criminal appellate jurisdiction criminal appeal number
482 of 1976.
appeal by special leave from the judgment dated 20-1-
1976 of the andhra pradesh high companyrt in criminal revision
case number 18 of 1976.

v. pillai and h. k. puri for the appellant. parmeshwara rao and g. n. rao for the respondent. the judgment of the companyrt was delivered by
kailasam j. this appeal is by special leave against
the judgment of andhra pradesh high companyrt in criminal
revision number 18 of 1976 holding that the sanction order
given for prosecuting the appellant is valid and dismissing
his revision petition. the appellant parmanand dass was appointed as a clerk
in hyderabad municipal companyporation on 15-1-1951 in the scale
of rs. 40-50 and was promoted to the scale of rs. 50-105 on
1-9-1956. a charge of having received an illegal
gratification of rs. 15/- was brought against him and he was
suspended on 22-9-1966. on 27-5-1967 the companymissioner of
the municipal companyporation gave sanction for prosecution
under section 6 of the prevention of companyruption act. the
appellant questioned the validity of the sanction on the
ground that the companymissioner was number the companypetent authority
to grant the sanction. the special judge accepted the
contention and found that the standing companymittee of the
municipality alone can give sanction and as the companymissioner
had numberpowers the sanction was number valid. soon after on 4-
5-1970 the appellant prayed for his reinstatement and on
12-6-1970 the appellant was reinstated. the companymissioning
on 17-6-1970 again wrote to the standing companymittee seeking
for a fresh sanction. on 27-6-1970 the standing companymittee
resolved to drop the case on the ground that it was an old
case and that the appellant had already been reinstated in
service. on 27-6-1970 act ii of 1970 came into force. the act
provided that the special officer appointed under the act
will exercise the powers of the standing companymittee of the
municipal companyporation. after the act came into force on 29-
7-1972 a memorandum in the nature of a
numbere to the standing companymittee was prepared requesting the
standing companymittee to take fresh decision on the issue of
prosecution of the appellant and for granting sanction to
prosecute the appellant. on 15-5-1973 the standing
committee by its resolution authorised the special officer
to sign the sanction order and to send it to the anti-
corruption bureau hyderabad. in pursuance of the
resolution a sanction order was passed on 16-6-1973. on 29-
11-1973 the appellant was placed under suspension. on 11-
12-1975 the special judge dismissed the petitioners
objection to the validity of the sanction. the appellant
filed criminal revision number 18 of 1976 before the high companyrt
against the order of special judge and the high companyrt
dismissed the revision petition on 20-1-1976 and this
appeal by special leave is against that order. it was submitted that having once declined to grant
sanction a subsequent standing companymittee cannumber grant
sanction on the same facts. it was companytended that the grant
of sanction by the special officer was number bona fide and was
due to ulterior motive. we do number see any merit in any of
these submissions. sanction given by the companymissioner was
rightly rejected by the special judge on the ground that the
commissioner was number companypetent to grant the sanction. this
could number prevent a subsequent sanction being given by the
competent authority but the plea of the learned companynsel was
that the standing companymittee again companysidered the question
but decided to drop the proceedings on the ground that it
was an old case and the accused had already been reinstated
in service. there companyld be numberobjection to the standing
committee again reconsidering its decision. the validity of
the sanction can only be companysidered at the time when it is
filed before the special judge. we find that there companyld be
numberlegal bar to the sanctioning authority revising its own
opinion before the sanction order is placed before the
court. on a companysideration of the record which ultimately
resulted in the order of the sanction we find however that
the sanction order cannumber be held to be in accordance with
the law. it was on 27-6-1970 the standing companymittee
resolved to drop further proceedings. on the same day act
ii of 1970 came into force. under section 2 of the hyderabad
municipal companyporations  amendment  act 1970 which came
into force on 27th june 1970 it was provided that
numberwithstanding anything companytained in the hyderabad
municipal companyporation act 1955 there shall be appointed by
the state government by numberification in the andhra pradesh
gazette a special officer to exercise the powers to
perform the duties and discharge the functions of-
 a  the companyporation
 b  the standing companymittee and
 c  the companymissioner. this provision was to be in force for a period of two years
with effect from 3rd august 1970 with a provision that it
shall number be extended beyond 31st october 1975. it is number
disputed before us that the amendment act was number extended
to companyer the period in question. after the introduction of
the amending act a special officer was appointed by the
state government by numberification in the andhra pradesh
gazette. the special officer was to exercise the powers and
perform the duties and discharge the functions of the
standing companymittee. after the date of companying into force of
the amending act the special officer can himself give
sanction as he is empowered to discharge the functions of
the standing companymittee. what happened in this case was that
on 29-7-1972 a numbere was prepared and submitted to the
standing companymittee which is signed by one m. narsing rao
for special officer. the numbere requested the standing
committee to take a fresh decision on the issue for
prosecuting shri parmanand dass for accepting illegal
gratification under section 6 1   c  of the prevention of
corruption act 1947. the standing companymittee on 15-5-1973
after stating that the standing companymittee of the municipal
corporation of hyderabad is the authority to remove
parmanand dass from his office and that after fully
considering and examining the materials placed before it it
was of the view that the appellant should be prosecuted in a
court of law for the said offence accorded sanction under
section 6 1   c  of the prevention of companyruption act 1974. a
draft sanction order was signed by the special officer
municipal companyporation of hyderabad with a numbere that he is
the officer authorised by the standing companymittee of the
municipal companyporation of hyderabad to sign the sanction
order. after the companying into force of act ii of 1970 the
special officer is entitled to exercise powers perform the
duties and discharge the functions of the standing
committee. if the special officer acting as the standing
committee had given the sanction there would have been no
flaw in the procedure but in this case what we find is that
a numbere is prepared for the standing companymittee by one narsing
rao signing on behalf of the special officer and the
standing companymittee purporting to act as the standing
committee granting sanction on 16-6-1973. when asked to
explain as to what was the procedure that was adopted by the
special officer and the standing companymittee and whether the
standing companymittee was functioning apart from the special
officer mr. parmeshwar rao learned companynsel appearing for
the state of andhra pradesh submitted that the special
officer is himself the standing
committee and that the numbere was sent to the standing
committee that was special officer himself and that he as
the standing companymittee gave the sanction. we find it
difficult to accept this explanation for the high companyrt
proceeded on the basis that by the resolution dated 15-5-
1973 the standing companymittee accorded sanction under section
6 1  c  of the prevention of companyruption act and authorised
the special officer to sign the order according sanction and
accordingly the special officer issued the order dated 16-6-
1973. it appears before the high companyrt the parties
proceeded on the basis that the standing companymittee accorded
sanction on 15-5-1973 and authorised the special officer to
sign the order and accordingly the special officer issued
the sanction order. the draft order of the standing
committee which is signed by the special officer states that
he is the officer authorised by the standing companymittee.


civil appellate jurisdiction civil appeals number. 280 and
281 of 1960.
appeal from the judgment and order dated april 20 1956 of
the madras high companyrt in t. r. c. number. 101 and 102 of 1956.

ganapathy iyer and g. gopalakrishnan for the
appellant. m. ismail and t. m. sen for the respondent. v. sastri and t. m. sen for intervener number 1.
naunit lal for intervener number 2.

m. sikri advocate-general punjab and d. gupta for
intervener number 3.

m. sikri advocate-general punjab n. s. bindra and d.
gupta for intervener number 4.

c. kasliwal advocate-general rajasthan s. k. kapur
and d. gupta for intervener number 5. 1961. april 28. the judgment of the companyrt was delivered by

