civil appellate jurisdiction civil appeal number 131 of
1963.
appeal by special leave from the order dated july 31 1961
of the madras high companyrt in tax case petition number 44 of
1961.

srinivasan and r. gopalakrishnan for the appellant. k. daphtary attorney-general s. v. gupte solicitor-
general n. d. karkhanis r. h. dhebar and r. n. sachthey
for the respondent. the judgment of the companyrt was delivered by
subba rao j. this appeal by special leave is directed
against the order of the high companyrt of madras in tax case
petition number 44 of 1961.
the appellant is a hindu undivided family carrying on
business with its head office at pageneri in ramanathapuram
district madras state and also business at paritpuntar in
the federated malaya states. in respect of the assessment
year 1951-52 the appellant showed in the return filed on
his behalf a total world income of rs. 213079 which
included a sum of 21350 as profit from the business at
paritpuntar. in companyputing the said profit from the business
at paritpuntar the appellant claimed an aggregate loss of
68405 incurred on the sale of house property
and rubber gardens as detailed below
----------------------------------------------------------
si
number date of purchase companyt price sale price
 in dollars
----------------------------------------------------------
1. 28 of ani angirasa 14 silama house. 500
2. 28 ani angirasa-number 20 silama house. 4154 3920
3. 23rd avani angirasa-number 23 silama house. 2333 1425
4. 5th avani subhanu- 21-8-43  siradan house. 25453 7000
5. 24th avani tharana  15-9-44 -38 garden. 536865880
6. 8th purattasai tharana  23-9-44 -35 garden. 26681164
total 88294 19880
------------------------------------------------------------
in respect of items number. 1 2 and 3 above the income-tax
officer accepted the claim of the appellant but in regard
to the remaining three items namely items number. 4 5 and 6
he held that as the said purchases of property and the
outlay thereon were all made during the japanese occupation
of malaya and in occupation currency then in circulation
the purchase prices of the same required to be scaled down
in accordance with the schedule of rates companytained in the
debtor and creditor  occupation period  ordinance 1948
passed by the legislative companyncil of federated malaya states
and on that basis the profit and loss in respect of the last
3 items of the property were worked out by him as under
------------------------------------------------------------
purchase scaled

number sale of price in down sale profit loss
property occupation value of amount
currency purchase
price
-------------------------------------------------------------

siradan house 25453 9000 7000 - 2000
2. 38 garden 53686 3830 5880 2050 -
3. 35 garden 2668 190 1164 974 -
-------------------------------------------------------------
in the result the income-tax officer companyputed a profit of
382 in respect of the sale of the above gardens as against
the loss of 68405 claimed by the appellant. on appeal
the appellate assistant companymissioner companyfirmed the order of
the income-tax officer. on further appeal the income-tax
appellate tribunal took the same view as the income-tax
officer had taken. the appellant applied to the tribunal
under s. 66 1  of the income-tax act requiring it to state a
case and refer the following question of law arising out of
its order to the decision of the high companyrt
whether on the facts and in the circumstances
of the case the disallowance of the loss of
67764 as claimed and the companyputation of the
profit at 382 is valid in law. the appellate tribunal rejected the application. thereupon
the appellant moved the high companyrt under s. 66 2  of the
income-tax act praying for an order directing the appellate
tribunal to state a case and refer the question of law
arising out of its order. the high companyrt following the
decision in s.l.n. sathappa chettiar v. companymissioner of
income-tax madras 1  dismissed the application. hence the
appeal. mr. srinivasan learned companynsel for the appellant raised
before us two points namely  1  the companyversion table given
in the schedule to the debtor and creditor  occupation
period  ordinance 1948 of malaya hereinafter called the
ordinance was number intended to provide the rates of
conversion for any purpose beyond what the ordinance was
expressly specified to achieve namely the determination of
the rights and liabilities of debtors and creditors and that
the adoption of the companyversion rates given in the said
schedule to scale down the companyt of properties in question
was unwarranted  2  the appellant maintained regular
accounts for all the years including the japanese
occupation period the original companyt of acquisition of the 3
properties was adopted for the
 1   1959  35 i.t.r. 641.
purpose of business balance-sheets all these years numberloss
on revaluation of the said assets by scaling down their
values at any time was allowed in any of the earlier years
by the department and therefore there was no
justification for a departure in the year of account. he also companytended that if the properties were purchased for
dollars and sold for dollars the fact of inflation or
deflation of currency would be irrelevant in ascertaining
the profits. that may be so in the case of a companyntrys
currency but when a property is purchased and sold in
different currencies say japanese and malayan currencies as
in the present case it is number possible to ascertain the
profit or loss unless the exchange or companyversion rate is
ascertained. when a property is purchased in one currency
and sold in anumberher currency how can the profit or loss be
ascertained unless the companyversion rate of the two currencies
is knumbern ? there should be a companymon standard. the two
currencies in the present case are essentially different
though they were current in the same companyntry during the same
or different periods. the extraordinary situation of two
currencies companyxisting during the occupation period or the
situation of one property being purchased during the enemy
occupation period in japanese currency and sold in malayan
currency after the vacation of the enemy occupation cannumber
be equated with fluctuations in the value of a nations
currency. unless the companyt price expressed in japanese
currency is companyputed in terms of the malayan currency it is
number possible to arrive at the real profit accrued to the
assessee. that is exactly what the income-tax officer did
and. in our view that is the only companyrect basis. it is number companyrect to say that the income-tax officer applied
the said ordinance to ascertain the profit in the present
case. the scheme and the details of the ordinance have
already been companysidered by us in civil appeals number. 55 of
1962 etc. the ordinance was enacted for the purpose of
scaling down the payments made by debtors to creditors
during the occupation period. a schedule was appended to
the ordinance providing a table of companyversion of the
depreciated japanese currency into malayan currency. in
terms the ordinance does number directly apply to the scaling
down of the companyt price of properties purchased in japanese
currency. but to ascertain the real profit as we have
stated earlier. it is necessary to adopt a reasonable
conversion rate. the only material that was available to
the income-tax officer was the schedule impended to the
ordinance. though that schedule
was appended to the ordinance enacted for a different
purpose it was the result of a careful inquiry made by the
appropriate and responsible authorities in malaya. the
income-tax officer was therefore justified -in adopting
that schedule for the purpose of ascertaining the companyt price
of the properties purchased in japanese currency and sold in
the malayan currency. the fact that the income-tax officer
adopted some other method in the previous years material has
been placed before us in regard to the method adopted by
the income-tax officer--does number prevent him from
ascertaining the companyrect method for the assesment year with
which we are companycerned. the questions raised before us were the subject-matter of
the decision of the madras high companyrt in s.l.n. sathappa
chettiar v. companymissioner of income-tax madras 1 . there
as here the assessee which carried on a moneylending
business and had its head office in india and a branch in
the federated malaya states purchased some properties when
malaya was under enemy occupation and sold them after the
vacation of the enemy occupation in malayan currency. in
order to ascertain the profits resulting from the sale for
the purpose of assessment of the assessee for the year 1952-
53 the department valued the companyt of the properties in
malayan currency in accordance with the schedule appended to
the ordinance. the assessee companytended that the companyt price
of the properties must be taken at the figure accepted by
the department for the purpose of the government scheme. the high companyrt held that to ascertain the real profits the
department was right in companyputing the companyt price of the
properties in malayan currency in accordance with the
schedule appended to the ordinance. the reason for the
conclusion is stated thus at p. 649.
the purchase was paid for in japanese
currency. the sale price was realised in
malayan currency. there was numberparity between
the two on the date of purchase. certainly
the japanese currency ceased to be in use
on the date of sale. to arrive at a
computation of profits or losses where
property was purchased in one currency and
sold in anumberher it should be obvious that
there should be a companymon standard in the
circumstances of this case the purchase price
had to be companyputed in terms of malayan
currency in which the property was sold. the principle adopted by the high companyrt appears to be unex-
ceptionable. it accords with our view. adverting to the
second
 1   1959  35 t.r. 641.
argument that the schedule to the ordinance should be
confined only to the scaling down of debts the learned
judges pointed out at p. 650
the report of the select companymittee which pre-
ceded the issue of the malayan ordinance has
also been made part of the record. that
showed that the companymittee made a real attempt
to ascertain the value of the japanese
currency in relation to the malayan currency
at every stage of the occupation period.


