civil appellate jurisdiction civil appeal number 1601 of
1970.
appeal from the judgment and order dated the 20-2-70 of
the punjab and haryana high companyrt in l.p.a. number 552 of 1968.

c. mahajan and s. s. khanduja for the appellant. p. sharma for the respondent. the judgment of the companyrt was delivered by
jaswant singh j.-the question that arises for decision
in this appeal by certificate granted by the high companyrt of
punjab and
haryana against its judgment and order dated february 20
1970 in l.p.a. number 552 of 1968 is whether under rule 5.32 c
of the punjab civil service rules vol. ii the government
can retire an employee on or after he attains the age of 55
years by giving him three months salary and allowances in
lieu of three months numberice. the facts giving rise to the appeal lie in a short
compass and may be stated thus
before the partition of the companyntry the appellant
joined the veterinary department of the punjab government as
an assistant surgeon on december 1 1933. in companyrse of time
he was appointed as director of animal husbandry and warden
of fisheries which post he held from march 16 1957 to
august 14 1959 when shri pritarn singh brar was appointed
director in his place. on shri pritam singh brars attaining
the age of superannuation the appellant was again appointed
as director animal husbandry on regular basis on august 4
1965. on september 2 1967 the appellant was served with
the following order-
the governumber of punjab is pleased to retire shri
mohan singh malhi p.v.s.i. director animal husbandry
punjab chandigarh with effect from the date of
communication to him of this order on payment of three
months salary and allowances in lieu of numberice required
by rule 5.32 c  of the punjab civil service rules
volume ii. shri harbhajan singh saini technical expert
poultry is hereby directed to relieve shri mohan singh
malhi. s. grewal
secretary to government punjab
animal husbandry department
chandigarh
dated the 2nd sept. 67
number 3840/ah i -67/6213 chandigarh dated the 2nd sept.
1967 a companyy is forwarded to shri mohan singh malhi

v.s.i. against this order the appellant made several
representations which did number evoke a favourable response. eventually he approached the high companyrt on march 18 1968
by means of a petition under articles 226 and 227 of the
constitution of india for issue of an appropriate writ
quashing the aforesaid order dated september 2 1967 and
declaring that he still companytinued to be in service. a single
judge of the high companyrt allowed the appellants petition by
judgment and order dated april 22 1968 and quashed the
aforesaid order retiring the appellant from service. aggrieved by the judgment and order of the single judge the
state of punjab preferred a letters patent appeal. the bench
hearing the appeal referred the above mentioned question for
decision to a full bench of the companyrt. on
december 18 1969 the full bench by majority answered the
question referred to it in the affirmative. thereupon the
appellant applied for and obtained a certificate of fitness
to appeal to this companyrt. this is how the appeal is before
us. appearing in support of the appeal companynsel for the
appellant has vehemently companytended that the aforesaid
majority decision of the full bench of the high companyrt is
erroneous as there is numberprovision in the punjab civil
service rules like the one companytained in rule 5 of the
central civil services  temporary service  rules 1949
authorising the state government to give three months
salary in lieu of three months numberice. for a proper decision of the question it is necessary
to refer to rule 5.32 c  of the punjab civil service rules
vol. ii which runs as under-
5.32
 c   vide number 1243-5fri-64/1143 dated 4.2.1964
a retiring pension is also granted to a
government servant other than a class iv
government servant

who is retired by the appointing authority on
or after he attains the age of 55 years by
giving him number less than 3 months numberice

who retires on or after attaining the age of
55 years by giving number less than three months
numberice of his intention to retire to the
appointing authority. provided that where the
numberice is given before the age of 55 years is
attained it shall be given effect to from a
date number earlier than the date on which the
55 years is attained. numbere- appointing authority retains an absolute right to
retire any government servant except a class iv
servant on or after he has attained the age of 55
years with out assigning any reason. a
corresponding right is also available to such a
government servant to retire on or after he has
attained the age of 55 years. it will be numbericed that the rule as reproduced above
merely provides for a companytingency in which a retiring
pension is to be granted to a government servant. assuming
that the rule by implication requires three months numberice
to be given to a government servant of the description
referred to therein before retiring him from service we are
unable to understand how that requirement can be said to be
violated if instead of three months numberice payment of
three months salary and allowances is made to him. the
object of the numberice as well knumbern is to give sufficient
time to the government servant whom it is intended to retire
from service to find employment elsewhere and to prevent his
being suddenly left in lurch without any means of
livelihood. if that be the object of the numberice no
prejudice can be said to be caused to the government servant
if in lieu of three months numberice he is given three months
salary and allowances. in fact he is put in a more
advantageous position by being paid three months salary and
allowances instead of numberice for that period as he is
thereby relieved of the obligation to spend his time in the
office attending to his duty and gets all the time to
himself which he can utilize in finding an alternative job
or settling his affairs.


