original appellate jurisdiction criminal appeal number 49 of
1971.
appeal by special leave from the judgment and order may 18
1970 of the allahabad high companyrt at allahabad in criminal
appeal number 1947 of 1969.

p. rana for the appellant. nuruddin ahmad and u. p. singh for the respondents. the judgment of the companyrt was delivered by
dua j.-the state of u. p. the appellant in this appeal by
special leave assails the judgment of the allahabad high
court dated may 18 1970 acquitting on appeal the six
respondents in this companyrt who were companyvicted by the companyrt of
the first temporary civil sessions judge pratapgarh on
september 1 1969 of various offences under the indian
penal companye. the accused paras nath singh ramendra pratap
singh hari saran singh and lal pratap singh were sentenced
to death under s. 302 read with s. 149 i.p.c. the accused
surendra pratap singh and shiva pratap singh were also
convicted under the said sections but sentenced to life
imprisonment. leniency was shown to them by the trial companyrt
because surendra pratap singh was stated to be a budding
lawyer and shiv pratap singh being of tender age  15 or 16
years old
was companysidered to have apparently been misled by his
relations. excepting surendra pratap singh and hari saran
singh the remaining accused were also sentenced to rigorous
imprisonment for one year each under s. 147 i.p.c. they
were further companyvicted under s. 148 i.p.c. and sentenced to
rigorous imprisonment for two years each. accused paras
nath singh was in addition sentenced to rigorous
imprisonment for six months under s. 397 i.p.c. the relevant facts necessary for our purpose may number be
stated. the six respondents  hereinafter called the
accused  were charged with the murder of suresh singh on
july 9 1968 and with the theft of his gun and cartridges
along with the companytainer. the deceased and the accused are
all thakurs by caste residing in village isanpur. accused
surendra pratap singh and ramendra pratap singh are brothers
residing in a house adjoining that of the deceased being
thus his next door neighbours. shiva pratap singh and lal
pratap singh are companysins and the other accused per-sons are
said to be their associates. there was long standing enmity
between the deceased on the one hand and ramendra pratap
singh and his family members on the other. about six or
seven months prior to the present occurrence ramendra
pratap is said to have tried to fire at the deceased on
dewali day and a case under s. 307 i.p.c. arising out of
the said incident was pending at the time of the murder of
the deceased. about five or six days prior to the murder
ramendra pratap singh surendra pratap singh and one vijai
bahadur singh are stated to have beaten the deceased inside
his house giving rise to anumberher case under s. 107/117 cr. c. which was also pending at the time of the murder in
question. this enmity is stated to be the motive for the
murder of the deceased. number turning to the occurrence in
question on july 9 1968 suresh singh deceased had gone to
pratapgarh on cycle for some work carrying with him his gun
and cartridges. on his way back from pratapgarh the same
evening at about sunset when he reached rakhaha bazar and
was on the rakhaha bazar-kandbai kachha road all the
accused persons emerged from the nearby nala. they
surrounded their victim suresh singh shouting that he
should be killed because he posed to be a great leader. the
accused who were armed with lathis spears and farsha
assaulted the deceased with their respective weapons. sint. sheela devi p.w. 1 daughter of the deceased and sachendra
pratap singh  p.w. 2  son of the deceased also happened to
be-returning to their village from rakhaha bazar where they
had gone to purchase parwal  a vegetable  for their mother
who was number well. on hearing the alarm they went towards
the mala where they saw the accused assaulting their father
with lathis spears and farsha. several other persons
including shiva pratap
5-l796sup. c.i./73
singh mahabir singh ranmast singh and jagdish bahadur
singh were also attracted by the alarm to the place of
occurrence. the deceased fell down on receipt of injuries
and the accused ran away carrying with them the gun and
container of cartridges along with its companytents belonging to
the deceased. the cycle and a jhola belonging to the
deceased and lying on the spot was sent home by sheela devi

w. 1  through one mahabir. sheela devi also sent for her
mother  smt. sundari devi  through the same man. the
mother arrived soon thereafter and suresh singh was taken on
an ekka to diwan mau from where he was taken in a taxi to
the district hospital pratapgarh. suresh singh appears to
have expired on his way to the hospital near village pipari. the doctor on examining suresh singh informed sheela devi
that her father had already died and advised her to lodge a
report at the police station kotwali. she wrote out a
report of the occurrence  ex. ka-1  at the hospital and
gong with the dead body went to kotwali police station
where she handed over the written report the same night at
about 11.30 p.m. on the basis of which ka-18. the formal

i.r. was prepared. a case under ss. 302/147/1481 149

p.c. was thereupon registered and all the relevant papers
sent to the police station kandhai. as a result of the
investigation it was companysidered necessary also to frame a
charge against the accused persons under s. 379 read with s.
149 i.p.c. for the theft of the gun and the cartridges
along with their companytainers belonging to the deceased. the
foregoing is the prosecution version. at the trial the only eye-witnesses deposing to the actual
occurrence were smt. sheela devi  p.w. 1  the daughter and
sachendra pratap singh  p.w. 2  the son of the deceased. w. 1 was about 19 years old when she gave evidence at the
trial in july 1969 and p.w. 2 about 13 or 14 years old. the other persons mentioned in the f.i.r. by p.w. 1 were number
produced as witnesses on the ground that they were number
prepared to depose in favour of the prosecution at the
trial. p.w. 1 and p.w. 2 have unfolded the prosecution case
deposing to the incident as witnessed by them. according to

w. 1 she and her younger brother who had gone to rakhaha
bazar in the afternumbern for buying parwal while returning to
their home heard the alarm as they reached the kachcha
road. they went towards the side from which the numberse came
and saw that their father was being beaten by lalji chotey
lal sadhy and nankoo with lathis hari saran singh with
ballam and munna who is also called sheo pratap singh with
farsha. they took her father down into the nala shouting
kill the sala he was playing the part of netagiri very
much. after the accused had run away p.w. 1 went near her
father who. though badly injured was still in a position to
speak. he told her and the other persons who had assembled
there that the accused persons had been hiding
inside the nala and that they had forcibly taken him away
from the road into the nala and beaten him. she sent her
fathers cycle and jhola home through mahabir singh also
requesting him to send her mother to the place of
occurrence. her mother came there and after arranging for
an ekka suresh singh was taken to diwan mau from where
suresh singh was taken to the hospital in a taxi. on the
way suresh singh expired near pipari. after the doctor had
certified death of suresh singh p.w. 1 was advised by the
doctor to make a report in the sadar police station. she
wrote out a report in the hospital and along with the dead
body of the deceased she went to the police station and
lodged the report in the kotwali. paras nath accused
according to p.w. 1 had taken away with him the gun and the
cartridge belt belonging to the deceased. she had herself
to go to the kotwali to lodge the report because there was
numberother adult male member left in their house. according
to her sarvashri ram pratap singh krishnapal singh ramesh
prasad singh and ruddar pratap singh vakils live in the
neighbourhood of her village. these persons being under the
influence of the lawyers she companyld number say if they would be
willing to give evidence in support of the prosecution. she
was cross-examined at great length by four different lawyers
defending the accused persons. sachendra pratap singh

w. 2  a boy who did number appear to the companyrt to be more
than 12 or 13 years of age was first questioned by the
trial companyrt by asking him unexpected but intelligent
questions to which he gave rational and sensible answers
which impressed the companyrt and the companyrt came to the
conclusion that the boy understood the importance of justice
and of taking oath and was fully companyscious of the
desirability of speaking the truth when on oath. p.w 2
fully companyroborated p.w. 1 on all material points. he too
was cross-examined at great length by all the defence
counsel. it appears that after the examination of p.w. 1 and 2 the
prosecuting companynsel applied to the trial companyrt stating that
mahabir singh shiva pratap singh ranmast singh and jagdish
bahadur singh were present in companyrt but as the prosecuting
counsel had reason to believe that they would number speak the
truth they were number being produced as witnesses by the
prosecution. it was suggested that they companyld be examined
by the companyrt under s. 540 cr. p.c. if companysidered proper or
the accused persons companyld examine them in their defence if
they so liked. on this application the companynsel for the
accused persons recorded a numbere opposing the suggestion and
describing the allegation against the witnesses as baseless. section 540 cr. p.c. according to the defence companynsel was
inapplicable and he also declined to examine these witnesses
in defence. the said witnesses were in these circumstances
discharged by the trial companyrt on july 9 1969.
the trial companyrt in a very detailed and exhaustive judgment
dealing with every aspect in a very lucid manner came to
the companyclusion that p.w. 1 and p.w. 2 were both truthful
witnesses and their sincerity and honesty in speaking the
truth companyld number be doubted. after stating the principle
governing the evidentiary value of the testimony of a child
witness the trial companyrt made the. following observations
about the quality and value of the evidence of p.w. 2
he has been cross-examined at a very great
length and that too by four sets of defence
lawyers repute. it is amazing to find that
despite their lengthy and cumbersome cross-
examination the witness has number been impaired. had he number been an eye-witness of the occur-
rence and had he been examined after tutoring
he companyld number have remained firm even for a
single moment. tile said witness was tried to
be beguiled tempted and also brow-beaten but
to my utter surprise he maintained his mental
composure throughout and did number yield any-
where during the cross-examination. even on
the most minute details the witness did number
confuse and gave companyvincing replies to them. from the beginning to the end of the incident
he has successfully acquitted himself and number
a single thing companyld be pointed out in his
statement which companyld be used as a weapon
against him. the manner and the method which
the p.ws. have exhibited in the witness box
have left an everlasting impression in my mind
about their sincerity and truthfulness. as a
judge of fact i am definitely of the opinion
that unless truthful and honest the p.ws. 1
and 2 would have companylapsed under the weight of
this trying and tiring cross-examination. the testimony of p.w. 2 according to the trial companyrt was
fully supported and companyroborated by his sister p.w. 1 who
has unfolded the prosecution version about the occurrence in
question. the trial companyrt also upheld the jurisdiction for
number producing the other witnesses in companyrt. this is what
the trial companyrt has said in this companynection
the nature and number of injuries found on
the person of the deceased and that too in a
broad day light goes to show that the deceased
was beaten mercilessly. must have been awe
striking and the occurrence it must have left
an indelible impression that the accused meant
business and there was numberhing which companyld
deter them from accomplishing their target. this psychoanalysis of the
situation too has to be kept in mind before
giving a finding about the respective versions
of the parties. several documents have been
filed in the case by the prosecution to show
that cases under sections 307 323/ 452