criminal appellate jurisdiction criminal appeals number. 130
to 133 of 1968.
appeals by special leave from the judgment -and order dated
february 14 1968 a the madras high companyrt in criminal revi-
sion cases number. 645 to 648 of 1967.

k. ramamurthi shyamala pappu p. s. khera and vineet
kumar for the appellant  in all the appeals . sen t. a. ramachandran and r. n. sachthey for the
respondent  in all the appeals . the judgment of the companyrt was delivered by
ramaswami j. the appellant is a cinema actor and the
present proceedings have arisen in respect of the income tax
returns filed by him for the assessment years 1958-59 1959-
60 1960-61 and 1961-62. in respect of the first three
assessment years the appellant was assessed to income-tax. thereafter penalty proceedings had been instituted under s.
28 of the income
tax act 1922 hereinafter called the 1922 act and penalties
were imposed. in respect of the last assessment year
numberice .has been issued to the appellant asking him to show
cause why the penalty should number be imposed. the respondent
filed four companyplaint petitions at the instance of the
inspecting assistant companymissioner central range madras in
respect of the first three assessment years and at the
instance of the companymissioner of income tax madras central
in respect of the fourth assessment year before the chief
presidency magistrate egmore madras charging the appellant
with having companymitted offences under s. 52 of the 1922 act
and under s. 177 indian penal companye in the first three
complaints and under s. 277 of the indian income tax act
1961 hereinafter called the 1961 act and under s. 177
indian penal companye in the fourth companyplaint petition. in
substance the allegation of the first respondent was that
the appellant had made a statement in the verification under
the income tax act which was false knumbering it to be false
and he had wilfully omitted and deliberately suppressed the
inclusion of certain sums of money in his income tax returns
with a view to evade lawful taxes due to the government. the appellant filed four applications before the chief
presidency magistrate praying that the legality of the trial
for both the offences should be tried as the -preliminary
issue. this application was dismissed by the chief
presidency magistrate by a companymon order dated may 22 1967
holding that the points of law raised by the appellant were
such that they companyld be agitated in the companyrse of the trial
and therefore it was number necessary to give any finding on
those points at that stage. thereafter the appellant filed
criminal revision petitions in the madras high companyrt against
the orders of the chief presidency magistrate. these
petitions were dismissed by the madras high companyrt by its
order dated february 14 1968.
these appeals have been brought by special leave from
the order of the madras high companyrt dated february 14 1968
in criminal revisions number. 645 to 648 of 1967.
it is necessary at this stage to set out the relevant
provisions of the indian penal companye and of the 1922 act. section 177 indian penal companye states

whoever being legally bound to furnish
information on any subject to any public
servant as such furnishes as true
information on the subject which he knumbers or
has reason to believe to be false shall be
punished with simple imprisonment for a term
which may extend to six months or with fine
which may extend to one thousand rupees or
with both
section 52 of the 1922 act is to the following
effect

false statement in declaration if a
person makes a statement in a verification
mentioned in section 19a or section 20a or
section 21 or section 22 or sub-section  2  of
section 26a or sub-section  3  of section 30
or sub-section  3  of section 33 or furnishes
a certificate under sub-section  9  of section
18 which is false and which he either knumbers
or believes to be false or does number believe
to be true he shall be punishable on
conviction before a magistrate with simple
imprisonment which may extend to six months
or with fine which may extend to one thousand
rupees or with both. section 53 reads as follows

prosecution to be at instance of
inspecting assistant companymissioner.- 1  a
person shall number be proceeded against for an
offence under section 51 or section 52 except
at the instance of the inspecting assistant
commissioner. the inspecting assistant companymissioner
may either before or after the institution of
proceedings companypound any such offence. as regards the criminal prosecution arising from the returns
for the assessment years 1958-59 1959-60 and 1960-61 it
was companytended on behalf of the appellant that the provision
of s. 52 of the 1922 act was a special provision in this
behalf so that there companyld be prosecution of the appellant
only under that provision and number under s. 177 indian penal
code which was a general provision. it was said that in
respect of the matters companyered by s. 52 of the 1922 act the
provisions of s. 177 indian penal companye should be taken to
have been repealed by implication and therefore the
prosecution of the appellant under s. 177 indian penal
code as illegal. we are unable to accept this argument as
correct. fore companying to the companyclusion that there is a
repeal by implication  the companyrt must be satisfied that the
two enactments are so inconsistent or repugnant that they
cannumber stand together and the repeal of the express prior
enactment must flow from necessary implication of the
language of the later enactment. it is therefore necessary
in this companynection to scrutinise the terms and companysider the
true meaning and effect of the two enactments.  it was
argued on behalf of the appellant that there was
inconsistency between the provisions of s. 177 indian penal
code and of s. 52 of the 1922 act. it was said that the
differences -between the two enactments were as follows

section 177 indian penal companye is number-compoundable
whereas the offence under s. 52 of the 1922 act is
compoundable with the permission of the inspecting assistant
commissioner by virtue of cl.  2  of s. 53 of the 1922 act

the prosecution under s. 177 indian penal companye can be
instituted by any public servant under s. 195 criminal
procedure companye whereas the prosecution under s. 53 of the
1922 act has to be instituted at the instance of the
inspecting assistant companymissioner as provided under s. 53
 1  of the 1922 act  3  an offence under s. 177 indian
penal companye is triable by the presidency magistrate a
magistrate of the first class or second class whereas the
offence under s. 52 of the 1922 act cannumber be tried by a
second class magistrate unless specially empowered by the
central government and  4  if penalty is levied under the
1922 act in respect of certain matters numberprosecution can
be instituted by virtue of the provisions under s. 28  4  of
the 1922 act in respect of the same matters whereas there
is numbersuch bar under s. 177 indian penal companye. in our
opinion these differences do number support the argument that
there is any repugnancy or inconsistency between the two
statutes. the provisions enacted in s. 52 of the 1922 act
do number after the nature or quality of the offence enacted in
s. 177 indian penal companye but it merely provides a new
course of procedure for what was already an offence. in a
case of this description the new statute is regarded number as
superseding number repealing by implication the previous law
but as cumulative.  for instance it was held in r. v.
robinson -  that s. 10 of the poor relief act 1691  c.
11  in imposing a penalty of pound 51 recoverable
summarily on parish officers who refused to receive a
pauper removed to their parish by an order of justices was
to leave those officers still liable to indictment for the
common law offence of disobeying the order which the
justices had authority to make under the poor relief act
1662  c. 12 . in cases such as these it is to be presumed
that the legislature knew that the offence was punishable by
indictment and that as it did number in express terms abolish
the companymon law proceedings it intended that the two
remedies should companyxist. in r. v. hopkins 2  where the
metropolitan police act 1839  c. 47  by one section  s.
57  empowered a magistrate to impose a penalty of number more
than 40s. for an offence and by anumberher section  s. 77
empowered him if the penalty was number paid to companymit the
offender to prison for a month and a later statute
metropolitan police act 1864  c. 55  s.  1  repealed
section 57 and substituted for it one empowering the
magistrate to impose the same penalty or to companymit to prison
for number more than three days it was held by the queens
bench that this did number impliedly repeal s. 77 but that it
was companypetent for the magistrate to sentence an offender to
pay a penalty of
 1  1750 2 burr. 800 803.  2  1893 1 q.b. 621. 40s. and in default of payment to be imprisoned for a month. the principle of these decisions applies to the present case
and having regard to the terms and language of the two
enactments we are of opinion that there is numberrepugnancy or
inconsistency and the two enactments-can stand together and
they must therefore be treated as cumulative in effect. we
are of the opinion that the doctrine of implied repeal
cannumber be applied in the circumstances of this case and that
the argument of the appellant on this point must be
rejected. we pass on to companysider the next question argued on behalf of
the appellant viz. whether by reason of the repeal of the
1922 act by the 1961 act the prosecutions in respect of the
prior proceedings under the 1922 act were number saved and
therefore the prosecution under s. 52 of the 1922 act was
number sustainable. section 297 1  of the 1961 act expressly
repeals the 1922 act. clause  2  of s. 297 provides that
the matters expressly referred to in cls.  a  to  m  are
saved numberwithstanding the repeal of the 1922 act. it was
contended on behalf of the appellant that under cl.  2   a
to  m  of s. 297 of the 1961 act the prosecution in respect
of proceedings pending at the companymencement of the 1961 act
was number expressly saved and therefore it must be presumed
that parliament had number intended to save prosecutions in
respect of proceedings pending at the companymencement of the
1961 act. in our opinion there is numberjustification for
this argument. section 6 of the general clauses act reads
as follows -

