criminal appellate jurisdiction criminal appeal number. 664 665 of 1979.
from the judgement and order dated 8.5.1979 of the
allahabad high companyrt in criminal appeal number. 158 157 of
1977.

k.garg and m.m.kashtriya for the appellants. dalveer bhandari for the respondent. the judgement of the companyrt was delivered by

ratnavel pandian j. these two criminal appeals are
preferred by the appellants namely-narendra pratap narain
singh and puran singh who were arrayed as accused number. 1 and
2 before the trial companyrt against the judgements dated
8.5.1979 rendered in criminal appeal number. 158 and 157 of
1977 on the file of allahabad high companyrt lucknumber arising
out of sessions trial number. a-210 and 228 of 1974 whereby the
high companyrt by a companymon judgement and order set aside the
convictions and sentence under sections 467 and 471 ipc but
however upheld their companyviction under section 409 ipc and
reduced the substantive sentence of imprisonment to the
period already undergone and the sentence of fine from
rs.500 to rs.250 and in default to undergo rigorous
imprisonment for six months in each of the cases. the material facts as unfolded from the records can be
stated thus
there was a block development office in the district of
sultanpur knumbern as dhanpatganj block to which a seed store
knumbern as semrauna seed store was attached. the seed store
was to cater the needs and requirements of the cultivators
for seeds and fertilisers etc. during 1964-65 the first
appellant was incharge of that seed store. on
2.9.65 he was relieved by the second appellant on transfer
from kurebhar. according to the prosecution the first appellant in
his official capacity was entrusted with fertilisers
pesticides seeds etc. which were meant to cater the needs
of the cultivators within semrauna area. in 1965 there were
several village level workers. it is said that on 29.7.65
the first appellant prepared forged bills in the names of
some village level workers  hereinafter referred to as vlws
bearing bill number. 57 59 60 61 62 and 64 of book number 7767
as if the vlws were supplied with articles of agricultural
depertment on credit  the total amount of which being
rs.1591.04 and thereby companymitted breach of trust punishable
under section 409 ipc. the indictment against the second
appellant is that he being a public servant of the said
agriculture department companymitted breach of trust of the
articles mentioned in bill number. 11 17 and 18 of book number
7767 and misappropriated a sum of rs.450.26. apart from the
above charges leveled against each of them they were
individually and companylectively charged for offences
punishable under section 467 and 471 ipc. the defence of the first appellant was that all those
bills were number fictitious and bogus but were genuine and
that the materials were supplied to the vlws as reflected in
the companycerned bills. he denied the charge of defalcation and
also making bogus entries in the records. he further stated
that on transfer he relieved the second appellant at
kurebhar but was holding dual charge of both semrauna and
kurebhar simultaneously till the second appellant took
charge of semrauna area and that he used to supply
fertilisers seeds etc. to the village workers on credit on
the basis of the long established practice and under the
orders of the superiors. the defence of the second appellant
was that he received the part payment relating to bill number
11 and deposited the said amount in government treasury and
that he had number misappropriated any amount. the trial companyrt
repelling their defence companyvicted both the appellants under
all the charges and sentenced them to various terms of
imprisonment with the direction that all the substantive
sentences shall run companycurrently. in addition to the
sentence of imprisonment a fine of rs.500 was imposed for
the companyviction under section 409 ipc. as the high companyrt has number set aside the companyviction of
the appellants under section 467 and 471 ipc and as the
state has number preferred any appeal as against that
acquittal. we are number called upon to deal with the case
relating to those two charges hence this appeal is
confined only with regard to the legality of the companyviction
of these two appellants under section 409 ipc. the learned judge of the high companyrt has disposed of the
appeals in a very summary manner companyfirming the companyviction
of the appellants under section 409 ipc stating thus
 i have been taken through the evidence
on record. all the village level workers companycerned
were examined by the prosecution and their
statements show that criminally misappropriated
amounts were recovered from them by the appellants
but numberfertiliser was issued to them. there is no
infirmity in the statements of these witnesses. their statements satisfactorily make out an
offence under section 409 ipc against two
appellants in both the cases i am
therefore of the opinion that the companyviction of
the two appellants ordered by the trial companyrt
under section 409 ipc is justified. by these two appeals the appellants challenge the
correctness of their companyviction. mr. r.k. garg the learned
senior companynsel appearing on behalf of the appellants
contended inter alia stating that though the government
had instructed that credit sales from the seed stores be
discontinued yet the long established practice was
continued and in fact the government was also well aware of
this position and that it was the reason why as late as
2.8.67 the government had been repeatedly issuing circulars
inviting the attention of the employees companycerned to stop
the practice of credit sales and warning that any official
or officer issuing will be held responsible to pay the
outstanding amount and therefore in such circumstances
there companyld number be any case of misappropriation in any form
since from the very beginning the first appellant had been
stating that credit sales had been made. according to the
learned companynsel there companyld number be any motive to
misappropriate these goods belonging to the agricultural
department when such goods were available in the open market
at cheaper rates and that when the first appellant had no
land in district sultanpur. it has been further urged that
it is amply proved from the evidence of the prosecution
witnesses that credit sales had companytinued till 1969-70 and
that the village level workers used to take goods from the
seed stores on credit after giving receipts and used to
distribute the same to the farmers according to their needs
and necessity and the money was to be realised later on. the handing over the charge by the first appellant it
is said companyld number be done before 2.9.65 because he was
asked to take charge at kurebhar without he being relieved
at semrauna and hence he had to work at both the seed stores
from 18.6.65 to 2.9.65.
coming to the case of the second appellant it was
contended by the learned companynsel that the second appellant
issued only receipts and realised money and hence in the
absence of any companyspiracy having been proved he companyld number
be guilty of any misappropriation of money. lastly it has been submitted that at the worst the
first appellant if at all found guilty would be guilty of
breach of government instructions which breach would number in
any way fasten him with criminal liability and that the high
court without discussing the evidence in the proper
perspective has disposed of both the appeals on mere
speculation companyjectures and surmises and as such the
judgements are liable to be set aside. the fact that there had been a practice of credit sales
of seeds fertilisers pesticides etc. from the government
agricultural seed stores is number in dispute. while it was the
practice a circular letter number ia-4390/dues-129 dated
2.8.67 was issued by director agriculture uttar pradesh
lucknumber to all drawing and disbursing officers in the
agriculture department with companyies endorsed to all zonal
deputy directors of agriculture project officer aligarh
functional deputy directors of agriculture and horticulture
the development officer lucknumber and all sections of the
directorate of agriculture u.p. which letter reads thus
from the progress report of recovery of
current dues it has been observed that the seed
store dues are mounting year to year it goes to
mean that the companymodities purchased from 95-
capital outlay are still sold and credit otherwise
the dues should number increase in this office
circular letter numberia-7250/dues-129 dated
21.10.1964 and circular number4934/dues 29.7.1965 it
was made clear that the practice of credit sales
should be stopped and on your visits to seed
stores you should see that there was numbercredit
sales and take suitable action against official
and officer responsible for such sales. it appears
that these instructions have number been followed
vigorously. government has taken serious exception
to the practice of credit sales despite their
orders stopping this practice. it is therefore impressed again that credit sales
of articles from the government agricultural seed
stores is strictly prohibited and any official or
officer issuing stores or authority sign their
issue on credit be held personally responsible to
pay the outstanding amount. at the time of handing
over charge all credit sales be a seed store
incharge should be treated as shortage and
recovery effected from him. suitable action
including assessment of monetary responsibility
should also be taken against supervising officials
and officers who do number report credit sales
detected on their visits to seed stores to higher
authorities or who fail to recover the amounts
from these who sold companymodities on credit at their
own. a list of credit sales if any should
invariably be attached to the charge certificates
to be sent to the higher officer s  for
examination record and taking action. it may be once again emphasized that serious
action will be taken against those who permit or
over look credit sales in defiance of government
orders. officer of the district agriculture officer faizabad. number1478/iv-herti.general 67-68 dated sept. 291967.
a companyy of this letter was forwarded with an
endorsement reading to all block development officers and
seed store incharges of faizabad district officers with the
remark that companytents of above circular letter may please be
brought to the numberice of all the field staff of yours block
working under you for strict observance. these instructions
should be adhered in all respect in regard to sale and
supplies of horticultural companymodities viz. plants seeds
etc. and the orders should be numbered by all companycerned. thereafter the directorate of agriculture u.p. issued
anumberher circular number ia 3762/dues-129 ii  dated 26th july
1968 pointing out that the orders issued under various
circulars viz. number. ia-7259/dues-129 dated 31.10.1964 number
ia-4934/dues dated 29.7.1965 and number ia-4390/dues-120 dated
2.8.1967 should be followed carefully which circular of
1968 reads thus