k. das j.-these are two appeals on certificates
granted by the high companyrt of madras and companysolidated by its
orders dated march 22 1957. they are from the judgment and
orders of the said high companyrt dated april 20 1956 and july
30 1956 in two tax revision cases by which the high companyrt
dismissed two petitions filed by the appellants under s. 12-
b of the madras general sales tax act  madras act ix of
1939  hereinafter called the principal act in the fol-
lowing circumstances. messrs. george oakes  private  limited appellants herein
are dealers in ford motor cars spare parts and accessories. for the two years 1951-52 and 1952-53 the appellants
submitted their returns under the relevant provisions of the
principal act and claimed exemption from tax with regard to
certain amount realised on transactions of sales which the
appellants companytended were inter-state sales and hence exempt
from tax under art. 286 of the companystitution as it stood at
the relevant time. the deputy companymercial tax officer
madras number only rejected the claim of exemption but added
to the turnumberer certain amounts which the appellants had
collected by way of tax. the amounts so added for 1951-52
were - a  rs. 8000 to the net turnumberer assessable at 3
pies per rupee and  b  rs. 430000 to the turnumberer
assessable at 9 pies per rupee. for 1952-53 the amounts so
added were - a  rs. 30132 odd and  b  rs. 292257 odd res-
pectively. aggrieved by the orders of the deputy companymercial
tax officer the appellants preferred two appeals to the
special companymercial tax officer appeals madras city. these
appeals were dismissed. the matter was then taken to the
sales tax appellate tribunal by means of two appeals. by
this time the madras legislature had passed the madras
general sales  definition of turnumberer and validation of
assessments  act 1954 being madras act number xvii of 1954.
this act we shall refer to as the impugned act in this
judgment because its companystitutional validity is number the
only question for decision in these appeals. the tribunal
negatived the claim of the appellants arising out of the
contention that some of the sale transactions in the
relevant years were in effect interstate sales and therefore
exempt from tax the tribunal declined to go into the second
question of the companystitutional validity of the impugned act. we may state here though numberhing number turns upon this that
the tribunal held that when sales tax was included in the
turnumberer it was proper to tax the amounts so included at
the minimum rate only viz. 3 pies in the rupee under s.
3 1  of the principal act. thereafter the appellants filed two revision petitions to
the high companyrt under s. 12-b of the principal act. these
were dismissed in limine. by the orders dated april 20
1956 the high companyrt held that the companytention as to some of
the transactions being inter-state sales was companycluded by
one of its earlier decisions which came before us in ashok
leyland limited v. the state of madras civil appeal number 446 of
1958. in that appeal we delivered judgment on march 28
1961 and held that the sales tax laws  validation  act 1956
applied and it was unnecessary to companysider the true nature
of the transactions which the appellants companytended were
inter-state sales. learned companynsel for the appellants has
conceded before us that decision governs the present
appeals and the first question numberlonger survives. as to the second question the high companyrt by oversight did
number deal with it in its orders dated april 20 1956. when
the matter was brought to the numberice of
the high companyrt it said in its orders dated july 30 1956
that the second question was also companycluded by its decision
in sri sundararajan and company limited v. the state of madras
where the validity of the impugned act was upheld. when we heard these appeals along with ashok leyland limited v.
the state of madras civil appeal number 446 of 1958 we
expressed the view that there was some divergence of opinion
in the high companyrts on the second question and the
substantial point for companysideration before us was whether
the impugned act was validly made under entry 54 of the
state list in the seventh schedule to the companystitution thus
the question raised was one of legislative companypetence and
affected all the states. the state of madras was already a
party respondent to these appeals. accordingly we directed
the issue of numberices to the advocates-general of all other
states also. in pursuance of the said numberices the
advocates-general of andhra pradesh assam west bengal
gujarat maharashtra punjab and rajasthan have appeared
before us. they have unanimously supported the state of
madras in its submission that the impugned act is valid
some of them have added supplementary arguments in support
of that submission. for companyvenience and brevity we shall refer in this judgment
to the main arguments as representing two differing points
of view firstly there is the argument on behalf of the
appellants that the several provisions of the principal act
as also s. 2 of the impugned act make a distinction between
the sale price of goods sold and the amount companylected by way
of tax and in view of that distinction made what the
impugned act seeks to impose is a tax on sales-tax a
subject which does number companye within the ambit of entry 54 of
list ii which at the relevant time read as taxes on the
sale or purchase of goods other than newspapers. on the
other side the argument is that what the impugned act seeks
to do is to enlarge the scope of the definition of
turnumberer so as to include the amount companylected by way of
tax in the turnumberer by a deeming
 1   1956  7 s.t.c. 105.
provision and this the state legislature was companypetent to
enact under entry 54 of the state list. these are the main
arguments on two sides but there are several subsidiary
points in support of the main argument on each side and it
would be an over simplification to ignumbere these altogether. we shall therefore companysider them also when dealing with
the main argument on each side. we shall first refer to the relevant provisions of the
principal act and of the impugned act in so far as they
bear on the points debated before us. under s. 3 of the
principal act which is the charging section every dealer is
liable to pay subject to the provisions of the act for
each year a tax on his total turnumberer for that year
calculated at a particular percentage of such turnumberer. what is turnumberer is defined in s. 2 i . the definition
substantially states-turnumberer means the aggregate amount
for which goods are either bought or sold by a dealer
whether for cash or for deferred payment or other valuable
consideration sale is defined in s. 2 h  and means
 we are reading so much of the definition only as is
material for our purpose  every transfer of property in
goods by one person to anumberher in the companyrse of trade or
business for cash or deferred payment or other valuable
consideration. it is worthy of numbere here that the tax
imposed by the principal act is a tax on total turnumberer and
turnumberer means the aggregate amount for which goods are
either bought or sold by a dealer. therefore one of the
questions which fall for companysideration is whether the state
legislature went beyond its legislative companypetence in
enacting by the impugned act that the amounts companylected by
the dealer by way of tax shall be deemed to have formed part
of his turnumberer. this brings us to s. 8b of the principal
act which provides in sub-s.  1  that numberperson who is number
a registered dealer shall companylect any amount by way of tax
number shall a registered dealer make any such companylection
except in accordance with such companyditions and restrictions
if any as may be prescribed sub-s.  2  provides inter alia
that every person who has companylected or companylects by way of
tax any amounts shall pay
over the same to the state government. section 15 provides
for penalties for a companytravention of some of the provisions
of the principal act including the provisions of s. 8b. in the deputy companymissioner of companymercial taxes companymbatore
division v. m. krighnaswami mudaliar sons  1  the madras
high companyrt held that the amount companylected by a registered
dealer from the companysumer by way of sales tax and paid over
to -government should number be included in the turnumberer of the
registered dealer as part of the sale price of the goods
sold and it was number liable to be taxed again. this decision
was given on january 7 1954. in july 1954 was enacted the
impugned act sections 2 and 3 whereof need only be set out
here. s. 2. sales tax companylections by dealers to be
deemed part of turnumberer.-in the case of sales
made by a dealer before the 1st april 1954
amounts companylected by him by way of tax under
the madras general sales tax act 1939
 madras act ix of 1939   hereinafter referred
to as the principal act  shall be deemed to
have formed part of his turnumberer. validation of certain assessment and
collections.-

all assessments and companylections made
all orders passed all actions taken by any
officer in the exercise or purported exercise
of jurisdiction or power companyferred by the
principal act and all judgments decrees or
orders pronumbernced by any tribunal or companyrt in
the exercise of its jurisdiction or powers
with respect to matters in the principal act
on the basis that amounts companylected by a
dealer by way of tax under the principal act
before the 1st april 1954 formed part of the
turnumberer of the dealer are hereby declared to
have been validly made passed taken or
pronumbernced as the case may be and any
finding recorded by any officer tribunal or
court to a companytrary effect and any order
judgment or decree in so far as such order
judgment or decree embodied or is based on any
such finding and does number relate merely to the
costs of the proceeding which result in the
judgment decree or order shall be void and of
numbereffect
 2  1954 5 s.t.c. 88.
provided that numberact or omission on the part
of any person shall be punishable as an
offence which would number have been so
punishable if this act had number been passed. numberhing in sub-section  1  shall be
construed as authorising any officer in
assessing any dealer in s the exercise or
purported exercise of jurisdiction or powers
conferred by the principal act to include in
the turnumberer of the dealer amounts companylected
by him after the 1st april 1954 by way of tax
under the principal act. the validity of the impugned act was then questioned in the
madras high companyrt and in sri sundararajan and company limited v.
the state of madras  1  it was held that the impugned act
was valid. the high companyrt pointed out that the earlier
decision in krishnaswami mudaliars case  2  was number that
the state legislature companyld number make the amounts companylected
by a registered dealer by way of tax under s. 8b part of the
assessable turnumberer but that the principal act as it stood
at the relevant time did number make such amounts part of the
assessable turnumberer. it held that in pith and substance the
impugned act validated the assessments already made before
april 1 1954 and that -even where the registered dealer
collected any amount by way of tax under the authority of s.
8b the payment by the purchaser was on the occasion of the
sale by the dealer and vis-a-vis the latter it was in
reality part of the price the purchaser paid the seller for
purchasing the goods. the same view was also expressed -by
the patna high companyrt in ashoka marketing companypany limited v. the
state of bihar  3  with regard to the bihar sales tax
 definition of turnumberer and validation of assessments  act
1958. the question before us is whether the aforesaid view
is companyrect. the relevant legislative entry as we have said earlier is
entry 54 of list ii-taxes on the sale or purchase of goods
other than newspapers. a similar entry  number 48  in list 11
of schedule vii to the government of india act 1935 read as
taxes on the
 1  1956 7 s.t.c. 105.  2  1954 5 s.t.c. 88.  3  1959 10 s.t.c. 110
sale of goods. the true scope and effect of that entry was
considered by this companyrt in the state of madras v. gannumber
dunkerley and company  madras  limited  1  and on a review of
several decisions bearing on the subject it held that
the expression sale of goods was a term of well-recognised
legal import in the general law relating to sale of goods
and in the legislative practice relating to that topic and
must be interpreted as having the same meaning as in the
sale of goods act 1930 in other words it was held that
sales companytemplated by entry 48 of the government of india
act 1935 were transactions in which title to the goods
passed from the seller to the buyer and in the sales tax
officer pilibhit v. messrs. budh prakash jai prakash  2
it was held that a mere executory agreement was number a sale
within the meaning of that entry. we think that the same
meaning must be given to entry 54 of list 11 of the seventh
schedule to the companystitution. the question before us is
that giving that meaning to the entry is the impugned act a
valid piece of legislation by a companypetent legislature? number learned companynsel for the appellants has number raised
before us the extreme companytention that in numbercase companyld the
state legislature validly make a law which would include the
amount companylected by way of tax as part of the turnumberer of
the dealer. he has submitted that it is unnecessary for him
in this case to press into service any such wide
proposition. his argument is that the principal act by ss. 8b and 15 and the impugned act by s. 2 thereof having made a
distinction between what he calls the sale price and what is
collected by way of tax by the dealer the question of the
validity of the impugned act must be determined on the basis
of that distinction and so determined what the impugned act
does is to impose what learned companynsel calls a tax on tax
and therefore number companyered by the relevant legislative entry. his submission further is that what is companylected by way of
tax being distinct from sale price and therefore from
turnumberer it must be necessarily held that the amount
collected by way of tax is number essentially
 1  1959 s.c.r. 379.  2  1955 1 s.c.r. 243.
connected with the transaction of sale and therefore the
imposition of a tax on tax has numbernecessary companynexion
with the transaction of sale as understood in the general
law relating to sale of goods. we are unable to accept this argument as companyrect. first of
all we do number think that either the principal act or the
impugned act proceedson any immutable distinction between
sale price and tax such as learned companynsel for the
appellants has suggested. the principal act does number
contain any separate definition of sale price. we have
already referred to the definitions of sale and
turnumberer those definitions do number show any such
distinction. on the companytrary the expression turnumberer
means the aggregate amount for which goods are bought or
sold whether for cash or for deferred payment or other
valuable companysideration and when a sale attracts purchase
tax and the tax is passed on to the companysumer what the buyer
has to pay for the goods includes the tax as well and the
aggregate amount so paid would fall within the definition of
turnumberer. in paprika limited and anumberher v. board of trade  1
lawrence j. said whenever a sale attracts purchase tax
that tax presumably affects the price which the seller who
is liable to pay the tax demands but it does number cease to be
the price which the buyer has to pay even if the price is
expressed as x plus purchase tax. the same view was again
expressed in love v. numberman wright  builders  limited  2  when
goddard l. j. said
where an article is taxed whether by
purchase tax customs duty or excise duty
the tax becomes part of the price which
ordinarily the buyer will have to pay. the
price of an ounce of tobacco is what it is
because of the rate of tax but on a sale
there is only one companysideration though made up
of companyt plus profit plus tax. so if a seller
offers goods for sale it is for him to quote
a price which includes the tax if he desires
to pass it on to the buyer. if the buyer
agrees to the price it is number for him to
consider how it is made up or whether the
seller has included tax or number.  1  1944 1 all e.r. 372.  2  1944 1 all

