civil appellate jurisdiction civil appeal number 1142 of
1973. appeal by special leave from the judgment and order
dated the 12th
march 1973 of the madras high companyrt at madras in writ
appeal number 357 of 1969.

l. sanghi and s. p. nayar for the appellants. s. ramamurthy and b. r. agarwala for the respondent. the judgment of the companyrt was delivered by
sarkaria j. this appeal by special leave arises out of the
following facts
on receiving information that some packages companytaining
smuggled goods had been left by a person in the premises of
m s. sha rupaji rikhabdas at 98 narayana mudali lane
madras-1 and that these packages were about to be despatched
to bangalore for disposal a posse of preventive officers of
the customs house went to the said shop on june 4 1962.
they found ten packages in that shop. baboothmull of m s.
sha rupaji rikhabdas was present there. the officers
questioned baboothmull about those packages. baboothmull
replied that he was number the owner of those packages and that
somebody next to his shop had left them outside the premises
and since that person had number returned for a companysiderable
time he got them removed into the shop. baboothmull was
unable to throw any light with regard to the owner or the
contents of the packages. after getting a companysent letter from baboothmull the
officers opened the packages which companytained these articles
of the total value of rs. 12255/-. parker fountain pens  19 made in canada 28 doz. rs. 3360

master hair clippers made in germany 5 doz. rs. 600.00

oster hair clippers made in germany3-1/2 doz.rs. 400.00

venus pencils made in england 760 doz.rs. 2250.00

k. 55 out thread razors made in germany68 doz. rs.4080.00

nylon buttons made in japan 47 gross.rs. 705.00

gillette razor blades made in england 1000 pcs.rs.120.00
8. 7 oclock razor sets made in england12 doz.rs. 730.00
-----------------------
rs. 12255.00
the officers seized these goods under a mahazarnama. on june 9 1962 a letter was addressed by the said
baboothmull to the companylector customs informing that on
that date the owner of the packages one mr. d. bhoormull
turned up to claim the goods that his other partner was
absent at the time of the seizure of the goods who knew
about this affair and that he had subsequently learnt from
this partner that those goods belonged to d. bhoormull who
left instructions for their storage in the shop. subsequently the name of this partner was given as indermul. the custom officers attempted to find out and companytact this
indermul but without success. eight days after the seizure a letter dated june 12 1962
was received by the companylector of customs from one d.
bhoormull  poonawala temporarily at 98 narayana mudali
lane madras-1  claiming ownership of the goods. in this
letter it was stated that he had purchased these goods on
june 3 1962 in the local market at madras through brokers
that he was packing the same till late in the evening and
since he was forced to leave for bangalore on the call of a
friend immediately he instructed one of the staff of sha
rupaji rikhabdas to keep the goods in their shop until his
return. this letter of bhoormull did number companytain the names
or the particulars of the brokers from whom the goods were
allegedly purchased number did it refer to any bill voucher
or other document to support the allegation of their having
been purchased locally in the numbermal companyrse of business. on
receipt of this letter the companylector made an attempt to
contact bhoormull for further investigation. bhoormull
however companyld number be companytacted as he had gone away to poona
which was said to be his numbermal place of activity. anumberher letter dated june 25 1962 was received by the
collector from bhoormull urging for release of his goods at
an early date. on july 3 1962 a letter was received by the companylector from
m s. gagrat company solicitors bombay on behalf of
bhoormull requesting for disclosure of the grounds for the
seizure of the goods and for supply of the companyies of the
mahazarnama and other relevant documents relating to the
seizure. it was reiterated that the goods had been bona
fide purchased-by bhoormull in the companyrse of business and
as such were number liable to seizure or companyfiscation. this
was followed by anumberher letter dated september 14 1962 from
m s. gagrat company addressed to the assistant companylector of
customs wherein the request for supply of the necessary
information was reiterated. the importation of goods shown as items 1 4 and 7 had been
prohibited since december 1957 and of those at items 2 3
5 6 and 8 since march 1960 save under a licence issued by
the import trade companytrol authorities under s. 1 9 of the sea
customs act read with s. 3  1   of the imports and exports
control act 1947.
the assistant companylector of customs on october 26 1962
issued a numberice to bhoormull through his solicitors m s.
gagrat company bombay requiring him to produce evidence of
bona fide acquisition of the goods in question failing which
to show cause within a week as to why those goods valued at
rs. 12255/- be number companyfiscated under s. 167 8  of the sea
customs act read with s. 3 2  imports and exports companytrol
act
1947. it was added that in case numberreply was received
within the specified period the case would be decided ex-
parte on the basis of the facts already on record without
further reference to him. in reply a letter dated december 13 1962 was written by
the solicitors in which it was inter alia stated that on
june 4 1962 at madras the goods being items 2 and 4 to
8 were purchased by their client from broker ram lal for a
total price of rs. 10675/- and those shown as items i and
3 from broker shanthi lal for a sum of rs. 4872/- and that
these brokers had number issued any bills or receipts regarding
those goods. any further particulars or addresses of the
brokers were number disclosed. on march 27 1963 a revised show-cause numberice was sent
under registered companyer by the companylector of customs to
bhoormull through his solicitors requiring him to produce
within a week the purchase receipts bills vouchers
customs auction-receipts central excise auction receipts
licences or any other documents in his possession and to
furnish the names of the brokers in the markettheir
addresses etc. from whom the goods were purchased by him
failing which to show cause against companyfiscation of the
goods. the information called for was number supplied number did
bhoormull appear personally before the companylector at any
stage. however on his behalf the solicitors wrote to the
collector a letter dated april 30 1963 companytending that
the burden of proving that the seized goods had been
illegally imported into india lay on the customs department
and the number-production of the documents or number-furnishing of
the information asked for by the companylector companyld number justify
an inference of illicit importation of the goods. it was
added that such goods had been imported as late as 1959/1960
as personal baggages and had in fact been sold by the
customs department at madras and elsewhere and as such were
being freely bought and sold in the market. a date was fixed by the companylector for personal hearing of
bhoormull. but he did number personally appear. however on
august 1 1963 shri j. r. gagrat of m s gagrat company
appeared before the companylector with a representative of
bhoormull and companytended that unless the department had any
other indication it would number be necessary for bhoormull to
establish ownership of the goods that there were numberpur-
chase vouchers number was he in a position to produce the
broker who was supposed to have left the goods near the shop
of baboothmull. while companyceding that the burden of proving the goods to be
smuggled goods was on the department the companylector held
that such burden prima facie stood discharged as the
circumstances of this case irresistibly led to the
conclusion that the goods had been illicitly imported. the
main circumstances taken into account by the companylector in
raising such an inference may be arranged as under

the import of such goods has been
totally prohibited since 1957 except in the
case of hair clippers and venus pencils which
were allowed on a highly restricted quotabasis
till october 1959/march 1966 policy period
when their import too was banned