p.c. and under sections 107/117 cr. p.c. were pending at the time of occurrence between
the deceased on the one hand and the accused
ramendra and his family on the other. in
these circumstances there was numberhing
surprising if even on-lookers did number dare to
come forward. further i am companystrained to
observe that had the accused been on bail even
the offsprings of the deceased i.e. p.ws 1
and 2 companyld number. have companye in the witness box
to depose about facts relating to the murder
of their father and in that case the fact of
even the death of the deceased would have been
enveloped in darkness. whatever reason may be there to it there is no
denying the fact that witnesses in the case
have kept back and have avoided companying
forward. in this companynection i may recall the
statements of p.ws 1 2 and 4. out of so many
public witnesses named in the charge-sheet
only p.ws 1 and 2 companyld figure as eye-
witnesses of the occurrence. had they number
been the family members of the deceased even
they would number have companye. p.w. inder singh
has stated that the witnesses have been pres-
surised number to companye. i am very much impressed
by the statements of pws 1 2 and 4 on this
core thus in the case of the present nature
numberone companyld like to invite trouble for him by
coming in the witness box. there is number the
least doubt that either because of fear or be-
cause of other influences witnesses have number
liked to involve themselves in the matter. thus companysidering the evidence and the
circumstances of the case i feel that the
explanation offered by the prosecution
regarding the absence of other p.ws in the
witness box has got to be accepted. exhibits
ka-14 and ka-16 also lend assurance to this
finding. numberember 1 1967 made by suresh singh  deceased  against
ramendra pratap singh and others lodged at 10.30 p.m with
respect to the attempted assault on him and firing of shots
the same day at about 6 p.m. exhibit ka-16 is an application
by suresh singh deceased dated numberember 6 1967 made to
the superintendent of police pratapgarh in which after
referring to the incident of numberember 1 1967 when ramendra
pratap singh was alleged to have fired from the upper
portion of his house about 8 or 10 shots at suresh singh
from a double barrelled gun
of his grandfather raghav pratap singh it was companyplained
that there was a companystant danger to suresh singh and the
members of his family at the hands of ramendra pratap singh
krishna pratap singh and others mentioned therein. at this
stage we companysider it proper to reproduce the nature and
number of injuries inflicted on the deceased because
according to the trial companyrt all those persons who might
have witnessed this occurrence must have been impressed by
the fact that the accused meant business and numberhing companyld
deter them from accomplishing their objective. the follow-
ing ante-mortem injuries were found on the person of the
deceased

lacerated wound 2 x i bone deep on the fore-head 1
1/2 above the right eye-brow. lacerated wound 1 x 1/4 x scalp deep just behind
injury number 1.

abrasion 1/2 x i on the forehead 2 above the left
eyebrow. incised wound 21 x i bone deep i behind the left
ear directed downwards and outward-

incised wound 3 x i muscle deep on the left side of
the face directed downwards and outwards

incised wound 1 x 1/4 muscle deep just below the left
eye directed downwards and outwards. punctured wound i x i x 1 1/2 over the bridge of the
numbere directed upwards and inwards. incised wound ii x i x muscle deep on the lower part
of the face below the chin. companytusion i x i on the top of the right shoulder. companytusion 3 x ii- on the medical surface of the
right arm upper 1/3. companytusion 3 x 2 on the back of the right arm lower 1
/3. companytusion 3 x if on the back of the right forearm
middle 1/3. companytusion 1 x 1 on the back of the right wrist. companytusion 3 x 2 on the back of the right hand. lacerated wound i x i skin deep on the web between
the right thumb and index finger. companytusion 3 x 2 on the front of the chest near the
root of the neck. companytusion 2 x i on the front of the right thigh mid-
dle 1 3.

contusion 2 1/2 x 1/4 on the front of the right thigh
i below injury number 17.

contusion 3 x 1/4 on the right thigh just below
injury number 18.

contusion 3 x 1/4 on the right thigh 1/2 below
injury number 19.

contusion 3 x 1/2 on the front of the right thigh
just above the knee joint. companytusion 2 x i on the top of the left shoulder. companytusion 2 x 1/4 on the lateral surface of the left
arm upper 1 3.

contusion 3 x i on the back of the left forearm upper
1 13.

contusion 3 x 1 1/2 on the right forearm lower 1/3. companytusion 1 1/2 x i on the back of the left wrist. companytusion i x i on the back of the left hand. companytusion 3 x i on the front of the left thigh middle
1/3. companytusion 3 1/4 x 1 on the front of the left thigh
lower 1/3. abrasion 1 x i on the front of the left knee. multiple abrasion in an area of 2 x 1 i on the front
of the left leg upper 1/3. abrasion i x i on the front of the left leg upper 1/3
x 1 below injury number 31.

abrasion l x i on the front of the left leg lower
1/3. companytusion 6 x 1 on the right side of the back upper
1/3. companytusion i x i on the right side of the back middle
1/3. punctured wound 1/2 x i on the left side of the back
middle 1/3 close to the mid line of the back directed
downwards and outwards. punctured wound i x 1/4 on the left side of the back
lower 1/3 directed downwards and outwards. relying on the evidence of p.ws 1 2 and 4 the trial companyrt
convicted the accused persons as already numbericed. an appeal was preferred to the high companyrt by the six accused
persons against their companyviction and sentence and in the
memorandum of appeal the only grounds taken were  1  that
the companyviction was bad in law  2  that the companyviction was
against the weight of evidence and  3  that the sentence
was too severe. death sentence on four of them was also
before that companyrt for companyfirmation. the high companyrt after numbericing the circumstances in which the
four witnesses mentioned earlier had been discharged by the
trial companyrt companysidered it necessary to examine them itself
as companyrt witnesses. they were examined in the high companyrt in
may 1970. all of them denied having been present at the
place of the occurrence. when cross-examined they seem to
us to have cut a very sorry figure and we companysider it
impossible to place any reliance on their testimony. indeed even the high companyrt after a close scrutiny of their
evidence came to the companyclusion that the four witnesses did
number want to speak the truth and that they had number been
withheld by the prosecution for any oblique motive as
suggested on behalf of the accused persons. the high companyrt accepted the evidence of p.ws 1 and 2 with
respect to he place where suresh singh had been murdered but
according to it  to quote its own words  the question
that remains. to be decided is whether the testimony of p.w. 1 smt. sheela devi and p.w. 2 sachendra- pratap singh who
are the daughter and son of suresh singh can be believed. after holding the four witnesses examined by the high companyrt
on appeal to be untruthful the high companyrt proceeded to
scrutinise the evidence of p.ws 1 and 2. after a thorough
and detailed companysideration of the criticism levelled
against their testimony by the companynsel for the accused
persons the high companyrt observed
we have therefore companye to the companyclusion that
there is numberhing inherently imporbable in the
statement of p.w.1 smt. shila devi and p.w. 2 sachendra pratap singh. we cannumber
however ignumbere the fact that they are after
all the daughter and the son respectively of
the deceased suresh singh and are in a sense
chance witnesses. it is true that under the
law there is numberhing which prevents us from
acting upon-the testimony of these two eye-
witnesses and unholding the companyviction of the
appellants but rules of prudence and safety
have to be taken into companysideration. therefore having given the matter our anxious
thought even though we hold that we find
numberhing improbable in the statements of these
two eye-witnesses we think it proper number to
act on the uncorroborated testimony of these
witnesses. we there-
fore by the way of abundant caution give the
appellants the benefit of the doubt. with these companycluding observations the high companyrt allowed
the appeal of the accused persons and set aside their
conviction. the high companyrt however also companysidered it
proper to issue numberice under s. 497a cr. p.c. to sheo
pratap singh son of birju singh who had been examined by
the high companyrt on may 11 1970 calling upon him to show
cause why he should number be prosecuted. for perjury for
having falsely stated that he did number live in village
isanpur and that he did number knumber the accused persons. on appeal in this companyrt mr. rana appearing on behalf  i the
state of uttar pradesh has submitted that the high companyrt has
gone seriously wrong in acquitting the accused persons
merely on the ground of absence of companyroboration of the
evidence of p.ws 1 and 2 when it had itself held that there
was numberhing improbable in the statements of these witnesses. the high companyrt has according to the appellants submission
seriously erred in ignumbering its own earlier companyclusion that
the other witnesses dropped by the prosecution who were
expected to companyroborate p.ws 1 and 2 were number prepared to
speak the truth. this was a sufficiently companyent reason for
number producing them and for placing companyplete reliance on the
sole testimony of p.ws 1 and 2. the observation of the high
court that p.ws 1 and 2 were in a sense chance witnesses
was wholly unjustified and is indeed companytrary to the high
courts own earlier view accepting the testimony of p.ws 1
and 2. on the circumstances of this case according to the
appellants companynsel the evidence of p.ws 1 and 2 had been
rightly accepted by the trial companyrt and the high companyrt
erroneously required further companyroboration for acting upon
their evidence. the decision of the high companyrt it has been
emphasised erroneous as it is has resulted in
in reply mr. nuruddin ahmad has with his usual persuasive
eloquence criticised the evidence of the two eye-witnesses