r. 618.
we think that these observations are apposite even in
the companytext of the provisions of the acts we are companysidering
number and there is numberhing in those provisions which would
indicate that when the dealer companylects any amount by
way of tax that cannumber be part of the sale price. so far
as the purchaser is companycerned he pays for the goods what
the seller demands viz. price even though it may include
tax. that is the whole companysideration for the sale and there
is numberreason why the whole amount paid to the seller by the
purchaser should number be treated as the companysideration for the
sale and included in the turnumberer. but argues learned companynsel for the appellants s. 8-b of
the principal act and turnumberer and assessment rules made
under s. 19 show that under the scheme of the principal act
a distinction is drawn between the amount companylected by way
of tax and the amount of purchase price. it is indeed true
that in s. 8-b the amount companylected by way of tax is separa-
tely mentioned and while sub-s.  1  thereof is merely
enabling in the sense that a registered dealer may pass on
the tax sub-s.  2  imposes an obligation on the registered
dealer to pay over the amount of tax companylected by him to
government. the position under the turnumberer and assessment
rules is companyrectly summarised in the following extract from
the judgment in krishnaswamy mudaliars case  1
rule 4 provides that the gross turnumberer of a
dealer for the purposes of the rules is the
amount for which goods are sold by the dealer. provision is made in rule 5 for certain
deductions and the mode or manner in which
the tax to be levied has to be arrived at. the object of these rules is to assess. the
net turnumberer on which the tax is to be levied
under the charging section. it is therefore
clear that under the charging section tax is
to be paid on the turnumberer which is assessed
according to the rules. rule 11 requires that
every dealer should submit a return under rule
6 every year to the assessing authority in
form a in which he has to show the actual
gross and net turnumberer for the preceding
 1  1954 5 s.t.c. 88.
year and the amounts by way of tax or taxes
actually companylected during that year. in form
a companyumns 1 to 10 relate to the gross turnumberer
and the deductions to be made from the gross
turnumberer companyumn 10 requires the net turnumberer
liable to tax to be shown. in companyumn 11 the
amount actually companylected by way of tax or
taxes under s. 8-b has to be shown. the question however still remains-do the aforesaid
provisions show such a distinction under the scheme of the
two acts that the amount companylected by way of tax cannumber be
part of the turnumberer of the dealer and if the impugned act
makes it a part of the turnumberer by a deeming provision it
must be struck down as being outside the legislative
competence of the state legislature? it is necessary to
emphasise here that numberquestion of legislative companypetence
arose in krishnaswamy mudaliars case   the decision being
based on a companystruction of s. 8-b and the turnumberer and
assessment rules only. we do number think that the distinction drawn in krishnaswamy
mudaliars case   whether right or wrong on a question of
construction only is material to the question of
legislative companypetence. in the tata iron steel company limited

the state of bihar  2  this companyrt dealt with a provision
in the bihar sales tax act 1947 similar to s. 8-b of the
principal act. das c. j. delivering the majority opinion
said
the circumstance that the 1947 act after the
amendment permitted the seller who was a
registered dealer to companylect the sales tax as
a tax from the purchaser does number do away with
the primary liability of the seller to pay the
sales tax. this is further made clear by the
fact that the registered dealer need number if
he so pleases or chooses companylect the tax from
the purchaser and sometimes by reason of
competition with other registered dealers he
may find it profitable to sell his goods and
to retain his old customers even at the
sacrifice of the sales tax. this also makes
it clear that the sales tax need number
 1  1954 5 s.t.c. 88.  2  1958 s.c.r. 1355.
be passed on to the purchasers and this fact
does number alter the real nature of the tax
which by the express provisions of the law
is cast upon the seller. the buyer is under
numberliability to pay sales tax in addition to
the agreed sale price unless the companytract
specifically provides otherwise. see love v.
numberman wright  builders  limited l. r. 1944 1

b. 484.
these observations show that when the seller passes on the
tax and the buyer agrees to pay sales tax in addition to the
price the tax is really part of the entire companysideration
and the distinction between the two amounts-tax and price-
loses all significance from the point of view of legislative
competence. the matter is number in any way different under
the turnumberer and assessment rules. it is true that in
column 11 of form a the amount companylected by way of tax under
s. 8-b has to be shown that does number however mean that an
immutable distinction such as will go to the root of
legislative companypetence has been drawn and must be always
maintained. it appears to us that the true effect of s. 8-b
and the turnumberer and assessment rules is that  a  a
registered dealer is enabled to pass on the tax  b  an
unregistered dealer cannumber do so and  c  the amount
collected by way of tax is to be shown separately for it
has to be paid over to government. this does number mean that
it is incompetent to the legislature enacting legislation
pursuant to entry 54 in list 11 by suitable provision to
make the tax paid by the purchaser to the dealer together
with the sale price in companysideration of the goods sold a
part of the turnumberer of the dealer number does it mean that in
law the tax as imposed by government is a tax on the buyer
making the dealer a mere companylecting agency so that the tax
must always remain outside the sale price. there is anumberher aspect from which the question may be
considered. we shall assume that -under the scheme of the
principal act a distinction is drawn between the amount
collected by way tax and the sale price other than the tax. is such a distinction companytinued and maintained by the
impugned act? learned companynsel for the appellants has
referred us to
s. 2 of the impugned act where the expression companylected
by him by way of tax under the madras general sales tax act
1939 occurs. it is argued that the aforesaid expression in
the impugned act has to be read with the provisions of the
principal act and so read b. 2 maintains and companytinues the
distinction made under the principal act. again we are
unable to agree. the expression companylected by him by way of
tax etc. is merely descriptive of the amounts so
collected the essential and operative part of s. 2 says
that the amounts so companylected shall be deemed to have formed
part of the turnumberer of the dealer. therefore in express
terms s. 2 states that the tax shall be deemed to have
formed part of the turnumberer and obliterates the distinction
if any between tax and turnumberer for the limited period
during which the impugned act operates. to hold that the
distinction is maintained and companytinued under the impugned
act is to go against the express terms of s. 2. this aspect
of the question was adverted to in the government of andhra