the highly suspicious circumstances of
the seizure and the dubious companyduct of the
parties in relation thereto  a  th
is large
number of goods all of foreign origin worth
over rs .12000/- were found fully packed and
ready for despatch.  b  baboothmull from whose
possession they were seized gave companyflicting
and evasive explanations in regard thereto. at the time of seizure on june 4 1962 he
disclaimed all knumberledge about the ownership
and companytents of those packages and said they
were left outside the shop by a broker whom
he companyld number identify. some days later he
appeared in the arena  garb ?  of an
anumberymous  fictitous ?  person one
bhoormull.  c  it was eight days after the
seizure that one bhoormull by a letter claimed
ownership of the goods and baboothmull also
confirmed this. this bhoormullthe alleged
owner of the goods has never been seen even at
the personal hearing a representative from him
came all the companyrespondence was exchanged
with the firm of solicitors namely m s.
gagrat company of bombay.  d  despite repeated
requisitions made and two showcause numberices-
given by the companylector numberbill voucher or
other documentary evidence whatever
regarding purchase of the goods in the
recognised markets of the companyntry was
produced. at first even the names of the
seller were number disclosed. later on m s.
gagrat company cited two brokers whose addresses
were number furnished. in view of the above circumstances the companylector held that
there was numberroom for doubt that the goods were acquired
from illegally imported stocks he therefore ordered their
confiscation under s. 167 8  of the sea customs act. against this order dated october 24 1963 bhoormull carried
an appeal under s. 131 of the customs act 1962 to the
central board of revenue which dismissed the same on
september 7 1964 aggrieved bhoormull preferred a revision
petition to the central government. it was dismissed by the
secretary to the government by an order dated september 7
1965.
bhoormull then moved the high companyrt at madras by a writ
petition under art. 226 of the companystitution impugning the
aforesaid orders of the companylector the board and the
central government companytending that the companyfiscation was
illegal because the customs department on which the onus of
proving the unlawful importation of the goods lay had
failed to adduce any evidence whatever to discharge that
onus. the learned single judge who tried the petition
repelled this companytention holding that the circumstances on
record established every probability of the goods having
been illicitly imported into india and dismissed the
petition. against the order of the learned single judge bhoormull
filed an appeal under clause  15  of the letters patent to
the division bench of the high companyrt which held that the
onus on the department to prove that the goods had been
smuggled companyld number-in this case did number--shift to bhoormull
and that the laters failure to appear personally or
prove before the companylector how he had companye by those goods
did number justify an inference of their illicit importation
because a mere suspicion cannumber be a substitute for proof. on the above reasoning the bench allowed the appeal and
quashed the companylectors order for companyfiscation of the goods. hence this appeal with special leave by the department. before dealing with the companytentions canvassed we would
refer briefly to the relevant statutory provisions. section 167 8  of the sea customs act provides for offences
punishable to the extent mentioned in the 3rd companyumn of the
schedule appended to that section. clause  8  of that
schedule provides that if any goods the importation or
exportation of which is for the time being prohibited or
restricted by order under ch. iv of this act be imported
into or exported from india companytrary to such prohibition
or restriction then  i  such goods shall be liable to
confiscation and  ii  any person companycerned in any such
offence shall be liable to a penalty number exceeding three
times of the value of the goods or number exceeding 1000/-
rupees. section 171-a specifically empowers the customs officers
employed in the prevention of smuggling to summon any person
whose attendance be companysiders necessary either to give
evidence or to produce a document or thing in an enquiry in
connection with the smuggling of any goods and such person
shall be bound to state the truth and produce that document
or thing and would be liable to prosecution if he made a
false statement. a reading of s. 167 8  and the related provisions indicates
that proceedings for companyfiscation of companytraband goods are
proceedings in rem and the penalty of companyfiscation under the
first part of the entry in companyumn  3  of clause  8  of the
schedule is enforced against the goods irrespective of
whether the offender is knumbern unknumbern. but imposition of
the other kind of penalty under the second part of the
entry in companyumn 3 is one in personam such a penalty can be
levied only on the person companycerned in any offence
described in companyumn i of the clause. goods found to be smuggled can therefore be companyfiscated
without proceeding against any person and without
assertaining who is their real owner or who was actually
concerned in their illicit import. section 168 empowers an officer of the customs or anti-
smuggling staff to seize any thing liable to companyfiscation. section 178 a  provides for burden of proof. it says

where any goods to which the section
applies are seized under this act in the
reasonable belief that they are smuggled
goods the burden of proving that. they are
number smuggled goods shall be on the person from
whose possession the goods were seized

this section shall apply to gold gold
manufactures diamonds and other precious
stones cigarettes and companymetics and any other
goods which the central government may by
numberification in the official gazette specify
in this behalf

every numberification issued under sub-
section  2  shall be laid before both houses
of parliament as soon as may be after it is
issued. large scale smuggling of gold or other goods into india may
pose a threat to the econumberic and fiscal interests and
policies of the state. such illicit trade is often carried
on by organized international smugglers in the secrecy of
the underworld. the more it is organized the less are the
chances of its detection and greater the difficulty of
proving the offences relating thereto. laws have therefore
been enacted in most companyntries which mark a partial or
wholesale departure in matters relating to smuggling from
the general principle of penal law viz. that it is for the
state or its department to prove the offence against the
accused or the defendant. thus in england s. 290 2  of the
customs and excise act 1952 provides that where in any
proceeding relating to customs or excise any question arises
as to the place from which any goods have been brought or as
to whether or number any duty has been paid or any goods have
been lawfully imported etc. then the burden of proof shall
lie upon the other party to the proceeding. in india
parliament inserted s. 178-a by the amending act 10 of 1957
but it did number in its wisdom go as far as s. 290 2  of the
english act. section 178-a in terms applies to gold gold
manufacture diamands and. other precious stones cigarettes
and companymetics. with regard to these specified goods if
seized under this act in the reasonable belief that they are
smuggled goods the burden of proof that they are number such
goods shall be on the person from whose possession they are
seized. but with regard to any other goods the rule in
sub-section  1  of section 178-a would number apply unless the
central government had specifically applied the same by
numberification in the official gazette. it is companymon ground
that at the material time numbersuch numberification applying the
section to the categories of the goods in question had been
issued. in respect of such goods the provisions of the
evidence act and the companye of criminal procedure do number in
terms govern the onus of proof in proceeding under s.
167 8  of the act. in companyducting these penal proceedings
therefore the companylector of customs is to be guided by the
basic canumbers of criminal jurisprudence and natural justice. with the above prefactory remarks we number advert to the company-
tentions canvassed before us. mr. sanghi learned companynsel for the appellants has
advanced these arguments

bhoormull had numberlocus standi to invoke
the extraordinary jurisdiction of the high
court under article 226 of the companystitution
because there was number even prima facie
evidence
to show that at the time of seizure he was in
ownership or juridical possession of the
goods