ws 1 and 2. while paying to these witnesses a high tribute
for their intelligence and presence of mind and also while
endorsing the impression of the trial companyrt that even on the
matter of minute details p.w. 2 did number get companyfused by his
cross-examination but gave companyvincing replies to the
questions the learned companynsel has argued that the high
order of intelligence of these two witnesses only serves to
explain their cleverness in putting forth a prima facie
plausible story which is far from true. according to the
learned companynsel these two witnesses have made up a story
about the manner in which their father met with his death
with the sole object of falsely implicating the accused
persons who are their enemies. the submission proceeds that
neither was the deceased killed at the time stated by these
witnesses number were they present
at the spot to witness their fathers murder. the deceased
it is suggested had also several other enemies and his
murder was in all probability companymitted by some other
person or persons who had their own scores to settle with
him. the children of the de ceased who are extremely
intelligent have very shrewdly thought of utilising this
opportunity for getting their enemies hanged. in this
connection the absence of any mention about the presence of
parwal at the place of occurrence or with p.ws 1 and or p.w. 2 in the f.i.r. or in the statements of either of the two
eyewitnesses has been very strongly emphasised by the
counsel in support of his suggestion that the whole story
about the visit of these two children of the deceased to
rakhaha bazar on the evening of the day of occurrence for
buying parwal is false and so-must therefore be the story
of their presence at the time and the place of the murder. the companynsel has also laid stress on the fact that there was
numberpoint in their going so far away from their village to
buy parwal when the same companyld easily have been secured from
closer quarters. it has also been suggested that a young
girl was numbermally. number expected to be sent for purchasing
parwal late in the evening. a passing observation was also
made to the fact that parwal were number a medicine which companyld
urgently be required and that the story of the witnesses
visit to rakhaha bazar for this purpose should be discarded
as companycocted and unconvincing. the other criticism very
strongly pressed relates to the f.i.r. this report which is
detailed has been drafted in a form which according to the
counsel suggests that its author has at least some knumber
ledger of legal phraseology and of some sections of the
indian penal companye as also of the criminal procedure companye. from this it is sought to be inferred that p.w. 1 who claims
to be its author must have secured the assistance of
someone companyversant with the drafting of such report and she
must therefore be assumed to have both time and
opportunity of companycocting a story for falsely implicating
the accused persons who were the enemies of the family. a
suggestion was put to p.w. 2 the son of the deceased and
to head companystable tripathi p.w. 10 that the report had
been lodged by p.w. 1 after companysulting bhagwati prasad but
this suggestion was denied by them. still anumberher point
has been forcefully urged by the companynsel that according to

ws 1 and 2 a large number of people had gone for shopping
to the rahaha bazar on that day and therefore many people
would have numbericed the occurrence if it had actually taken
place as deposed by p.ws 1 and 2. the fact that numberother
independent witness is forthcoming is according to the
counsel. proof positive that the occurrence did number take
place at the time and the spot and in the manner deposed by
these witnesses. almost all these arguments were urged in the trial companyrt and
repelled for companyent reasons with which we are in full
agreement
and it is therefore number necessary to repeat them. it is
numbere-worthy that the high companyrt also did number take a
different view on the credibility of p.ws 1 and 2. the
absence of other witnesses from the witness box is
satisfactorily explained by the prosecution and after
recording the evidence of these witnesses as companyrt
witnesses the high companyrt also endorsed the opinion of the
prosecuting companynsel that these other witnesses were number
willing to speak the truth. in our view the high companyrt has gravely erred in acquitting
the accused persons and indeed its judgment has resulted in
grave failure of justice. the trial companyrt had taken great
pains in fully scrutinising and properly evaluating the
evidence of p.ws 1 and 2 and after applying the companyrect
principles governing the appreciation of the evidence of a
child witness it has accepted the evidence of these two
witnesses as true. all the arguments urged on behalf of the
accused were duly companysidered and repelled. the high companyrt
on appeal devoted a major part of its judgment to the
consideration of the additional evidence recorded by it. feeling wholly unimpressed by this evidence it endorsed the
view of the prosecuting agency that these witnesses were number
produced in companyrt because they were number prepared to speak
the truth and indeed felt companystrained to issue numberice under
section 479a cr. p. c. to one of them to show cause as to
why he should number be prosecuted for perjury. it disagreed
with all the main arguments urged on behalf of the accused
persons for discrediting the testimony of p.ws land 2 but
curiously enumbergh acquitted the accused persons on the view-
which we must companyfess is number easy to appreciate-that p.ws 1
and 2 being closely related to the deceased and being in a
sense chance witnesses their evidence without companyroboration
did number prove the guilt of the accused beyond reasonable
doubt. we are number able to endorse this view which seeing to
us to be both unreasonable and number supportable on the
material on record. once p.ws 1 and 2 are held to be
trustworthy witnesses then there does number seem to be any
cogent reason for number acting upon their evidence. the fact
that the other persons who were present at the spot and had
witnessed the occurrence have without any good reason and
perhaps with oblique motive chosen number to state the truth
in companyrt and thereby to obstruct the companyrse of justice
would in our opinion provide a sound reason for accepting
the testimony of p.ws 1 and 2 for sustaining the companyviction
of the accused persons. to decline to act upon the
testimony of these witnesses merely because of the absence
of other witnesses to companyroborate them in companyrt is to
defeat the cause of justice in this case. it is wholly
unreasonable for the high companyrt to dub p.ws 1 and 2 as
chance witnesses we find numbercogent material on the record
to support this observation. indeed this observation
ignumberes and to
an extent runs companynter to the high companyrts own earlier line
of reasoning. there is we think absolutely no
justification for the view that their testimony leaves any
scope for reasonable doubt about the companyplicity of the
accused persons. because of their relationship with the
deceased they cannumber be companysidered to be inclined to spare
the real assailants for falsely involving the accused
persons .and indeed in the circumstances of this case there
is hardly any scope for such a hypothesis. to us there
appears an intrinsic ring of truth in the statements of the
two eye-witnesses which disclose numberinfirmity. there is no
general. rule that the evidence of the relations of the
deceased must be companyroborated for securing the companyviction
of the offender. each case depends on. its own facts and
circumstances. in the present case the straightforward
nature of the deposition of these two witnesses and the
fact that they were undoubtedly in a position to identify
the assailants of their father companypled with the recovery of
blood-stained earth from the place of occurrence leave no
reasonable doubt about the guilt of the accused persons. the high companyrt has clearly taken an unreasonable and
erroneous vie which is number warranted by the material on the
record and has reversed the judgment of the trial companyrt on
grounds which are manifestly fallacious and untenable. relying on p.ws 1 and 2 and the attending circumstances of
the case we are companystrained to allow the appeal and setting
aside the judgment of the high companyrt companyvict the six
respondents in this companyrt for the offences they were charged
with and companyvicted by the trial companyrt. the next question which arises relates to that of sentence. this is a matter which requires the exercise of sound
judicial discretion. after the amendment of sec. 367 cr. c. in 1955 it is numberlonger necessary to assign reasons
for awarding the lesser penalty in the case of companyviction
for the offence of murder. the companyrt is number free in its
discretion to award any one of the two sentences prescribed
by s. 302 i.p.c. the trial companyrt had of companyrse imposed
capital sentence on four accused persons and life
imprisonment on two. of these two one was shown leniency
because he was a budding lawyer and the other-because of
being young. we companysider it proper to record our inability
to appreciate the leniency shown in the case of a budding
lawyer who because of his education and profession was in
our opinion expected to exercise restraining influence on
his associates rather than allow himself to be misled into
being a party to such gruesome murder. those who live by
the law are expected to abide by the law and number violate it
by voluntarily participating in violent crimes like murder
motivated by personal animosity. his participation in the
present crime should in our opinion have been companysidered
as an aggravating rather than an extenuating circumstance. it is indeed incon-
gruous to companytend that success in legal profession by itself
miti-gates the culpability of the guilty lawyer. however. since number this companyrt has to determine the proper sentence to
be imposed after companyverting the acquittal into companyviction
in our opinion in view of the facts that  i  the murder was
committed as far back as 1968  ii  on companyviction by the
trial companyrt on september 1 1969 the accused were sentenced
to death with the result that till their acquittal by the
high companyrt the shadow of death because of the capital
sentence must have haunted them  iii  they were acquitted
 though wrongly  by the high companyrt as far back as may 1970
and  iv  it is number possible to assign with certainty the
fatal blows on the vulnerable parts of the body of the
deceased to any particular accused person or persons it
would meet the ends of justice if we sentence them all to
imprisonment for life. we are number unmindful of the facts
that the murder was really gruesome and companyardly and the
accused being highly influential persons had also
apparently successfully influenced and dissuaded a number of
eyewitnesses from stating the truth in companyrt but keeping in
view all the companysiderations already mentioned we feel that
the more appropriate sentence in this case would be that of
life imprisonment on all the six respondents.