east india companymercial company limited  1  where the andhra high
court had occasion to companysider the question from a somewhat
different point of view namely an amendment made by the
andhra pradesh legislature in the definition of the
expression turnumberer in the principal act. section 2 of
the amending act substituted the following definition of
turn-over-
turnumberer means the total amount set out in the
bill of sale  or if there is numberbill of sale
the total amount charged  as the companysideration
for the sale or purchase of goods
including any sums charged by the dealer for
anything done in respect of the goods sold at
the time of or before the delivery of the
goods and any other sums charged by the
dealer whatever be the description name or
object thereof. section 4 of the amending act repeated ss. 8-b
and 8-c of the principal act. dealing with
the effect of these amendments the high companyrt
of andhra pradesh said
 1  1957 8 s.t.c. 114.
the ultimate econumberic incidence of the sales
tax is on the companysumer or the last purchaser
and whatever he pays for the goods is paid
only as price that is to say as
consideration for the purchase. the statutory
liability however for payment of sales tax
is laid on the dealer on his total turnumberer
whether or number he realises the tax from the
purchasers. generally speaking the price
charged by the dealer would be inclusive of
sales tax for it is to his interest to pass
the burden of the tax to the purchaser. so
far as the dealer is companycerned the payment of
a sum companyering the tax made by a purebaser on
the occasion of sale is really part of the
price which the purchasers pay for the goods. later it referred with approval to the decision in sri
sundararajan and company limited v. the state of madras  1 . in
this latter decision the validity of the impugned act was
questioned and dealing with s. 2 of the impugned act the
high companyrt said
section 2 only enacted that such amount shall
be deemed to be part of the turnumberer and for
a limited period. it may number be necessary to
set out authorities for the well-settled
principle of what the effect is of the use of
the expression deemed in a statute. was the
legislature companypetent to enact section 2
including the deeming provision is the real
question. if the validity of section 2 of the
impugned act is established there should be
little difficulty in upholding the validity of
section 3 which gave effect to the legal
fiction enacted by section 2.
obviously it is number the name the legislature
accords to a payment by a purchaser to a
seller who is a dealer as defined by the act
that determines the question of the
legislative companypetence. numberdoubt section 8b
called the payment as amount  companylected  by
way of tax. it is equally true that the
statutory liability to pay the sales tax is
laid on the dealer. what is taxable is number
each transaction of sale but the total
turnumberer of the dealer companyputed in accordance
with the provisions of the
 1   1956  7 s.t.c. 105.
act and the rules. but it is well-recognised
that whatever be the form of the statutory
provisions the ultimate econumberic incidence of
the tax is on the companysumer the purchaser. it
was that well-settled principle that was re-
stated in bengal immunity company limited v. state
of bihar  1 . even if the registered dealer
collects the amount by way of tax under the
authority of section 8b of the act the
payment is by the purchaser on the occasion of
the sale by the dealer. vis-a-vis the dealer
it is in reality part of the price the
purchaser has to pay the seller for purchasing
the goods. a tax on such a payment in our
opinion is well within the ambit of entry 54
of list 11 schedule vii read with article
246 3  of the companystitution. we are of the view that the aforesaid observations companyrectly
give the true effect of s. 2 of the impugned act and s. 3
of the impugned act is merely companysequential. mr. sikri appearing on behalf of. the states of maharashtra
and punjab has drawn our attention to certain american
decisions which show that treating tax as part of the sale
price in cases where the tax is passed on to the buyer is
well-recognised and is number unknumbern to law  see lashs
products companypany v. united states 73 l. edn. 251 pure oil
company v. state of alabama 148 american law reports 260 . we companysider it unnecessary to examine these decisions
because the validity of the impugned act must be determined
on its own terms in the companytext of the provisions of the
principal act. reading the impugned act in the light of the
provisions of the principal act it seems clear to us that
the impugned act cannumber be held to be bad on the ground of
legislative incompetence. under the definition of turnumberer
the aggregate amount for which goods are bought or sold is
taxable. this aggregate amount includes the tax as part of
the price paid by the buyer. the amount goes into the
common till of the dealer till he pays the tax. it is money
which he keeps using for his business till he pays it over
to government. indeed
 1  1955 2 s.c.r. 603.
he may turn it over again and again till he finally hands it
to government. there is thus numberhing anumberalous in the law
treating it as part of the amount on which tax must be paid
by him. this companyception of a turnumberer is number new.


original jurisdiction writ petition  crl.  number 1107
of 1985.  under article 32 of the companystitution of india
ram jethmalani ms. rani jethmalani and ms.
madhusoodanan for the petitioner. p. rana m.n. shroff c.v. subba rao and r.n. poddar
for the respondents. the judgment of the companyrt was delivered by
ranganath misra j.the petitioner the wife of a detenu
under the companyservation of foreign exchange and prevention of
smuggling activities act 1974  act for short  in this
application under article 32 of the companystitution assails the
order of detention as also the subsequent declaration under
section 9 of the act. the order of detention annexure a
was made by the government of maharashtra under s. 3 1  of
the act on
numberember 20 1984. the order directed his detention in the
bombay central prison at bombay for one week from the date
of detention and in nasik road central prison thereafter. on
the same day the grounds of detention were also served on
the detenu. on december
12 1984 the additional secretary to the government of
india in the ministry of finance made the requisite
declaration under s.9 1  of the act annexure b.
petitioner at the instance of the detenu made a
representation to the chief minister on numberember 24 1984
against the detention and the said representation was
received in the office of the chief minister on numberember 28
1984. this representation was rejected on january 28 1985
two months after its receipt as alleged by the petitioner. detenu appeared before the advisory board on april 17 1985.
when he appeared before the board he asked for the
assistance of a lawyer or alternatively of a number-lawyer
friend. the request was number acceded to and the board made an
adverse report to the state government. the petitioner had
challenged the detention of her husband by filing a writ
petition before the bombay high companyrt being criminal writ
petition number 50 of 1985. by judgment dated april 29 1985
the high companyrt dismissed the said petition. this writ
application has thereafter been filed in july 1985 for the
reliefs indicated already. e
two affidavits in opposition have been filed - one by
the special secretary to the government of maharashtra and
the other by the desk officer of the home department of
maharashtra government. the special secretary in his
affidavit explained the basis of his satisfaction regarding
the necessity to detain the detenu and the reasons for which
the declaration under s. 9 1  was later made. he also
explained in answer to specific allegations companytained in the
writ petition that there was numberseparate intelligence report
which had been placed before him and or taken into
consideration in making of the order of detention. in the
other companynter affidavit apart from indicating the
justification for detention reference was made to the
petitioners representation against the detention made to
the chief minister. it has been pointed out that the order
was dated january 23 1985 and the reasoning adopted by the
bombay high companyrt in regard to the delay in disposal of the
representation has been adverted to. reference has also been
made in regard to the detenus request for representation by
a lawyer or alternatively a number-lawyer friend. dealing with
that aspect the affidavit indicates
i say that in his representation which was
handed over to the advisory board the detenu
asked to be represented by a lawyer or otherwise
by his next friend. i say that the advisory board
after companysidering the detailed representation made
and after talking to the detenu came to the
conclusion that since the detenu was in good
health and also that he has studied upto 8th
standard in khambala hill municipal school and
thereafter in social high school and since he was
the owner part owner manager of number of
business enterprises and he has been active in
politics there was numbernecessity for permitting
the detenu to have his case represented through
the lawyer. these facts were mentioned by the
advisory board to the detenu. i say that whenever
a request is made by the detenu to have his case represented
through his friend such a request has invariably been
granted and he is always allowed to represent his case by
his next friend who is number a lawyer. i say that the advisory
board had informed this to the detenu and asked the detenu
whether he had brought any friend with him since the board
always permits the detenu to be assisted by his next friend. i say that the detenu replied that he had number brought any
friend to represent his case. i say that the fact that the
detenu had number brought any friend despite the request made
in the representation is numbered in the minutes which are
regularly kept by the chairman advisory board. on more or less similar allegations the bombay high
court had been moved for quashing of petitioners husbands
detention. the high companyrt examined the companytention at great
length and ultimately companycluded that on the facts of the
case companytinued detention of the petitioners husband was number
vitiated. though raised in the writ application the challenge
against the declaration under s. 9 1  of the act has number
been canvassed at the hearing by mr. jethmalani appearing
for the petitioner. it was stated to us that the challenge
to the vires of the section is pending before this companyrt for
consideration by a larger bench and as the petitioner is
anxious to have her writ petition disposed of expeditiously
petitioner does number press the relief against the declaration
and would remain companytent by companyfining the challenge to the
order of detention. in view of companynsels
statement and in the circumstances stated we proceed to
consider a the challenge to the order of detention annexure
a without entering into companytroversy over the vires of the
section. four points have been raised by mr. jethmalani in support of
his stand that the detenus detention is bad

petitioner made a representation against the
detention of her husband on numberember 24 1984 and it
was admittedly received in the secretariat of the chief
minister on numberember 28 1984. it however was number
disposed of till january 28 1985. the delay vitiates
the detention and the detenu became entitled to be set
at liberty by quashing of the order

the order of detention is liable to be set aside
inasmuch as it has been made without proper application
of mind. the link between the alleged transaction and
the detenu is said to have been established by a
statement made by one sabnis to the effect that the
detenu had asked him to allow the truck to enter into
the raj bhavan premises with a view to transporting the
contraband materials clandestinely received there

the grounds of detention disclose that the
detaining authority had relied upon companytact between the
detenu and one yusuf herro and the source of
information for ascertaining the existence of
relationship was described as intelligence report. the
same had number been furnished to the detenu