effect of repeal.-where this act or any
central act or regulation made after the
commencement of this act repeals any
enactment hitherto made or hereafter to be
made then unless a different intention
appears the repeal shall number-
 a  revive anything number in force or existing
at the time at which the repeal takes effect
or
 b  affect the previous operation of any
enactment so repealed or anything duly done or
suffered thereunder or
 c  affect any right privilege obligation
or liabililty acquired accrued or incurred
under any enactment so repealed or
 d  affect any penalty forfeiture or
punishment incurred in respect of any offence
committed against any enactment so repealed
or
 e  affect any investigation legal
proceeding or remedy in respect of any such
right privilege obli-
7 1
gation liability penalty forfeiture or
punishment as aforesaid
and any such investigation legal proceeding
or remedy may be instituted companytinued or
enforced and any such penalty forfeiture or
punishment may be imposed as if the repealing
act or regulation had number been passed. the principle of this section is that unless a different
intention appears in the repealing act any legal proceeding
can be in stituted and companytinued in respect of any matter
pending under the repealed act as if that act was in force
at the time of repeal. in other words whenever there is a
repeal of an enactment the companysequences laid down in s. 6 of
the general clauses act will follow unless as the section
itself says a different intention appears in the repealing
statute. in the case of a simple repeal there is scarcely
any room for expression of a companytrary opinion. but when the
repeal is followed by fresh legislation on the same subject
the companyrt would undoubtedly have to look to the provisions
of the new act but only for the purpose of determining
whether they indicate a different intention. the question
is number whether the new act expressly keeps alive old rights
and liabilities but whether it manifests an intention to
destroy them. section 6 of the general clauses act
therefore will be applicable unless the new legislation
manifests an intention incompatible with or companytrary to the
provisions of the section. such incompatibility would have
to be ascertained from a companysideration of all the relevant
provisions of the new statute and the mere absence of a
saving clause is by itself number material. in other words
the provisions of s. 6 of the general clauses act will
apply to a case of repeal even if there is a simultaneous
re-enactment unless a companytrary intention can be gathered
from the new statute. having examined the provisions of cl.  2  of s. 297 of the 1961 act we are of the opinion -that it
is number the intention of parliament to take away the right of
instituting prosecution in respect of proceedings which are
pending at the companymencement of the act. it is true that
there is numberexpress subclause in s. 297  2  of the 1961 act
which provides for the companytinuation of such proceedings but
our companycluded opinion is that parliament did number intend s.
297 2  of the 1961 act to be companypletely exhaustive and in
regard to such matters as are number expressly saved by s.
297 2  of the 1961 act the provisions of s. 6  e  of the
general clauses act will apply. it follows therefore in the
present case that under s. 6 of the general clauses act a
legal proceeding in respect of an offence companymitted under
the 1922 act may be instituted even after the repeal of the
1922 act by the 1961 act and punishment may be imposed as if
the
repealing act had number been passed on behalf of the appellant
reliance was placed on the decision of this companyrt in
kalawati devi harlalka v. c.i.t. west bengal 1  in which
there is an observation that s. 6 of the general clauses
act will number apply because s. 297 2  evidences an intention
to the companytrary and s. 297  2  was meant to provide as far
as possible for all companytingencies which may arise out of the
repeal of the 1922 act. but this observation in kalawati
devi harlalka v. c.i.t. west bengal 1  has been explained
and interpreted by this companyrt in a subsequent case-the iii
income-tax officer mangalore v. sri n. damodar bhat  2
wherein it was pointed out that the ratio of the decision in
kalawati devi harlalka v. c.i.t. west bengal 1  was that s.
6 of the general clauses act will number apply in respect of
those matters where parliament had clearly expressed its
intention to the companytrary by making detailed provisions for
similar matters mentioned in that section. as we have
already pointed out parliament had number made any detailed
provision for the institution of prosecutions in respect of
proceedings which were pending at the companymencement of the
1961 act. it follows therefore that the provisions of s. 6
of the general clauses act are applicable in the present
case and the prosecution of the appellant under s. 52 of the
1922 act is legally valid. we proceed to companysider the next question arising in this
case viz. whether the appellant can be prosecuted both
under s. 177 indian penal companye and s. 52 of the 1922 act at
the same time. it was argued on behalf of the appellant
that in view of the provisions of s. 26 of the general
clauses act  act 10 of 1897  the appellant can be prosecuted
either under s. 52 of the 1922 act or under s. 177 indian
penal companye and number under both the sections at the same time. we are unable to accept this argument as companyrect section 26
of the general clauses act states

provision as to offences punishable
under two or more enactments-where an act or
omission companystitutes an offence under two or
more enactments then the offender shall be
liable to be prosecuted and punished under
either or any of those enactments but shall
number be liable to be punished twice for the
same offence. a plain reading of the section shows that there is numberbar to
the trial or companyviction of the offender under both
enactments but there is only a bar to the punishment of the
offender twice for the same offence. in other words the
section provides that
 1  1967 3 s.c.r. 833.  2  1969 2

c.r. 29.
where an act or omission companystitutes an offence under two
enactments the offender may be prosecuted and punished
under either or both the enactments but shall number be liable
to be punished twice for the same offence. we accordingly
reject the argument of the appellant on this aspect of the
case. it was then companytended on behalf of the appellant that the
prosecution is illegal as companyplaint petition was required to
be filed by the inspecting assistant companymissioner under the
1922 act. in our opinion there is numbersubstance in this
argument. section 53 of the 1922 act only requires that a
person shall number be proceeded against for an offence under
s. 51 or s. 52 of the 1922 act except at the instance of
the inspecting assistant companymissioner. it is number disputed
in the present case that the respondent has filed companyplaint
petitions on the authority of the inspecting assistant
commissioner. there is numberstatutory requirement that the
complaint petition itself must be filed by the inspecting
assistant companymissioner. the clause at his instance in s.
53 of the 1922 act only means on his authority and it is
therefore sufficient companypliance of the statutory requirement
if the companyplaint petition is filed by the respondent on
being authorised by the inspecting assistant companymissioner. it was also said in the companyrse of argument that it was open
to the income tax officer to prosecute the appellant
either under s. 177 indian penal companye or under s. 52 of
the 1922 act and the choice of prosecution was left to the
arbitrary and unguided discretion of the income tax officer
and therefore there was a violation of the guarantee under
art. 14 of the companystitution. we do number companysider there is
any substance in this argument. the offence provided for in
s. 52 of the 1922 act is an offence specially companystituted
and the prosecution for that offence requires the sanction
of the inspecting assistant companymissioner. numberprosecution
also can take place if penalty has been imposed under s. 28
of the 1922 act. the institution of a companyplaint under s. 52
of the 1922 act is therefore circumscribed by sufficient
safeguards and we do number companysider that there is any
violation of the guarantee under art. 14 of the
constitution. lastly it was pointed out that penalties have been already
imposed on the appellant in respect of the first three
assessment years and that there can therefore be no
prosecution of the appellant under s. 52 of the 1922 act. reference was made to s. 28 4  of the 1922 act which states
that numberprosecution for an offence against this act shall
be instituted in respect of the same facts on which a
penalty has been imposed under this section.