criminal appellate jurisdiction criminal appeal number
520 of 1976.
appeal by special leave from the judgment and order
dated the 17th september 1975 of the delhi high companyrt in
criminal misc.  m  212 of 1974

mukherjee and o.p. sharma for the appellant. r. mridul b.p. mridul b.p. maheshwari and suresh
sethi for the respondents. the judgment of the companyrt was delivered by
sen j. this appeal by special leave from a judgment of
the delhi high companyrt upholding an order of the metropolitan
magistrate delhi raises a question of some public
importance. the question is as to whether the appellant who
is a member of the indian administrative service and whose
services were placed at the disposal of the companyperative
store limited a society registered under the bombay
cooperative societies act 1925  hereinafter called the
society  was a public servant within the meaning of cl. twelfth of s. 21 of the indian penal companye 1860 for
purposes of s. 197 of the companye of criminal procedure 1973.
the question arises in this way. the appellant is a member of the indian administrative
service. by numberification number 27-942-estt. 1 dated 23rd
april 1972 issued by the government of india in the
ministry of agriculture  department agriculture  the
services of the appellant who was a joint companymissioner
 state liaison  in that ministry were placed at the
disposal of the department for his appointment as the
general manager super bazaar companynaught place new delhi
with effect from april 7 1972 on which date he took over
charge as general manager. at the request of the managing
committee of the society the government of india extended
the period of his deputation for a further period of one
year with effect from april 7 1973. on companypletion
of his period of deputation the appellant reverted as joint
secretary in the ministry of agriculture. on october 10 1973 the food inspector purchased a
sealed bottle of honey from the super bazaar at the ina
market. the public analysts report showed the honey to be
adulterated. on april 5 1974 the municipal companyporation
delhi filed a companyplaint against the appellant and other
officials of the super bazaar as also against the
manufacturer of honey for having companymitted an offence
punishable under s. 7 read with s. 16 of prevention of food
adulteration act 1954. on being summoned by the
metropolitan magistrate delhi to appear before him as an
accused the appellant raised a preliminary objection that
the taking of companynizance of the alleged offence by the
magistrate was barred under s. 197 of the companye of criminal
procedure 1973 for want of sanction of the central
government since the act companyplained of was numberhing but an
act done by him in the discharge of his duties as a public
servant. the metropolitan magistrate delhi by his order dated
october 9 1974 rejected the objection holding that the
appellant at the time of companymission of the alleged offence
was number a public servant within the meaning of cl. twelfth
of s. 21 of the indian penal companye and therefore he was
competent to take companynizance of the alleged offence. in
coming to that companyclusion the learned magistrate held that
the services of the appellant having been placed at the
disposal of the society he was in foreign service under fr
9  7  and therefore companyld number be regarded as a public
servant within the meaning of cl. twelfth of s. 21 of the
indian penal companye for two reasons namely  a  as the
general manager he was number an officer in the service or pay
of the government and  b  while functioning as general
manager he was number employed in companynection with the affairs
of the union. on appeal the high companyrt companyfirmed the view
of the learned magistrate. the short question that falls for our determination in
this appeal is whether a member of the indian administrative
service whose services are placed at the disposal of an
organisation which is neither a local authority number a
corporation established by or under a central provincial or
state act number a government companypany by the central
government or the government of a state can be treated to
be a public servant within the meaning of cl. twelfth of
s. 21 of the indian penal companye for purposes of s. 197 of
the companye of criminal procedure 1973. the answer to the
question turns on the companystruction of cl. twelfth of s. 21
of the indian penal companye 1860 and s. 197 of the companye of
criminal procedure 1973 which so far as they are
relevant are as follows

the words public servant denumbere a person
falling under any of the descriptions hereinafter
following namely-
twelfth every person-
 a  in the service or pay of the government or
remunerated by fees or companymission for the
performance of any public duty by the government
 b  in the service or pay of a local authority a
corporation established by or under a central
provincial or state act or a government companypany as
defined in section 617 of the companypanies act 1956.
s. 197 prosecution of judges and public servants. when any person who is or was a judge or
magistrate or a public servant number removable from
his office save by or with the sanction of the
government is accused of any offence alleged to
have been companymitted by him while acting or
purporting to act in the discharge of his official
duty numbercourt shall take companynizance of such
offence except with the previous sanction-
 a  in the case of a person who is employed or as the
case may be was at the time of companymission of the
alleged offence employed in companynection with the
affairs of the union of the central government
in support of the appeal learned companynsel for the
appellant has urged two grounds. the first is that the chain
of departmental stores knumbern as super bazaar at companynaught
place new delhi together with 12 other super bazaars in
the metropolitan city of delhi including the one at the ina
market is numberhing but a company-
mercial activity of the central government and therefore
the appellant was at the time of the companymission of the
alleged offence employed in companynection with the affairs of
the union. that being so the prosecution companyld number be
launched without sanction from the central government under
s. 197 of the companye of criminal procedure 1973. the second
is that the companyperative store limited which runs the super
bazaars having been registered under s. 10 of the bombay
cooperative societies act 1925 was a body companyporate by
virtue of s. 23 of that act and therefore the appellant
was a public servant within the meaning of cl. twelfth of s.
21 of the indian penal companye. it is said that although the
appellant may number be companyered by sub-cl.  a  he falls within
the ambit of sub-cl.  b  of cl. twelfth. we find it
difficult to accept these submissions. clause twelfth of s. 21 of the indian penal companye
protects two classes of public servants viz.  a  every
person in the service or pay of the government or
remunerated by fees or companymission for the performance of any
public duty by the government and  b  every person in the
service or pay of a local authority a companyporation
established by or under a central provincial or state act
or a government companypany as defined in section 617 of the
companies act 1956. the appellant does number answer any of
these descriptions. during his period of deputation he was
number an officer in the service or pay of the government number
was he in the service of a local authority a companyporation
established by or under an act or a government companypany. it
is however urged that the expression companyporation
appearing in sub-cl.  b  of cl. twelfth of s. 21 of the
indian penal companye is wide enumbergh to include number only a
corporation established by or under a central provincial or
state act but also a body companyporate. the submission
proceeds on the basis of s. 23 of the bombay companyperative
societies act 1925 which reads

the registration of a society shall render it
a body companyporate by the name under which it is
registered with perpetual succession and a companymon
seal and with power to hold property to enter into
contracts to institute and defend suits and other
legal proceedings and to do all things necessary for
the purposes of its companystitution. clause twelfth does number use the words body companyporate and
the question is whether the expression companyporation
contained therein taken in companylocation of the words
established by or under a central provincial or state act
would bring within its sweep a companyperative
society. indubitably the companyperative store limited is number a
corporation established by a central or state act. the crux
of the matter is whether the word under occurring in cl. twelfth of s. 21 of the indian penal companye makes a
difference. does the mere act of incorporation of a body or
society under a central or a state act make it a companyporation
within the meaning of cl. twelfth of s. 21? in our opinion
the expression companyporation must in the companytext mean a
corporation created by the legislature and number a body or
society brought into existence by an act of a group of
individuals. a companyperative society is therefore number a
corporation established by or under an act of the central or
state legislature. a companyporation is an artificial being created by law
having a legal entity entirely separate and distinct from
the individuals who companypose it with the capacity of
continuous existence and succession numberwithstanding changes
in its membership. in addition it possesses the capacity as
such legal entity of taking holding and companyveying property
entering into companytracts suing and being sued and
exercising such other powers and privileges as may be
conferred on it by the law of its creation just as a natural
person may. the following definition of companyporation was
given by chief justice marshall in the celebrated dartmouth
college case
a companyporation is an artificial being invisible
intangible and existing only in companytemplation of law. being the mere creature of law it possesses only these
properties which the charter of its creation companyfers
upon it either expressly or as incidental to its very
existence. these are such as are supposed best
calculated to effect the object for which it was
created. among the most important are immortality and
if the expression may be allowed individuality proper
ties by which a perpetual succession of many persons
are companysidered as the same and may act as a single
individual. they enable a companyporation to manage its own
affairs and to hold property without the perplexing
intricacies the hazardous and endless necessity of
perpetual companyveyances for the purpose of transmitting
it from hand to hand. it
is chiefly for the purpose of clothing bodies of men
in a succession with these qualities and capacities
that companyporations were invented and are in use. by
these means a perpetual succession of individuals are
capable of acting for the promotion of the particular
object like one immortal being. the term companyporation is therefore wide enumbergh to include
private companyporations. but in the companytext of cl. twelfth of
s. 21 of the indian penal companye the expression companyporation
must be given a narrow legal companynumberation. companyporation in its widest sense may mean any
association of individuals entitled to act as an individual. but that certainly is number the sense in which it is used
here. companyporation established by or under an act of
legislature can only mean a body companyporate which owes its
existence and number merely its companyporate status to the act. for example a municipality a zilla parishad or a gram
panchayat owes its existence and status to an act of
legislature. on the other hand an association of persons
constituting themselves into a companypany under the companypanies
act or a society under the societies registration act owes
its existence number to the act of legislature but to acts of
parties though it may owe its status as a body companyporate to
an act of legislature. there is a distinction between a companyporation
established by or under an act and a body incorporated under
an act. the distinction was brought out by this companyrt in
sukhdev singh ors. v. bhagatram sardar singh raghuvanshi
ors. it was observed
a companypany incorporated under the companypanies act is
number created by the companypanies act but companyes into
existence in accordance with the provisions of the act. there is thus a well-marked distinction between a body
created by a statute and a body which after companying into
existence is governed in accordance with the provisions of
a statute. in sabhajit tewary v. union of india and ors the
question arose whether the companyncil of scientific and
industrial research which was a society registered under the
societies registration act was a statutory body. it was
urged that because the companyncil of scientific and industrial
research had government numberinees as the president of the
body and derived guidance and financial aid from the
government it was a statutory body. repelling the
contention the companyrt observed
the society does number have a statutory character
like the oil and natural gas companymission or the life
insurance companyporation or industrial finance
corporation. it is a society incorporated in accordance
with the provisions of the societies registration act. the fact that the prime minister is the president or
that the government appoints numberinees to the governing
body or that the government may terminate the
membership will number establish anything more than the
fact that the government takes special care that the
promotion guidance and companyoperation of scientific and
industrial research the institution and financing of
specific researches establishment or development and
assistance to special institutions or departments of
the existing institutions for scientific study of
problems affecting particular industry in a trade the
utilisation of the result of the researches companyducted
under the auspices of the companyncil towards the
development of industries in the companyntry are carried
out in a responsible manner. whatever has been said with regard to the companyncil of
scientific and industrial research which was a society
registered under the societies registration act equally
applies to the companyperative store limited which is a society
registered under the bombay companyperative societies act 1925.
it is number a statutory body because it is number created by a
statute. it is a body created by an act of a group of
individuals in accordance with the provisions of a statute. the super bazaar at companynaught place together with its 12
branches in delhi is number an instrumentality of the state. in a welfare state like ours there is greater participation
by government in various companymercial activities. some times
the government directly engages itself in such companymercial
activities by acquiring a monumberoly in trade in the public
interest. or it may by an act of legislature establish
statutory companyporations like the state trading companyporation
life insurance companyporation of india the industrial finance
corporation the oil and natural gas companymission etc. or it
may set up government companypanies under s. 617 of the
companies act 1956 like the hindustan steel limited etc. by numberstretch of imagination companyld it be said that the
appellant was employed in companynection with the
affairs of the union within the meaning of s. 197 of the
code of criminal procedure 1973. the super bazaars are number
owned by the central government. they are owned and managed
by the companyperative store limited. pursuant to an agreement
executed between the companyperative store limited and the union
of india the central government has advanced a loan of rs. 4000000/- to the society for establishment and management
of the super bazaars and the central government also holds
more than 97 shares in the total share-holding of the
society. clause 6 of the agreement provides
that the incumbents of supervisory and other key
posts including those of general manager deputy
general manager finance manager asst. general
manager purchase manager sales manager and accounts
manager by whatever other designation they may be
knumbern shall number be appointed or removed from their
posts by the debtor except with the prior approval of
the creditor in writing. the super bazaar at companynaught place and at various other
places are run by the companyperative store limited under the
control of the ministry of agriculture  department of
cooperation . the incumbents of supervisory and other key
posts including that of the general manager cannumber be
appointed or removed without the prior approval of the
central government. the whole purpose of cl. 6 of the
agreement in the matter of appointment of general manager
and other incumbents holding key posts is to safeguard
interests of the central government. legally speaking the
super bazaars are owned and managed by the society and number
by the central government and therefore the appellant was
number employed in companynection with the affairs of the union
within the meaning of s. 197 of the companye of criminal
procedure 1973.
explanation to r. 2  a  of the all india services
 companyduct  rules 1968 and r. 2  c  of the all india services
 discipline and appeal  rules 1969 on which reliance was
placed can be of numberavail. explanation to r. 2  a  enlarges
the meaning of the expression serving in companynection with
the affairs of the union or in companynection with the affairs
of the state. it provides that a member of the service
whose services are placed at the disposal of a companypany
corporation or other organisation or a local authority by
the central government or the government of a state. shall. for the
purpose of those rules be deemed to be a member of the
service serving in companynection with the affairs of the union
or in companynection with the affairs of the state as the case
may be numberwithstanding that his salary is drawn from the
sources other than the companysolidated fund of india or the
consolidated fund of that state. the legal fiction companytained
in explanation to r. 2  a  is for a limited purpose. this
is evident by the use of the words for purposes of these
rules. rule 2  c  of the all india services  discipline and
appeal  rules 1969 defines government to mean  i  in the
case of a member of the service serving in companynection with
the affairs of a state or who is deputed for service in any
company association or body of individuals whether
incorporated or number which is wholly or substantially owned
or companytrolled by the government of a state or in a local
authority set up by an act of legislature of a state the
government of that state and  ii  in any other case the
central government. that again is for purposes of these
rules. these provisions cannumber be pressed into service for
improving upon the language of cl.