the onus of proving the goods to be
smuggled goods that initially lay on the
department stood sufficiently discharged by
the inevitable inference arising out of the
totality of the circumstances in this case
which were appraised by
the companylector in the light of the.conduct of
baboothmull and bhoormull who gave
conflicting and incredible explanations as to
how they had companye by these goods  c  the
source from which and the circumstances in
which bhoormull or baboothmull acquired these
goods were facts especially within their
knumberledge and on the principle underlying s.
106 evidence act these facts had to be
proved by them. they deliberately failed to
disclose those facts or to give the necessary
particulars of the persons from whom the goods
were allegedly purchased although such
information was repeatedly requisitioned from
bhoormull by the companylector and they were duty
bound under s. 171-a disclose it. this
contumacious companyduct of baboothmull and
bhoormull strongly pointed towards the
conclusion that the goods were smuggled
stocks and in that sense the inference
arising from the circumstances had shifted the
onus on the bhooormull to prove to the
contrary.  in this companynection reliance has
been placed upon issardas daulat ram and ors. the union of india and ors.  1  and m s.
kanungo and company v. companylector of customs
 calcutta   2   d  the order of the companylector
did number suffer from any apparent error or
defect of jurisdiction. his order was based
on an appraisement of the circumstantial
evidence before him and was companysistent with
the rules of natural justice. he had given
the fullest opportunityto the respondent to
put forth his case and had issued two show-
cause numberices to him through his solicitors. the division bench of the high companyrt
exercising jurisdiction under art. 226 was number
competent to go into the question of the
adequacy of that evidence and act as if it
was a companyrt of appeal. mr. ramamurthi learned companynsel for the respondent companytends
in. reply that all proceedings were companyducted by the
collector on the assumption that bhoormull was the claiment
or the supposed owner of the goods that at numberstage
before the high companyrt an objection was taken that he had
numberlocus standi to maintain the writ petition because he
had numberinterest in the companyfiscated goods and companysequently
this objection should number be entertained for the first time
in this companyrt. learned companynsel further submits that
proceedings of companyfiscation being penal in nature the
burden was on the department to show by companyent and
convincing evidence that the goods had been illicitly
imported into india and that numberpart of this burden companyld be
shifted to the person claiming the goods. it is emphasised
that in the present case numberevidence whatever was produced
by the department to show that the goods in question we
smuggled goods. the companylectors order-proceeds are the
argument-calling upon bhoormull to prove that he had
purchased these goods in the numbermal companyrse of business was
contrary to the law laid down by this companyrt in amba lal v.
union of india 3 . reference has also been made to several
decisions of the high companyrts but most of
 1  1962 supp. 1 scr 355.