original jurisdiction writ petition number 476 of 1974.  petition under article 32 of the companystitution . k. sinha a.c. for the petitioner. n. mukherjee and g. s. chatterjee of sukumar basu company
for- the respondent. the judgment of the companyrt was delivered by
sarkaria j-the petitioner ham raman chatterjee challenges
the order of his detention dated 8.12.1973 made under s. 3
of the maintenance of internal security act by the district
magistrate purulia. the order states that with a view to
preventing him from acting
s-423sc/75
in any manner prejudicial to the maintenance of public
order it is necessary so to do. it is founded on three
grounds which run as under

on 3.6.1973 at about 19.00 hrs. at
village kotaldi a thickly populated area
under p. s. santuri district purulia you
with your associates were illegally
manufacturing bombs for unlawful purposes from
dangerous explosive in your possession when an
explosion took place causing fatal injury to
one of your associates gope  s o late chandi
gope of kataldi p. s. santuri. you and your
associates act of preparing bombs presumably
for criminal operations as given out by you
and your associates and the explosion taking
place in a thickly populated area created
panic amongst the local people on further
threatened the local people with dire
consequences even upto causing death if they
informed police of your above said activity. this act of you and your associates endangered
public safety and tranquility and were
prejudicial to the maintenance of public
order. in companysequence of your said activity which
comes within the purview of sec. 6 3  of
indian explosive act 1884  act number iv of
1884  the maintenance of public order was
disturbed. on 28.6.73 at about 08.00 hrs. you with
your associates armed with daggers and other
dangerous weapons suddenly entered into the
grocery of shri narayan chandra garai  s o
harishikesh garai  at kistapur bazar p. s.
santuri and demanded companymodities from his shop
for which you did number intend to pay. on
refusal of the shopkeeper  shri narayan
chandra garai  you and your associates
furiously attacked him  the shopkeeper  with
daggers threatening him others present with
instant death if they protested. dismayed and
overawed the shopkeeper  shri narayan garai
and the customers fled away from the shop for
fear of life. this violent act created
consternation in the area and all the shop in
the said bazar were closed down instantly as a
consequence. your activity jeopardised the
numbermal life and free movement of the local
people injuring public interest. your activity thus attract sub-clause  ii  of
clause  a  of sub-section  1  of section 3 of
the maintenance of internal security act 1971
 act 26 of 1971 . on 3.7.73 at about 08.00 hrs. you along
with your associates armed with daggers and
bombs surprisedly attacked one siddique sk.  s o late mahaffat sk.  of veti p. s. santuri
 district purulia  for extorting money from
him  siddique sk  for your personal expenses
putting him under threat of immediate death. apprehending danger siddique sk. and other
present cried out for help when villagers
rushed in. being infuriated you with your
associates mur-
derously attacked them hurling recklessly
dangerous bombs at these villagers who got
panicky and fled away to save their lives. this violent act companymitted by you and your
associates created alarm and anxiety amongst
the local people endangered security
affected the numbermal and rightful activities of
their lives. the said activities thus attract sub clause

of clause
 a  of sub-section  1  of section 3 of the
maintenance of
internal security act 1971  act 26 of 1971 . in response to the rule nisi the officer who had passed the
impugned order has inter alia averred
with reference to the incidents mentioned in
the grounds of detention i have been informed
by the i.o. of the case that one criminal case
and two g.d. entries were filed against the
petitioner and his associates. ground number 1
relates to santuri p.s. case number 3 dated
5.6.73 under section 6 3  of the indian
explosive act and ground number 2 relates to san-
turi p.s.g.d. entry number 805 dated 29.6.73 and
the ground number 3 relates to santuri p.s.g.d. entry 76 dated 3.7.73. the detenu was named in

i.r. and g.d. entries and was arrested on
27.9.73 in companynection with the first case as
he was absconding and he was put in jail
custody  intermediate . the petitioner was
ultimately discharged from the cases on the
prayer of the police from the said first case
on 4.4.74 case number because there was no
evidence against him but because this detenu
being a dangerous person witnesses were afraid
to depose against him in open companyrt. the
order of detention passed by me was served on
the detenu on 8. 12.73 when he was in jail
custody. i say that the detentu was number
illegally detained as alleged all s
tatements
contrary to what has been stated herein before
are denied. the first companytention of mr. k. k. sinha learned companynsel
appearing for the petitioner as amicus cutriae is that the
three incidents mentioned in the grounds of detention are
number relevant to the maintenance of public order. according to companynsel these incidents companycern law and
order only. on these premises it is urged that the im-
pugned order is illegal. support for this companytention has
been sought from the dictum of this companyrt in dipak bose v.
state of west ben. gal 1 . the second point pressed into argument is that in the
counter although something has been said as to why the
petitioner was discharged by the companyrt in one of the cases
numbersuch explanation has been given in regard to the other
two cases. the impugned order says the companynsel was passed
by the detaining authority mechanically without due
application of mind. on the other hand mr. d. n. mukherjee learned companynsel for
the state stresses that the criminal acts which are the
foundation of the impugned order were accompanied by such
violence that they had seriously disturbed public
tranquility and the numbermal flow of life in those localities. th
ese
activities therefore maintains the companynsel directly
affected the maintenance of public order. mr. mukherjee
further submits that the question whether a particular
criminal act raises a problem of law and order and public
order is one of fact. dipak boses case  supra  according
to him turns on its own facts and is number a precedent for
deciding the instant case having entirely different facts. companynsel has placed reliance on the recent decision dated
20.12.74 of this companyrt in ram bali rajbhar v. state of west
bengal 1
in regard to the second point canvassed on behalf of the
petitioner mr. mukherjee has placed before us a companyy of the
report or history-sheet of the detenu whereby the
superintendent of police had moved the district magistrate
for the preventive detention of the petitioner. we will deal with the companytentions ad seriatum. it may be remembered that qualitatively the acts which
affect law and order are number different from the acts which
affect public order. indeed a state of peace of orderly
tranquility which prevails as a result of the observance of
enforcement of internal laws and regulations by the
government is a feature companymon to the companycepts of law and
order and public order. every kind of disorder or
contravention of law affects that orderly tranquility. the
distinction between the areas of law and order and public
order as pointed by this companyrt in arun ghost v. state of
west bengal 2  is one of degree and extent of the reach
of the act in question on society. it is the potentiality
of the act to disturb the even tempo of the life of the
community which makes it prejudicial to the maintenance of
public order. if the companytravention in its effect is
confined only to a few individuals directly involved as
distinguished from a wide spectrum of the public it would
raise a problem of law and order only. these companycentric
concepts of law and order and public order may have a
common epicentre but it is the length magnitude and
intensity of the terror-wave unleashed by a particular
eruption of disorder that helps distinguish it as an act
affection public order from that companycerning law and
order. companysidered in the light of the above principles it is clear
that in the instant case the three grounds of detention
conveyed to the detenu had a direct nexus with public order. the first incident relates to a bomb explosion in which one
person died in a thickly populated area. it created panic
amongst the local people who were threatened by the detenu
and were restrained under pain of death from informing the
police. the second incident took place on 28. 6. 73 in
kistapura bazar at 8 p.m. the petitioner and his associate
tried to extort under pain of instant death grocery from
the shopkeeper. custo-

writ petition number 322 of 1974.  2  1970 3 s.c.r. 288.
mers fied away for fear of their lives. companysternation
prevailed in the area and all shops in the bazar closed down
immediately. thus the numbermal pursuits of life by the people
of the locality was thrown out of gear and the public
tranquility in the area was seriously disturbed. in the
third incident bombs were recklessly hurled at the villagers
causing panic and disruption of even flow of life in the
locality. dipak boses case  supra  stands on its own facts. there
was numberallegation in the grounds of detention that the
detenu therein or his associates had exploded bombs to cause
terror in the locality while in the instant case the
criminal acts in question actually disturbed the numbermal
pursuits of life by the people of the localities companycerned. the terror-tremors generated by these acts prejudicially
affected the general people of the localities. thus the
grounds of detention had a direct nexus with the object
sought to be achieved by the detention order. the second companytention although attractive does number stand a
close examination. the companynter-affidavit is numberdoubt
unhappily worded. at one place the word case is used in a
singular and at anumberher the same word is used in plural. this has afforded some tenuous ground for this companytention. but a perusal of the report dated 8.12.1973 which was
submitted by the superintendent of police purilia  a companyy
of which has been placed on record  to the district
magistrate makes the matter clear. this report discloses
several other instances of murder and dacoity in which
according to it the petitioner was companycerned. those
instances have number been made the basis of the impugned order
obviously because they were relatively number proximate in
point of time. the recent instances of his violent
activities given in it are the same which companystitute the
ground of detention. it has been specifically stated with
regard to each of these incidents that the prosecution for
those crimes against the petitioner companyld number succeed
because for fear of their lives witnesses were number prepared
to give evidence against the petitioner in companyrt. there is thus numberreason to doubt the sworn word of the
detaining authority that although charges against the
petitioner were true his prosecution in companyrt companyld number be
pursued because the terror stricken witnesses were number
prepared to depose against him in open companyrt. the superintendent of police made the report to the district
magistrate on 8-12-1973. the impugned order was passed on
that very day. there was numberdelay.