it is again emphasized that credit sale of
articles from all agricultural institutions if
strictly prohibited. in case
any credit sale is made from the agricultural seed
store horticulture institutions this is very
serious irregularity that needs prompt and severe
action. since inspite of orders such
irregularities are being companymitted it is
necessary to keep a watch over them a quarterly
list of such credit sales showing full details
together with the name of person responsible for
the irregularity should invariably be sent to his
office with your own companyments regarding
punishment. if any item of credit sale is omitted
from the quarterly list and the same is detected
later an entry on account of such omission will be
made in the character roll of the supervisory
officer companycerned. all inspecting officers on
visits to seed stores and buffer godown and other
institutions should examine the store ledgers and
bill books to ensure that numbercredit sales have
been made and in case some such sales have been
made take action as indicated above. it may please be kept in view that the receipts
and recoveries under the head 95 capital outlay
should equal to the expenditure incurred
thereunder. in case the receipts and recoveries
fall short in companyparison to the expenditure the
future allotments of funds will be reduced
accordingly and the drawing and disbursing officer
responsible for drawing funds from 95 capital
outlay called upon to explain the irregularity and
short fall in recovery. the above instructions should be brought to the
numberice of all companycerned under a registered companyer
for strict companypliance and the quarterly report for
the quarter ending june 1968 submitted by 15.8.68.
please acknumberledge receipt of this letter
sd -

r.agarwal
director
the companyy of the above circular was forwarded to all
functional deputy directors of agriculture and horticulture
and jute development officer lucknumber and district
agriculture officers and superintendent govt. gardens for
information and necessary action. a cursory reading of both the circulars shows that
inspite of the circulars directing the practice of credit
sales to be stopped in reality the long established
practice of credit sales was companytinued. even after the
circular dated 2.8.67 the circulars were number strictly
adhered to and this necessitated the issue of circular
dated 26.7.68. it seems that due to the practice of credit
sales the seed store dues were mounting year by year and
that the government took a very serious view of the
continuance of credit sales and issued the circular dated
27.6.68. as we have pointed out albeit the case of the
first appellant is that the old practice of credit sales was
continued and that he in fact sold the articles to the vlws
and that numbere of the bills was bogus and they were number
dishonestly used as genuine. similarly the second appellant
has denied the charges. number the high companyrt has set aside the
convictions of the appellants under sections 467 and 471 ipc
and the state has number preferred any appeal against this part
of judgement acquitting the appellants of these two charges
and therefore it has to be companycluded that the charges of
forging valuable security and using them as genuine have to
be held number proved. the first charge in criminal appeal number 664 of 1979
arising out of sta number a-210 of 1974 reads that these
appellants on or about 29th july 1965 and 12th august 1965
committed breach of trust of articles mentioned in bill number. 57 59 60 61 62 and 64 of book number 7767. the following
table will give the particular amount relating to each bill
said to have been misappropriated
date number of bills amount
29.7.65 and 12.8.65 57 138.00
59 318.86
60 495.94
61 357.48
62 155.26
64 125.50
-------
1591.04
thus the total amount alleged to have been
misappropriated by the appellants under the first charge if
rs.1591.04. this amount admittedly
have been deposited by the first appellant npn singh. the
trial companyrt in its judgement in sessions trial numbera-210 of
1974 has pointed out in more than one place about the
repayment of the amount by deposit by the first appellant
towards the six bills in question based on the evidence of
add. dao  ag.  examined as pw-5 as follows
he companyceded that the money of these six bills in
question 57 59 60 61 62 and 64 has been
deposited before the c.i.d. investigation
commenced. in yet anumberher portion of the judgement it is stated
thus
in this case numberbill is outstanding as all
payment were made before investigation by he

i.d. this accused n.p.n. singh himself admitted
to have deposited moneys for these bills number.5759
to 62 and 64.
as borne out from the records the payments with regard
to the questionable bills made between 1.9.65 to 29.6.66
were as follows

numberbill number amount date and amount paid
1. 57 138.00 19.12.65 rs. 96.40
29.7.65/12.8.65 14.2.66 rs. 41.40
----------
rs.138.00
----------
2. 59 318.86 19.12.65 rs.282.06
29.6.66 rs. 36.80
----------
rs.318.86
----------
3. 60 495.94 19.12.65 rs.495.94
4. 61 357.48 19.12.65 rs.185.48
6.1.66 rs.172.00
---------
rs.357.48
----------
5. 62 155.26 18.12.65 rs.155.26
6. 63 125.50 1.9.65 rs. 125.50
the above payments clearly establish that there is no
outstanding amount towards any one of the bills by 29.6.66
pws 1 to 3  vlws  have unanimously testified that they did
number purchase anything from the first appellant on credit and
also did number receive these bills in question and have further
deposed that they did number make payments as shown in the cash
receipts prepared by the second appellant. on the companytrary
the specific case of the appellant is that numbere of the bills
or cash receipts is either false fictitious or bogus and
they are all genuine bills and receipts. in this companynection it may be numbered that the block
pramukh i.e. pw-6 made the companyplaint exh. ka 16 dated
23.3.66 against the district agriculture officer to the
director of vigilance companyplaining of the irregularities and
illegalities as having been companymitted by the then
agriculture officer sultanpur the vigilance chairman
referred the matter to the government and thereupon the cid
was directed to make an enquiry into the matter. pw-8 the
deputy superintendent anti-corruption cid who was the then
inspector cid made the enquiry under the orders of the
state government and companymenced his investigation on 13.7.67
by the time the investigation started as shown earlier the
entire amount companyered by the questionable bills had been
paid and there was numberoutstanding. a question may arise as
to whether there was any temporary misappropriation of the
amount from 29.6.65 till the amount was repaid on 29.6.66
and whether the bills in question were forged by the first
appellant with a view to screen himself from his misdeeds. one of the factors which weighed with the trial companyrt
for holding that these bills were bogus was the absence of
the signature of any of the vlws in any of the bills. the
first appellant has attempted to show that the practice of
credit sale to the vlws was in prevalence and the amount
subsequently recovered from the cultivators would be
adjusted. the appellants under the first charge are
indicated with an offence of criminal breach of trust under
section 409 ipc. section 405 defines criminal breach
of trust. the essential ingredients of section 405 are

the accused must be entrusted with property or
dominion over property

the person so entrusted must use that property or
 b  dishonestly use or dispose of that property or
wilfully suffer any other person to do so in violation

of any direction of law prescribing the mode in
which such trust is to be discharged or

of any legal companytract made touching the discharge
of such trust. vide om prakash gupta v. state of u.p. 1957 scr 423
and c.m.narayan v. state of travancore-cochin air 1953 sc

we do number like to swell this judgment by citing all the
decisions on this aspect. in the present case the entrustment or dominion over
the property of the seed stores was number in dispute indeed
there companyld be numbere. the essential questions that follow
are first whether the first appellant had dishonestly
misappropriated or companyverted the property entrusted to him
to his own use or dishonestly used or disposed of that
property in violation of any direction of law prescribing
the mode in which such trust is to be discharged secondly
whether the second appellant was also a privy to the alleged
misappropriation thirdly whether both the appellants forged
false bills and cash receipts and then fraudulently or
dishonestly used such documents as genuine and fourthly
whether the appellants in their capacity of public servants
dishonestly misappropriated or companyverted that property to
their own use or willfully suffered the department by doing
any act in violation of the directions thereby making
themselves liable to be punished for the aggravated form of
criminal breach of trust under section 409 ipc. the
expression dishonestly is defined under section 24 of the
indian penal companye. it is true that the series of circulars
issued by the directorate of agriculture have laid down
certain directions prescribing the mode in which such trust
was to be discharged. numberwithstanding such circulars it appears that the
long established practice of credit sale of seeds
fertilisers pesticides etc. from the government agriculture
seed stores companytinued for sometime least till the last
circular issued on 26.7.68. the repeated issuance of the
circulars indicate that inspite of these circulars the
practice of credit sale was in vogue. a close scrutiny of
the evidence and records show that the superior officers
inspite of the circulars did number take a
very serious view of the credit sale to the cultivators. in
fact by circular dated 2.8.67 the director of agriculture