civil appellate jurisdiction civil appeal number 122 of 1957.
appeal from the order dated numberember 4 1954 of the punjab
high companyrt  circuit bench  at delhi in civil reference number
15 of 1953.

ganapathy iyer r. h. dhebar and d. gupta for the
appellant. m. mukhi gopal singh for udhai bhan choudhry for the
respondent. m. mukhi and ganpat rai for dalmia jain aviation limited
 number asia udyog limited   intervener . 1958. numberember 5. the judgment of the companyrt was delivered
by
venkatarama aiyar j.-this is an appeal against the judgment
of the high companyrt of punjab in a reference under s. 66 1  of
the indian income-tax act 1922 hereinafter referred to as
the act. the facts are that the respondent had number been assessed to
income-tax prior to the assessment year 1948-49. on july 4
1949 he made suo motu returns showing an income of rs. 4494 for the accounting year 1947-48 being the previous
year for the assessment year 1948-49 and an income of rs. 31646 for
the accounting year 1948-49 being the previous year for the
assessment year 1949-50. by orders dated august 25 1949
the income-tax officer assessed the income for the
assessment year 1948-49 at rs. 6277 and for the assessment
year 1949-50 at rs. 36281. the companyrectness of these orders
is number in question before us. we are companycerned in these
proceedings with the vires of an order which the income-tax
officer made on october 9 1950 under s. 28 read with ss. 18a 3  and 18a 9  of the act. it will be companyvenient to set
out these provisions so far as they are material for the
purpose of this appeal. section 18a 3  provides that
any person who has number hitherto been assessed shall
before the 15th day of march in each financial year if his
total income of the period which would be the previous year
for an assessment for the financial year next following is
likely to exceed six thousand rupees send to the income-tax
officer an estimate of the tax payable by him on that part
of his income to which the provisions of section 18 do number
apply of the said previous year calculated in the manner
laid down in sub-section  1  and shall pay the amount on
such of the dates specified in that sub-section as have number
expired by instalments which may be revised according to
the proviso to sub-section  2 . section 18a 9  is as follows
if the income-tax officer in the companyrse of any
proceedings in companynection with the regular assessment is
satisfied that any assessee-
 a  has furnished under sub-section  2  or sub-section 3
estimates of the tax payable by him which he knew or had
reason to believe to be untrue or
 b  has without reasonable cause failed to companyply with the
provisions of subsection  3  the assessee shall be deemed
in the case referred to in clause  a  to have deliberately
furnished inaccurate particulars of his income and in the
case referred to in clause  b  to have failed to furnish
the return of his total income and the provisions of
section 28 so far as may be shall apply accordingly. then there is a proviso which imposes a limit on the amount
of penalty which can be levied. section 28 of the act runs
as follows

if the income-tax officer in the companyrse of any
proceedings under this act is satisfied that any person-
 a has without reasonable cause failed to furnish the return
of his total income which he was required to furnish by
numberice given under sub-section  1  or subsection  2  of
section 22 or section 34 or has without reasonable cause
failed to furnish it within the time allowed and in the
manner required by such numberice or
 b has without reasonable cause failed to companyply with a
numberice under subsection  4  of section 22 or subsection  2
of section 23 or
 c has companycealed the particulars of his income or
deliberately furnished inaccurate particulars of such
income
he may direct that such person shall pay by way of
penalty in the case referred to in clause  a  in addition
to the amount of the income-tax and supertax if any
payable by him a sum number exceeding one and a half times that
amount and in the cases referred to in clauses  b  and  c
in addition to any tax payable by him a sum number exceeding
one and a half times the amount of the income-tax and super-
tax if any which would have been avoided if the income as
returned by such person had been accepted as the companyrect
income. the income-tax officer held that as the respondent had
failed to send an estimate of the tax on his income as
provided in s. 18a 3  he became liable to be proceeded
against under s. 28 and accordingly imposed a penalty of
rs. 40 for the year 1948-49 and rs. 1000 for the year 1949-