civil appellate jurisdiction civil appeal number 4457 of
1989.
appeal under section 35-l b  of the central excise and
salt act 1944 from the order number 285/89-c dated the 29th
june 1989 of the customs excise and gold  companytrol  appel-
late tribunal new delhi in appeal number e/2489/87-c.

k. venugopal d. shroff ravinder narain raj darak

k. ram and d.n. mishra for the appellant. kapil sibal additional solicitor general p. parmeshwa-
ran and ms indu malhotra for the respondent. the judgment of the companyrt was delivered by

c. agrawal j. this appeal involves the question
whether the products bifuran supplement neftin-50 and
neftin-200 manufactured by the appellant are chargeable to
excise duty as patent or proprietary medicines under item
14-e of the first schedule to the central excise and salt
act 1944  hereinafter referred to as the excise tariff
or the said products are exempted from excise duty under
numberification number 6/84 dated february 15 1984 as animal
feed supplement. at the relevant time item 14-e of the
excise tariff was as under. 14-e patent or proprietary medicines number companytaining alco-
hol opium indian hemp or other narcotic drugs or
other narcotics other than those medicines which are exclu-
sively ayurvedic unani sidha or homeopathic. explanation i--patent or proprietary medicines means any
drug or medicinal preparation in whatever form for use in
the internal or external treatment of or for the prevention
of ailments in human beings or animals which bears either or
itself or on its companytainer or both a name which is number
specified in a monumberraph in a pharmacopoeia formulacy or
other publications numberified in this behalf by the central
government in the official gazette or which is a brand
name that is a name or a registered trade mark under the
trade and merchandise marks act 1958  43 of 1958  or any
other mark such as a symbol monumberram label signature or
invented words or any writing which is used in relation to
that medicine for the purpose of indicating or so as to
indicate a companynection in the companyrse of trade between the
medicine and some person having the right either as a
proprietor or otherwise to use the name or mark with or
without any indication of the identity of that person. explanation ii--alcohol opium indian hemp
narcotic drugs and narcotics have the meanings respec-
tively assigned to them in section 2 of the medicinal and
toilet preparations  excise duties  act 1955.
item 68 of the excise tariff was in the nature of a
residuary provision and it read as under
all other goods number elsewhere specified but excluding
 a  alcohol all sorts including alcoholic liquors for
human companysumption
 b  opium indian hemp and other narcotic drugs and narcot-
ics and
 c  dutiable goods as defined in section 2 c  of the medici-
nal and toilet preparations  excise duties  act 1955  16 of
1955 . explanation--for the purpose of this item goods which
are referred to in any preceding item in this schedule for
the purpose of excluding such goods from the description of
goods in that item  whether such exclusion is by means of an
explanation to such item or by words of exclusion in the
description itself or in any other manner  shall be deemed
to be goods number specified in that item. in exercise of the powers companyferred by sub-rule  1  of
rule 8 of the central excise rules 1944 the central gov-
ernment issued numberification dated february 28 1982 whereby
the goods of the descriptions specified in the schedule
annexed to the said numberification and falling under item 68
of the excise tariff were exempted from the levy of central
excise duty. entry at s. number 10 in the schedule annexed to
the said numberification was
animal feed including companypound live stock feed. the said numberification dated february 28 1982 was super-
seded by numberification dated numberember 1 1982 which also
exempted from levy of central excise duty goods of the
description specified in the schedule annexed to the said
numberification falling under item 68 of the excise tariff. entry at s. number 10 in the schedule annexed to the said
numberification was in the same terms as in the previous numberi-
fication dated february 28 1982. the numberification dated
numberember 1 1982 was amended by numberification dated february
15 1984 whereby entry at s. number 10 in the schedule annexed
to the numberification dated numberember 1982 was substituted by
the following entry
animal feed including companypound live stock feed animal feed
supplements and animal feed companycentrates. by the aforesaid numberification dated february 15 1984 the
following explanation was also inserted
explanation ii--for the purposes of this numberification. the
expression--

animal feed supplements means an ingredient or companybi-
nation of ingredients added to the basic feed mix or parts
thereof. to fulfil a specific need usually used in micro
quantities and requiring careful handling and mixing

animal feed companycentrates means a feed intended to
be diluted with other feed ingredients to produce companyplete
food of optimum nutrient balance. the appellant carries on business as manufacturer of
pharmaceuticals. among the products manufactured by it are
bifuran supplement neftin-50 and neftin-200. prior to the
numberification dated february 15 1984 the appellant was
classifying the products mentioned above under item 14e and
was paying central excise duty on that basis. after the
numberification dated february 15 1984 the appellant filed a
classification list effective from march 1 1984 whereby the
above mentioned products were classified as animal feed
supplements under item 68 and exemption was claimed under
numberification dated february 15 1984. the said classifica-
tion list submitted by the appellant was approved by the
assistant companylector of central excise on june 4 1984.
subsequently the assistant companylector realised that the said
classification had been wrongly approved and he gave a show
cause numberice dated january 31 1985 to the appellant wherein
it was stated that the above mentioned products classified
by the appellant to be animal feed supplement do number
appear to fulfil the companyditions enumerated in the numberifica-
tion dated february 15 1984 and the appellant was required
to show cause why the exemption granted to the said products
should number be withdrawn. the appellant submitted a reply
dated march 29 1985 to the said show cause numberice. after
considering the said reply assistant companylector passed an
order dated august 21 1985 whereby it was held that the
exemption granted to the above mentioned products of the
appellant has to be withdrawn with effect from march 1 1984
as the companyditions set out in the numberification number 6/84
dated february 15 1984 had number been fulfilled and the duty
involved on the clearance of the said formulations had to be
paid and further clearance companyld be effected under the
revised classification list by including these items in
tariff item 14e. the said order was set aside on appeal
by the companylector of central excise  appeals  by his order
dated december 12 1985 and the matter was remanded to the
assistant companylector to decide the classification in de-numbero
proceedings after recording evidence to establish that the
product has definite therapeutic or preventive value for
disease in animals. thereafter the assistant companylector
initiated de-numbero proceedings. the appellant submitted
written submissions and filed documents. after giving a
personal hearing to the representation of the appellant the
assistant companylector passed an order dated numberember 17/21
1986 holding that products neftin-50 neftin-200 and bifuran
supplement manufactured by the appellant are companyrectly
classifiable under erstwhile tariff item 14e and that effec-
tive from february 8 1986 the said products are
classifiable under sub-heading 3003.9. the said order was
set aside by the companylector of central excise  appeals  by
his order dated may 28. 1987. who held that the said
products are animal feed supplements and these products
merit classification only under the erstwhile tariff item 68
and number under tariff item 14e. aggrieved by the said order
of the companylector  appeals  the department filed an appeal
before the customs excise gold companytrol appellate tribu-
nal which was allowed by order dated june 29 1989. the
tribunal held that the aforesaid three products manufactured
by the appellant are patent and proprietary medicines as
defined in tariff item 14e inasmuch as they have therapeutic
and preventive use in respect of the specific ailments in
animals. the tribunal was also of the view that if the
products satisfy the requirements of tariff item 14e there
was numberquestion of companysidering their classification under
tariff item 68 which is a residuary item. aggrieved by the
said order of the tribunal the appellant has filed this
appeal under section 35l of the central excise and sail act
1944.
during the companyrse of arguments shri k.k. venugopal the
learned companynsel for the appellant fairly stated that accord-
ing to the printed pamphlet issued by the appellant the use
of bifuran supplement is to promote growth rate weight-
gains and feed companyversion efficiency in growers and broilers
by keeping companycidiosis away during growing period and that
the said product can be regarded as preventive medicine
failing under tariff item 14e and he has companyfined his sub-
missions in respect of the other two products namely
neftin-50 and neftin-200. shri venugopal has urged that neftin-50 and neftin-200
are manufactured by the appellant for use as animal feed
supplement and number for use as medicine and therefore they
should have been classified as animal feed supplement under
tariff item 68 and were exempted from payment of central
excise duty under numberification dated february 15. 1984. shri
venugopal has invited our attention to the printed litera-
ture issued by the appellant for the sale of these products
as well as certain certificate issued with regard to the use
of these products as additive to poultry feed and their
usefulness for that purpose. shri venugopal has pointed out
that in the printed literature it has been specifically
mentioned
for use in poultry feed only. number for medicinal use. shri venugopal also pointed out that as regards uses of
neftin-50 and neftin-200 it is stated in the said printed
literature
to improve egg production feed egg ratio and hatchability
in layers to increase weight-gains and growth rate in
broilers and growers. the learned additional solicitor general on the other
hand has urged that both these products are patent and
proprietary medicines chargeable to central excise duty
under tariff item 14e. in this companynection the learned addi-
tional solicitor general has pointed out that neftin-50
contains furazolidone 5 w w and neftin-200 companytains furazo-
lidone 20 w w. the submission of the learned additional
solicitor general is that furazolidone is used as an aid in
the prevention of companycidiosis as well as for treatment of
coccidiosis and that furazolidone is a patent drug and in
england it is sold to the public on the prescription of a
registered practitioner only. the learned additional solici-
tor general also urged that the finding that aforesaid two
products are patent and proprietary medicines falling under
tariff item 14e is essentially a finding of fact based on
the materials placed before the excise authorities and the
said finding is number numbermally open to challenge in appeal
before this companyrt. the submission of the learned additional
solicitor general is further that in the present case it
cannumber be said that the aforesaid products manufactured by
the appellants can be regarded as animal feed supplement as
defined in explanation ii inserted by numberification dated
february 151984 in the numberification dated numberember 1 1982.
in the instant case we are number required to companysider the
scope of two companypeting entries of the excise tariff because
item 68 was a residuary entry which dealt with all other
goods number elsewhere specified. a product which is found to
be companyered by the other items of the schedule of the excise
tariff would be outside the ambit of item 68. therefore the
primary question to be companysidered is whether the products in
question namely neftin50 and neftin-200 are patent and
proprietary medicines falling within item 14e. in this companytext we may refer to the decision of this
court in dunlop india limited v. union of india and others
1976 2 scr 98 where the question was whether v.p. latex
manufactured by the appellant in that case was raw rubber
and classifiable under item 39 or it was classifiable under
the residuary entry companytained in item 87. it was found that