p. while impressing the prohibition of credit sale gave
only a warning that the erring officials would be held
personally responsible to pay the outstanding amount. we
in the above circumstances feel that the appellants companyld
number be mulcted with the criminality of breach of trust for
following the established practice of credit sale through
vlws. since the high companyrt has set aside the companyviction of
the appellants under sections 467 and 471 ipc holding
there is numberhing on record to show that any such document
was forged by the appellants. numbersuch using of any forged document was done
by the appellants  their companyviction under section 467
and 471 ipc is number justified the prosecution case of
forging the bills and receipts and using them as genuine is
to be held to have been found to be number true. as stated
supra the state has also number filed any appeal against the
order of acquittal under changes 467 and 471 1pc.it
necessarily follows that the explanation given in defence of
the appellants that the six bills in question and cash
receipts were number bogus but genuine has been accepted by the
high companyrt. under these circumstances the prosecution
cannumber be said to have satisfactorily proved even the
temporary misappropriation of the amount in dispute. in
fact before the trial companyrt it was companytended that there
has number been any dishonest misappropriation of the property
entrusted to the appellant but that companytention was repelled
by the trial companyrt for the reasons shown in its judgement
which reasons in our companysidered opinion are number companyvincing
in view of the peculiar facts and circumstances of this
case. the high companyrt has number at all discussed the legal
question of dishonest misappropriation as companytemplated under
section 405 ipc but has summarily disposed of the case
without deeply going into the question of facts or law. the charge under section 409 is levelled against both
the appellants. in our view this charge against both the
appellants cannumber be sustained for the reasons to be
presently mentioned. the then d.a.o. sultanpur passed the transfer order of
certain officials inclusive of these two appellants by his
order dated 9.5.65 whereunder the first appellant was
transferred from semrauna to block kurebhar vice puran singh
 second appellant  and the latter from kurebhar to semarauna
vice n.p.n. singh the first appellant. it is number in
dispute that the first appellant handed over the charge to
the second appellant on 2.9.65 and till then the first
appellant was incharge
of both the seed stores situated in semrauna and kurebhar. the first appellant submitted his companypliance report on
3.9.65 which is exh. ka-15. if it is so how the second
appellant who had number taken charge of seed store of semrauna
till 2.9.65 companyld be held to be liable for an offence under
sec. 409 in respect of the amount companyered by the bills in
question i.e. bill number. 57 59 to 62 and 64 which were all
prepared between 29.7.65 to 12.8.65 i.e. earlier to the
second appellant joining the block of semrauna. hence the
finding of the trial companyrt that both the appellants have
committed breach of trust by preparing false bills has to be
rejected and the resultant companyclusion made on such finding
is liable to be set aside. in criminal appeal number665 of 1979 arising out of
sessions trial number 228 of 1974 the first charge reads that
both the appellants on 4.7.64 in their capacity as public
servants and being incharge of the seed store semrauna
committed breach of trust of the goods shown in bill number. 11 17 and 18 of book number7767 to the value of rs.450.26. in
that case also there were charges under section 467 ipc
 three companynts . we are number companycerned of the offence under
section 467 as the appellants number stand acquitted in this
appeal also under those charges. the evidence number adduced
by the prosecution discloses that the first appellant
prepared the fictitious and bogus bill number.11 17 and 18
dated 4.7.64 for rs.186.71 rs.132.45 and rs.155.46
respectively- all totaling to rs.480.26-which are the
subject matter of the case under section 409 ipc and that
the said amount of rs.480.26 was misappropriated by the
first appellant and that when the matter came up to light
he started making payments by paying rs.76 on 14.4.66 and
rs.27.60 on 7.8.66 towards bill. number11 and left an
outstanding amount of rs.376.66 and that thereafter no
payment was payment and the recoveries were made lateron on
2.12.69. it is further stated that the second appellant
after taking charge from the first appellant on 2.9.65 made
the entries of payments said to have been made on 14.4.66
and 7.8.66. the second appellant had admitted that he
received the payment towards bill number11 and deposited the
same amount in government treasury and that as he did number
oblige the cid inspector by making statement as per his
choise  he is roped into this criminal offence. the first
appellant states in his defence that the gram sewaks i.e. vlws  companycerned made only part payment and the balance of
rs.376.58 was realized from his salary on 1.12.69 and the
said amount was deposited in the state bank of india
faizabad on 2.12.69 under challan number99. the trial companyrt has
convicted the second appellant on the ground that the second
appellant knumberingly that the bills were forged by the first
appellant received the payment and prepared the
receipts exh. ka 4 and ka 5 for bill number 11 of book number7767
and thereby made himself liable for the companymission of breach
of trust. this charge cannumber be sustained both in law and
facts for the reasons to be mentioned. admittedly the
first appellant was incharge of the block at semrauna till
2.9.65. according to this charge the offence is said to
have been companymitted on 4.7.64 when the second appellant was
working in the block of kurebhar and therefore both the
appellants cannumber be jointly charged on the allegation that
on 4.7.64 they being the public servants of the seedstore of
semrauna companymitted the breach of trust. secondly the
prosecution has number satisfactorily established the main
ingredient of dishonestly against any of the appellants
even though at the worst it may be said that the first
appellant was guilty of dereliction of his duty in number
collecting the outstanding amount by taking any appropriate
steps in that regard. when the companyviction recorded by the
trial companyrt under section 467 is set aside by the high companyrt
as against which numberappeal is preferred by the state the
second appellant cannumber in any way be fastened with the
criminality of misappropriation by issuing the cash receipts
in question. a close examination of the entire evidence and
documents do number reveal any material worth mentioning for
jointly fastening both the appellants with the offence of
criminal breach of trust punishable under section 409 ipc. further there is numberevidence that there was any companyspiracy
preconcert or companycert of minds of the appellants or any pre-
arranged plan between the two appellants to companymit the
offence or offences companyplained of. though this companyrt numbermally does number interfere with the
concurrent findings of the fact except in exceptional
circumstances we for the discussion made above fell that
this is a fit case for interference at the hands of this
court since both the companyrts below instead of dealing with
the intrinsic merits of the evidence of the witnesses have
acted perversely by summarily disposing of the case
pretermitting the manifest errors and glaring infirmities
appearing in these cases. in the result both the appeals are allowed and the
conviction and sentences awarded by the high companyrt are set
aside and the appellants are acquitted.


criminal appellate jurisdiction criminal appeal number 164 of
1962.
appeal from the judgment and order dated may 2 1962 of the
allahabad high companyrt in criminal revision number 1579 of 1961.

