuations and aspersions against the respondent 's personal character, these being false to the knowledge of the appellant.
The Election Tribunal held on a consideration of the oral and documentary evidence produced before it that none of these or the other grounds on which the validity of the election was challenged had been established.
Accordingly, the Tribunal dismissed the petition.
863 On appeal, the High Court of Judicature at Patna set aside the judgment and order of the Election Tribunal and made an order setting aside the election of the appellant Brij Mohan Singh to the Bihar Legislative Assembly.
The High Court however refused the respondent 's prayer to be declared duly elected.
Against this order of the High Court the present appeal has been preferred on a certificate granted by the High Court under article 133(1)(b) of the Constitution.
The only grounds that appear to have been pressed before the High Court were the three which we have mentioned above.
The High Court agreed with the Election Tribunal that the allegation that the appellant held a contract under the Government in his personal capacity had not been established.
As regards the other two grounds the High Court disagreed with the Election Tribunal.
The High Court held that the appellant was below the age of 25 years on the date of filing the nomination and was therefore not qualified to be a candidate for the Bihar Legislative Assembly.
The High Court also held that the appellant had published a leaflet exhibit 10 containing attacks upon the personal character of the respondent and was thus guilty of a corrupt practice within the meaning of section 123(4) of the Representation of the People Act.
As already stated, the High Court set aside the election of the appellant.
The findings of the High Court on the question of age and also on the question of publication of the document exhibit 10 have been challenged before us.
It was also urged that in any case the pamphlet exhibit 10 did not amount to an attack on the personal character of the respondent.
[After considering the evidence his Lordship concluded that it was not proved that the appellant had committed any corrupt practice or that he was below twenty five years on the date of filing of nomination papers.
On the question whether an entry made in an official record maintained by an illiterate public servant, by some one else at his request is relevant under section 35 of the Evidence Act his Lordship held:] On an examination of the physical appearance on the hathchitha and the entries made therein, the evidence of the Chowkidar and the circumstances under which this document was ultimately produced before the Tribunal we are inclined to agree with the view of the Election Tribunal that this is a genuine document which was maintained by the Chowkidar in the discharge of his official duty.
If the document had been manufactured to assist the appellant we do not think it likely that the Chowkidar would have refused to produce it readily when summoned to do so.
The fact 864 that a warrant of arrest had to be executed against him is a convincing circumstance that the Chowkidar was unwilling to produce it.
We are not impressed by the argument of Mr. Sarjoo Prasad that the omission of the Chowkidar to produce the document in obedience to the summons and the issue of warrant of arrest to secure its production were all pre arranged to create an atmosphere for the acceptance of the document as genuine.
The appellant 's lawyers before the Election Tribunal could not possibly have been sure that the Tribunal would in the last resort issue a: warrant of arrest.
It is not likely that they would take such risk so that ' the document might not come at all.
In our opinion, this document is genuine and is the book that was maintained by the Chowkidar for noting the births in his Ilaka during the years 1934 to 1936.
The entry therein showing the birth of a son to Sarjoo Singh on October 15, 1935 can however be of ' no assistance to the appellant unless this entry is admissible in evidence under the Evidence Act.
If this entry had been made by the Chowkidar himself this entry would have been relevant under section 35 of the Evidence Act.
Admittedly, however, the Chowkidar himself did not make it.
Mr. Agarwal tried to convince us that when an illiterate public servant is unable to make an entry himself and he gets the entry made by somebody else this should be treated as an entry made by the public servant.
This argument must be rejected.
The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high.
That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry.
We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within section 35 of the Evidence Act.
It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act.
The entry in the hath chitha has therefore to be left out of consideration in coming to a conclusion about the appellant 's age.
Appeal allowed.

summary/full:
The appellant and respondent were rival candidates for election to the Bihar Legislative Assembly.
The appellant obtained a majority of votes and was declared elected.
This election was challenged by the respondent on the ground that the appellant had not attained the age of 25 years on the date of filing the nomination papers and was on that account disqualified under article 173 of the Constitution from being a member of the Assembly; that he held subsisting contracts under the Bihar Government in his individual and personal capacity and was thus disqualified under section 7(d) of the Representation of the People Act and that he and his party men were directly responsible for publication and distribution of copies of leaflets entitled "Bagula Neta Se Hoshiar" containing direct insinuations and aspersions against the personal character of the respondent, those being false to the knowledge of the appellant.
The Election Petition was dismissed by the Election Tribunal.
The respondent appealed to the High Court.
The High Court came to the conclusion that the allegation that the appellant held Governpapers and that the appellant was.
gulty of a corrupt practice in the appeal and set aside the election of the appellant on the ground that he was below the age of 25 on the date of filling the nomination papers and that the appellant was guilty of.
a corrupt practice in that he had published the offending leaflets.
With certificate ' of fitness granted by the High Court the appellant appealed to this Court.
Allowing the appeal: HELD: (i) The burden of proving that appellant had not attained the age of 25 years on the date of has nomination was on the respondent and he had failed to prove that and hence the election of the appellant could not be set aside on that ground.
The entry made in an official record maintained by an illiterate Chowkidar, by somebody else at his request, does not come within Section 35 of the Evidence Act.
(ii) The respondent had not been able to prove the publication of the leaflets by the appellant or has agent or by any other person with the consent of the appellant o.r of his election agent, and hence the Election Tribunal was right in coming to the conclusion that the commission of any corrupt practice by appellant under section 123(4) had not been proved.