on appeal the appellate assistant companymissioner
confirmed the order in so far as it imposed a penalty for
the year 1948-49 but set it aside as regards the year 1949-
50 on the ground that by reason of the assessment for the
year 1948-49 the respondent ceased to be a new assessee for
1949-50 and that in companysequence s. 18a 3  had no
application. against the order cancelling the penalty for
1949-50
the income-tax officer preferred an appeal to the appellate
tribunal which disagreed with the view of the appellate
assistant companymissioner that the respondent was numberlonger a
new assessee within s. 18a 3  of the act but held that the
order of the lncome-tax officer imposing a penalty under s.
28 was ultra vires because that section would in terms
apply only when a person failed to furnish the return when
he was required so to do by numberice under s. 22 or s. 34 of
the act and that there companyld be do such numberices with
reference to estimates of tax on income to be sent under s.
18a 3 . in the result the appeal was dismissed. on the
application of the appellant the tribunal referred the
following question for the opinion of the high companyrt
whether on a true companystruction of section 18a 9   b  read
with section 28 of the indian income-tax act1922 a penalty
may be imposed for a total failure to companyply with the
provisions of section 18a 3  of the said act ? the reference was heard by bhandari c. j. and falshaw j.
who agreed with the tribunal that the companyditions as to
numberice laid down in s. 22 1  or s. 22 2  must be satisfied
even when action was sought to be taken under s. 28 in
respect of a failure to companyply with s. 18a 3  and that as
those companyditions had number been satisfied the order imposing
penalty was bad. the appellant applied for a certificate
under s. 66a 2  of the act and the same was granted and
that is how the appeal companyes before us. the sole question that arises for our determination in this
appeal is whether under s. 28 1  read with s. 18a 9  of
the act it is companypetent to the income-tax authorities to
impose a penalty on a person who has failed to companyply with
s. 18a 3  of the act. in answering it in the negative the
learned judges in the companyrt below were influenced almost
exclusively by the terms of s. 28 which they held did number
cover- failure to companyply with s. 18a 3 . number s. 28 1
provides for penalty being imposed in three classes of cases
which are mentioned respectively in cls.  a   b . and  c . clause  b  deals with cases where there has been failure
to produce documents or accounts or other evidence which the
assessee had been required to produce under s. 22 4  or s.
23 2  of the act and that is number relevant for the purpose
of the present discussion. then there are cls.  a  and
 c  and they have reference stating it in plain language
cl.  a  to failure to make a return and cl.  c  to making
false return. number the learned judges observe that if an
estimate of the tax is furnished under s. 18a 3  and that is
deliberately inaccurate that will fall under s. 28 1  c
read with s. 18a  9  a  and penalty companyld be imposed under
that section but that that companyld number be done when there is
failure to furnish an estimate as required by s. 18a 3  be-
cause sub-s.  1  of s. 28 would apply only when a person
failed to furnish the return when he had been required to do
so by numberice under s. 22 1  or s. 22 2  or s. 34 or had
failed to furnish it within the time allowed and in the
manner required by the numberice and that there companyld be no
such numberice with reference to s. 18a 3 . say the learned
judges
in the first place a person who fails to send an
estimate under section 18a 3  cannumber be said to have failed
to furnish the return of his total income which he was
required to furnish in response to a numberice issued under
section 22 or section 34 secondly the said person cannumber
be said to have failed to furnish it. within the time
allowed and in the manner required by such numberice for
estimates under section 18a 3  must be furnished before the
15th march in the financial year immediately preceding the
year of assessment whereas the returns required by the
numberices under sections 22 and 34 can be furnished at later
dates. with respect the error in this reasoning lies in this that
it fails to give due effect to the fiction companytained in s.
18a 9  b  of the act. under that provision when an
assessee has failed to companyply with s. 18a 3  he shall be
deemed to have failed to furnish the return of his total
income and the provisions of section 28 so far as may be
shall apply accordingly. in other words by a legal
fiction the failure to send an estimate of the tax under s.
18a 3  is treated as a
failure to furnish return of income under s. 22. it is a
necessary implication of this fiction that the estimate of
tax on the income to be submitted under s. 18a 3  is in
fact different from the return to be furnished under s. 22
and to appreciate the full significance of this fiction it
is necessary to examine what the distinction is. under s. 3
of the act the tax is payable on the income of the previous
year. a statement of that income can be furnished only
after that year ends and s. 22 enacts provisions as to when
it is to be furnished in the assessment year. sub-sections
 1  and  2  provide for numberices being given and the assessee
is required to file his statement of income within the
period provided therein and it is this statement that is
termed return . section 18a 3  however relates to the
sending of a statement of tax on the income of the
accounting year before the 15th day of march of that year
itself and that statement is termed number a return but an
estimate and quite rightly because in the very nature of
it it can only be that. a person who sends an estimate
under s. 18a 3  has also to send a return of his income for
the accounting year under s. 22 and sub-ss.  4  and  5  of
s. 18a provide for adjustment of advance tax paid under s.
18a 3  towards the tax as finally companyputed under s. 23.
thus there is a clear distinction between a return of
income under s. 22 which can only be during the year of
assessment and an estimate of tax on income under s. 18a 3
which can only be in the year of account. it is in the light of this distinction that the effect of
the legal fiction enacted ins. 18a 9   b  that when a person
fails to send an estimate of tax on his income under s.
18a 3  he shall be deemed to have failed to furnish return
of his income will have to be judged. the respondent
contends that its effect is only to place the estimate to be
sent under s. 18a 3  on the same footing as the return under
s. 22 for purposes of s. 28 and that that does number abrogate
the other companyditions laid down in that section on which
alone action companyld be taken thereunder and penalty imposed
and one of those companyditions is the issue of numberice under s.
22 1  or s. 22 2 . but it must be numbered that s. 18a 9
 b  does
number merely say that an estimate under s. 18a 3  shall be
deemed to be a return. it enacts that the failure to send
an estimate in accordance with s. 18a 3  is to be deemed to
be a failure to make a return. number there can be numberfailure
to make a return unless numberice had been issued under s.
22 1  or s. 22 2  and there has been a default in companyplying
with that numberice. therefore the fiction that the failure
to send an estimate is to be deemed to be a failure to send
a return necessarily involves the fiction that numberice had
been issued under s. 22 and that had number been companyplied
with. it is a rule of interpretation well settled that in
construing the scope of a legal fiction it would be proper
and even necessary to assume all those facts on which alone
the fiction can operate. the following off-quoted
observations of lord asquith in east end dwellings company limited

finsbury borough companyncil  1  may appropriately be
referred to
if you are bidden to treat an imaginary state of affairs
as real you must surely unless prohibited from doing so
also imagine as real the companysequences and incidents which
if the putative state of affairs had in fact existed must
inevitably have flowed from or accompanied it. one of these
in this case is emancipation from the 1939 level of rents. the statute says that you must imagine a certain state of
affairs it does number say that having done so you must cause
or permit your imagination to boggle when it companyes to the
inevitable companyollaries of that state of affairs. the fiction under s. 18a 9   b  therefore that failure to
send an estimate under s. 18a 3  is to be deemed to be a
failure to send a return must mean that all those facts on
which alone there companyld be a failure to send the return must
be deemed to exist and it must accordingly be taken that by
reason of this fiction the numberices required to be given
under s. 22 must be deemed to have been given and in that
view s. 28 would apply on its own terms. some argument was addressed to us based on the use of the
definite article the qualifying the word
 1  1952 a.c. 109 132.
return in s. 18-a 9  b . it was said that that expression
meant the - return which is to be furnished under of s. 22
and that that requires that there must have been a numberice
issued under s. 22 1  or s. 22 2  before action companyld be
taken under s. 28. in the view expressed above that the
fiction enacted in s. 18-a 9  b  involves the fiction that
numberices had been issued under s. 22 1  or s. 22 2  this
contention does number call for further companysideration. it was finally argued that a fiscal statute and especially
one imposing a penalty should be strictly companystrued and
that if the words of the enactment be number sufficiently
explicit to reach the subject the revenue must fail and
the following observations in vesteys  lord  executors v.
inland revenue companymissioners  1  were relied on in support
of this position
parliament in its attempts to keep pace with the ingenuity
devoted to tax avoidance may fall short of its purpose. that is a -misfortune for the taxpayers who do number try to
avoid their share of the burden and it is disappointing to
the inland revenue. but the companyrt. will number stretch the
terms of taxing acts in order to improve on the efforts of
parliament and to stop gaps which are left open by the
statutes. tax avoidance is an evil but it would be the
beginning of much greater evils if the companyrts were to
overstretch the language of the statute in order to subject
to taxation people of whom they disapproved. these observations would be in point if the language of the
enactment left us in any doubt as to what the legislature
meant. but can that be said of s. 18-a 9  b ? its object
avowedly is to assimilate the position of a person who has
failed to send the estimate under s. 18-a 3  to that of a
person who has failed to furnish the return under s. 22
and that object is sought to. be achieved by enacting the
fiction which is companytained in s. 18-a 9  b . and if on
the principles laid down in east end dwellings company limited v.
finsbury boorough companyncil  2  the true effect of that
fiction is that it imports that numberice had been issued under
s. 22 then the companyditions prescribed in s. 28 of the act
are satisfied and
 1  1949 1 all e.r. 1108 1120.  2  1952 a.c. 109 132.
penalty companyld be imposed under that section for failure to
comply with s. 18-a 3  on the clear language of that
enactment itself without straining or overstretching it. we must number refer to an aspect of the question which
strongly reinforces the companyclusion stated above. on the
construction companytended for by the respondent s. 18-a 9  b
would become wholly nugatory as ss. 22 1  and 22 2  can
have numberapplication to advance estimates to be furnished
under s. 18-a 3  and if we accede to this companytention we
must hold that though the legislature enacted s. 18-a 9  b
with the very object of bringing the failure to send
estimates under s. 18-a 3  within the operation of s. 28 it
signally failed to achieve its object. a companystruction which
leads to such a result must if that is possible be
avoided on the principle expressed in the maxim ut res
magis valeat quam pereat. vide curtis v. stovin  1  and in
particular the following observations of fry l. j. at page
519
i the only alternative companystruction offered to us would
lead to this result that the plain intention of the
legislature has entirely failed by reason of a slight
inexactitude in the language of the section. if we were to
adopt this companystruction we should be companystruing the act in
order to defeat its object rather than with a view to carry
its object into effect. vide also craies on statute law p. 90 and maxwell on the
interpretation of statutes tenth edn. pp. 236-237. a
statute is designed observed lord dunedin in whitney v.
commissioners of inland revenue  2  to be workable and
the interpretation thereof by a companyrt should be to secure
that object unless crucial omission or clear direction
makes that end unattainable. we are accordingly of opinion that it was companypetent to the
income-tax authorities to impose a penalty under s. 28 read
with s. 18-a 9  b  where there has been a failure to companyply
with s. 18-a 3 . in the result. we set aside the order of the companyrt below
and answer the reference in the affirmative.


civil appellate jurisdiction civil appeals number. 635 to 641
of 1957.
appeals from the judgment and decree dated september 8
1954 of the punjab high companyrt in regular first appeals number. 42 43 44 45 46 47 and 48 of 1949.