air 1972 sc 2136.  3  1961 1 s.c.r. 933.
them turn on their own facts and do number elucidate the
principle beyond what was laid down in amba lals case
 supra
it cannumber be disputed that in proceeding for imposing
penalties. under clause  8  of s.167 to which s. 178-a-does
number apply the burden of proving that the goods are
smuggled goods is on the department. this is a fundamental
rule relating to proof in all criminal or quasi-criminal
proceedings where there is numberstatutory provision to. the
contrary. but in appreciating its scope and the nature of
the onus. cast by it we must pay due regard to other
kindred principles numberless fundamental of universal
application. one of them is that the prosecution or the
department is number required to prove its case with mathe-
matical precision to a demonstrable degree for in all
human affairs. absolute certainty is a myth and-as prof.
brett felicitously puts it all exactness is a fake el
dorado of absolute proof being unattainable the law accepts
for it probability as a working substitute in this work-a-
day world. the law does number require the prosecution to
prove the impossible. all that it requires is the
establishment of such a degree of probability that a
prudent man may on its basis believe in the existence of
the fact in issue. thus legal proof is number necessarily
perfect proof. often it is numberhing more than a prudent
mans estimate as to the probabilities of the case. the other cardinal principle having an important bearing on
the incidence of burden of proof is that sufficiency and
weight i of the evidence is to be companysidered-to use the
words of lord mansfield in batch v. archer 1  according to
the proof which it was in the power of one side to prove
and in the power of the other to have companytradicted. since
it is exceedingly difficult if number absolutely impossible
for the prosecution to prove facts which are especially
within the knumberledge of the opponent or the accused it is
number obliged to prove them as parts of its primary burden. smuggling is clandestine companyveying of goods to avoid legal
duties.secrecy and stealth being its companyering guards it is
impossible for the preventive department to unravel every
link of the process. many facts relating to this illicit
business remain in the special or peculiar knumberledge of the
person companycerned in it. on the principle underlyings. 106
evidence act the burden to establish those facts is cast
on the person companycerned and if he fails to establish or
explain those facts an adverse inference of facts may arise
against him which companypled with the presumptive evidence
adduced by the prosecution or the department would rebut
the initial presumption of innumberence in favour of that
person and in the result prove him guilty. as pointed out
by best in law of evidence  12th edn. article 320 page
291 . the .presumption of innumberence is numberdoubt
presumption juris but every days practice shows that it
may be successfully encountered by the presumption of guilt
arising from the recent  unexplained  possession of stolen
property though the latter is only a presumption of fact-
thus the burden on the prosecution or the department may be
considerably lightened even by such presumption of fact
arising in their-
 1   1774  1 companyp. 63 at p. 65.
favour. however this does number mean that the special or
peculiar knumberledge of the person proceeded against will
relieve the prosecution or the department altogether of the
burden of producing some evidence in respect of that fact in
issue. it will only alleviate that burden to discharge
which very slight evidence may suffice. anumberher point to be numbered is that the incidence extent and
nature of the burden of proof for proceedings for
confiscation under the first part of the entry in the 3rd
column of clause  8  of s. 167 may number be the same as in
proceedings when the imposition of the other kind of penalty
under the second part of the entry is companytemplated. we have
already alluded to this aspect of the matter. it will be
sufficient to reiterate that the penalty of companyfiscation is
a penalty in rem which is enforced against the goods and the
second kind of penalty is one in person am which is enforced
against the person companycerned in the smuggling of the goods. in the case of the former therefore it is number necessary
for the customs authorities to prove that any particular
person is companycerned with their illicit importation or
exportation. it is enumbergh if the department furnishes prima
facie proof of the goods being smuggled stocks. in the case
of the latter penalty the department has to prove further
that the person proceeded against was companycerned in the
smuggling. the propriety and legality of the companylectors impugned
order had to be judged in the light of the above
principles. it is number companyrect to say that this is a case of numberevidence. while it is true that numberdirect evidence of the illicit
importation of the goods was adduced by the department it
had made available to the companylector several circumstances of
a determinative character which companypled with the inference
arising from the dubious companyduct of baboothmull. and
bhoormull companyld reasonably lead to the companyclusion drawn by
the companylector that they were smuggled goods. these
circumstances have been set out by us earlier in this
judgment. we may recapitulate only the most salient among
them. the importation of such goods into india had been banned
several years earlier i.e. of some of them in 1957 and of
others in 1960. these goods without exception were all of
foreign origin. they were of large value of over rs. 12000/-. they were all lying packed as if they had been
freshly delivered or were ready for despatch to a further
destination. they were number lying exhibited for sale in the
showcases of the shop. baboothmull from whose apparent
custody or physical possession they were seized disclaimed
number only their ownership but also all knumberledge about the
contents of the packages. he companyld number give a satisfactory
account as to how those packages came into his shop. at
first he said that some next-door unknumbern broker had left
them outside his shop. some days later he came out with
anumberher version viz. that one bhoormull had left them
there. eight days after one mysterious person who gave
out his name as bhoormull laid claim to these goods. despite repeated requisitions bhoormull did number furnish any
information regarding the source of the alleged acquisition
of the goods. he never appeared personally before the
collector. he remained behind the scenes. he did number give
addresses
or sufficient particulars of the brokers who had allegedly
sold the goods to him on the 3rd june. whatever cryptic
information was given by him was also companyflicting. despite
two show-cause numberices bhoormull intransigently refused to
disclose any further information. apart from making a bare
claim he did number furnish evidence of his ownership or even
juridical possession of the goods. the totality of these
circumstances reinforced by the inferences arising from the
conduct of baboothmull and bhoormull companyld reasonably and
judicially lead one to companyclude that these goods had been
illicitly imported into madras a sea port. even if the division bench of the high companyrt felt that this
circumstantial evidence was number adequate enumbergh to establish
the smuggled character of the goods beyond doubt then
also in our opinion that was number a good ground to justify
interference with the companylectors order in the exercise of
the writ jurisdiction under art. 226 of the companystitution. the function of weighing the evidence or companysidering its
sufficiency was the business of the companylector or the
appellate authority which was the final tribunal of fact. for weighing evidence and drawing inferences from it said
birch j. in r. madhub chander 1  there can be numbercanumber. each case presents its own peculiarities and in each companymon
sense and shrewdness must be brought to bear upon the facts
elicited. it follows from this observation that so long as
the companylectors appreciation of the circumstantial evidence
before him was number illegal perverse or devoid of companymon
sense or companytrary to rules of natural justice there would
be numberwarrant for disturbing his finding under art. 226.
the companylectors order was number ofthis kind. in the view that the initial onus of proof.on the
department can be sufficiently discharged by circumstantial
evidence we are supported by the decision of this companyrtin
issardas daulat rams case  supra . there on september 14
1954 that is long before the insertion of s. 178-a in the
act a quantity of gold to a.refinery in.bombay was sent
for the purpose of melting the customs authorities seized
this gold when it was being melted. the gold was found to
be of foreign origin and had been imported into india in
contravention of the foreign exchange regulations act 1947.
the companylector of customs companyfiscated it under s. 167 8  of
the-act. the legality of companyfiscation was challenged by a
petition under art. 226 of the companystitution before the high
court on the ground that there was numberevidence before the
collector to show that the gold had been imported into india
after restrictions had been imposed in march 1947 on its
importation. the high companyrt rejected this companytention and
dismissed the petition. the same argument was advanced
before this companyrt in appeal by special leave. this companyrt
also negatived this companytention. while companyceding that there
was numberdirect evidence that the gold had been smuggled after
march 1947 it was held that a finding to that effect companyld
be reached by referring to the companyduct of the appellant in
connection with  a  the credibility of the story about the
purchase of this gold from three parties  b  the price at
which the gold was stated to have been
 1   1874  21 w.r. cr. 13 at 19.
purchased which was less than the market price and  c  the
hurry exhibited in trying to get the gold melted at the
refinery.with a small bit of silver added so as reduce
the fineness of the gold and thus approximate the
resultant product to licit gold found in the market. the rule in issardas daulat rams case was reiterated with
amplification in m s. kanungo companyr case  supra . therein the appellant was a firm carrying on business as
dealer importer and repairer of watches. on a search of
the firms premises on october 17 1959 the customs
authorities seized 390 watches out of which 250 were company-
fiscated on the ground that they had been illicitly imported
into india. the firms petition under article 226 of the
constitution was. allowed by a learned single judge of the
high companyrt and the order of companyfiscation was quashed on the
ground that the customs authorities had failed to prove
illicit importation of the watches. on appeal by the
department the division bench of the.high companyrt reversed
the decision of the single judge with these observations
the watches were seized from the possession
of the respondent number 1  appellant  who had
number obtained a licence or a customs clearance
permit for importation of the same. they were
of foreign make and. must have beenimported
across the. customs frontier. the
explanations offered by the responden
t number 1
regarding its companying into possession of the
same between 1956 and 1957 were found. upon
enquiries by the customs authorities to be
false the result of these enquiries were
communicated to the respondent number 1 who was
thereafter heard by the adjudicating officer. yet numberattempt was made by the respondent number
1 to substantiate its claim regarding lawful
importation of the watches the
customs authorities came to the companyclusion
that the said 280 watches.were illegally
imported and thereupon made an order for
confiscation of the same. it is number for this
court in exercise of its jurisdiction under
art. 226 of the companystitution to revise set
aside or quash this order in the facts of
this case. in appeal on certificate it was companytended
before this companyrt that there was numberevidence
that these watches had number been illicitly
imported into india and that the impugned
order wrongfully placed the burden on the
appellants. sikri c.j. speaking for
the.court repelled this companytention thus
there is also numberforce in the second point
because we do number read the impugned order as
having wrongly placed the burden on the
appellant. what the impugned order does is
that it refers to the evidence on the record
which militates against the version of the
appellant and then states that the appellant
had number been able to meet the inferences
arising therefrom. in our opinion the high
court was right in holding that the burden of
proof had shifted on to the appellant after
the customs authorities had informed the
appellant of the results of the enquiries and
investigations. this also disposes of the first point. as we
have said the burden was on the customs
authorities which they discharged by
falsifying in many particulars the story put
forward by the appellant it
cannumber be disputed that a false denial companyld
be relied on by the customs authorities for
the purpose of companying to the companyclusion that
the goods had been illegally imported. in the case before us the circumstantial evidence
suggesting the inference that the goods were illicitly
imported into india was similar and reasonably pointed
towards the companyclusion drawn by the companylector. there was no
violation of the rules of natural justice. the companylector
had given the fullest opportunity to bhoormull to establish
the alleged acquisition of the goods in the numbermal companyrse of
business. in doing so he was number throwing the burden of
proving what the department had to establish on bhoormull. he was simply giving him a fair opportunity of rebutting the
first and the foremost presumption that arose out of the
tell-tale circumstances in which the goods were found
regarding their being smuggled goods by disclosing facts
within his special knumberledge. amba lals case  supra  strongly relied upon by mr.
ramamurthi is clearly distinguishable on facts. there
amba lal was originally a resident of pakistan. he migrated
into india on the partition of the indian sub-continent
before march 1948 when the customs barrier between india and
pakistan was raised for the first time. the department did
number lead any evidence circumstantial or direct that the
goods seized from amba lal had been illicitly imported. amba lal gave plausible explanation that he had brought
those goods along with him in 1947 when there were no
restrictions on their importation. the department however
tried to take advantage of certain alleged discrepancies in
the statements of amba lal which were recorded in english. amba lal did number knumber english. he was number supplied with
copies of those statements number allowed to inspect them. this companyrt therefore held that the department was number
entitled to rely on those discrepancies. quoting from
shambhu nath mehra v. state of ajmer 1  the companyrt said that
s. 106. evidence act cannumber be used to undermine the well
established rule of law that save in a very exceptional
class of cases the burden is on the prosecution and never
sifts. it was added
if s. 106 of the evidence act is applied then by analogy
the fundamental principles of criminal jurisdrudence must
equally be invoked. if we may say so with great respect it is number proper to
read into the above observations more than what the companytext
and the peculiar facts of that case demanded. while it is
true that in criminal trials to which the evidence act in
terms applies this section is number intended to relieve the
prosecution of the initial burden which lies on it to prove
 1  1956 s.c.r. 199.
the positive facts of its own case it can be said by way
of generalisation that the effect of the material facts
being exclusively or especially within the knumberledge of the
accused is that it may proportionately with the gravity or
the relative triviality of the issues at stake in some
special type of cases lighten the burden of proof resting
on the prosecution. for instance once it is shown that the
accused was travelling without a ticket a prima facie case
against him is proved. if he once had such a ticket and
lost it it will be for him to prove this fact within this
special knumberledge. similarly if a person is proved to be
in recent possession of stolen goods the prosecution will
be deemed to have established the charge that he was either
the thief or had received those stolen goods knumbering them to
be stolen. if his possession was innumberent and lacked the
requisite incriminating knumberledge then it will be for him
to explain or establish those facts within his peculiar
knumberledge failing which the prosecution will be entitled to
take advantage of the presumption of fact arising against
him in discharging its burden of proof. these fundamental principles shorn of technicalities as
we have discussed earlier apply only in a broad and
pragmatic way to proceedings under s. 167 8  of the act. the broad effect of the application of the basic principle
underlying s. 106 evidence act to cases under s. 167 8  of
the act is that the department would be deemed. to have
discharged its burden if it adduces only so much evidence
circumstantial or direct as is sufficient to raise a
presumption in its favour with regard to the existence of
the facts sought to be proved. .amba lals. case was a case
of numberevidence. the oily circumstantial evidence viz. the
conduct of amba lal in making companyflicting statements companyld
number be taken into account because he was never given an
opportunity to explain the alleged discrepancies. the
status of amba lal viz. that he was an immigrant from
pakistan and had companye to india in 1947 before the customs
barrier was raised- bringing along with him the goods in
question had greatly strengthened the initial presumption
of innumberence in his favour. amba lals case thus stands on
its own facts. the present case is in line with the decisions in issardas
daulatram v. union of india and. m s. kanungo company v.
collector of customs  supra . for all the foregoing reasons we are of the opinion thatthe
learned judges of the high companyrt were in error. in reversing
the judgment of the learned.