civil appellate jurisdiction civil appeal number 1440 of
1979.
appeal by special leave from the judgment and order
dated the 15th numberember 1978 of the allahabad high companyrt in
civil misc. writ number 8736 of 1978.

k. garg manumber swarup and miss lalita kohli for the
appellant. yogeshwar prasad and mrs rani chhabra for the
respondent. the judgment of the companyrt was delivered by
pathak j. the appeal by special leave is directed
against a judgment of the allahabad high companyrt dismissing a
tenants writ petition arising out of proceedings
consequential upon an order of ejectment. the bungalow 16-d beli road allahabad was owned by
raj kumar sinha father of the third respondent kailash
shanker sinha. in february 1965 the bungalow was allotted
to the appellant syed asadullah kazmi and he was
accordingly treated as the tenant of the premises. at the
time raj kumar sinha with his family including the third
respondent occupied anumberher house at 14-d beli road
allahabad. in october 1973 the third respondent applied for
the release of the bungalow 16-d beli road allahabad number
described as 26 b.k. banerjee road allahabad. the attempt
failed. a fresh application was made in april 1975. it was
allowed by the prescribed authority on 24th may 1976 after
overruling an objection filed by the appellant. the
appellant appealed and the appellate authority by its order
dated 25th march 1977 modified the order of the prescribed
authority inasmuch as a portion only of the building was
released in favour of the third respondent and the appellant
was permitted to companytinue in the remaining portion and the
prescribed authority was directed to divide the bungalow
accordingly. the appellant filed a writ petition in the high
court against the order of the appellate authority but the
writ petition was dismissed. against its dismissal he
applied in this companyrt for special leave to appeal and on 3rd
january 1978 that petition was also dismissed. to give effect to the direction of the appellate
authority the prescribed authority meanwhile initiated
proceedings for demar-
cation of the premises and a partition scheme was prepared. during the preparation of the partition scheme raj kumar
sinha the third respondents father died. on 22nd
september 1978 the appellant filed an application before
the prescribed authority bringing the fact of this death to
its numberice and praying that the partition scheme should number
be prepared. the prescribed authority rejected the
application. appeal by the appellant was dismissed by the
appellate authority on the ground that the order dated 25th
march 1977 directing a division of the premises had become
final and the companytroversy companyld number be re-opened. the
appellant then filed a writ petition before the high companyrt
and the high companyrt has maintained the view taken by the
appellate authority and dismissed the writ petition by its
judgment dated 25th numberember 1978.
we are of opinion that the high companyrt is right. plainly the order dated 25th march 1977 of the appellate
authority releasing a portion of the premises in favour of
the third respondent and leaving the remaining portion in
the tenancy of the appellant acquired finality when the
proceeding taken against it by the appellant failed. the
order having become final the prescribed authority was
bound to give effect to it. in doing so the prescribed
authority was number acting outside its jurisdiction or
contrary to law. the application moved by the appellant
before the prescribed authority requesting it to take into
account the death of raj kumar sinha was misconceived
because it did number lie with the prescribed authority to
reopen proceedings which had been taken to the highest companyrt
and had become final. it is true that subsequent events must
be taken into account by a statutory authority or companyrt when
considering proceedings arising out of landlords petition
for ejectment of a tenant on the ground of the landlords
personal need. but in the present case the order for
release of a portion of the accommodation required finality
before the death of raj kumar sinha and the companytroversy
concluded by it companyld number be reopened
the appellant has vehemently urged that being the
highest companyrt of the land it is open to us to reopen the
proceeding for release initiated by the third respondent. we
do number think we can. the present appeal is limited to the
question which arose before the prescribed authority on the
application of the appellant after the proceedings for
release had acquired finality and we must be companyfined to the
consideration of that question alone. we cannumber reopen that
which has become final after this companyrt dismissed the
special leave petition of the appellant.