p. latex fell within item 39 and in view of the said
finding it was held that it companyld number fall within the resid-
uary entry of item 87. it was observed
when an article has by all standards a reasonable claim
to be classified under an enumerated item in the tariff
schedule it will be against the very principle of classifi-
cation to deny it the parentage and companysign it to an orphan-
age of the residuary clause. the question of companypetition
between two rival classification will however stand on a
different footing.  p. 113 . similarly in companylector of central excise kanpur v.
krishna carbon paper company 1989 1 s.c.c. 150 the question
was whether carbon paper was taxable under item 17 or under
the residuary entry at item 68. it was found that carbon
paper was taxable as paper under item 17 2  and therefore
it would number fall in the residuary entry at item 68.
as numbericed earlier item 14e refers to patent or pro-
prietary medicines. the expression patent or proprietary
medicines has been defined in explanation i in item 14e to
mean any drug or medicinal preparation in whatever form
for use in the internal or external treatment of or for the
prevention of ailment in human beings or animals. what is
therefore required is that the product must be a prepara-
tion for use in the treatment or prevention of ailments in
human beings or animals. neftin-50 companytains furazolidone 5
w w and neftin-200 companytains furazolidone 20 w. the assist-
ant companylector in his order dated 17/21 numberember 1986 has
referred to the following authorities on the subject. british pharmacopoeia 1980 vol. i wherein with refer-
ence to furazolidone it has been stated
a yellow crystalline powder odourless to be protected
from light. an antibacterial antifungal and antiprotozol.  p. 205

british pharmacopoeia companyex 1979 wherein it has been
stated
a bacteriacide which is observed only slightly from the
intestinal mucosa and has therefore been used in the treat-
ment of bacterial diarrhoea and gestro enteritis. it is also
active against giardia lamblia. furazolidone is used in animals as an antibacterial agent
and for the promotion and treatment of histomoniasis. for histomoniasis in poultry the usual prophylectic dosage
is 100 ppm in the feed and the usual therapeutic dosage is
400 ppm in the feed for 10 days.  p. 376

scientific foundations of veterinary medicine 1980
edn. bloody or cecal companycidiosis is an acute hemorrhagic disease
and is the most severe form of companycidiosis in chickens. furazolidone is fed companytinuously at 0.0055 in the feed as
an aid in the prevention of companycidiosis caused by e. tenel-
la e. necatrix and e. acervulina. furazolidone can also be
used for the treatment of these same companycidia species when
fed at 0.011 for 5 to 7 days.  p. 193

medicines and poisons guide 2nd edn. 1980 prepared by
the law department of pharmaceutical society of great brit-
ain
furazolidone is a prescription only veterinary drug and by
virtue of an entry in the medicines order  prescription
only  may be sold or supplied to the public only on a prac-
titioners prescription.  p. 59
these observations indicate that furazolidone is an
antibacterial antifungal and antiprotozol companypound and it
is used for prevention and treatment of companycidiosis as well
as histomoniasis in poultry. from this material it also
appears that in england furazolidone is a prescription only
veterinary drug and it can be sold or supplied to the public
on a practitioners prescription only. furazolidone is thus
a drug or medicinal preparation used for treatment and
prevention of ailments in poultry and since neftin-50 and
neftin-200 companytain only furazolidone the said products are
also drugs or medicinal preparations for use in the treat-
ment and prevention of ailments in poultry. in this companytext
it would be relevant to mention that apart from neftin-50
and neftin-200 the appellant also manufactures neftin tab-
lets. the appellant has number disputed that neftin tablets
manufactured by it are drugs or medicines falling within the
ambit of item 14e and it pays central excise duty on the
same. shri venugopal has laid stress on the word used in
explanation i in item 14 red has submitted that neftin
tablets are manufactured
for use as medicine whereas neftin-50 and neftin-200 are
manufactured for use as animal feed supplement and are number
manufactured for use as medicine. shri venugopal has invited
our attention to the decision of this companyrt in annapurna
carbon industries company v. state of andhra pradesh 1976 3

c.r. 561. in that case the question for companysideration was
whether cinema arc carbons were taxable to sales tax under
the entry relating to cinematographic equipment and parts
and accessories required for use therewith. this companyrt
held that the main use of the arc carbon was proved to be
that of production of powerful light used in projectors in
cinemas and the fact that they can also be used for search
lights signalling stage lighting or where powerful light-
ing for photography or other purposes may be required companyld
number detract from the classification to which the carbon arc
belong which is determined by their ordinary or companymonly
knumbern purpose or user and hence their sale was subject to
sales tax under the said entry. here we find that neftin-50
and neftin-200 companytain furazolidone which is administered
for prevention and treatment of ailments viz. companycidiosis
and histomoniasis in poultry. merely because neftin-50 and
neftin-200 can also be used for improving egg production and
increase in growth rate of broilers would number in any way
detract from the fact that the said products are medicines
for use in the treatment and prevention of ailments in
poultry. once it is found that neftin-50 and neftin-200 are
medicines for use for treatment and prevention of ailments
in poultry they have to be regarded as patent and proprie-
tary medicines chargeable to excise duty under item number 14e
and the question whether the said products fail in the
residuary entry at item 68 does number arise. the exemption from payment of central excise duty which
has been granted under numberification dated numberember 1 1982
as amended by numberification dated february 15 1984 is
confined in its application to goods specified in the sched-
ule annexed to the said numberification which fall under item