the detenu had been prejudiced in the hearing by
the advisory board as his request for representation by
counsel or by a number-lawyer friend had number been
entertained by the board. this it is alleged affected
the guarantee of limited defence available to d detenu
as held by this companyrt in a.k. roy v. union of india
1982 2 s.c.r.272. two of these grounds had been clearly raised before the
high companyrt but the companyrt was number impressed with these
submissions and therefore dismissed the petition. the
petitioner has number chosen to companye in appeal against the
decision of the high companyrt and relying upon some
observations of this companyrt in a case of this type a writ
petition has been filed in this companyrt under article
32 of the companystitution. as objection to the maintainability
of the writ petition has number been raised at the hearing by
counsel for the opposite parties we are number examining the
question of maintainability of this application and propose
to deal with the submissions made on behalf of the
petitioner. it is a fact that a representation was made by the
petitioner on behalf of the detenu which was received in the
office of the chief minister on numberember 28 1984 and mr.
jethmalani has accepted the position that orders on the
representation were passed on january 2 1985 and the said
orders were received on january 28 1985. in the
representation made by the petitioner to the chief minister
the order of detention was casually impugned but lot of
attention appears to have been bestowed on the necessity of
keeping the detenu in a bombay jail instead of sending him
to nasik road prison as directed in the order of detention. a detailed representation was made by secretary khed taluka
maratha seva sangh challenging the detention. it appears
that the detenu belonged to the khed taluka and his case was
espoused by the sangh. it is number disputed before us that the
said representation was received on numberember 29 1984 in
the secretariat of the chief minister and was forwarded to
the home department on december 3 1984 and was finally
disposed of on december 12 1984 and the rejection thereof
was companymunicated on december 13 1984. this representation
was a detailed one and on a due companysideration thereof the
representation had been expeditiously disposed of. the high
court looked into the two representations - one made by the
sangh and the other by the petitioner and on companysidering the
contents thereof and the manner in which the sanghs
representation had been disposed of came to hold that the
representation made by the petitioner was a second one on
the same score and delay in disposing of that representation
did number really prejudice the detenus case. on the facts and
circumstances appearing in the record and as found by the
high companyrt we are inclined to agree with the submission
made before us that the petitioner is number entitled to make
any tenable submission on the score of delay in disposal of
the representation. in paragraph 3 h  of the writ petition petitioner
alleged
that the detention of the detenu is based on the
statement of a self-confessed accomplice one
sabnis who claims that it was the detenu who had
told him to allow the truck to enter the raj
bhavan. the detaining
authority is aware that on such flimsy material it
is a impossible to get a companyviction in a regular
court of law. the detaining authority has failed
to apply its mind to this aspect of the matter. in the return made by the special secretary to government of
maharashtra it has been averred
with reference to para 3 h  i say that i was
aware that prosecution against the detenu and his
co-detenus were under companytemplation yet i have
come to the companyclusion that departmental
adjudication and prosecution proceedings under
customs act were number sufficient to prevent the
detenu from indulging in criminality in future
considering the role of the detenu and the
attending circumstances. moreover the prosecution
under customs act cannumber overlap action under
cofeposa
it is interesting to numbere that the companytraband articles
alleged to be worth more than l/2 crore of rupees had been
received on the sea-shore at the back of the raj bhavan of
bombay. access to this place was only through the raj
bhavan. sabnis was an employee of the raj bhavan at the
relevant time and the detenu had asked sabnis to allow the
truck to enter into the raj bhavan companypound for the purpose
of transporting the companytraband articles. it was up to the
detaining authority to accept the statement of sabnis and to
be satisfied that such statement provided the link between
the detenu and the receipt of the companytraband articles and
the bundle of facts relating thereto. this satisfaction
under the law is subjective and it is number for the companyrt to
test the adequacy of the material on which satisfaction is
reached. it is quite possible as suggested in the writ
application and reiterated in the submission of learned
counsel that at a trial companyviction may number have been secured
on the basis of the statement of sabnis. but that argument
is number available for challenging an order of detention if
the satisfaction of the detaining authority has been reached
on bona fide basis. we do number think there is any force in
this submission advanced on behalf of the petitioner and
therefore attack on that ground has to be rejected. the third submission advanced by companynsel is a
reiteration of the allegation in paragraph 3 i  of the writ
petition. there it was all
eged
 the grounds of detention disclosed that the
detaining authority has relied upon some alleged
contact between the detenu and one yusuf herro. in
para 12 of the grounds of detention the detaining
authority states intelligence gathered reveals
that the main person behind the said smuggling
racket is one yusuf herro. since he has figured in
many big cases detected by the customs deptt. his
photograph was available with the customs
department. the grounds of detention then
continue to allege that the detenu was in the
company of this yusuf herro on the 16th october
1984 as stated by sabnis in his statement of
22.10.84. it was incumbent under these
circumstances on the detaining authority to
disclose the role of yusuf herro in the smuggling
in hand as well as his involvement in other big
cases. numberprivilege was claimed in respect of this
material. under the circumstances there has been
a failure to companyply with article 22 of the
constitution and the petitionrs companystitutional
rights have been violated. in the return of the special secretary it has been stated
i say that it was number necessary to supply the
copy of the intelligence report. i say that as a
matter of fact numberindependent intelligence report
was ever placed before me and i have neither
referred to number relied upon the said report. i say
that it is a fact that the detenu was engaged in
criminal activity with yusuf herro and was in his
company which fact his companyaccused sabnis has
brought to light in his companyfessional statement
dated 22nd october 1984 recorded by the customs
under section 108 of the customs act. before the high companyrt this submission had been pressed
into service and the high companyrt found numberforce in the point
relying upon a decition of this companyrt in wasi uddin ahmed v.
district magistrate aligarh l1981 4 s.c.c. 521. that was
a case as rightly indicated by mr. jethmalani where
privilege had been claimed against disclosure of the source
as also the companytents of the information. in view of the
privilege claimed this companyrt took the view that supply of
intelligence report of secret nature cannumber be insisted upon
and number-disclosure of such information does number provide a
basis for challenging the detention. in this
case numberprivilege was claimed. on the facts we are however
satisfied that adequate material had been disclosed and no
prejudice appears to have been caused for want of further
disclosure. it may be that the exact information received
from the intelligence source had number been made available to
the petitioner or placed on record but sufficient material
with reference to the intelligence report had been made
available. in that view of the matter we also find numberforce
in this submission. we number proceed to examine the last companytention. in
paragraph 3 j  petitioner alleged
that on the 17th april 1985 the detenu
appeared before the advisory board. he handed
over to the advisory board his written
representation companytaining a prayer that the
detenu be allowed to be represented by a
lawyer and in the alternative by a number-
lawyer friend or a relative. these requests
were number companysidered by the advisory board and
were number disposed of as are required to be
done by judgments of this honble companyrt. under the circumstances the hearing before
the advisory board was number in accordance with
the law the detention companytinued detention is
invalid. this aspect has been dealt with in the companynter-affidavit of
mokal desk officer of home department of the government of
maharashtra and the relevant paragraph has already been
extracted by us earlier. ordinarily in cases of this type
representation by lawyer is number allowed. in a.k. roys case
this companyrt indicated
thus according to the express intendment of
the companystitution itself numberperson who is
detained under any law which provides for
preventive detention can claim the right to
consult a legal practitioner of his choice or
to be defended by him. ia view of this it
seems to us difficult to hold by the
application of abstract general principles or
on a priori companysiderations that the detenu
has the right of being represented by a legal
practitioner in the proceedings before the
advisory board. numbergrievance therefore can be made on the score that the
advisory board had number permitted the detenu to be
represented by companynsel. while reiterating the position the
learned chief justice stated
we must therefore hold regretfully though
that the detenu has numberright to appear
through a legal practitioner in the
proceedings before the advisory board. the companyrt further added
anumberher aspect of this matter which needs to
be mentioned is that the embargo on the
appearance of legal practitioners should number
be extended 90 as to prevent the detenu from
being aided or assisted by a friend who in
truth and substance is number a legal
practitioner. every person whose interests
are adversely affected as a result of the
proceedings which have a serious import is
entitled to be heard in those proceedings and
be assisted by a friend. a detenu taken
straight from his cell to the boards room
may lack the ease and companyposure to present
his point of view. he may be tongue-tied
nervous companyfused or wanting in intelligence
 see pest v. greyhound racing association
ltd. 1969 1 w.b. 125  and if justice is to
be done he must at least have the help of a
friend who can assist him to give companyerence
to his stray and wandering ideas. incarceration makes a man and his thoughts
dishevelled. just as a person who is dumb is
entitled as he must to be represented by a
person who has speech even so a person who
finds himself unable to present his own case
is entitled to take the aid and advice of a
person who is better situated to appreciate
the facts of the case and the language of the
law. it is on these observations of the learned chief
justice that reliance has been placed by mr. jethmalani to
contend that denial of representation by a friend has
affected due representation of the petitioners case before
the advisory board. it is the case of the state that the
advisory board made inquiries from the detenu as to whether
he had a friend available on the date of hearing to
represent him and it appeared that numbersuch person had been
called by the detenu to the place of hearing. the board was
number inclined to adjourn the matter. the board talked to the
detenu and ascertained that the detenu was worldly wise was
sufficiently educated and did number suffer from any deficiency
and was in a fit companydition to represent his case. the rule
to be applied is one of prejudice and in the facts of the
case we are inclined to agree with mr. rana for the state
that the detenu was number prejudiced in making an effective
representation of his case at the hearing by the advisory
board in the absence of a friend.


civil appellate jurisdiction civil appeal number. 5999
6000 of 1983
appeals by special leave from the judgment and order
dated the 25th june 1978 of the maharashtra high companyrt in
misc. appln number 763 of 1981 with special civil application
number 1323 of 1978.

r. lalit v. n. ganpule and mrs. v. d. khanna for
the appellants. v. sawant m.n. shroff s.m. shah p. sankara
narayana for the respondents. b. bhasme gopal b.sathe for respondent number5. b. saharya and r.n. poddar for respondent  u.o.i. . the judgment of the companyrt was delivered by
venkataramiahj. the appellant in civil appeal number 5999
of 1983 is shri b.v.chavan and the appellant in civil appeal
no
6000 of 1983 is shri a.a. halbe. the appellants in these two
appeals are members of the judicial service of the state of
maharashtra. they were originally appointed as civil judges
 junior division  and judicial magistrates first class in
the junior branch of the maharashtra state judicial service. both of them in companyrse of time were promoted in the year
1971 as assistant judges in the senior branch of the
maharashtra state judicial service. when they were both
working as assistant judges applications were invited from
members of the bar for filling in five posts of officiating
assistant judges in the judicial service of the state of
maharashtra although the applications companyld be invited for
the purpose of recruitment to the cadre of district judges. respondents number. 2 to 5 shri i.g. shah shri b.s bhirud
shri h.h. kantharia and shri a.d. mane along- with many
others applied for the same. ultimately respondents number. 2
to 5 were selected by the high companyrt and on the
recommendation of the high companyrt. the governumber appointed
them as assistant judges as per government numberification
dated december 27 1974 the material part of which read
thus
sachivalaya bombay-400032 27th december 1974. number
daj 1071/687-h-i. the following persons are appointed
as assistant judges on an officiating basis initially
till they are appointed as district judges with effect
from the dates on which they assume charge of their
appointments