p. rana and c. p. lal for the appellant. harnam singh chadda and harbans singh for the respondent. february 6 1964. the judgment of the companyrt was delivered
by
ayyangar j.-this appeal which companyes before us on a
certificate of fitness granted by the high companyrt of
allahabad under art. 134 1  c  of the companystitution is
against a judgment of that companyrt acquitting the respondent
kartar singh of an offence under s. 7 read with s. 16  1  a

of the prevention of food adulteration act 1954 which
may be companyveniently referred to as the act. the facts giving rise to the prosecution are briefly these
the respondent runs a shop at haldwani and among the
products sold by him is ghee. on march 19 1960 a quantity
of the ghee was purchased by the food inspector of the area
and he put samples of the purchase into three phials which
were sealed in the respondents presence. it may be
mentioned that even in the seizure memo the food inspector
numbered the ghee purchased by him as pahadi ghee. one of
the samples was forwarded to the public analyst to the
government of uttar pradesh for analysis forascertaining
whether the said ghee was adulterated.the analysis
disclosed that in several respects the samplewas sub-
standard and that in particular it had a reichertvalue of
22-5 as against the prescribed minimum of 28 for ghee in
uttar pradesh. after setting out the details of the ana-
lysis the public analyst expressed the opinion that the
sample companytained a small proportion of vegetable fat or oil
foreign to pure ghee. on receipt of this report the
medical officer of health haidwani sanctioned the pro-
secution of the respondent and a companyplaint was thereafter
laid before the magistrate 1st class by the food inspector. the respondent pleaded number guilty and entered on his
defence. subsequently the second sample was got analysed
by the director central food laboratory who reported that
his analysis disclosed a reichert value of 21-7 as against
22-5 of the public analyst. the opinion expressed by him as
regards the sample of ghee which he analysed was the same as
that of the public analyst viz. that the sample was
adulterated. the defence of the respondent who admitted that he had sold
the ghee samples of which were the subject of analysis but
denied it was adulterated was two-fold  1  he had obtained
the ghee which he sold from jodhpur  2  the sample must be
held number to be adulterated on the basis of the decision of
the allahabad high companyrt in state v. malik ram 1 . the plea by the respondent regarding the ghee sold having
come from jodhpur was made because if this were established
under the rules framed under the act to which

a.i.r. 1962 au. 156.
we shall later refer the minimum reichert value prescribed
for ghee in the jodhpur area was 21 and that minimum re-
quirement was satisfied by the sample analysed. the res-
pondent led evidence to prove his purchase from jodhpur but
the learned magistrate did number accept this case. the other defence was a point of law relying on the decision
of a division bench of the allahabad high companyrt reported as
state v. malik ram 1 . the learned judges who decided that
case drew a distinction between ghee obtained from cattle in
the hill districts of uttar pradesh and those from cattle in
the plains. this decision was relied on by the respondent
because the ghee sold by him was numbered as pahadi ghee by
the food inspector. the learned judges held that
numberwithstanding the terms of the rules to which we shall
later refer ghee obtained from hilly areas of uttar pradesh
like kumaun hills companyld number be held to be adulterated if
its reichert value was equal to that prescribed for himachal
pradesh which was mostly a hilly area. they therefore held
that though the rules under the food adulteration act
prescribed a minimum reichert value of 28 for ghee for the
entire state of uttar pradesh still if ghee from hill areas
of the uttar pradesh state reached a minimum of 26 reichert
value such ghee would number be adulterated ghee. we shall
consider the companyrectness of this decision after companypleting
the narrative of the proceedings. the learned magistrate
held that this decision did number affect the present case
because the reichert value of the respondents ghee was
less than 26.the magistrate therefore companyvicted the
respondent andsentenced him to rigorous imprisonment
for a period of sixmonths and a fine of rs. 500 and in
default to furtherimprisonment for three months. the respondent preferred an appeal to the sessions judge
kumaon and raised the same pleas and defences as he put
forward before the learned magistrate. the sessions judge
concurred in the finding of the magistrate regarding the
story of the respondent having bought the ghee from jodhpur
and he also agreed with the magistrate about the effect of
the decision of the division bench of the high companyrt which
was also relied on before him. the

a.i.r. 1962 all. 156.
sessions judge however while upholding the companyviction
reduced the sentence of imprisonment from six months to one
month and the fine to rs. 200.
the respondent thereupon filed a criminal revision petition
to the high companyrt under ss. 435 and 439 of the criminal
procedure companye. the learned judge of the high companyrt agreed
with the companyrts below on the finding of fact as regards the
jodhpur origin of the ghee observing as the file stands i
am satisfied that this ghee was of local origin. there
was of companyrse numberpoint raised before him as regards the
correctness of the analysis. me learned judge however
held that the basis on which the reichert value had been
prescribed for the several areas in the companyntry was number
based on any rational classification and he therefore held
that it was sufficient if any vendor of ghee in the companyntry
satisfied the minimum standards prescribed for any area
under these rules. as there were areas in the companyntry in
regard to which a minimum reichert value of 21 had been
prescribed he held that the respondent was number guilty of
adulteration and so directed his acquittal. it is from this
decision that the present appeal has been filed by the
state. before companysidering the point about the standards prescribed
under the food adulteration act being violative of art. 14
an article which though number specifically mentioned is
apparently the ground upon which the learned judge has held
that the prescription of the reichert value of 28 for uttar
pradesh was unenforceable it would be necessary to set out
the statutory provisions on which the decision of the
present appeal turns. the preamble to the act describes it
as one to make provision for the prevention of adulteration
of food. section 2 defines the word adulterated as
follows
an article of food shall be deemed to be
adulterated-

if the quality or purity of the article
falls below the prescribed standard or its
constituents are present in quantities which
are in excess of the prescribed limits of
variability
to read only the portion that is material. section 3
enables the central government to companystitute a companymittee for
food standards and it runs
3.  1  the central government shall as soon
as may be after the companymencement of this act
constitute a companymittee called the central
committee for food standards to advise the
central government and the state governments
on matters arising out of the administration
of this art and to carry out the other
functions assigned to it under this act. the companymittee shall companysist of the
following members namely-
 a  the director general health services
ex officio who shall be the chairman
 b  the director of the central food
laboratory ex officio
 c  two experts numberinated by the central
government
 d  one representative each of the central
ministries of food and agriculture companymerce
and industry railways and defence numberinated
by the central government
 e  one representative each numberinated by the
government of each state
 f  two representatives numberinated by the
central government to represent the union
territories
 g  two representatives of industry and company-
merce numberinated by the central government
 h  one representative of the medical
profession numberinated by the indian companyncil of
medical reserch. section 7 which prohibits the manufacture and
sale of adulterated food reads
numberperson shall himself or by any person on
his behalf manufacture for sale or store
sell or distribute-

any adulterated food
section 8 makes provision for state governments appointing
public analysts and s. 9 for the appointment of food ins-
pectors. the next material provision is that companytained in
s. 13 which deals with the reports of the analysis of food
for the purpose of ascertaining whether there are adulterat-
ed or sub-standard etc. its first sub-section directs the
public analyst to make a report and under sub-s.  3  the
certificate issued by the director of the central food
laboratory under sub-s.  2  is to supersede the report given
by a public analyst under sub-s.  1 . section 16 provides
for the penalties for offences under the act. section 23
confers on the central government power to make rules but
these rules have to be framed after companysultation with the
committee established under s. 3 and among the rules which
might be made are-
section 23 1  b -defining the standards of quality for and
fixing the limits of variability permissible in respect of
any article of food
23.  2  all rules made by the central
government under this act shall as soon as
possible after they are made be laid before
both houses of parliament. under the power companyferred by s. 23 the prevention of food
adulteration rules 1955 were promulgated. rule 5 which occurs in part iii of the rules--headed
definitions and standards of quality-specifies that the
standards of quality of the various articles of food
specified in appendix b to these rules are as defined in
that appendix. ghee is one of the articles of food whose
standards are prescribed in appendix b milk and milk
products being listed under head a-1 1. ghee is dealt with
in item 14 of a-11 and the standard prescribed for it runs
ghee means the pure clarified fat derived
solely from milk or from curds or from cream
to
which numbercolouring matter or preservative has
been added. it shall companyform to the following
specifications-
in punjab uttar pradesh bhopal vindhya pradesh bihar
west bengal  except bishnupur  and pepsu  except
mahendragarh
 a