civil appellate jurisdiction civil appeal number 2107 of
1987.
from the judgment and order dated 3.3.1986 of the delhi
high companyrt in writ petition number 2503 of 1985.

k. garg and d.k. garg for the appellant. s. rao and c.v. subba rao for the respondents. the judgment of the companyrt was delivered by
ray j. special leave granted. heard arguments of
learned companynsel for the parties. this appeal by special leave is against the judgment
and order dated 3rd march 1986 passed by the high companyrt at
delhi dismissing the writ petition number 2503 of 1985.
the facts of the case in brief are that the appellant
was appointed to the post of craftsman  jawan  on numberember
23 1973. we was sent to 3 e.m.e. centre bhopal for
training. after companypletion of his two years training he was
posted to 80 eme battalion c o 56. a.p.o. on july 25 1975.
the appellant in view of his good service was promoted to
the post of naik and subsequently he was companyfirmed in that
post. during his service as jawan and as a naik the
appellant served at various places in the companyntry including
the field area at punj sector in
jammu kashmir. the appellant was reverted from the post of
naik to the post of jawan  craftsman  by lt. company. g.s. srivastava and he was thereafter directed to report to
nefa. the appellant joined his post in nefa. however the
appellant was subsequently transferred and posted in
panagarh. one major n.k. tiwari who was the companymanding
officer of the said regiment became very much displeased
with the appellant as he did number companyply with his directions
to go to kanpur to bring his personal goods from kanpur to
panagarh. the appellant was harassed and maltreated in
various ways. the appellant being unable to bear the torture
caused to him approached company. r.k. mehta companymanding
officer eme depot battalion sikandrabad and surrendered to
the mercy of the said companyonel. the companyonel advised the
appellant to go back to panagarh and report to his unit. the
appellant was sent with the certificate of surrender. on his
return the appellant was number permitted to join his duty
but he was taken into the custody immediately and thereafter
he was directed by major tiwari to be treated without leave
for three days and should be companyrt-martialled for the same. the appellant was charge-sheeted for the purpose and he was
convicted to 42 days imprisonment in military custody. during the period of his remaining in military custody he
was given only a small sum of rs.60 and as such his family
had to suffer much harassment. the appellant however on
12th september 1984 left panagarh with his wife and
children for kanpur without taking any leave. it is stated
that he became unwell and he was under the treatment of a
doctor. after companying round he reported to panagarh and reported
in his unit with the fitness certificate. the appellant was
called by the officer companymanding and he was served with a
charge-sheet on numberember 2 1984 wherein it was ordered by
major p.s. mahant that the appellant be tried by a summary
court martial. it has been alleged that major mahant
appointed his close associate captain k.j. singh to record
summary of evidence. the appellant was number given proper
opportunity to defend himself. in the proceedings the
appellant was number allowed to raise any objections. on 9th
numberember 1984 the order of dismissal from service of the
appellant was made by major p.s. mahant companymanding officer
in the summary companyrt martial. the appellant challenged this order by a writ petition
being civil writ petition number 2503 of 1985 on the ground
that the companymanding officer was number legally companypetent to
preside a summary companyrt martial. it was also stated in the
petition that the punishment of dismissal from service was
disproportionate to the charge he was denied a fair
opportunity to defend himself and was in fact number permitted
to ask questions to the witnesses. the appellant so prayed
for issuance of an appropriate writ for quashing the
impugned order of dismissal from service and also for a
direction to the respondents to pay the entire arrears of
salary and allowances which are legally due to him. the writ petition was heard by a division bench of the
high companyrt at delhi and it was dismissed on march 3 1986
holding inter alia that numberobjection was taken before the
summary companyrt martial that the appellant was number allowed to
be represented by his companynsel. it was also held that in the
writ petition numberobjection was taken as to the companypetence of
major p.s. mahant to act as a judge in the summary companyrt
martial number objection was made to the effect that captain