shri ishwarchand gulabchand shah

shri bhaskar dattatraya bhirud

shri hajivandh hiralal kantharia

shri anant dhyanu mane
by order and in the name of the governumber of
maharashtra. sd -m.b. deshmukh
deputy secretary to government. respondents number. 2 to 5 accordingly were posted as
assistant judges in january 1975. in the list of assistant
judges which was in force then the appellants were shown at
serial number. 5 and 6 and respondents number. 2 to 5 were shown
at serial number. 25 to 28. later on by a numberification dated
february 1 1977 respondents number. 2 to 5 were promoted to
officiate as district judges alongwith one
shri m.m. sonak but by a numberification dated february 5 1977
which was issued as a companyrigendum to the numberification dated
february 1 1977 respondents number 2 to 5 were shown as
having been appointed to officiate as district judges. the
appellants who were working as assistant judges from 1971
were number promoted alongwith respondents number. 2 to 5. the
appellants who felt aggrieved by the appointment of
respondents number. 2 to 5 filed a petition before the high
court of bombay claiming that they should be treated as
having been promoted as district judges on the same date on
which respondent. number 2 was appointed and placed above
respondents number. 2 to 5 in the seniority list on the ground
that they were senior to respondents number. 2 to 5 in the
cadre of assistant judges. the petitions were dismissed by
the high companyrt by a companymon judgment. the appellants have
filed these appeals by special leave against the judgment of
the high companyrt. the solution to the problem before us depends upon the
true meaning of the relevant provision of the bombay
judicial service recruitment rules 1956  hereafter referred
to as the rules  which govern the recruitment to the
different cadres in the judicial service of the state of
maharashtra. rule 3 of the rules provides that the judicial service
in maharashtra shall companysist of two branches- a  the junior
branch and  b  the senior branch. the junior branch
consists of the following class i officers namely  1  judges
of the small causes companyrts at places other than bombay  2
civil judges  senior division   3  judges of the small
causes companyrts at bombay and metropolitan magistrates and  4
civil judges  junior division  and judicial magistrates of
the first class  5  metropolitan magistrates juvenile
court bombay. the senior branch of the judicial service
consists of district judges the principal judge and the
judges of the bombay city civil companyrt the chief judge and
the additional chief judge of the small causes companyrt
bombay the chief presidency magistrate bombay and the
assistant judges. rule 4 of the rules deals with the method
of recruitment to the junior branch with which we are number
concerned. rule 5 deals with the method of recruitment to
the senior branch. sub rule  4  of rules 5 of the rules
provides that appointments to the posts of assistant judges
shall be made by the governumber in companysultation with the high
court by promotion from the civil judges  junior division
or civil judges  senior division  of number less than seven
years standing. the appellants were promoted and appointed
as assistant judges under this sub-rule. sub-rule
 2  of rule 5 which provides for the appointment of district
judges reads thus
5.  2  district judges and judges of the bombay city
civil companyrt-

district judges-appointments to the posts of
district judges shall be made by the governumber-
 a  in companysultation with the high companyrt by
promotion from the members of the junior branch who
have ordinarily served as assistant judges and
 b  on the recommendation of the high companyrt from
members of the bar who have practised as advocates or
pleaders for number less than seven years in the high
court or companyrts subordinate thereto
provided that a person recruited at the age of number
more than forty-five years fifty years in the case of
a person belonging to a companymunity recognised as
backward by government for the purposes of recruitment
shall first be appointed to work as assistant judge for
such period as may be decided by government on the
merits of his case on the recommendations of the high
court before he is appointed as a district judge
provided further that ordinarily the proportion of
post filled in by promotion under clause  a  and those
by appointment from members of the bar under clause  b
shall be 50 50.
rule 5 2  of the rules provides for two methods of
appointment to the posts of district judges  i  by promotion
of members of the junior branch who have served as assistant
judges and  ii  by direct recruitment from members of the
bar. when an assistant judge is promoted as a district
judge he becomes entitled to function as a district judge
from the date of such promotion. but the proviso to rule 5
 2   i   b  provides that when a member of the bar is
recruited as a district judge and he is less then forty-five
years of age on the dated of such recruitment  he is less
than fifty years in the case of a person belonging to a
backward companymunity  he shall first be appointed to work as
assistant judge for such period as may be decided by the
government on the merits of his case on the recommendation
of the high companyrt before he is appointed as a district
judge. that means that even though a members of the bar is
recruited as a district judge he may be asked to
724 to 740
serve as an assistant judge for a specified period if he is
below the prescribed age as st ted above. when he so
functions as the assistant judge he would number be strictly in
law a person appointed as an assistant judge for there is no
provision for direct recruitment to the cadre of assistant
judges. he would only be a person who is recruited as a
district judge but posted as an assistant judge to gain the
requisite judicial experience in that post before being
entrusted with the duties of a district judge. he cannumber
therefore be called as a member of the cadre of assistant
judge subject to the rule of seniority applicable to the
regular members of that cadre who are appointed by promotion
from the junior branch. inclusion of the name of such a
person in the list of assistant judges does number companyfer any
right on such regular assistant judges appointed by
promotion from the junior branch who are placed above him in
the said list to claim seniority over him. he has to be
posted as district judge on the expiry of the period during
which he has to work as an assistant judge under the proviso
to rule 5  2   i   b  of the rules. the other assistant
judges promoted from the junior branch in the list can
become district judges only when they are appointed in their
turn under rule 5  2   i   a . in the instant case
respondents number. 2 to 5 were appointed as district judges
after their prescribed stint in the cadre of assistant
judges was over in 1977 but the appellants companyld be promoted
under rule 5  2   i   a  only subsequently. in the
circumstances since as between the appellants on the one
hand and respondents number 2 to 5 on the other there being no
comparison it cannumber be said that there is any violation of
article 14 or article 16 of the companystitution. it appears
that all this companyfusion starting with the issue of the
numberification inviting applications for purposes of
recruitment under rules 5  2   i   b  of the rules has
arisen on account of the practice of including the names of
the direct recruits from the bar to the cadre of district
judges while they are serving as assistant judges under the
proviso to rule 5 2   i   b  of the rules in the same list
alongwith assistant judges promoted from the junior branch. if a separate list of such persons was there there would
number have been any room for such companyfusion.


civil appellate jurisdiction civil appeal number 43 of 1958.
appeal by special leave from the judgment and order dated
april 11 1956 of the former pepsu high companyrt in civil
misc. case number 173 of 1955.
naunit lal for the appellants. m. sikhri advocate-general punjab gopal singh and d.
gupta for the respondents. 1961. april 27. the judgment of the companyrt was delivered by
dab gupta j.-the 51 appellants all of whom belong to
village simla tehsil narwana filed in the pepsu high
court at patiala a petition under art. 226 and art. 227 of
the companystitution for relief against an order made by the
divisional canal companymissioner narwana for payment of
certain water rates and tawan. it appears that on the night
of september 1 1951 there was a cut on the left bank of
sirsa branch canal. certain persons were prosecuted on a
charge for having damaged the canal but they were acquitted. thereafter the divisional canal officer narwana on the
recommendation of the sub-divisional officer canal narwana
made an order levying special charges against these
appellants. on appeal the divisional canal officer
narwana ordered in partial modification of the order made
by the sub-divisional officer the levy of six times the
crop rates on cultivated area and six times the charges on
uncultivated area and single bulk rate on water store of
village simla. this levy was made on the basis of his
conclusion that the villagers of simla were responsible for
the cut and joined hands for the companymon good. the high companyrt dismissed the application by a short order
stating that the points involved in this petition were fully
covered by the decision of a division bench of the same high
court in mukandi ram v. the executive engineer  lpa fao number
58 of 1954  and that the companynsel for the petitioners had
therefore numberhing to say in support of the petition and did
number press it. against this order of dismissal the present
petition has been filed by special leave obtained from this
court. before mentioning the points raised by mr. naunit lal in
support of the appeal it would be companyvenient to refer to the
provisions of law that require companysideration. section 31 of the numberthern india canal and drainage act
1873 which admittedly applies to the sirsa branch canal
provides for the levy of water rates for
supply of canal water taken in the absence of companytract at
the rates and subject to the companydition prescribed by the
rules to be made by the state government in respect thereof. numberrules have however been made as regards the rates to be
charged for such unauthorised supply of canal water in
respect of the sirsa branch canal which was in the state of
patiala. rules had however been made by the punjab
government in respect of the sirhind canal and branches
thereof as also the western jumna canal and branches thereof
as early as april 1873 and august 1878 respectively. these
rules had been amended from time to time. at the time the
sub-divisional officer made his recommendation and the
divisional canal officer made his order these rules had number
been extended to the pepsu. it was when the appeal was
pending before the companymissioner that the pepsu sirhind canal
and western jumna canal rules  enforcement and validation
act number iv of 1954 was passed by the pepsu state
legislature. section 3 of this act applied with
retrospective effect from august 1 1948 the sirhind canal
rules and the western jumna canal rules to the pepsu state. section 4 provided that as from august 1 1948 anything
done or any action taken in accordance with the pepsu
sirhind canal rules or the western jumna canal rules shall
number be called in question in any proceedings before any
court or other authority merely on the ground that the
sirhind canal rules or the western jumna canal rules were
number in force in the pepsu state on the date on which such
thing was done or such action was taken. it may be
mentioned that this act replaced the pepsu sirhind canal and
western jumna canal rules  enforcement and validation
ordinance 1954 which had been made shortly before this. in mukandi ram v. the executive engineer  1  on the basis
of which without further discussion the petition in this
case was dismissed the pepsu high companyrt held on facts
practically identical with the facts of this case that the
levy of special rates by the canal companymissioner was
justified under rule 32 and in any case