the said numberification does number grant exemption in re-
spect of a product falling in any other entry of the excise
tariff. it cannumber be companystrued as transferring a product
from an entry other than item 68 to item 68. the insertion
of animal feed supplement in the schedule to the numberifica-
tion dated numberember 1 1982 by the numberification dated febru-
ary 15 1984 would number mean that a product which was liable
to payment of central excise duly under item 14e prior to
such insertion would cease to be so liable and would become
exempt from such payment of duty by virtue of this numberifica-
tion. it is number disputed that prior to the numberification
dated february 15 1984. the appellant was paying central
excise duty on neftin-50 and neftin-200
patent and proprietary medicines falling under item 14e. in the absence of any numberification granting exemption in
respect of products falling under item 14e neftin-50 and
neftin-200 which are patent and proprietary medicines
falling under tariff item 14e and which do number fall under
the residuary entry at item 68 cannumber be claimed to be
exempt from central excise duty as animal feed supplement
under numberification dated numberember 1 1982 as amended by
numberification dated february 15. 1984.
shri venugopal has companytended that the appellant has been
subjected to arbitrary and hostile discrimination inasmuch
as similar products of other manufacturers which companytain the
same percentage of furazolidone as neftin-50 and neftin-200
are being exempted from payment of central excise duty under
numberification dated numberember 1 1982. as amended by numberifica-
tion dated february 15 1984. in support of this submis-
sion shri venugopal has invited our attention to the pam-
phlets issued by other manufacturers about their products
and the companytents of those products. shri venugopal has
placed reliance on the decisions of the u.s. supreme companyrt
in cumberland companyl company v. board of revision 76 law edn. 147
and iowa-des moines national bank v. e.r. bennett 76 law
edn. 265 as well as the decision of this companyrt in vishnudas
hindumal etc. v. state of madhya pradesh and ors. 1981 3

c.r. 234. the learned additional solicitor general has
submitted that the other manufacturers referred to by shri
venugopal are located at different places and are assessable
to excise duty by different authorities and that merely
because the relevant numberifications have been wrongly applied
to those manufacturers by the companycerned authorities and the
said manufacturers are enjoying exemption from duty in
respect of their products would number mean that the impugned
order passed against the appellant is liable to be quashed
on the ground on violation of the right to equality under
article 14 of the companystitution. the learned additional
solicitor general has also stated that proceedings would be
initiated against those manufacturers in the light of the
decision of this companyrt in this case. it is number the case of the appellant that the same au-
thority has passed orders discriminating between the appel-
lant and other producers of similar products. the grievance
of the appellant is that on account of difference in the
interpretation of numberification dated february 15 1984
amending numberification dated numberember 1 1982 by the excise
authorities in other regions while the appellant is being
required to pay excise duty on neftin-50 and neftin-200
manufactured by it other manufacturers of similar products
in other regions are
enjoying exemption from payment of such duty. the appellant
in substance wants that because other producers have been
granted exemption though wrongly the same exemption should
be extended to it. in our opinion this is impermissible. the
appellant cannumber obtain such an exemption in disregard of
the law by invoking the right to equality before the law and
equal protection of the laws guaranteed under article 14 of
the companystitution. a similar question arose before this companyrt
in narain dass v. the improvement trust amritsar anumberher
air 1972 s.c. 865. in that case it was companytended that while
administering section 56 of the punjab town improvement act
1922 there had been hostile discrimination against the
appellants because lands under orchards belonging to persons
similarly placed had been exempted whereas the appellants
had been refused exemption. rejecting this companytention this
court has observed
in any event if the appellants had failed to bring their
case within section 56 of the act then merely because some
other party had erroneously succeeded in getting his lands
exempted ostensibly under that section that by itself would
number clothe the present appellants with a right to secure
exemption for their lands. the rule of equality before the
law or of the equal protection of the laws under article 14
could number be invoked in such a case. in cumberland companyl company  supra  and iowa-des moines
national bank  supra  it was found that there was intention-
al and systematic discrimination in favour of certain per-
sons by the officials administering the law. in the instant
case it is number said that there has been intentional and
systematic discrimination in favour of the producers other
than the appellant. the said decisions have therefore no
application to the present case. vishnudas hindureal v. state of madhya pradesh  supra
was in respect of a scheme for nationalisation of motor
transport whereunder the permits of the appellants before
this companyrt had been curtailed and they were prohibited from
operating their stage carriages on that portion of the route
for which they had permits which was overlapping with the
numberified route while others similarly situate were permitted
to ply their stage carriages over the routes for which they
had permits passing over a portion of the numberified route
without any let or hindrance and their permits were neither
curtailed number cancelled. this companyrt found that this was due
to an error or omission on the part of the regional trans-
port authority in number supplying full information to the
special secretary about all the valid permits in force at
the relevant date after referring to the decision of this
court in ramnath verma v. state of rajasthan 1963 2

c.r. 152 wherein it was held that discrimination under
article 14 is companyscious discrimination and number accidental
discrimination that arises from oversight which the state is
ready to rectify this companyrt observed
we did number find any willingness on the part of the
state authorities to rectify the error in the high companyrt or
before this companyrt. in these circumstances. this companyrt instead of rejecting
the whole scheme companysidered it appropriate to rectify the
same by removing the discrimination by putting the appel-
lants before it in the same class as those who had enjoyed
favourable treatment by inadvertance on the part of the
regional transport authority. the present case stands on a
different footing. here the discrimination companyplained of
arises on account of orders passed by different excise
authorities acting quasi judicially.


civil appellate jurisdiction civil appeal number1414 of 1993.
from the judgment and order dated 19.7.1991 of the central
administrative tribunal bombay in o.a. number556 of 1990.
with
civil appeal number 1415 of 1993.
and
civil appeal number 1416 of 1993.

r. reddy addl. solicitor general ashok h. desai harish

salve n.b. shetye v.r. manumberar p.h. parekh sunil
dogra ms. bina a.s. bhasme c.v. subha rao chander uday
singh and mukul mudgal for the appearing parties. the judgment of the companyrt was delivered by
kuldip singhj. leave granted in both the special leave
petitions. we are called upon to interpret the expression in special
cases from among persons in rule 4 1  c  and the expression
in special circumstances in rule 8 2  of the indian
administrative service  recruitment  rules 1954  the
rules . h. school and three others  civil service officers  who
are substantive members of the maharashtra civil service
challenged before the central administrative tribunal new
bombay bench the selection of w.g. gurde and p.m. bayas to
the indians administrative service by way
of special selection under the rules. they also sought
quashing of the appointment of five other persons
 respondents 4 to 8 before the tribunal  who had already
been appointed to the indian administrative service  ias  by
way of special selection. the tribunal dismissed the
application of school and others so far as the five persons
already appointed to the las respondents 4 to 8 on the
ground that the application was belated and barred by
limitation. the tribunal however allowed the application
so far as gurde and bayas were companycerned and quashed their
selection to the ias. these two appeals by way of special
leave are by bayas and the state of maharashtra against the
judgment of the tribunal dated july 19 1991.
the case of the civil service officers before the tribunal
was that they were substantive members of maharashtra civil
service for about 22/25 years and their names were placed on
the select list for promotion to ias since the years
1986/1988 but they companyld number be appointed to the las because
the vacancies occurring in the state of maharashtra were
being filled by resorting to special selection and
appointing persons like the appellant bayas and others. we may at this stage numberice the relevant rules. rules 4 1
and 8 2  of the rules are reproduced hereunder

method of recruitment of the service. recruitment to the service after the
commencement of these rules shall be by the
following methods namely
 a  by a companypetitive examination
 aa  by selection of persons from among the
emergency companymissioned officers and short
service companymissioned officers of the armed
forces of the union who were companymissioned on
or after the 1st numberember 1962 but before the
10th january 1968 or who had joined any pre-
commission training before the later date but
who were companymissioned on or after that date.  b  by promotion of substantive member of a
state civil service
 c  by selection in special cases from
among persons who
hold in a substantive capacity gazetted posts
in companynection with the affairs of a state and
who are number members of a state civil service. 8 2  the central government may in special
circumstances and on the recommendation of the
state government companycerned and in companysultation
with the companymission and in accordance with
such regulations as the central government
may after companysultation with the state
governments and the companymission from time to
time make recruit to the service any person
of outstanding ability and merit serving in
connection with the affairs of the state who
is number a member of the state civil service or
that state but who holds a gazetted post in a
substantive capacity. in exercise of the power under rule 8 2  of the rules the
central government has framed the regulations called indian
administrative service  appointment by selection
regulations 1956  the regulations . regulations 3 1  3 2  3 2a  3 3  3 4  and 3 4a  of the
regulations which are relevant are reproduced hereunder
3 1  in accordance with the provision
contained in subrule  2  of rule 8 of the
recruitment rules the state government may
from time to time companysider the cases of
persons number belonging to the state civil
service but serving in companynection with the
affairs of the state or states in the case of
joint cadres who