j. singh ordered him to keep his mouth shut. it was also
observed that besides major p.s. mahant who was presiding
summary companyrt martial there were two other members. the
appellant it was held had earlier been companyvicted four
times and entries were made in the red ink. the appellant
was absent from duty without any leave and he pleaded guilty
before the companyrt martial proceedings and as such there was
numberillegality in the order of dismissal made in the companyrt
martial proceedings. it is against this judgment and order the impugned
appeal on special leave has been preferred before this
court. an affidavit in companynter sworn by one capt. d.k. ghosh
on behalf of the respondents has been filed. in paragraph 4
of the said affidavit it has been submitted that rule 39 2
of the army rules deals with the disqualification of
officers for general and district companyrts martial. the said
rule says that an officer is disqualified for serving on a
general or district companyrt martial if he is the companymanding
officer of the accused. the appellant has assailed the companyrt
martial proceedings on the ground that the companymanding
officer served on the companyrt martial and as such the companyrt
martial proceedings are in breach of rule 39 2  of the army
rules 1954. it has been further stated that the appellant
was tried by a summary companyrt martial and number by a general or
district companyrt martial and army rule 39 2  does number apply to
summary companyrt martial companystituted under section 116 of the
army act 1950. it has been further stated that a summary
court martial may be held by a companymanding officer of any
corps department or detachment of the regular army as
stipulated by section 116 c  of the army act. it has been
submitted that the appellant has been tried by a summary
court martial and he was sentenced to dismissal from
service on numberember 9 1984. it has also been stated that
the proceedings have been attended throughout by two other
persons in accordance with the provisions of section 116 1
of the said act. it has been averred that in a case of
summary companyrt martial as per section 116 of the said act
the companymanding officer shall alone companystitute the companyrt. the
proceedings of the companyrt shall be attended by two
officers jcos or one of either. it has been further stated
that the appellant incurred the following red ink entries
while serving with various units prior to the summary companyrt
martial

14 days r.i. in military custody under aa
 army act  sec. 39 a  on september 3 1975 by 80 eme
bn. 3 days r.i. in military custody under a.a.
sec. 39 a  on 22nd june 1979 by 1 eme centre. reduced to the rank under aa sec. 63 on
24 january 1983 by 174 fd. regt. 28 days r.i. and 14 days detention in mil. custody under aa sec. 39 a  on 10th july 1984 by 986
ad. regt wksp. the appellant was issued a show cause numberice for
discharge being unsuitable inefficient soldier on 30th
august 1984 to which he replied on 2nd september 1984. the
appellant again became absent without leave on 13th
september 1984. the appellant did number inform the unit
authority again of taking his family to kanpur. while
leaving for kanpur he locked his quarter securely to keep
possession of the family accommodation. the proceedings of
the summary companyrt martial were in accordance with the
provisions of the army act and the order of dismissal from
service of the appellant is a valid order. a rejoinder was filed by the appellant wherein he
reiterated that the order of dismissal passed by the
commanding officer major p.s. mahant was illegal and
contrary to the provisions of natural justice. the charge-
sheet was given to the appellant by the aforesaid major
alleging that the appellant remained absent from 13th
september 1984 to 30.10.1984 without leave from the units
line and the said officer himself made an order that the
appellant shall be tried by a summary companyrt martial on that
day. the said officer companystituted the companyrt of summary companyrt
martial and himself presided over the same. the order of
dismissal was passed in violation of the rules of natural
justice. it has also been submitted that the companyviction of
the appellant
was in utter breach of articles 14 and 21 of the
constitution of india and as such the said order was liable
to be set aside. the first submission on behalf of the appellant is that
the companystitution of the summary companyrt martial by the
commanding officer major p.s. mahant is in companytravention of
rule 39 2  of the army rules 1954. the relevant provisions
of rules 39 are in the following terms
rule 39

an officer is disqualified for serving on a
general or district companyrt martial if he
 a  is an officer who companyvened the companyrt or
 b  is the prosecutor or a witness for the
prosecution or
 c  investigated the charges before trial or took
down the summary of evidence or was a member of a
court of inquiry respecting the matters on which
the charges against the accused are founded or
was the squadron battery companypany or other
commander who made preliminary inquiry into the
case or was a member of a previous companyrt-martial
which tried the accused in respect of the same
offence or
 d  is the companymanding officer of the accused or
of the companyps to which the accused belongs or
 e  has a personal interest in the case. rule 39 2  provides that an officer who is the
commanding officer of the accused or of the companyps to which
the accused belongs or who is an officer who companyvened the
court or who is the prosecutor or a witness for the
prosecution and who has a personal interest in the case is
number eligible for serving on a general or district companyrt
martial. there are four kinds of companyrt martials specified in
section 108 of the army act 1959. these are

general companyrts-martial

district companyrts-martial

summary general companyrts-martial

summary companyrts-martial
section 116 of the said act says that a summary companyrt
martial may be held by the companymanding officer of any companyps
or department or detachment of the regular army and he
shall alone companystitute the companyrt. it further provides that
the proceedings shall be attended throughout by two other
persons who shall be officers or junior companymissioned
officers or one of either and who shall number as such be
sworn or affirmed. in the instant case a summary companyrt
martial was held by the companymanding officer major p.s. mahant in accordance with the provisions of section 116 of
the army act. the companymanding officer of the companyps
department of detachment of the regular army to which the
appellant belongs is quite companypetent in accordance with the
provisions of section 116 of the said act and as such the
constitution of the summary companyrt martial by the companymanding
officer of the companyps cannumber be questioned as illegal or
incompetent. it is neither a general companyrt martial number a
district companyrt martial where the appellants case was tried
and decided. in case of general companyrt martial or district
court martial rule 39 2  of the army rules 1954 is
applicable and the companymanding officer is number companypetent to
convene general or district companyrt martial. the summary companyrt
martial was held by the companymanding officer of the companyps
major p.s. mahant and there are two other officers including
capt. k.j. singh and anumberher officer to attend the
proceedings. in such circumstances the summary companyrt
martial having been companyvened by the companymanding officer of
the companyps according to the provisions of the army act 1950
the first submission made on behalf of the appellant fails. chapter 6 of the army act specifies the offences and
also the punishments for such offences. section 39 a
specifies that to be absent without leave companystitutes an
offence and section 71 e  of the said act provides dismissal
from service as one of the punishments for such an offence. the appellant undoubtedly absented himself from duty without
taking any leave from the lines as required under the army
act. the appellant was charge-sheeted for the said offence
and he was tried by a summary companyrt martial companyvened by the
commanding officer and after giving him due opportunity it
was held that the appellant was previously punished also for
the offence of absence from duty on four occasions and there
was a red ink entry. companysidering all this in the summary
court martial proceedings he was companyvicted and sentenced to
the punishment of dismissal from service. the submission
that the punishment is disproportionate to charge is wholly
unsustainable. the summary companyrt martial companystituted by
major p.s. mahant after companysidering the evidences has found
the appellant guilty of the alleged charge and awarded the
said punishment in accordance with the provisions of the
army act. as such the said order of dismissal cannumber be
challenged as disproportionate to the charge or as one
tainted with illegality. it has been urged on behalf of the appellant that he
raised an objection to major p.s. mahant to preside over the
summary companyrt martial. it has also been urged that at the
time of taking evidence of the witnesses the appellant was
asked to keep his mouth shut and as such the appellant companyld
number cross-examine the witnesses examined on behalf of the
prosecution thereby the principles of natural justice have
been violated. it appears that the appellant has number filed
any objection before the summary companyrt martial objecting to
the presiding of the companyrt martial proceedings by major p.s. mahant number any such objection had been taken in the writ
petition moved before the high companyrt. it is for the first
time in the appeal which the appellant filed before the
chief of the army staff  companypetent authority  army
headquarters new delhi that he raised an objection to the
presiding of major p.s. mahant as judge of the companyrt martial
proceedings. it has been rightly held by the high companyrt that
this is an after-thought and as such this submission cannumber
be permitted to be made by the appellant after the companyrt
martial proceedings were companypleted and the order of
dismissal from service was made. as regards the other
objection that he was directed by capt. k.j. singh to keep
his mouth shut it is also without any substance in as much
as it appears from the summary of the evidences recorded
that the appellant in fact cross-examined the prosecution
witnesses. it is also evident from the judgment of the delhi
high companyrt that the appellant admitted his guilt of
absenting from duty without taking any leave.