lpa fao number 58 of 1954.
under rule 33 of the sirhind canal rules read with s. 31 of
the act. the main companytention raised by mr. naunit lal before us in
support of the present appeal is that s. 3 and s. 4 of the
pepsu sirhind canal and western jumna canal rules
 enforcement and validation  act number iv of 1954 are
unconstitutional being in companytravention of art. 20 1  of the
constitution. other points that he wanted to urge were  i
that the provisions of rules 32 and 33 do number apply to the
facts of the present case and  ii  that the numberice served
before the levy was made was number sufficient. as however it
appeared clear to us that neither of these points was taken
before the high companyrt we have number given him permission to
raise these points before us in the circumstances of this
case. anumberher point that rules 32 and 33 are beyond the
scope of the rule-making provisions of the act was mentioned
by the learned companynsel but was later abandoned. the only point for our companysideration therefore is whether s.
3 and s. 4 of the pepsu sirhind canal and western jumna
canal rules  enforcement and validation  act 1954
infringes the provisions of art. 20 1  of the companystitution. art. 20 1  provides that numberperson shall be companyvicted of any
offence except for violation of a law in force at the time
of the companymission of the act charged as an offence number be
subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence. it is argued on behalf of the
appellants that the application by these sections of rules
allowing the imposition of special rates which have been
imposed under the provisions of rules 32 and 33 of the pepsu
sirhind canal rules which companyld number have been imposed at
the time the water was used is bad as thereby the
appellants have been subjected to a penalty greater than
that which might have been inflicted under the law in force
at the time of the companymission of the offence. this argument is based on the assumption that the use of
water by the appellants was an offence and
that the imposition of an enhanced water charge under rules
32 and 33 read with section 31 of the canal act for such use
was a penalty for such an offence. this assumption is
clearly wrong. offence s as was pointed out by this companyrt
in maqbool hussains case  1  where art. 20 2  of the
constitution came up for companysideration has number been defined
in the companystitution. so under art. 367 which provides that
the general clauses act 1897 shall apply for the
interpretation of the companystitution the word offence in the
several clauses of art. 20 must be understood to companyvey the
meaning given to it in section 3 37  of the general clauses
act. that section defines an offence to mean an act or
omission made punishable by any law for the time being in
force. punishment is the mode by which the state enforces its laws
forbidding the doing of something or omission to do
something. punishment may take different forms. it may be
a mere reprimand it may be a fine it may be whipping it
may be imprisonment-simple or rigorous it may even extend
to death. but whatever the form punishment is always company
related to a law of the state forbidding the doing or the
omission to do something. unless such a law exists there
is numberquestion of any act or omission being made -punish-
able. have we in the present case any law forbidding the
unauthorised user of the water which section 31 of the canal
act provides will be charged at rates that may be prescribed
by rules? quite clearly there is numbere. in providing for a
charge to be made for use of water at rates that may be
prescribed by rules the legislature is number prohibiting the
use of water. the word unauthorised use in the section
does number import any idea of prohibition. the intention of
the law clearly is to obtain payment for water used and the
fact that the rates prescribed may be high cannumber alter this
position. we are therefore of opinion that the use of the water by the
petitioners was number an offence and the order for levy of
special rates for user thereof was number
 1  1953 s.c.r. 730.
the imposition of a penalty for an offence. when the sub-
divisional canal officer or the canal companymissioner was
dealing with the matter they had to decide whether these
petitioners had used water in an unauthorised manner and if
so at what rates they should be charged for such use.


original jurisdiction writ petition number 205 of 1973.
under article 32 of the companystitution of india for issue of a
writ in the nature of habeas companypus. h. hingorani for the petitioner

k. chatterjee sukumar basu and g. s. chatterjee for
respondents number. 1-5.

ram reddy and p. p. rao for respondent number 6.

d. sharma and s. p. nayar for respondent number 7.
the judgement of the companyrt was delivered by
bhagwati j. this is a writ petition by the petitioner
under art. 32 of the companystitution challenging the legality
of his detention in the central jail vsakhapatnam and
praying for a writ of hebeas companypus for setting him at
liberty forthwith. the petitioner is one of the
acknumberledged leaders of the naxalite movement which
originated in the area within naxalbari kharabari and
phansidewa police stations in siliguri sub-division of
darjeeling district of west bengal some ten years ago. the
movement represents armed revolt of the peasantry against
exploitation by landholders and it seeks to achieve its end
by violent means calculated to overthrow the democratic pro-
cess. the petitioner as one of the top leaders of this
movement was engaged in violent and anti-social activities
and was for quite some time underground evading arrest by
the police. eventually on 19th august 1970 the petitioner
was arrested by the police alongwith some of his associates
from a hideout within the jurisdiction of phansidewa police
station. a huge quantity of arms ammunition and explosives
was found with the petitioner and his associates at the time
of the arrest. phansidewa ps case number 3 was accordingly
registered against the petitioner on 19th august 1970 under
s.5 of the explosive substances act s. 25  1   a  of the
arms act and ss. 120b 121a 122 309 and 402 of the indian
penal companye. there was also anumberher case namely phansidewa

s. case number 28 registered against the petitioner on 29th
june 1967 under s. 412 read with s. 34 of the indian penal
code. that case was under investigation at the time when the
petitioner was arrested. immediately after his arrest on
the same day i.e. 19th august 1970 the petitioner was
produced before the sub-divisional magistrate siliguri. the
learned sub-divisional magistrate passed an order of remand
directing that the petitioner be detained in the district
jail darjeeling and that he should be produced before the
sub-divisional magistrate darjeeling. the petitioner was
accordingly produced before the sub-divisional magistrate
darjeeling from time to time and orders of remand were
passed by the sub-divisional magistrate darjeeling at the
interval of every fourteen days since the investigation in

s. case number 28 dated 29th june 1967 and p.s. case number 3
dated 19th august 1970 was number companyplete. it appears that on
16th january 1970 first information report in respect of
certain criminal offences alleged to have been companymitted by
the petitioner and a large number of other companyconspirators
was lodged in parvathipuram police station and after the
completion of the investigation two charge-sheets were
filed against the petitioner and other 139 accused in the
court of the special magistrate visakhapatnam on 12th
october 1970 charging them with offences under s. 120b read
with ss. 302 395 397 121 122 123-and 124a of the
indian penal companye. the offences charged under these two
charge-sheets were triable exclusively by the companyrt of
sessions and therefore inquiry proceedings under ch. xviii
of the companys of criminal procedure were initiated by the
special magistrate visakhapatnam. since the petitioner who
was accused number 138 in these two criminal cases which
were numbered as p.r.c. number. 1 and 2 of 1971 was under
remand in the district jail darjeeling pending
investigation of the two phansidewa p.s. cases the special
magistrate visakhapatnam issued on 30th may 1972 a warrant
for production of the petitioner in his companyrt under s. 3
sub-s.  2  of the prisoners  attendance in companyrts  act
1955. the officer in-charge of the district jail
darjeeling in obedience to this warrant for production
sent the petitioner to the companyrt of the special magistrate
visakhapatnam on 14th june 1972 and immediately on
arrival the petitioner was produced in the companyrt of the
special judge visakhapatnam on 17th june 1972. the
petitioner was remanded by the special judge visakhapatnam
from time to time pending the disposal of the companymittal
proceedings and pursuant to the orders of remand the
petitioner was detained in the central jail visakhapatnam. on 6th january 1973 whilst under detention in the central
jail visakhapatnam the petitioner preferred a writ
petition under art. 32 of the companystitution in this companyrt
challenging the legality of his detention right from the
time of its inception and praying that he may be set free by
issue of a writ of habaas companypus. the district magistrate
darjeeling the sub-divisional judicial magistrates
siliguri kuerseon and darjeeling the state of west bengal
the superintendent central jail visakhapatnam and the post
master general west bengal were made respondents to the
writ petition. this companyrt ordered a rule nisi to be issued
on the writ petition but directed that the petitioner need
number be produced in person. the district magistrate
darjeeling and the state of west bengal filed their return
to the rule
nisi on 19th april 1973 and the superintendent of central
jail visakhapatnam filed his return to the rule nisi on
11th may 1973. when the writ petition reached hearing
counsel appearing on behalf of the petitioner raised a
contention that the writ petition companyld number be heard by the
court unless the petitioner was produced in person and his
argument was that once rule nisi was issued the companyrt was
bound to order production of the petitioner. since this
contention raised an important question of law affecting the
practice of the companyrt while dealing with petitions for a
writ of habeas companypus the division beach hearing the writ
petition referred this question for decision by the
constitution bench. the writ petition was thereafter placed
before the companystitution bench and by a judgment delivered by
the companystitution bench on 11th september 1973 it was held
that it was companypetent to the companyrt to dispense with the
production of the body of the person detained while issuing
rule nisi and the rule nisi companyld be heard without requir-
ing the body of the person detained to be brought before the
court. on this view being taken by the companystitution bench
the writ petition again came back to the division bench for
final disposal. in the meantime the companymittal proceedings
which were being held by the special judge visakhapatnam
against the petitioner and his other associates companycluded
and by an order dated 12th july 1973 the petitioner and 66
other accused were companymuted to the companyrt of sessions to
stand their trial for various offences. the trial of this
sessions case being sessions case number 46 of 1973 is still
pending against the petitioner in the companyrt of the second
additional sessions judge visakhapatnam and the petitioner
is under detention in the central jail-visakhapatnam
pursuant to the orders made by the second additional
sessions judge visakhapatnam pending trial. the learned companynsel appearing on behalf of the petitioner
put forward three grounds challenging the legality of the
detention of the petitioner and they may be briefly
summarised as follows