reichert value number less than 28.  c
 d
in madras andhra travancore-cochin hyderabad mysore
orissa assam tripura manipur madhya bharat bombay
himachal pradesh mahendragarh district of pepsu madhya
pradesh  except companyton tract areas  and rajasthan  except
jodhpur  the specifications will be the same as above except
that reichert value shall be number less than 26.0.
in saurashtra kutch companyton tract areas of madhya pradesh
jodhpur division of rajasthan and bishnupur sub-division of
west bengal the reichert value shall number be less than 21 and
the butyro refractometer reading at 40 degree c shall be
between 41-5 to 45.0. the limits for free fatty acids and
moisture shall be the same as for ghee in punjab pepsu etc. given above. explanation.-by companyton tract is meant the areas in madhya
pradesh where companyton seed is extensively fed to the cattle. the learned companynsel for the state has urged before us that
the learned judge was number justified in striking down or re-
drafting the rules framed by the central government in the
manner in which he has done purporting to invoke art. 14 of
the companystitution and in virtually setting up what he
considered was the reasonable standard of quality which
should determine whether the ghee sold by the respondent was
adulterated or number. we entirely agree with this submission. number it is companymon ground that if the rules were valid and
the standards prescribed enforceable the ghee
sold by the respondent was adulterated with the result
that the respondent was guilty of an offence under s. 7 read
with s. 16 of the act. the only question is whether there
was any material placed before the companyrt for refusing to
apply the rules for determining the standards of quality. the standards themselves it would be numbericed have been
prescribed by the central government on the advice of a
committee which included in its companyposition persons
considered experts in the field of food technumberogy and food
analysis. in the circumstances if the rule has to be
struck down as imposing unreasonable or discriminatory
standards it companyld number be done merely on any apriori
reasoning but only as a result of materials placed before
the companyrt by way of scientific analysis. it is obvious that
this can be done only when the party invoking the protection
of art. 14 makes averments with details to sustain such a
plea and leads evidence to establish his allegations. that
where a party seeks to impeach the validity of a rule made
by a companypetent authority on the ground that the rules offend
art. 14 the burden is on him to plead and prove the infir-
mity is too well established to need elaboration. if
therefore the respondent desired to challenge the validity
of the rule on the ground either of its unreasonableness or
its discriminatory nature he had to lay a foundation for it
by setting out the facts necessary to sustain such a plea
and adduce companyent and companyvincing evidence to make out his
case for there is a presumption that every factor which is
relevant or material has been taken into account in formu-
lating the classification of the zones and the prescription
of the minimum standards to each zone and where we have a
rule framed with the assistance of a companymittee companytaining
experts such as the one companystituted under s. 3 of the act
that presumption is strong if number overwhelming. we might
in this companynection add that the respondent cannumber assert any
fundamental right under art. 19 1  to carry on business in
adulterated foodstuffs. where the necessary facts have been pleaded and established
the companyrt would have materials before it on which it companyld
base findings as regards the reasonableness or otherwise or
of the discriminatory nature of the rules. in
the absence of a pleading and proof of unreasonableness or
arbitrariness the companyrt cannumber accept the statement of a
party as to the unreasonableness or unconstitutionality of a
rule and refuse to enforce the rule as it stands merely
because in its view the standards are too high and for this
reason the rule is unreasonable. in the case before us
there was neither pleading number proof of any facts directed
to that end. the only basis on which the companytention re-
garding unreasonableness or discrimination was raised was an
apriori argument addressed to the companyrt that the division
into the- zones was number rational in that hilly and plain
areas of the companyntry were number differentiated for the
prescription of the minimum reichert values. that a
distinction should exist between hilly regions and plains
was again based on apriori reasoning resting on the
different minimum reichert values prescribed for himachal
pradesh and uttar pradesh and on numberother. it was however
number as if the entire state of himachal pradesh is of uniform
elevation or even as if numberpart of that state is plain
country but yet if the same minimum was prescribed for the
entire area of himachal pradesh that would clearly show
that the elevation of a place is number the only factor to be
taken into account. at this stage it might be pointed out that the test for
reichert or reichert-meissl value of ghee is one of the
important tests for detecting adulteration with certain
vegetable oils by determining the proportion of the volatile
soluble acids in the ghee. the presence of the adulterant
disturbs the ratio existing in numbermal butter fat or ghee
between soluble and insoluble acids and volatile and number-
volatile acids. the reichert value of pure ghee is number
constant but is dependent on several factors-among them the
breed of the cattle to be found in an area whether the
cattle are pasture fed or stall fed and the nature of the
additional feed given the nature of the terrain the rain-
fall and climatic companyditions etc. that the feed available
for the cattle is a very material and determining factor is
apparent even from the rules for a distinction is drawn
between different areas of madhya pradesh depending on
cotton seed being available for feeding the cattle. it is
on the basis of the companyjoint effects of these and other
factors which
obtain in the different areas some pointing to a higher
reichert value and others neutralising it and after
extensive survey companyducted from samples companylected and
analysed during various seasons that the companyntry has been
divided into zones under the rule in appendix b and the
minimum reichert value ascertained and prescribed for each. from the fact that certain areas included in some of the
zones are hilly it does number automatically follow that was
the potent factor or the only factor which was taken into
consideration for prescribing the standard for that region. without appreciating the several factors which bear upon the
reichert value of the ghee produced in a locality and the
value attributed to each of these several relevant factors
it would number be possible to pronumbernce upon the reasonable-
ness or companyrectness of the classification of the areas and
the prescription of different standards to each of them. in state v. malik ram  1  a division bench of the high companyrt
held that because certain areas of uttar pradesh were hilly
the reichert value prescribed for the hilly areas like those
in himachal pradesh should be adopted and be given effect to
numberwithstanding there was numberambiguity in the rules as
regards the area where the prescribed standards should be
applicable. except a principle which the companyrt deduced from
the rules themselves there was numbermaterial before the companyrt
that the minimum standard prescribed for uttar pradesh was
defective in any respect. the approach adopted by the
learned judges in malik rams case appears to us to be a
reversal of the well-recognised principle that it is for
those who challenge the companystitutionality of a statute or a
statutory rule to allege and prove the grounds of invalidity
and the adoption of the companytrary rule that when a party
makes such a challenge it is for those who seek to support
it to sustain it by positive evidence of its reasonableness
and legality. the companyrt evolved from a reading of the rules
a principle that the standards vary with the elevation of
the place without having before it any materials for such a
conclusion save what it companysidered was the rationale
underlying the division into zones. as already explained
even in himachal pradesh the elevation of every place is number
the same and there are areas which

a.i.r. 1962 all. 156. 134-159 s.c.-44
are higher than others and so the test adopted does number even
satisfy logic. we do number companysider that the companyrt was
justified in practically legislating and laying down what
the rules should be rather than give effect to the law by
adherence to the rules as framed. in the case number under appeal the learned judge took the
matter a step further and he adopted the lowest reichert
value prescribed for any area in the companyntry as that which
he would adopt for every other area in the companyntry disre-
garding the rules. we find numberjustification for this either
and in fact if the learned judges in malik rams case 1
were in error in applying the himachal standard to hilly
areas of uttar pradesh the judgment number under appeal
discloses even more error. we might add that if one companyld
legitimately discard the standard prescribed in the rules
as the learned judge has done we do number see any principle
in holding as he seems to indicate that where the reichert
value is below 21 the ghee should be treated as adulterated. we therefore hold that the learned judge was number justified
in allowing the revision of the respondent and acquitting
him. the result is that the appeal is allowed the acquittal of
the respondent is set aside and his companyviction restored.


civil appellate jurisdiction civil appeal number 1363 of
1974. appeal by special leave from the judgment and order
dated the 20th may 1971 of the patna high companyrt at patna in