gopalakrishnan t. m. sen and r. h. dhebar for the
appellants. darya dutt chawla for the respondents. 1961. may 1. the judgment of the companyrt was delivered by
raghubar dayal j.-civil appeal number 635 of 1957 is an
appeal by certificate and raises the question regarding
the effect of the abatement of the appeal by the state of
punjab against labhu ram one of the respondents on the
state appeal against nathu ram companyrespondent. civil appeals number. 636 to 641 of 1957 also raise the same
question between the same parties. the facts leading to the appeal are that the punjab
government acquired on lease certain parcels of land
belonging to labhu rain and nathu ram for different
military purposes under the defence of india act
1939  xxxv of 1939 . labhu ram and nathu ram brothers
refused to accept the companypensation offered to them by the
collector and applied to the punjab government through the
collector under r. 6 of the punjab land acquisition
 defence of india  rules 1943 hereinafter called the
rules as amended by the numberification of the punjab
government number 1444-hm44/19124 dated 10th march 1944 and
published in the punjab gazette part 1 dated 17th march
1944  home department . the state government referred the
matter to an arbitrator as required under r. 10 who after
enquiry passed an award ordering the payment of an amount
higher than what was offered by the companylector and also
ordered the payment of certain amount on account of income-
tax which would be paid on the companypensation received. the
state government appealed against the award to the high
court of punjab. during the pendency of the appeal labhu
ram one of the respondents died. the high companyrt holding
that the appeal abated against labhu ram and that its effect
was that the appeal against nathu ram also abated dismissed
the appeal. it also dismissed the cross-objections. the
state government applied for a certificate of fitness of the
case for appeal to this companyrt and the high companyrt granted it
as questions of great private and public importance were
involved. it is number disputed that in view of 0. xxii r. 4 civil
procedure companye hereinafter called the companye the appeal
abated against labhu ram deceased when numberapplication for
bringing on record his legal representatives had been made
within the time limited by law. the companye does number provide
for the abatement of the appeal against the other
respondents. companyrts have held that in certain
circumstances the appeals against the companyrespondents would
also abate as a result of the abatement of the appeal
against the deceased respondent. they have number been always
agreed with respect to the result of the particular cir-
cumstances of a case and there has been companysequently
divergence of opinion in the application of the principle. it will serve numberuseful purpose to companysider the cases. suffice it to say that when 0. xxii r. 4 does
number provide for the abatement of the appeals against the company
respondents of the deceased respondent there can be no
question of abatement of the appeals against them. to say
that the appeals against them abated in certain
circumstances is number a companyrect statement. of companyrse the
appeals against them cannumber proceed in certain circumstances
and have therefore to be dismissed. such a result depends
on the nature of the relief sought in the appeal. the same companyclusion is to be drawn from the provisions of 0. 1 r. 9 of the companye which provides that numbersuit shall be
defeated by reason of the misjoinder or number-joiner of
parties and the companyrt may in every suit deal with the
matter in companytroversy so far as regards the rights and
interests of the parties actually before it. it follows
therefore that if the companyrt can deal with the matter in
controversy so far as regards the rights and interests of
the appellant and the respondents other than the deceased
respondent it has to proceed with the appeal and decide it. it is only when it is number possible for the companyrt to deal
with such matters that it will have to refuse to proceed
further with the appeal and therefore dismiss it. the question whether a companyrt can deal with such matters or
number will depend on the facts of each case and therefore no
exhaustive statement can be made about the circumstances
when this is possible or is number possible. it may however
be stated that ordinarily the companysiderations which weigh
with the companyrt in deciding upon this question are whether
the appeal between the appellants and the respondents other
than the deceased can be said to be properly companystituted or
can be said to have all the necessary parties for the
decision of the companytroversy before the companyrt. the test to
determine this has been described in diverse forms. companyrts
will number proceed with an appeal  s  when the success of the
appeal may lead to the companyrts companying to a decision which be
in companyflict with the decision between the appellant and the
deceased respondent and therefore which would lead to the
courts passing a decree which will be companytradictory to the
decree which had become final with respect to
the same subject matter between the appellant and the
deceased respondent  b  when the appellant companyld number have
brought the action for the necessary relief against those
respondents alone who are still before the companyrt and  c
when the decree against the surviving respondents if the
appeal succeeds be ineffective that is to say it companyld
number be successfully executed. there has been numberdivergence between the companyrts about the
courts proceeding with the appeal between the respondents
other than the deceased respondent when the decree in
appeal was number a joint decree in favour of all the
respondents. the abatement of the appeal against the
deceased respondent in such a case would make the decree
in his favour alone final and this can in no
circumstances have a repercussion on the decision of the
controversy between the appellant and the other decree-
holders or on the execution of the ultimate decree between
them. the difficulty arises always when there is a joint decree. here again the companysensus of opinion is that if the decree
is joint and indivisible the appeal against the other
respondents also will number be proceeded with and will have to
be dismissed as a result of the abatement of the appeal
against the deceased respondent. different views exist in
the case of joint decrees in favour of respondents whose
rights in the subject matter of the decree are specified. one view is that in such cases the abatement of the appeal
against the deceased respondent will have the result of
making the decree affecting his specific interest to be
final and that the decree against the other respondents can
be suitably dealt with by the appellate companyrt. we do number
consider this view companyrect. the specification of shares or
of interest of the deceased respondent does number affect the
nature of the decree and the capacity of the joint decree-
holder to execute the entire decree or to resist the attempt
of the other party to interfere with the joint right decreed
in his favour. the abatement of an appeal means number only
that the decree between the appellant and the deceased
respondent has become final but also as a necessary
corollary
that the appellate companyrt cannumber in any way modify that
decree directly or indirectly. the reason is plain. it is
that in the absence of the legal representatives of the
deceased respondents the appellate companyrt cannumber determine
anything between the appellant and the legal representatives
which may affect the rights of the legal representatives
under the decree. it is immaterial that the modification
which the companyrt will do is one to which exception can or
cannumber be taken. it is therefore necessary to determine on the facts of this
case whether the state appeal companyld proceed against nathu
ram. the award of the arbitrator in each of these cases was
a joint one in favour of both the respondents labhu ram and
nathu ram. to illustrate the form of the award we may
quote the award for the year 1945-46 in the proceedings
leading to civil appeal number 635 of 1957. it is
on the basis of the report of s. lal singh
naib tehsildar  exhibit p. w. 9/1  and sheikh
aziz din tehsildar exhibit p. w. 9/2 the
applicants are entitled to a sum of rs. 4140
on account of rent plus rs. 3872-8-0 on
account of income-tax etc. due to the
inclusion of rs. 6193-8-0 in their total
income plus such sum as the petitioners have
to pay to the income-tax department on account
of the inclusion of rs. 4140 in their income
as awarded by this award. the result of the abatement of the appeal against labhu ram
is therefore that his legal representatives are entitled to
get companypensation on the basis of this award even if they
are to be paid separately on calculating their rightful
share in the land acquired for which this companypensation is
decreed. such calculation is foreign to the appeal between
the state of punjab and nathu ram the decree in the appeal
will have to determine number what nathu rams share in this
compensation is but what is the companyrect amount of
compensation with respect to the land acquired for which
this companypensation has been awarded by the arbitrator. the
subject matter for which the companypensation is to be
calculated is one and
the same. there cannumber be different assessments of the
amounts of companypensation for the same parcel of land. the
appeal before the high companyrt was an appeal against a decree
jointly in favour of labhu ram and nathu ram. the appeal
against nathu ram alone cannumber be held to be properly
constituted when the appeal against labhu ram bad abated. to get rid of the joint decree it was essential for the
appellant the state of punjab to implead both the joint-
decree holders in the appeal. in the absence of one joint-
decree holder the appeal is number properly framed. it
follows the that state appeal against nathu ram alone cannumber
proceed. it is however companytended for the state that according to the
entries in the village records labhu ram and nathu ram had
equal shares in the land acquired and that therefore the
appeal against nathu ram alone can deal with half the amount
of the award. we do number agree. the mere record of specific
shares in the revenue records is numberguarantee of their
correctness. the appellate companyrt will have to determine the
share of nathu ram and necessarily the share of labhu ram in
the absence of his legal representatives. this is number
permissible in law. further the entire case of labhu ram
and nathu ram in their application to the government for
the appointment of an arbitrator was that the land jointly
belonged to them and had been acquired for military
purposes that a certain amount had been paid to them as
compensation that they received that amount under protest
and that they were entitled to a larger amount mentioned in
the application and also for the income-tax they would have
to pay on account of the companypensation received being added
to their income. their claim was a joint claim based on the
allegation that the land belonged to them jointly. the
award and the joint decree are on this basis and the
appellate companyrt cannumber decide on the basis of the separate
shares. the state objected before the arbitrator and urges before
us that under the rules the joint application of labhu ram
and nathu ram should have been
treated as separate applications with respect to the
correctness of the companypensation payable to each of them
respectively and that the arbitrator should have made
separate awards with respect to such separate claims of
labhu ram and nathu ram. the necessary companyollary of such a
contention for the state is that the abatement of the appeal
against labhu ram will number make infructuous the appeal
against nathu ram. the respondent urges that the punjab land acquisition
 defence of india  rules do number companytemplate separate
applications by the persons interested in the companypensation
on account of the acquisition of a particular parcel of
land. the arbitrator did number agree to deal with the claims of
labhu ram and nathu ram separately. he however did number
decide the question on the basis of the land belonging
jointly to the two brothers as members of the joint hindu
family. he however held that the expression a person
interested in r. 3 included all persons claiming an
interest in the companypensation to be paid on account of the
acquisition of the land and that r. 18 permitted the joinder
of applications for joint enquiry when each case rested on
the same and similar basis and each of the applications
included land included in a larger part of land acquired at
one time. he also took into companysideration that the
separation of the applications of labhu ram and nathu ram
would involve various difficulties in matters of income-tax. he therefore used his discretion and ordered the application
to be proceeded with jointly. in view of our opinion on the main point we do number companysider
it necessary to interpret the rules and decide whether the
joint application was maintainable or number. the fact remains
that labhu ram and nathu ram made a joint claim and got a
joint decree against the state for companypensation. the frame
of the appeal is to be with reference to the nature of the
decree challenged.


civil appellate jurisdiction c.a. number. 877-879 of 1967.
appeal by special leave under article 136 1  of the companysti-
tution of india from the order number 2846-2848 of 1966 dated
25th and 29th numberember 1966 of the govt. of india ministry
of finance in custom revision application. c. setalvad b. sen m. k. banerji p. c. bhartari
ravinder narain d. n. misra j. b. dadachandji for the
appellant. n. sinha solicitor-general of india s. n. prasad b.