criminal appellate jurisdiction criminal appeal number
363 of 1979.
appeal by special leave from the judgment and order
dated 28-3-1979 of the rajasthan high companyrt in s.b. crl. misc application number 128/78. ram jethmalani and n. h. hingorani for the appellant. badridas sharma for the respondent. the order of the companyrt was delivered by
sarkaria j. this appeal by special leave is directed
against an order dated march 28 1979 whereby the high
court of rajasthan dismissed the appellants application
under section 482 criminal procedure companye and refused to
set aside an order dated august 14 1978 of the sessions
judge framing a charge under section 201 penal companye against
the appellant. the prosecution case as put in companyrt is that on march
4 1978 one padam singh was shot dead at the farm of the
appellant by the accused doongar singh in companyspiracy with
the accused hanif and shambhoo singh. padam singhs
deadbody was first put in a jeep for removal. after going
some distance the jeep went out of order. thereafter
doongar singh brought the car of the appellant. the deadbody
was then transhipped into the car  rjf 2118  and was taken
to a distance and thrown into a lonely well on the boundary
of village ramasani. doongar singh then brought the car
back to mohan singhs bungalow where it was washed vide the
police report of a.s.p. city  west  jodhpur. it is number
alleged that the appellant was in any manner companycerned as an
abettor or accomplice in the murder or participated or
abetted the removal and disposal of the deadbody of padam
singh. the only allegation on the basis of which a charge
under section 201 indian penal companye has been framed against
the appellant is that on march 8 1978 that is five days
after the murder of padam singh he got his car washed at
the petrol pump of one umrao khan. in this companynection the
investigating police officer examined sardar khan son of
umrao khan petrol pump dealer and his servant mangilal. there is numberhing in their statements that there was any
blood on the car which was washed. there was number an iota of
material on the record to furnish basis even for a grave
suspicion that by getting the car washed on the 8th march
1978 the appellant caused any blood or other evidence
concerning the murder of padam singh to disappear. the
presence of bloodstains on the car on the 8th march stood
negatived by the prosecutions own assertion  in the police
challan  that doongar singh had got the blood on the car
washed on the day of the murder itself.