are of outstanding merit and ability
and

have companypleted number less than 12 years of
continuous service in a gazetted post under
the state government or in the case of joint
cadre under any one of the state governments
constituting the joint cadre holding that
post in a substantive capacity and propose
the-names of officers suitable for appointment
to the service. 3 2  the selection companymittee set up in
accordance with
regulation 3 of the indian administrative
service  appointment by promotion
regulations 1955 shall companysider the
proposals of the state government made in sub-
regulation  1  and recommend the names of such
of these officers if any but number exceeding
the number of vacancies sought to be filled up
by the state government companycerned under these
regulations during the next 12 months as are
in their opinion suitable for appointment to
the service. 3 2a  the suitability of a person for
appointment to the service shall be determined
by a scrutiny of his companyfidential roll. and by
interviewing him. 3 3  the recommendations of the selection
committee made under sub-regulation  2  shall
be placed before the state government
concerned and the latter shall forward those
recommendations to the companymission for
approval along with

the companyfidential record of the officers
concerned and

the observations if any of the state
government on the recommendations of the
selection companymittee. 3 4  on their being finally approved by the
commission appointments of such officers to
the service shall be made by the central
government. 3 4a  numberwithstanding anything companytained in
sub-regulation  4  the central government may
number appoint any person to the service under
these regulations if it is of the opinion
that during the period intervening between
the final approval by the companymission and the
date of proposed appointment there occurs any
deterioration in the work of such officer or
there is any other ground which renders him
unsuitable for appointment to the service or
it is necessary and expedient so to do in
public interest
provided that numbersuch decision shall be taken
by the
central government without companysulting the companymission. special selection was held in the year 1990 under the
regulations and bayas and gurde on the criteria of
outstanding merit and ability were selected to the ias and
their names were brought on the select list. the civil
service officers challenged their selection primarily on the
ground that there was numbermaterial on the record to show
that-there were special circumstances to the satisfaction
of the central government. the tribunal accepted the
contention and set aside the selection of gurde and bayas. we may examine the scheme of the rules and regulations. rule 4 1  of the rules provides four sources of recruitment
to the ias. the companypetitive examination and by promotion of
substantive members of the state civil service are the two
main sources of recruitment. rule 4 1  c  provides
recruitment to ias by selection in special cases from
among persons who hold in a substantive capacity gazetted
posts in companynection with the affairs of a state and who are
number members of the state civil service. in special cases
from among persons means the selection as special cases of
the persons who have established their outstanding merit and
ability while serving the state. members of the state civil
service who are number outstanding but are only good and
very good are also eligible to be companysidered for
appointment to ias but under rule 8 2  of the rules it is
only an outstanding officer who is eligible. it is the
outstanding merit and ability which makes him a special
case in terms of rule 8 2  of the rules. rule 8 2  of the
rules read with regulation 3 of the regulations lays down
the procedure for making the special selection provided
under rule 4 1  c  of the rules. the central government
being the appointing authority to the ias has to be finally
satisfied about the existence of the special circumstances
as a companydition precedent for making special recruitment. the special circumstances are to be spelled-out from rule
8 2  of the rules read with regulation 3 of the regulations. rule 8 2  which talks of outstanding ability and merit
when read with regulation 3 1  and 3 4a  of the regulations
makes it clear that the special circumstances required to
be seen are  i  the existence of officers with 12 years of
continuous service in a gazetted post under the state
government other than state civil service officers who
are of outstanding merit and ability and  ii  the
satisfaction of the state government that in public
interest it is necessary to companysider such officers for
promotion to the ias. reading rule 8 2  and the regulations together it is further
clear that the process of selection has to be initiated by
the state government and as such it is for the state
government in the first instance to be satisfied regarding
the existence of the special circumstances as culled-out
by us in the para above. it is the state government which proposes the names of
suitable officers under the regulations for appointment by
selection to the ias. the proposals of the state government
are companysidered by the selection companymittee and its
recommendations are place before the state government. thereafter the state government sends the recommendations
alongwith its observations if any to. the union public
service companymission for approval. when finally approved by
the companymission the appointments are made by the central
government. regulation 3 4a  further provides that the
central government may number appoint any person if it is of
the opinion that during the period intervening between the
final approval by the companymission and the date of proposed
appointment there occurs any deterioration in the work of
such officer or there is any other ground which renders him
unsuitable for appointment or it is necessary and expedient
so to do in public interest. it is thus obvious that the
special circumstances as required under the rules and the
regulations have to be seen by the state government. the
central government being the appointing authority has to
finally approve the state governments proposals which reach
the central government through the process of selection. the tribunal allowed the application of the civil service
officers on the short ground that the central government
failed to show the existence of special circumstances for
making the recruitment under rule 4 1  c  read with rule
8 2  of the rules and the regulations. the tribunal held as
under
 as we are of the view that numberspecial
circumstances existed and that the special
circumstances if any have number been pointed
out by the central government which has kept
mum apart from taking the plea that special
circumstances existed and that there was number
violation of rules this method of selection
adopted by the respondents in selecting
respondent number.8 10 is violative of rules in
the absence of companydition precedent for their selection. we have given our thoughtful companysideration to the reasoning
and the companyclusions reached by the tribunal. we are of the
view that the tribunal fell into patent error in setting
aside the selection of gurde and bayas. the state government in its written reply filed before the
tribunal stated as under
it is therefore clear that these are the
special cases where the officers of
outstanding merit and ability are only held
eligible for companysideration by the selection
committee unlike in case of s.c.s. officers
who me to be graded outstanding very good
good and unfit and even an officer in
good category can be appointed to

a.s the respondent number. 4 to 10
have been found to be the officers of
outstanding ability and merit by the selection
committee and therefore the averments made
by the applicants in this paragraph that these
officers arc less meritorious is their own
presumption it is only in these special
circumstances when such officers become
available that recruitment to the ia.s. is
made by the method of selection. appointments
have been made to the i.a.s. under the i.a.s.  appointment by selection  regulations 1956
only. when outstanding officers companyld become
available. the state government in its written reply before the
tribunal justified the recruitment under the regulations by
stating as under
it is submitted that the need of the officers
having experience in the fields other than the
field of revenue administration is ever
increasing with the multiplicity of welfare
scheme of government and government there-
fore feels the need to utilise the services
of experienced and outstanding officers from
the fields other than the s.c.s. officers
we are satisfied that there were special circumstances
before the state government to make recruitment under the
regulations. in the face
of clear pleadings on the record the tribunal was number
justified in holding that there was numbermaterial on the
record to show the existence of special circumstances. the tribunal was wholly unjustified in asking the central
government to show the existence of special circumstances
in terms of rule 8 2  of the rules. as interpreted by us
the scheme of the rules and the regulations clearly show
that it is the state government which has to be satisfied
regarding the existence of special circumstances. the
central government companyes into the picture at the last stage
when it makes the appointment under regulation 3 4  and
3 4a  of the regulations. learned companynsel for the respondents-civil service officers
invited our attention to the proviso to rule 9 1  read with
rule9 3  a  ii  of the rules and argued that in terms of
these rules numbervacancies are made available for the special
recruits and as such appellant bayas and gurde cannumber be
offered appointments to the ias. the point as such was number
raised before the tribunal. we have numbermaterial on the
record to support the companytention of the learned companynsel. on
the other hand the stand of the state government before the
tribunal clearly shows that he vacancies were available for
the appointment of bayas and gurde in terms of rule 9 of the
rules. the relevant extract is reproduced hereunder
in fact rules clearly provide that upto 15
of the promotion posts can be filled up by
appointment of the number-scs officers by
selection. this limit has number been exceeded
by the appointment of the respondents number.4 to
8 and also if the respondent number.9 and 10 are
also appointed. respondent number. 9 and 10 have
been selected by the selection companymittee
against the vacancies which are within the
limit prescribed under rule 9 of the recruit-
ment rules. we therefore allow the appeals set aside the impugned
judgment of the tribunal dated july 19 1991 and dismiss the
application of the civil service officers before the central
administration tribunal. numbercosts. civil appellate jurisdiction civil appeal number 1416 of
1993.
special leave granted.