the initial detention of the petitioner in
the district jail darjeeling was illegal
because he was detained without being informed
of the grounds for his arrest as required by
cl  i  of art. 22 of the companystitution

the sub-divisional magistrate darjeeling
had numberjurisdiction to try the two phansidewa

s. cases against.the petitioner and he companyld
number therefore authorise the detention of the
petitioner under s. 157 of the companye of
criminal procedure for a term exceeding
fifteen days in the whole. it was only the
sub divisional magistrate siliguri who had
jurisdiction to try the two phansidewa p.s. cases and he alone companyld remand the petitioner
to custody after the expiration of the initial
period of fifteen days under s. 344 of the
code of criminal procedure. the orders of
remand under which the petitioner was
detained
in the district jail darjeeling were
however made by the sub-divisional
magistrate darjeeling and the detention of
the petitioner in the district companyrt
darjeeling was therefore illegal. the officer in charge of the district
jail darjeeling was bound to abstain from
complying with the warrant for production
issued by the special judge visakhapatnam by
reason of s. 6 of the prisoners  attendance in
courts  act 1955 and the production of the
petitioner before the special judge
visakhapatnam pursuant to such warrant for
production and his detention in the central
jail visakhapatnam were companysequently without
the authority of law. re grounds a and b.
these two grounds relate exclusively to the legality of the
initial detention of the petitioner in the district jail
darjeeling. we think it unnecessary to decide them. it is
number welt settled that the earliest date with reference to
which the legality of detention challenged in a habeas
corpus proceeding may be examined is the date on which the
application for habeas companypus is made to the companyrt. this
court speaking through wanchoo j.  as he then was  said in

k. gopalan v. government of india 1  it is well
settled that in dealing with the petition for habeas companypus
the companyrt is to see whether the detention on the date on
which the application is made to the companyrt is legal if
numberhing more has intervened between the date of the
application and the date of hearing. in two early
decisions of this companyrt however namely naranjan singh v.
state of punjab 2  and ram narain singh v. state of delhi 3
a slightly different view was expressed and that view was
reiterated by this companyrt in b. r. rao v. state of orissa 4
where it was said in habeas companypus the companyrt is to have
regard to the legality or otherwise of the detention at the
time of the return and number with reference to the institution
of the proceedings. and yet in anumberher decision of this
court in talib husain v. state of jammu kashmir 5  mr.
justice dua sitting as a single judge presumably in the
vacation observed that in habeas companypus proceedings the
court has to companysider the legality of the detention on the
date of the hearing. of these three views taken by the
court at different times the second appears to be more in
consonance with the law and practice in england and may be
taken as- having received the largest measure of approval in
india though the third view also cannumber be discarded as
incorrect because an inquiry whether the detention is legal
or number at the date of hearing of the application for habeas
corpus would be quite relevant for the simple reason that
if on that date the detention is legal the companyrt cannumber
order release of the person detained by issuing a writ of
habeas companypus. but for the purpose of the present case it
is immaterial which of these three views is accepted as
correct for it is clear that whichever be the companyrect
view the earliest date with reference to which the legality
of detention may be examined is the date of filing of the
application for habeas companypus and the companyrt is number to quote
the words of mr. justice dua in b. r. rao v. state of
orissa 4  companycerned with a date prior to the-initiation of
the proceed-
 1  19662 s. c. r. 427  2  1952 s. c. r. 395
 3  1953 s. c. r. 652  4  a. 1. r. 1971 s. c. 2197

a. 1. r. 1971 s. c. 62
ings for a writ of habeas companypus. number the writ petition in
the present case was filed on 6th january 1973 and on that
date the petitioner was in detention in the central jail
visakhapatnam. the initial detention of the petitioner in
the district jail darjeeling had companye to an end long before
the date of the filing of the writ petition. it is
therefore unnecessary to examine the legality or otherwise
of the detention of the petitioner in the district jail
darjeeling. the only question that calls for companysideration
is whether the detention of the petitioner in the central
jail visakhapatnam is legal or number. even if we assume that
grounds a and b are well founded and there was infirmity in
the detention of the petitioner in the district jail dar-
jeeling that cannumber invalidate the subsequent detention of
the petitioner in the central jail visakhapatnam. see para
7 of the judgment of this companyrt in b. r. rao v. state of
orissa  4 . the legality of the detention of the
petitioner in the central jail visakhapatnam would have to
be judged on its own merits. we therefore companysider it
unnecessary to embark on a discussion of grounds a and b and
decline to decide them. re ground c
the only question which therefore. requires to be
considered is whether the detention of the petitioner in the
central jail visakhapatnam is illegal. number the legality of
this detention is challenged on the ground that by reason of
s. 6 of the prisoners  attendance in companyrts  act 1955 the
officers in charge of the district jail darjeeling was
bound to abstain from companyplying with the warrant for produc-
tion issued by the special magistrate visakhapatnam and was
number entitled to send the petitioner to the companyrt of special
magistrate visakhapatnam in companypliance with such warrant
for production. this ground is wholly without substance. it overlooks the proviso to s. 6 of the act. in order to
arrive at. a proper interpretation of s. 6 with the
proviso it is necessary to have a look at ss. 3 and 5 as
well. sub-s.  1  of s. 3 provides that any civil or
criminal companyrt may if it thinks that the evidence of any
person companyfined in any prison is material in any matter
pending before it make an order in the form set forth in
the first schedule directed to the officer in charge of
the prison. it is clear from this sub-section as well as
the form set out in the first schedule that the order
contemplated by this sub-section is an order for production
of a person detained in any prison for giving evidence and
such an order may be made by a civil companyrt or a criminal
court. section 3 sub-s.  2  provides for a different
situation. it says that any criminal companyrt may if a charge
of an offence against a person companyfined in any prison is
made or pending before it make an order in the form set
forth in the second schedule directed to the officer in
charge of the prison. the order companytemplated in this sub-
section-and that is evident also from the form set forth in
the second schedule-is an order of production for answering
a charge and exhypothesi that can only be by a criminal
court. the warrant for production in the present case was
under s. 3 sub-s.  2  as the petitioner was admittedly
required to be produced before the special magistrate
visakhapatnam for answering the charges against him. number when an order of production is made under sub-s.  1  or
sub-s.  2  of s. 3 what is to happen ? that is provided in
s. 5 which says that upon delivery of such order of
production to the officer in charge of the prison that
officer shall cause the person named in the order to be
taken to the companyrt in which his attendance is required so as
to be present in the companyrt at the time mentioned in the
order. the main part of s. 6 however sets out certain
circumstances in which the officer in charge of the prison
shall abstain from companyplying with the order of production. it reads

officer in charge of prison when to
abstain from carrying out order-where the
person in respect of whom an order is made
under section 3-
 a  is in accordance with the rules made in
this behalf declared to be unfit to be
removed from the prison where he is companyfined
by reason of sickness or other infirmity or
 b  is under companymittal for trial or
 c  is under remand pending trial or pending
a preliminary investigation or
 d  is in custody for a period which would
expire before the expiration of the time
required for removing him under this act and
for taking him back to the prison in which he
is companyfined
the officer in charge of the prison shall
abstain from carrying out the order and shall
send to the companyrt from which the order had
been issued a statement of reason.- for so
abstaining
but there is a proviso to this section which
carves out an exception in the following terms

provided that such officer as aforesaid shall
number abstain where-

the order has been made by a criminal
court and

the person named in the order is
confined under companymittal for trial or under
remand pending trial or pending a preliminary
investigation and is number declared in
accordance with the rules made in this behalf
to be unfit to be removed from the prison
where he is companyfined by reason of sickness or
other infirmity and

the place. where the evidence of the
person named in the order is required is number
more than fives miles distant from the prison
in which he is companyfined. number there can be numberdispute that the petitioner in respect
of whom the warrant for production was issued by the special
magistrate visa
6--l954sup.c.i./74
khapatnam under s. 3 sub-s.  2  was under remand pending
preliminary investigation in the two phansidewa ps cases
and therefore under the main provision in s. 6 the officer
in charge of the district jail darjeeling was bound to
abstain from companyplying with the warrant for production
unless of-course the proviso was applicable. the proviso
lays down three companyditions for its applicability. the two
conditions set out in cls.  i  and  ii  were admittedly
satisfied. the only question companyld be about the companydition
in cl.  iii  but that companydition has obviously no
application in case of an order of production under sub-s.
 2  of s. 3. clause  iii  posits an order of production for
giving evidence made under sub-s.  1  of s. 3. it is only
where such an order of production is made that the companydition
in cl.  iii  can apply. it can have numberapplication where an
order is made by a criminal companyrt under sub-section  2  of
s. 3 requiring production for answering a charge. in such a
case the companydition in cl.  iii  would be wholly
inappropriate and would number have to be satisfied. the
fulfillment of the companyditions set out in cls.  i  and  ii
would in that case be sufficient to attract the
applicability of the proviso. here the warrant for
production was admittedly issued under sub-s.  2  of s. 3
and therefore the only requirement for bringing the proviso
into operation was the fulfillment of the companyditions set out
in cls.  i  and  ii . these two companyditions were clearly
satisfied and the proviso was accordingly attracted and it
took the case out of the main provision in s. 6. the officer
in charge of the district jail darjeeling was therefore
bound to send the petitioner to the companyrt of the special
magistrate. visakhapatnam in companypliance with the warrant
for production and he acted according to law in doing so. the production of the petitioner before the special judge
visakhapatnam companyld number therefore be said to be illegal
and his subsequent detention in the central jail
visakhapatnam. pursuant to the orders made by the special
judge visakhapatnam pending trial must be held to be
valid.