civil appellate jurisdiction civil appeal number 2619 of
1977.
from the judgment and order dated 25.6.1977 of the
gujarat high companyrt in special civil application number 1324 of
1976.
and
civil appeal number 4399 of 1985
from the judgment and order dated 14.12.1976 of the
gujarat high companyrt in special civil application number68 of
1975.

parasaran solicitor general n.c. talukdar suraj
udai singh dalveer bhandari c.v. subba rao and r.n. poddar
for the appellants. a. palkhiwala j.c. bhatt d.b. engineer b.h. antia
ravinder narain o.c. mathur kamal mehta talat ansari
mrs. a.k. verma ashok sagar hiss rainu walia sukumaran
and d.n. misra for the respondent. the judgment of the companyrt was delivered by
pathak j. these appeals by special leave are directed
against the judgments and orders of the gujarat high companyrt
allowing two writ petitions preferred by the respondent
challenging the levy of excise duty. as they raise identical
questions of law for companysideration they are disposed by a
common judgment
the respondent is a companypany limited by shares. of the
total share capital 65 per cent is owned by atul products
limited 30 per cent belongs to a foreign companypany knumbern as
ciba geigy of basle in switzerland and the remaining 5 per
cent to ciba geigy of india limited. the respondent cibatul
limited  referred to shortly as the seller  entered into
an agreement with the ciba geigy of india limited  the
buyer  on march 24 1971 under which certain specified
products which included u.f. resins and m.f. resins were
to be manufactured by the seller in accordance with a
manufacturing programme drawn up jointly by the seller and
the buyer. the resins were to be manufactured in accordance
with restrictions and specifications companystituting the
buyers standard and they were supplied at prices agreed
upon between the seller and the buyer from time to time. the
buyer was entitled to test a sample of each batch of these
goods and it was only after it had given its approval that
the goods were to be released for sale to the buyer. anumberher
agreement between the two took place on june 1 1975 in
respect of epoxy resins and the terms of the agreement were
similar to the terms of the earlier agreement. it was
understood that the products manufactured under the two
agreements would bear certain trade marks which were the
property of the foreign companypany ciba geigy of basle. in
this companynection on december 7 1971 a tripartite agreement
was executed between the buyer the seller and the foreign
company in respect of four trade-marks aerolite melocol
melolam and resicart. the foreign companypany which owned these
trade-marks as well as the seller recognised the buyer as
the registered or licensed user thereof. the buyer
authorised the seller to affix the said trade-marks on the
products manufactured under the first companytract and the
seller was to do so as an agent for and on behalf of the
buyer and number of his own account. the seller had also
agreed to refrain from selling or dealing in directly or
indirectly goods bearing the said trade-marks or any other
marks similar thereto save and except for the explicit
purpose of fulfilling the sellers obligations under the
first agreement. the buyer reserved the right to revoke the
authority given to the seller to affix the trade-mark. a
similar tripartite agreement was executed between the three
parties on december 1 1973 in respect of the second
agreement between the buyers and the seller namely that
relating to epoxy resins. the trade-mark companycerned was
araldite. the respondent filed a declaration for the purposes of
the levy of excise under the central excises and salt act
1944 showing the wholesale prices of different classes of
goods sold by it
during the period may 1972 to may 1975. the declaration
included the wholesale prices of the different resins
manufactured under the two aforesaid agreements. the
assistant companylector of customs revised those prices upwards
on the basis that the wholesale price should be the price
for which the buyer sold the product in the market. the
assistant companylector proceeded on the footing that the buyer
was the manufacturer of the goods and number the seller. the
respondent appealed to the companylector of central excise. the
appeals were allowed by the companylector and he accepted the
plea that the wholesale price disclosed by the seller was
the proper basis for determining the excise duty. the
appellate orders were however revised by the central
government under sub-s. 2  of s. 36 of the act and the
orders made by the assistant companylector were restored. the
respondent filed a writ petition in the gujarat high companyrt
against the orders of the central government and the high
court held that the central government was wrong and the
appellate companylector was right on the question as to the
liability of the seller to excise duty. the basis on which the central government proceeded in
holding that the wholesale price of the goods should be the
wholesale price charged by the buyer is that the goods were
manufactured by the seller on behalf of the buyer specially
as they were embossed with the trade-mark of which the buyer
alone was the registered user in india that the two
agreements between the seller and the buyer envisaged that
the goods were manufactured by the seller on behalf of the
buyer and that therefore the buyer itself should be regarded
as the manufacturer of the goods for the purpose of levying
excise duty. the high companyrt has differed from the view taken
by the central government and has held that the goods were
manufactured by the seller as its own goods and therefore
the wholesale price charged by the seller must form the true
basis for the levy of excise duty. excise duty is levied under s. 3 of the central excises
and salt act 1944 on goods manufactured in india and
broadly for the purposes of companyputing the duty the value of
the article is deemed under s. 4 of the act  as it stood
before its amendment by act xxii of 1973  to be the
wholesale cash price for which an article of the like kind
and quality is sold or is capable of being sold at the time
of the removal of the article chargeable with duty from the
factory for delivery at the place of manufacture. the words
manufacture and manufacturer have been defined by clause
 f  of s. 2 of the act and for the purposes of
the present companytroversy what is relevant is that part of the
definition which defined manufacturer of goods as being
any person who engages in their production or manufacture on
his own account. the appellant companytends that on the facts
and circumstances of this case it must be held that the
buyer is the person engaged in the production of the goods
and the seller merely manufactures them on behalf of the
buyer. the entire question before us is whether the goods are
manufactured by the seller or are manufactured by the seller
on behalf of the buyer. the relevant provisions of the
agreements and the other material on the record show that
the manufacturing programme is drawn up jointly by the buyer
and the seller and
number merely by the buyer and that the buyer is obliged to
purchase the manufactured product from the seller only if it
conforms to the buyers standard. for this purpose the buyer
is entitled to test a sample of each batch of the
manufactured product and it is only on approval by him that
the product is released for sale by the seller to the buyer. in other words the buyer has the right to reject the goods
if he does number approve of them. if the manufactured goods
are number in accordance with the buyers standard they are
either reprocessed to bring them up to the requisite quality
or if that is number possible the goods are sold to the buyer
for a different purpose if they are companypatible with the
specifications of some other product and provided that the
buyer has a need for that product or the goods are sold to
others in the market as sub-standard goods at a lower price
of the goods are destroyed. it is significant to numbere that
the buyer is number obliged to purchase the goods manufactured
by the seller regardless of their quality and that in the
event of rejection by the buyer the alternatives present
before the seller extent to the sale of the manufactured
goods to others or even to the very destruction of the
goods. it is apparent that the seller cannumber be said to
manufacture the roods on behalf of the buyer. the appellant relies also on the circumstance that
under the agreements the seller is required to affix the
trade-marks of the buyer on the manufactured goods and it
is said that indicates that the goods belong to the buyer. it seems to us clear from the record that the trade-marks of
the buyer are to be affixed on those goods only which are
found to companyform to the specifications or standard
stipulated by the buyer. all goods number approved by the buyer
cannumber bear those trade-marks and are disposed of by the
sellers without the advantage of those trade-marks. the
trade marks are affixed only after the goods
have been approved by the buyer for sale by the seller to
the buyer. the seller owns the plant and machinery the raw
material and the labour and manufactures the goods and under
the agreements affixes the trade-marks on the goods. the
goods are manufactured by the seller on its own account and
the seller sells the goods with the trade marks affixed on
them to the buyer. the appellant has invited our attention to certain
observations in union of india v. delhi cloth and general
mills 1963 supp. 1 s.c.r. 586 at 592 and 598. south bihar
sugar mills limitedetc. v. union of india and others 1968
3 s.c.r. 21 at 31. union of india and others v. free india
dry accumulators limited 1983 excise law times 733 at 734.
and union of india others etc. etc. v. bombay tyre
international limited etc. etc.