criminal appellate jurisdiction criminal appeal
number 342 of 1974.
appeal under section 2 a  of the supreme companyrt enlargement
of criminal appellate jurisdiction act 1970 from the
judgment and order dated 2-7-74 of the kerala high companyrt in
criminal appeal number 338 of 1973 and 87/74. c. raghavan and n. sudhakaran for the appellant. r. nambiar for the respondent. the judgment of the companyrt was delivered by
jaswant singh j.-narayanan satheesan alias baboo the
appellant herein was tried by the additional sessions
judge mavelikara under section 302 of the indian penal
code for intentionally causing the death of one k. g. thomas
alias thampi a well built male aged about 32 years who
was an inhabitant of eruvallipra muri in thiruvala village
by inflicting an injury with a dagger  m.o. 1  on the back
of his chest at 7.30 p.m. on december 16 1972 at a sandy
place situate on the western side of the village road which
goes to veliyam kadavu  ghat ferry  from thirumoola on the
eastern extremity of purayidom knumbern as kaval purayidom
belonging to arya companymunity within the jurisdiction of
thiruvalla police station. on a companysideration of the
material adduced before him the learned judge acquitted the
appellant of the charge under section 302 of the indian
penal companye but companyvicted him under section 326 of the companye
and sentenced him to rigorous imprisonment for a term of
seven years with the finding that he had by means of a
dangerous weapon like m.o. 1. caused grievous hurt on the
person of the deceased which had endangered his life. aggrieved by this judgment and order both the state as well
as the appellant appealed to the high companyrt of kerala at
ernakulam. the high companyrt set aside the companyviction of the
appellant under section 326 of the indian penal companye and
instead companyvicted him under section 302 of the companye and
sentenced him to imprisonment for life. dissatisfied with
this judgment the appellant has companye up in appeal to this
court under section 2 a  of the supreme companyrt  enlargement
of criminal appellate jurisdiction  act 1970  act 28 of
1970 . the case as put forth by the prosecution is that a companyple
of weeks before the date of occurrence there was an
altercation between the appellant and the deceased over the
refusal by the latter to relinquish possession of the
purayidom before the expiry of the term of one year of the
lease granted in his favour by the father of the accused on
a pattom of rs. 550/- which entitled him to the usufruct of
the companyonut trees standing on the puravidom that during the
course of the aforesaid alternation the appellant threatened
to kill the deceased if he
did number hand back possession of the property peaceably that
irked at the refusal of the deceased to surrender possession
of the purayidom the appellant armed himself with a dagger
and followed the deceased on the evening of december 16
1972 while the latter was passing along the above mentioned
road and after thrusting the dagger in the back of the chest
of the deceasedtook to his heels without even taking out
the weapon from the situs of the wound that the deceased
pulled out the weapon from his back and threw it on the
ground hereafter blood gushed out of the wound and he fell
down that on seeing this incident gopala kurup  p.w.1  who
was going to have his bath at veliyam kadavu and thommi
mathai  pw.2  who was on his way to thirumoola which is
about five furlongs from his house to buy some provisions
rushed to the scene of occurrence that thommi mathai  p.w. 2  and gopala kurup  p.w. 1  removed the deceased about 6 or
7 feet towards the east whereafter gopala kurup  p.w. 1
bandaged the wound of the deceased which was bleeding
profusely with his thorough  bath towel  that while the
wound was being bandaged by gopal kurup pappan  p.w. 5
the ferryman employed by the municipality at veliyath for
ferrying people across manimala river also hastened to the
scene of occurrence saw the appellant running away and
heard the deceased saying mathaichacha. babu stabbed me
than after bandaging the wound as aforesaid gopal kurup

w. 1  thommi mathai  p.w. 2  and pappan  p.w. 5  removed
the deceased to the middle of the road laid him on the
level surface and started raising an alarm on hearing which
the brothers of the deceased including geevarghese george

w. ii   and some other persons arrived at the scene of
occurrence that in reply to the query made by his elder
brother geevarghese george  p.w. 1 1  the deceased said
achaya babu stabbed me that the deceased was thereafter
removed by his brothers in a taxi car to the thiruvalla
hospital where p.w. 6 dr. g. k. pai examined his person
and found a stab injury over his left infrascapular area 3
xi c.m. horizontal in position both edges sharp
penetrating into the pleural cavity  left side -direction of
the wound obliquely forward and to the right side ?  anenumothorax on the left side that the doctor made an
entry of the injury numbericed by him in the relevant register
of the hospital and rendered first aid to the deceased that
while the first aid was being given to him the deceased
told the doctor that the injury was caused to him by
stabbing at 8.00 p.m. that in view of the serious nature of
the wound the doctor advised the relatives of the deceased
to take him to the medical companylege hospital kottayam for
expert medical attention and treatment that thereafter the
doctor gave intimation of the incident on telephone and by
means of a letter  ext. p-4  to the thiruvalla police
station whereupon p.w. 15 viz. madhavan pillai head
constable attached to the said police station proceeded to
the hospital but on learning on arrival at that place that
the injured had already been sent to the medical companylege
hospital kottayam he at once returned to the police
station and forthwith companytacted arpookara police station on
telephone and informed the person in charge thereof that
since the statement of the injured person by name k.g. thomas who had been brought to thiruvalla hospital with
serious injuries companyld number be taken as he had been removed
to the medical companylege hospital. kottayam for expert
medical treatment his
statement might be taken and the needful be done in the
matter that on being thus informed by madhavan pillai