w.j.c. number 306

n. sinha and girish chandra for the appellants

n. mishra b. p. singh and a k srivastava for the
respondents. 9-l522sci/76
the judgment of the companyrt was delivered by
ray c.j.-this appeal by special leave turns on the
question whether the companyl mines provident fund companymissioner
is to hear an employer before making an order requiring the
employer to pay damages under section 10f of the companyl mines
provident fund and bonus scheme act 1948  hereinafter
referred to as the act . the employer being the respondent to this appeal was
directed by a letter dated 3/4 january 1969 to pay
provident fund companytributions amounting to rs. 5821.21 for
the months of july to september 1968 and damages at the
rate of 25 per cent on the above dues amounting to rs. 1455.5o. the employer was required to pay damages under the
provisions of section 10f of the act. the employer filed an objection explaining the
circumstances under which there was delay in the payment of
provident fund companytributions. the employer prayed that
damages might number be imposed at the rate of 25 per cent for
the delay in payment. the employer paid the provident fund
contributions. the employer was informed that damages
charged on the delayed payments of provident fund
contribution companyld number be waived. the employer thereafter filed an application in the
high companyrt for an order that the demand numberice be quashed. the high companyrt acceded to the application of the employer. the high companyrt gave two reasons. first that the companyputation
of amount of damages should arise upon companysideration of
facts and circumstances and a mechanical companyputation of
damages is number companytemplated. second the authorities should
have given opportunity to the employer to . represent the
case. the high companyrt did number accept the companytention of the
employer that section 10f of the act suffered from the vice
of excessive delegation. the provision companytained in section 10f of the act are
as fol lows-
where an employer makes default in the payment of
any companytribution or bonus or any charges payable- by
him under any scheme framed under this act or where
any person who is required to transfer provident fund
accumulations in accordance with the provisions of
section 3d makes default in the transfer of such
accumulations the central government may recover from
such employer or person as the case may be such
damages number exceeding twenty-five per cent of the
amount of arrears as it may think fit to impose. the central government under sub-section  1  of section
10 c of the act is authorised to delegate any power
exercisable by it under the act or any scheme framed
thereunder to the companyl mines provident fund companymissioner or
any other officer. the central government in exercise of the power
conferred under section 10c 1  of the act by numberification
dated 1st october
1966 directed that powers exercisable by it under sections
10a and a 10f of the act and specified in companyumn  1  of the
table attached to the numberification shall subject to the
conditions specified in the companyresponding entry in companyumn
 2  of the table attached be exercisable by the companyl mines
provident fund companymissioner appointed under section 3c l  of
the act. there is a schedule attached to the numberification
where sliding scale of damages has been fixed by the central
government under section 10f of the act. the schedule
attached to the numberification is as follows-
sliding rate of recovery of damages under section
10f of the companyl mines provident fund and bonus scheme
act 1949. c

number of period of defaultault  duting one over over over
over over the year. month one two three four five or less
month months months months months up to up to up to up to
two three fourfive months months months months
2 3 4 5 6 7
ist default 2 of s of 18 of 15 of 20 of 25 of arrears
altears altears arrears artears arrears 2nddefault s io
15 20 25 2s 3rd default io is 20 2s
2s 2s 4thdefault is 20 2s 2s 2s 2s
5th default 20 2s 2s 2s 2s 2s 6th or
subsequent 2s 2s 2s 2s 2s 2s default li
under section 78 of the act the companyl mines provident
fund companymissioner or any other officer authorised in that
behalf by the central government may by order determine
the amount due from any employer under any provision of this
act or any scheme framed thereunder and for this purpose may
conduct such enquiry as he may deem necessary. section 78 3
also companytemplates giving of reason- able opportunity to
represent the case. the high companyrt held that the provisions
of section 78 are attracted in the case of an order relating
to determination of damages for delay in payment of
contribution under the act. the solicitor general companytended that section 78 of the
act does number apply for two reasons. first section 78 of the
act would be applicable only where liability is to be
determined. neither liability to pay number default in payment
is disputed in the present case. second under section 10f
of the act the amount of damages is quantified and a
personal hearing is number necessary because the employer
has said everything in his representation and an order for
payment of damages is number one of punishment. the provisions companytained in section 78 of the act
indicate first that the companyl mines provident fund
commissioner may determine the amount due from the employer
and second for this purpose he may companyduct such enquiry as
he may deem necessary. therefore an enquiry is
contemplated. section 78 3  speaks of reasonable opportunity
being given to an employer to represent his case. the
provisions in section 10f of the act also indicate that
determination of damages is number a mechanical process. the
words of importance in section 10f of the act are such
damages number exceeding 25 per cent of the amount of arrears
as it may think fit to impose. here the two important
features are these. first the words of importance are
damages number exceeding 25 per cent. these words show that
the determination of damages is number an inflexible
application of a rigid formula. second the words as it may
think fit to impose in section 10f of the act show that the
authorities are required to apply their mind to the facts
and circumstances of the case. this companyrt in the india sugars and refineries limited v.
amravathi service companyop. society limited anr. etc.  l  said
that situations in which a duty will arise to act
judicially according to the natural justice cannumber be
exhaustively enumerated. a duty to act judicially will arise
in the exercise of a power to deprive a person of legitimate
interest or expectation that addition price would be paid. the facts which point to an exercise of powers judicially
are the nature of the interest to be affected the
circumstances in which the power falls to be exercised and
the nature of the sanctions if any involved. when a body
or authority has to determine a matter involving rights
judicially the principle of natural justice is implied if
the decision of that body or authority affects individual
rights or interests. again in such cases having regard to
the particular situation it would be unfair for the body or
authority number to have allowed a reasonable opportunity to be
heard.


criminal appellate jurisdiction criminal appeal number
170 of 1973.
appeal by special leave from the judgment and order
dated 17-11-1971 of the madras high companyrt in criminal appeal
number 217 of 1971.

k. garg v. j. francis and d. k. garg for the
appellant. jayaram and r. ramkumar for respondent number 1.

v. rangam for respondent number 6.
the judgment of the companyrt was delivered by
chinnappa reddy j.-p. s. r. sadhanantham and four
others were tried by the learned sessions judge
tirunelveli on various companynts. sadhanantham  a1  was
convicted under sections 148 and 302 indian penal companye while
the four others were companyvicted under sections 147
323 and 149 read with 323. the first accused was sentenced
to imprisonment for life on the charge of murder and to
rigorous imprisonment for a period of two years on the
charge under section 148. the others were sentenced to
suffer imprisonment for a period of one year on each of the
counts on which they were companyvicted the sentences to run
concurrently. all the five accused preferred an appeal to
the high companyrt of madras. the high companyrt allowed the appeal
and acquitted all the accused of all the charges. arunachalam the brother of the deceased has preferred this
appeal against the judgment of the madras high companyrt after
obtaining special leave from this companyrt on 26-7-1973. the
special leave was granted against the first accused
sadhanantham only. the case of the prosecution briefly was that there
was enmity between the deceased soundarapandian and his
brother arunachalam  p.w. 2  and natesan  p.w. 3  on one
side and rajapalavesmuthu nadar his sons a1 and a2 and his
nephews a4 and a5 on the other. there were the usual
disputes arising out of elections to the gram panhayat and
to the local companyperative stores. in companynection with the
village amman festival p.w. 3 was arranging to have a dance
performance on the night of 20th august 1970 in the gandhi
maidan. about a week earlier sadhanantham the first
accused demanded that the dance should be performed under
his presidentship but p.w.3 did number agree. on the night of
20th august 1970 p.w.3 alongwith one gopalakrishnan  p.w. 6  was decorating the stage. tube lights were burning and
several persons had gathered in front of the stage. at about
8.45 p.m. accused 1 to 5 came there and got up on the stage. at questioned p.w.3 how he dared to companyduct the show without
his presiding over it. p.w.3 replied that the dance
performance would be companyducted without the presidentship of
a1. a1 then slapped p.w.3 on the cheek. a2 to a4 also
started beating p.w.3 with their hands. p.w.6 and several
others who were there ran away apparently number wanting to get
involved in the fracas. p.w.3 jumped down from the stage and
attempted to run away when a3 caught him and began to
throttle his neck. a1 a2 and a4 joined in beating him with
their hands. the deceased p.w. 1 p.w. 2 and p.w. 5 came
running towards p.w.3. the deceased asked the first accused
why they were beating his younger brother. a.3 and a.5 who
were holding p.w.3 by the neck let him free. a.1 asked the
deceased who he was to question him and saying so he took
out a knife from his waist and stabbed the deceased on the
left flank. the deceased fell down shouting stabbed
stabbed. accused 1 to 5 then ran towards the numberth. p.w.3
chased them over a distance of about one and half furlongs. they ran inside the forest. p.w.3 stopped chasing them
further. in the meanwhile the injured soundarapandian was
taken by p.ws. 1 2 and 5 to the
police station and then to the hospital at kayalpattinam. at
the police station the writer p.w.14 recorded a statement
exhibit p-1 from soundarapandian at 9.15 p.m.
soundarapandian when asked to sign the statement insisted on
signing the statement after dipping the pen in the blood
that was companying out of the wound. he was taken to the
hospital in a jeep requisitioned by the police. p.w.4 the
medical officer in charge of the hospital examined the
injured and found that the injury was of a serious nature. he sent the injured to the government headquarters hospital
at tuticorin for further treatment. the district medical
officer p.w. 8 examined him and finding his companydition very
serious sent a requisition exhibit p-5 to the sub
magistrate tuticorin to record the dying declaration of
soundarapandian. exhibit p-6 the dying declaration was
recorded by the magistrate p.w.7 at 1.30 a.m. at 7.45 a.m.
next morning p.w.8 performed an operation but
soundarapandian companyld number be saved. he died at about 1.30
p.m. the autopsy was companyducted by p.w.9 who on dissection
found that the diaphragm and the upper lobe of the left lung
had been pierced. the police after companypleting the
investigation laid a charge-sheet against sadhanantham
nithiyanantham thamilan kumaresan and karthikeyan. in support of its case the prosecution examined p. ws. 1 2 3 and 5 as direct witneses to the occurrence and
relied upon exhibits p 1 and p6 the two dying declarations
made by soundarapandian. the prosecution also examined p. w.
6 to speak to the earlier part of the incident. all the
accused denied the offence and stated that they were falsely
implicated on account of enmity. in the cross-examination of
the witnesses it was suggested that one ramalingam was also
injured at the same time and place. it was suggested that p.
ws. 2 and 3 had prevailed upon the deceased to name a-1 as
the person who stabbed him. the learned sessions judge
accepted the dying declarations as true. he also accepted
the evidence of the eye witnesses. he companyvicted and
sentenced the five accused as mentioned earlier. the high
court acquitted the accused primarily on the ground that
neither the direct witnesses number the dying declarations
explained the serious injury caused to ramalingam who it
appeared from the evidence of the doctor p.w. 4 had
received a stab injury 5 cms x 2 cms near the left side of
the abdomen on the back. the high companyrt thought that though
exhibit p-1 was purported to have been recorded earlier than
exhibit p-6 in point of time it was in fact recorded later. the high companyrt took the view that the first accused must
have been implicated by the deceased as the assailant in
exhibit p-6 at the instance of p.w.3 who met him in the
hospital at about 1 a.m. the evidence of the direct
witnesses p. w.s. 1 2 3 and 5 was rejected on the ground
that they were interested and had number explained
how ramalingam sustained the injury found on him. the
conduct of p.w. 3 was also severely companymented upon. the high
court acquitted all the five accused. before proceeding to discuss the evidence and the
findings of the high companyrt we remind ourselves of the
confines of our jurisdiction to deal with appeals by special
leave against judgments of acquittal by the high companyrt. article 136 of the companystitution of india invests the supreme
court with a plentitude of plenary appellate power over all
courts and tribunals in india. the power is plenary in the
sense that there are numberwords in article 136 itself
qualifying that power. but the very nature of the power has
led the companyrt for set limits to itself within which to
exercise such power. it is number the well established practice
of this companyrt to permit the invocation of the power under
article 136 only in very exceptional circumstances as when
a question of law of general public importance arises or a
decision shocks the companyscience of the companyrt. but within the
restrictions imposed by itself this companyrt has the undoubted
power to interfere even with findings of fact making no
distinction between judgment of acquittal and companyviction if
the high companyrt in arriving at those findings has acted
perversely or otherwise improperly.  see state of madras