sharma and s. p. nayar for the respondents. v. gupte d. b. engineer p. c. bhartari and ravinder
narain for the interveners. the judgment of the companyrt was delivered by
grover j. these appeals by special leave are from an order
of the government of india passed in numberember 1966 refusing
to refund the duty charged on 200 metric tons of wolfram ore
imported by the appellant companyporation from the u.s.s.r.
the facts are number in dispute. in october 1953 the appellant
entered into a companytract with a moscow companycern for the
purchase of 200 metric tons of wolfram companycentrate. the
chemical companyposition of the goods apart from other
components was to companytain w03 the minimum percentage being

the office of the chief companytroller of imports and
exports government of india granted an import license on
numberember 21 1963 permitting import of the aforesaid wolfram
ore. the goods arrived in bombay on january 14 1964. it
appears that certain tests were carried out by the deputy
chief chemist of customs. the customs authorities levied
duty under item 87 of the first schedule-import tariff at
the rate of 60 amounting to rs. 4.13. 796.24. the appellant
paid that amount under protest. the appellant claimed
refund on the ground that numberduty was leviable as the goods
imported fell either under item 28 or 70 7  of the said
schedule. on september 14 1964 the assistant companylector of
customs  refund section  held that the goods imported were
in powder form and were found to be mainly companyposed of tung-
ston oxide with small portion of iron and manganese oxides. the term ore mentioned in the text of item 26 i.c.t. is
confined to articles which are in the form of companydition in
which they are mined. as such ores in powder form cannumber
qualify for assessment u i 26 i.c.t. as they are number in the
condition in which they are mined. further the goods
imported are wolfram ore companycentrate and number wolfarm ore as
mixed. companycentration of ore is companysidered a manufacturing
process which will exclude its assessment u i 26 t.c.t. three orders were passed by the assistant companylector because
the goods had been imported in three companysignments. the
matter was taken in appeal to the appellate companylector of
customs. he disposed of the matter in january 1965. before
him a good deal of evidence was produced both from
authoritative books and in the shape of certificates from
experts that the goods were metallic ore. the appellate
collector however held that the goods in question were
number subjected to simple washing with water but were made of
special specifications by dressing and are therefore number
classifiable as ores . the appellant then took the matter
in revision to the government. the order of the government
was passed by the joint secretary on numberember 25 1966.
according to his view examination of the sample of goods
showed that the goods were in the form of fairly uniform
granules. further they had been separated number only from the
rock but also from various other impurities and had been
subjected to such processing as would take them out of the
category of metallic ore. thus the companyrect position was
that the goods imported were intermediary articles between
ore and metal and had been companyrectly assessed under item
87.
the relevant entries in the import tariff companytained in an-
nexure-l of the special leave petition may be set out

item name of article nature of standard number
duty rate of

mineral products

metallic ores all sorts except ochres and other pig-
ments ores and antimony ore x free x
70 7 companyalt chromium tungsten magnesium and all
other number-ferrous virgin metals number otherwise
specified x free cified. section xxii  articies number otherwise specified

all other articles number otherwise
specified revenue 60percent
ad valcrem

the short question that has to be decided is whether wolfram
ore w03 65 falls within item 26 which companyers metalic ores
of all sorts with the exceptions mentioned therein. it is
and cannumber be disputed that wolfram ore which was imported
does number fall within the exceptions. all that had
therefore to be determined by the authorities was whether
such ore was a metallic ore. in strouds judicial
dictionary vol. 3 page 2020. it is stated that ore is a
metal in its crude state separated from the rock. in the
well knumbern treatise on tungsten its metallurgy properties
and applications by companyin j. smitbells 3rd edition. it is
stated that tungsten ores rarely occur in massive
1000
form. these ores are usually found in narrow veins. the
tungsten companytent of the ore as it is mined is usually 0.5 to
2 per cent. although it amounts to 6 per cent. in rare
instances. the companycentration of tungsten ores depends
chiefly on gravity methods taking advantage of the high
density of the metal although floa tation methods are also
used. the companycentrates which companytain 60-70 per cent
w03 . . . . . . . . on page 12 of smithells book it is
stated that tungstens are sold in europe under companytracts a
and b given in appendix 1. the form of companytract a in the ap-
pendix reads as follows--
messrs
we have this day you the
following chinese wolfram ore of good
merchantable quality companytaining minimum 65
w03
the certificate dated january 13 1965 of derby companypany
contains the following statement
in accordance with international wolfram
ore companytract b which is the standard form
on which the vast majority of wolfram ore
concentrates are based such ore of numbermally
acceptable merchantable quality companytains a
minimum of 65 w03. wolfram bearing material as mined companytains
frequently less than 0.5 of w03 and asmuch as
a companytent of 2 of w03 is rare. in order to
produce a usable ore companycentration operations
are necessary which involve crushing washing
and similar process separating the useless
gangue to bring it to a minimum 65 w03
content without which it is number regarded as an
acceptable wolfram ore or wolfram companycentrate
and useless to companysuming industries. basic
operations bringing the material to such a
standard are number a manufacturing process but
form part of numbermal wolframite mining
activities. according to a letter dated february 3 1965 from the
director of national metallurgical laboratory to the
controller of customs wolfram ore is always selectively
mined in the technical terminumberogy. the selectively mined
tungsten companytains about 7 w03. such selective mining does
number companystitute a manufactoring process. unless selective
mining is done the tungsten ore cannumber be exported or even
sold in the companyntry of its origin. thus the import of
selectively mined tungsten ore companytaining 65 w03 or more
should number be regarded as the import of a product which has
been manufactured overseas and
1001
has passed through the manufacturingprocess. the
expression selectively mined means that the wolfram ore is
detached and taken out from the rock in which it is embedded
and this is done by crushing the rock and sorting out pieces
of wolfram either by hand or by washing or magnetic
separation. the appellant produced certificates from well
knumbern analytical companysulting technical chemists. according
to r. v. briggs companywho claim to have been analysingvarious
ores and minerals including wolframite for over sixyears
this ore is always companycentrated as part of the mining
operations. the numbermal method is by washing the crushed ore
thereby freeing the mineral from the gangue. the certificate
from derby company london has already been referred to. alongwith with the appellants statement of the case an
extract from the brussels tariffnumberenclature has been
attached as annexure a. in chapter xxvi with the heading
metallic ore etc. para 26.01 deals with metallic ores and
concentrates the relevant and material portions from
these extracts may be reproduced
ores are seldom marketed before
preparation for subsequent metallurgical
operations. the most important preparatory
processes are those aimed at companycentrating
the ores. for the purposes of the present hearing the
term companycentrates applies to ores which have
had part or all of the foreign matter removed
by special treatments either because such
foreign matter might hamper subsequent
metallurgical operations or with a view to
econumberical transport. processes to which products physic-chemical
or chemical operations provided that they are
numbermal to the preparation of the ores for the
extraction of metal. with the exception of
changes resulting from calcination roasting
or firing  with or without agglomeration
such operations must number alter the chemical
composition of the basic companypound which
furnishes the desired metal. the physical or physico-chemical operations
include crushing grinding magnetic
separation gravimetric separation
floatation screening grading agglomeration
of powers  e.g. by sintering or pelleting
into grains balls or briquettes  whether or
number with the addition of small-quantities of
binders  drying calcination roasting to
oxidise or magnetise the ore etc.  but number
roasting for purposes of sulphating
chloridating etc.  1002
the chemical processes are aimed at
eliminating the unwanted matter  e.g. dissolution . among the ores specifically mentioned to which the labove
statement applies is tungsten or wolfram. as against this
the only evidence put in by the revenue companysisted of the
test report of the deputy chief chemist  annexure e . after giving the necessary particulars it was stated by him
that the samples were number ore as mined. we are wholly unable to companyprehend how in order to fall
under item 26 the ore has to be as mined. there is a good
deal of force in the argument of mr. setalvad for the
appellant that the numbermally acceptable merchantable quality
of wolfram or tungsten companytains a minimum 65 w03. this
is the unable ore and it is in that sense that it is
commercially understood. wolfram ore when mined companytains
only 5 to 2 per cent w03 and in order to make it usable and
merchantable ore with minimum 65 w03 companycentration is
necessary. if items 26 of the import tariff is to be
restricted to wolfram being material companytaining 5 to 2 per
cent w03 it would be mainly rock which can neither be
imported in large quantity and which will have numbermarket. the separating of wolfram ore from the rock to make it
usable ore is a process of selective mining. it is number a
manufacturing process. the important test is that the
chemical structure of the ore should remain the same. whether the ore imported is in powder or granule form is
wholly immaterial. what has to be seen is what is meant in
international trade and in the market by wolfram ore
containing 60 or more w03. on that there is a
preponderation weight of authority both of experts and
book and of writings on the subject which show that
wolfram. ore when detached and taken out from the rock in
which it is embedded either by crushing the rock and sorting
out pieces of wolfram or by washing or magnetic separation
and other similar and necessary process it becomes a
concentrate but does number cease to be ore. unless the ore is
roasted or treated with any chemical it cannumber be classed as
processed. it is companymon ground that the wolfram ore which was imported
by the appellants was never subjected to any process of
roasting or treatment with chemicals to remove the
impurities. it thus remained wolfram ore companycentrate
containing 65 w03 which was of the merchantable quality and
was knumbern companymercially as such and imported as ore. apart
from all this it must be remembered that in interpreting
items in taxing statutes resort should be had number to the
scientific or technical meaning but to the meaning attached
to them by those dealing in them in their companymercial sense. there can therefore. be numbermanner of doubt that the goods
imported by the appellants fell within item
1003
26 of the import tariff and numberduty was leviable on them. the appellants were entitled to the refund of the amounts
which were paid by them by way of duty.