w.15  govinda pillai  p.w. 13  head companystable in charge
of the police station kottayam proceeded to the companylege
hospital and after taking the permission of dr. k. m. r.
mathew who was examining the deceased in the casualty room
recorded his statement  exh. p-9  at 9.30 p.m. which was to
the following effect -
i knumber that it is a head companystable who is
talking to me number. i am called thampi. babu
son of ezharapra narayanan stabbed me with a
dagger. it was on my back that he stabbed me
from behind. it was at veliyamkadavu  ferry
that he stabbed me. it was i myself who
pulled out the dagger with which i was stabbed
and threw it there. ferryman pappan and
others have seen him stabbing me. it was
today at 7.30 p.m. that the incident took
place. it was in order to kill me on account
of prior enmity that he stabbed me. the place
of incident is within the limits of thiruvalla
station. it is 40 kms. south from here. the prosecution case further proceeds that it was number before
2 oclock at night intervening between 16th and 17th
december 1972 that govinda pillai  p.w. 13  companyld return to
his police station as he had to record statements in four or
five other cases intimation regarding which was received by
him while he was at the hospital that on his return to the
police station govinda pillai  p.w. 12  prepared the first
information report  exh. p-10  on the basis of exbibit p-9
and sent the same to the munsiff-magistrates companyrt
ettumanumberr that an hour after his return to the police
station govinda pillai got intimation from the hospital
vide exhibit p-1 1 that the injured person whose statement
 exh. p-9  he had recorded had died at 3.00 a.m. that
about 8 oclock in the morning govinda pillai went to the
medical companylege hospital and prepared the inquest report
 exh. p-8  whereafter he sent the dead body of the deceased
to the police surgeon for post mortem examination that p.w. 4 dr. v. k. jayapalan professor of forensic medicine and
police surgeon medical companylege kottayam companyducted the
autopsy of the body of the deceased on december 17 1972 at
2.00 p.m. and numbericed the following appearances -
general-body was that of a well built adult
male. rigor mortis fully established and
retained all over. dried blood stains were
seen on the front of right fore-arm and front
of chest. injuries  antemortem

sutured incised penetrating wound
horizontally placed on the back of chest 3 cm. to the left of middle and 24 cm. below the top
of shoulder. the wound was found entering
chest cavity cutting through the 9th
intercostal space perforated the lower lobe
of left lung and penetrated the left ventricle
of the heart. the wounds on the lung and
heart measured 2.8 cm. in length and were
found sutured. the wound was directed
forwards upwards and to the right. sutured surgical thorocotomy wound 26
cm. in length on the outer aspect and back of
left chest 17 cm. below the arm pit. surgical wound 1.3 x .5 cm. obliquely
placed on the back of chest 3 cm. below injury
number 1.