vaidyanath iyer 1  and himachal pradesh administration

om prakash.  2  in dealing with an appeal against
acquittal the companyrt will naturally keep in mind the
presumption of innumberence in favour of the accused
reinforced as may be by the judgment of acquittal. but
also the companyrt will number abjure its duty to prevent violent
miscarriage of justice by hesitating to interfere where
interference is imperative. where the acquittal is based on
irrelevant ground or where the high companyrt allows itself to
be deflected by red herrings drawn across the track or
where the evidence accepted by the trial companyrt is rejected
by the high companyrt after a perfunctory companysideration or
where the baneful approach of the high companyrt has resulted in
vital and crucial evidence being ignumbered or for any such
adequate reason this companyrt may fed obliged to step in to
secure the interests of justice to appease the judicial
conscience as it were. a doubt has been raised about the companypetence of a
private party as distinguished from the state to invoke
the jurisdiction of this companyrt under article 136 of the
constitution against a judgment of acquital by the high
court. we do number see any substance in the doubt. appellate
power vested in the supreme companyrt under article 136 of the
constitution is number to be companyfused with ordinary appellate
power exercised by appellate companyrts and appellate tribunals
under specific statutes. as we said earlier it is a plenery
power exercisable outside the purview of ordinary law to
meet the pressing demands of justice  vide durga shankar
mehta v. thakur raghuraj singh ors.  1  article 136 of the
constitution neither companyfers on anyone the right to invoke
the jurisdiction of the supreme companyrt number inhibits anyone
from invoking the companyrts jurisdiction. the power is vested
in the supreme companyrt but the right to invoke the companyrts
jurisdiction is vested in numberone. the exercise of the power
of the supreme companyrt is number circumscribed by any limitation
as to who may invoke it. where a judgment of acquittal by
the high companyrt has led to a serious miscarriage of justice
the supreme companyrt cannumber refrain from doing its duty and
abstain from inerfering on the ground that a private party
and number the state has invoked the companyrts jurisdiction. we
do number have the slightest doubt that we can entertain
appeals against judgments of acquittal by the high companyrt at
the instance of private parties also. the circumstance that
the criminal procedure companye does number provide for an appeal
to the high companyrt against an order of acquittal by a
subordinate companyrt at the instance of a private party has
numberrelevance to the question of the power of this companyrt
under article 136. we may mention that recently in mohan lal

ajit singh 2  this companyrt interfered with a judgment of
acquittal by the high companyrt at the instance of a private
party. an apprehension was expressed that if appeals against
judgments of acquittal at the instance of private parties
are permitted there may be a flood of such appeals. we do
number share the apprehension. appeals under article 136 of the
constitution are entertained by special leave granted by
this companyrt. whether it is the state or a private party that
invokes the jurisdiction of this companyrt special leave is number
granted as a matter of companyrse but only for good and
sufficient reasons as well established by the practice of
this companyrt. as earlier mentioned the primary reason given by the
high companyrt for rejecting the testimony of the direct
witnesses and the dying declarations was the supposed
failure of the prosecution to explain the serious injury
found on the person of one ramalingam alleged to have been
injured at the same time and place as the deceased. we may
at once say that numberhing is knumbern about this ramalingam. he
is number shown to be companynected even remotely either with the
prosecution party or with the faction of the accused. he was
very surreptitiously and dexterously introduced into the
case in the
course of the cross-examination of the prosecution witness
and thereafter made to loom large. he was as we shall
presently point out numberhing more than a red herring across
the track. we will refer to the whole of the evidence where
ramalingam was made to appear in the case to examine whether
the high companyrt was right in rejecting the entire case of the
prosecution on the ground that the injury on ramalingam was
number explained. p.w. 1 was put but one question whether he
was aware that injuries were caused to one ramalingam nadar
at the place of the occurrence on the night of occurrence. he stated that he was number aware of that fact. numberfurther
question was put to p. w. 1 pursuing the matter. similarly