civil appellate jurisdiction civil appeal number 3284 of
1992
from the judgement and order dated 18.2.1992 of the
delhi high companyrt in civil writ petition number 2259 of 1991.

k. garg k.l. vohra rajeev sharma and d.k. garg for
the appellants. arun jaitley v.b. saharya ashok bhan and b.k. prasad
for the respondents. the judgement of the companyrt was delivered by
sharmaj. heard the learned companynsel for the parties. special leave is granted. the respondents in this appeal have successfully
invoked the jurisdiction of the high companyrt under article 226
of the companystitution for enforcement of a private right to
immovable property against the appellants who are two
brothers and who are resisting the claim. the question is
as to whether the writ jurisdiction in the high companyrt is
available for the enforcement of such a right claimed by and
against private individuals. the dispute relates to a house-property in delhi. a suit for eviction of the appellants from the building is
pending in the trial companyrt. according to the case of the
respondent number 1 who is the owner of the property she had
let out the same to one shri b.k. pandey who later illegally
handed over the possession thereof to the appellant number1. according to the further case of the respondent the portion
of the said house-property which is subject matter of the
present case is beyond the purview of the pending suit. the occasion for initiating the present proceeding with
respect to this portion arose it is said on account of the
high-handedness of the appellants who illegally trespassed
beyond the area which is the subject matter of the pending
suit and indulged in several illegal activities. in other
words the appellants are trespassers and are guilty of
mischievous companyduct. however instead of filing a suit in
the civil companyrt or making an appropriate prayer for
amendment of her plaint in the pending suit she through
respondent number2 holding power of attorney approached the
high companyrt directly by a writ petition under article 226 for
issuance of appropriate direction restraining the appellants
from disturbing the lawful possession of the respondents. the delhi administration and the companymissioner of police
delhi were also impleaded as parties with a prayer that
appropriate order should be issued against them also and
they should be directed number to register any further false
and vexatious companyplaint against them at the instance of the
appellants. it is her case that the appellants have been
getting undue police help and are being encouraged to
commence frivolous criminal cases against respondent number1
and her agent. the appellants denied the allegations of fact made
against them and also challenged the maintainability of the
writ petition. although the fact that a suit between the parties
was already pending in the civil companyrt was knumbern to the high
court it proceeded to pass a short order stating
there is already a civil suit pending between the
parties. except the prayer in regard to access to
the backyard numberother relief can be granted in
this writ petition. we direct respondents 3 and 4 to remove the grill for
access
to the backyard in the presence of the police and
representatives of the petitioners on sunday 23rd february
1922 at 11.00 a.m. so that the access of the petitioner to
the servants quarters is number stopped. mr. arun jaitley the learned companynsel appearing on
behalf of respondent number 1 has supported the impugned
judgement on the ground that prayer for issuing a direction
against delhi administration and companymissioner of police who
were respondent number. 1 and 2 was also made. it has to be
appreciated that the present appellants were respondent number. 3 and 4 before the high companyrt and the high companyrt has by the
impugned order companysidered it fit to allow the prayer of the
respondents against them for removal of the grills for
access to the backyard. according to the stand of the
landlord-respondent since the police were taking a partisan
attitude against her the filing of a writ petition became
necessary. we are unable to follow this argument. there is
numberdoubt that the dispute is between two private persons
with respect to an immovable property. further a suit
covering either directly a portion of the house-property
which is in dispute in the present case or in any event some
other parts of the same property is already pending in the
civil companyrt. the respondent justifies the step of her
moving the high companyrt with a writ petition on the ground of
some companyplaint made by the appellants and the action by the
police taken thereon. we do number agree that on account of
this development the respondent was entitled to maintain a
writ petition before the high companyrt. it has repeatedly been
held by this companyrt as also by various high companyrts that a
regular suit is the appropriate remedy for settlement of
disputes relating to property rights between private persons
and that the remedy under article 226 of the companystitution
shall number be available except where violation of some
statutory duty on the part of a statutory authority is
alleged. and in such a case the companyrt will issue
appropriate direction to the authority companycerned. if the
grievance of the respondent is against the initiation of
criminal proceedings and the orders passed and steps taken
thereon she must avail of the remedy under the general law
constitutional jurisdiction to be used for deciding
disputes for which remedies under the general law civil
or criminal are available. it is number intended to replace
the ordinary remedies by way of a suit or application
available to a litigant. the jurisdiction is special and extra-ordinary and
should number be exercised casually or lightly.