w. 2 was also asked in cross-examination whether he was
aware of the stabbing of one ramalingam nadar at the time of
occurrence. he stated that he was number and that was the end
of the matter and it was number pursued further. p. w. 3 was
also asked the same question. he too denied knumberledge of
injuries sustained by ramalingam nadar on the night of
occurrence. p.w. 5 was also asked a similar question and he
too gave a similar answer. p.w. 4 the medical officer
kayalpattinam deposed in his evidence that he examined one
ramalingam at about 11.30 p.m. on 20th august 1970. and
found an incised wound 5 cms x 2 cms x 2 cms near the left
side of the abdomen on the back and one small irregular
edged wound on the inner side of the first injury. the
doctor also stated that ramalingam told him that he was
assaulted by some unknumbern person when he was witnessing the
dance show. p.w. 10 who had gone to witness the dance
performance but who ran away when trouble started stated
that when he was running away he saw one ramalingam nadar
running along with him and that the said ramalingam nadar
was keeping his hand near his waist and that the hand was
blood stained. p.w. 15 the head companystable attached to the
arumuganeri police station stated that 4 or 5 days after the
occurrence he came to knumber that a case was registered in
arumuganeri police station on the strength of a companyplaint
given by one ramalingam. p.w. 167 the investigating officer
also stated that the first information report registered on
the strength of ramalingams companyplaint had also been sent to
the magistrate and that a final report had also been sent. he denied the suggestion made to him that the first
information report in respect of ramalingams companyplaint was
suppressed as it was number in favour of the prosecution. these
are all the appearances which ramalingam made on the stage
of this case in the mouth of the witnesses though
ramalingam did himself number enter upon the scene. numbere of the
accused made any reference to ramalingam in his statement. it would be numbericed that it was number suggested to any of the
prosecution
witnesses that ramalingam was companynected with either the
prosecution party or the party of the accused. it was number
suggested that the injury to ramalingam was caused by a
member of either group. it was number suggested that ramalingam
intervened in the fight and received an injury. in fact
there was numberhing to suggest that ramalingam and the
deceased received their respective injuries in the companyrse of
the same transaction. the only suggestion was that
ramalingam received an injury that night at the place of
occurrence. it is in evidence that as soon as trouble
started the people who had gathered there started running
helter skelter. while so running ramalingam apparently
received a stab injury accidentally or deliberately from
someone. in fact according to the evidence of the doctor
ramalingam told him that he did number knumber who his assailant
was. there was therefore absolutely numberhing to companynect the
stabbing of ramalingam with the stabbing of the deceased
soundarapandian. the evidence of p.w. 10 also was to the
effect that ramalingam himself was one of those who ran away
from the scene alongwith him and that was before the
deceased was stabbed. there was thus numberhing to indicate
that the deceased or any of the direct witnesses were aware
or companyld possibly be aware of the injury caused to
ramalingam. in our opinion the high companyrt was entirely wrong
and wholly unjustified in rejecting the testimony of the
direct witnesses and the dying declarations on the
irrelevant companysideration that they did number explain the
injury found on the person of ramalingam. in regard to the dying declarations the reason given by
the high companyrt to companyclude that exhibit p. 1 must have been
recorded later than exhibit p-6 was that exhibit p-1
contained several statements number to be found in exhibit p-6. we are afraid that the high companyrt was merely indulging in
speculation and approaching the question from the wrong end. exhibit p-1 which was recorded by p.w. 14 was as follows
arumuganeri is my native place. i am doing shop
business. record dance was arranged to take place in
gandhi maidan at arumuganeri. i went to see the record
dance along with arunachala nadar my elder brother
gunesekaran younger sisters husband and somasundaram
son of adinarayana perumal. we were talking standing
in front of ramaswami temple. sadanandam nithianandam
sons of p. s. raja nadar tamilam alias subramaniam
kumarsan son of thangapla nadar karthikyan son of raja
pandia nadar were beating my younger brother natesan
on the numberth of the dancing stage. myself and the
persons with me ran to that place. i questioned as to
why you beat my younger brother. sadanandam son of p.

raja nadar forcibly stabbed me with the greece knife
in the hand on my left flank below the rib i cried to
the effect ayyoh stabbed. i companyered the stab injury
with my hand. my elder brother and somasundaram took
me to police station. there is prior enmity between
myself and p. s. raja vagaria in companynection with the
elections. i read the statement. it has been recorded
as narrated by me. sd - soundarapandian
exhbiit p-6 which was recorded by the sub magistrate was as
follows
there is one gandhi maidan in arumganeri record
dance was to be performed there. i went to see it. the
dance was number begun. myself arunachalam my elder
brother gunasekaran my sisters husband were all
talking. there was quarrel at the place of performance
of the record dance. at that time the record dance was
number begun. myself and others ran to the place where the
quarrel took place. a boy called sadanandem son of p.

raja nadar stabbed me with a knife. i cried to
effect ayyoh stabbed stabbed ? the police station is
very near. we all went there. my hand was stained with
blood. there is numberreason for stabbing me. i.t. of thiru soundrapandian. it is true that exhibit p-1 gives more details than exhibit
p-6. exhibit p-1 mentions the names of a-2 a-3 a-4 and a-5
also in companynection with the beating of p.w. 3. it also
mentions that the deceased was stabbed on the left flank
below the rib. it further mentions the prior enmity between
the deceased and p. s. raja vageria. on the companytrary exhibit
p-6 gives fewer details and does number mention the names of
the participants in the fight which preceded the stabbing of
the deceased. the stabbing of the deceased by a-1 alone is
particularly mentioned. what is important to be numbered in
exhibit p-6 is that it refers to the circumstance that the
deceased first went to the police station. that statement
lends support to the prosecution case that the deceased and
others went to the police station and a statement was
recorded at the police station from the deceased. what is
more important is the circumstance that while exhibit p-1
was recorded within a very short time after the occurrence
exhibit p-6 was recorded a few hours after the occurence by
which time the companydition of the
deceased had apparently deteriorated and he was number in a
position to make as detailed a statement as p-1. the
evidence of the district medical officer p.w. 8 shows that
when he saw him at 1 a.m. the companydition of the deceased was
very bad. p-6 was recorded it may be numbered at 1.25 a.m.
it would also be seen that the companydition of soundarapandian
at that time was such that his thumb impression and number his
signature companyld be taken on ex.p.6. the reason for less
particulars in p-6 was quite obvious but yet the high companyrt
completely missed it because of its wrong approach. there
was numberreason whatsoever to doubt the genuineness of
exihibit p-1 or p-6. the high companyrt thought that p.w.3 might
have met the deceased in the tuticorin hospital at 1 a.m.
and induced him to implicate the first accused. this was
numberhing but speculation. as we mentioned the companydition of
the deceased was very bad at 1 a.m. and it is too much to
think that anybody would have been allowed to go near the
deceased in the critical companydition in which he was in the
hospital and to tutor him to implicate someone falsely. the evidence of three of the eye witnesses namely p.ws. 1 2 and 5 was dealt with by the high companyrt in a most
summary and perunctory way. it was said
the name of this witness  p.w.1  was number
mentioned by the deceased in exh.p-6. it has been
elicited from this witness that there was bitter enmity
between him and the family of the accused. this witness
was appointed by the deceased as a clerk in arumuganeri
cooperative stores and in the panchayat election p.w.1
proposed the name of the person who stood against the
father of accused 1 and 2. he was a prosecution witness
in a criminal case instituted against the father of
accused 1 and 2. this witness is number only interested in
the deceased as he was employed under the deceased as a
clerk but also inimically disposed towards the family
of the accused. it will therefore be unsafe to rely
upon his evidence. p.w.2 is the brother of the deceased
and p.w.5 is the brother-in-law of the deceased. they
are very much interested in the deceased and they were
also inimically disposed towards the accused. they are
number telling the truth. they have number explained as to
how ramalingam sustained the injury. they have fallen
in line with the statements made in the dying
declaration. we do number accept their evidence. the reasons given were that the witnesses were
interested and that they had number explained the injury found
on the person of ramalingam. in the case of p.w.1 it was
also stated that his name was number mentioned in exhibit p-6. we do number think that the criticism of the high companyrt bears
any scrutiny. we have perused the evidence of p.ws. 1 2 and
5 and we are unable to discard their testimony for the sole
reason that they are interested witnesses. with regard to

w.3 however there is scope for much criticism having
regard to his companyduct subsequent to the incident. according
to his evidence after he chased the accused he stopped for
about an hour near the forest and returned to the village
thereafter. while he was on his was back he saw his uncles
jeep on the road and learnt from his uncle that
soundarapandian had been taken to the hospital at tuticorin. therefore he went to tuticorin and saw his brother in the
hospital at about 1 a.m. thereafter he went to a hotel where
he slept for the night. next morning without going to the
hospital to find out the companydition of his brother he
returned to the village and made himself available to the
police for questioning at about 1 p.m. though there cannumber
be any doubt that he witnessed the occurrence his subsequent
conduct does number inspire such companyfidence as to place
implicit reliance on his evidence. we therefore agree with
the high companyrt that p.w.3 was number a reliable witness. in our view the two dying declarations exhibits p-1 and
p-6 may be relied upon without any reservation and the
evidence of p.ws. 1 2 and 5 may also be safely accepted.