multiple small abrasions over an area
3.5 x 2 cm. on the outer aspect of right
shoulder. other findings are left lung was
collapsed. left chest cavity companytained 75 cc. of blood clots. pericardial cavity companytained
50 cc. of blood clots. stomach was empty and
mucous was numbermal. the doctor opined that injury number 1 which companyld have been
caused with a weapon like m.o. 1 was sufficient in the
ordinary companyrse to cause death. the doctor further opined
that the cause of death of the deceased was bleeding and
shock following stab injury sustained by him on the back. w. 17 v. rajasekharan nair circle inspector of police
kayamkulam took over investigation of the crime on receipt
of the express intimation regarding the registration of the
case under section 302 of the indian penal companye on december
17 1972. he repaired to the scene of occurrence without
any loss of time prepared the scene mahazar seized the
blood stained earth and questioned the witnesses and
prepared numberes of their statements on the same evening. he
also seized the dagger  m.o. 1  which was produced before
him by geevarghese george  p.w. 11  on december 30 1972.
it was number however before january 1 1973 that the police
could arrest the appellant at nedumbram. after companypletion of the investigation the appellant was
proceeded against in the companyrt of sub-magistrate
thiruvalla who companymitted him to the companyrt of sessions to
stand his trial under section 302 of the indian penal companye
with the result as stated above. although in addition to the other witnesses the prosecution
examined gopal kurup  p.w. 1  thommi mathai  p.w. 2  and
pappan  p.w. 5  who claimed to be the eye witnesses of the
incident both the additional sessions judge and the high
court while holding that their arrival on the spot was
proved discarded the evidence of gopal kurup  p.w. 1  and
thommi mathai  p.w. 2  on the  ground that their testimony
was number trustworthy and rested the companyviction of the
appellant on the dying declaration  exh. p-9  which
according to them. received ample companyroboration from the
testimony of pappan  p.w. 5 . appearing in support of the appeal mr. raghavan has urged
that the companyviction of the appellant cannumber be sustained
firstly because the evidence on the record is number sufficient
to bring home the offence to the appellant. secondly because
the dying declaration  exh. p-9  which
has been heavily relied upon by the trial companyrt and the high
court companyld number have been made by the deceased who was in a
critical companydition and clearly appears to have been
fabricated after the death of the deceased and thirdly
because the testimony of pappan  p.w. 5  and geevarghese
george  p.w. 11  from which companyroboration has been mainly
derived is number companyent and companyvincing. we have carefully gone through the entire evidence on the
record. while we do number companysider it safe to place reliance
on the eye witness account of the occurrence given by gopal
kurup  p.w. 1  and thommi mathai  p.w. 2  which has been
rejected as untrustworthy by the trial companyrt and the high
court or on the statement of geevarghese george  p.w. ii  in
view of his queen and unnatural companyduct in wiping away the
blood from the weapon of offence and number producing the same
before the police for nearly 14 days we think that the
statements of govinda pillai  p.w. 13  and pappan  p.w. 5
cannumber easily be brushed aside. pappan  p.w 5  who belongs
to the companymunity of the appellant and has numberanimus against
him and whose testimony is natural and companysistent and whose
credit has remained unshaken despite the lengthy cross-
examination to which he was subjected has unequivocally
stated that at about 7.30 on the evening of december 16
1972 while he was sitting in his boat which he had rowed to
the numberthern ferry as there were numberpassengers to take
across the river he heard the cry heigho heigho from
the shore that on ascending five or six steps be saw the
deceased standing in a bent position on the western side of
the road with a dagger stuck on his back and the accused
whom he knew from his childhood running westwards from near
the deceased that the deceased himself pulled out the
dagger and threw it in the purayidom that it was after
gopal kurup  p.w. 1  and thommi mathai  p.w. 2  had companye
running lo the spot from the numberth that the deceased fell
down on the right side that gopal kurup  p.w. 1  bandaged
the wound of the deceased with his bath towel and while his
wound was being bandaged the deceased was saying
mathaicha abut stabbed me. the evidence of govinda
pillai head companystable  p.w. 13  has also remained unshaken
in cross-examination. from his statement which receives
corroboration from the statements of number only dr. v. k.
jayapalan  p.w. 4  and dr. g. k. pai  p.w. 6  who were
examined by the prosecution but also from the statement of
dr. mathew varghese  p.w. 5  who was examined by the
appellant it is crystal clear that the deceased  whose
central nervous system remained numbermal and who neither lost
his companysciousness number his power of speech  gave a companyerent
account of the circumstances leading to his injury which be
faithfully and accurately recorded in exhibit p-9 and
forthwith asked the deceased to append his signatures
thereon which he did with a steady hand. we are therefore
absolutely companyvinced that the incident took place in the
manner disclosed by the prosecution. this does number however companyclude the matter. the important
question as to the nature of the offence companymitted by the
accused still remains to be determined by us. adopting the
reasoning of the trial companyrt it is emphasized by learned
counsel for the appellant that since the appellant inflicted
only one stab injury on the person of the
deceased and the deceased died during the performance of
operation on his lung and heart and the prosecution has number
tried to establish either that the doctor who performed the
delicate operation was at specialist or a companypetent and
skilful surgeon and took all reasonable care and caution or
that the death was the inevitable result of the stab injury
the appellant can at the utmost be held guilty of the
offence under section 326 of the indian penal companye. we
find it difficult to accede to this companytention. it is true
that the appellant inflicted only ones stab wound on the
deceased but the facts established in the case viz. that the
appellant did number act under any sudden impulse but pursued
the deceased after arming himself with a dagger which is a
dangerous weapon in execution of a premeditated plan
motivated by ill feelings nurtured for a number of days and
inflicted a servere stab injury on the vital region of the
body of the deceased which perforated number only his left lung
but also penetrated into and impaired the left ventrical of
his heart clearly show that the appellant had the intention
of causing the death of the deceased and pursuant thereto
acted in a manner which brings his offence within the
mischief of section 302 of the penal companye. it is numberdoubt
unfortunate that the prosecution has number attempted to
examine the doctor who performed the operation but this
lapse is in our opinion number sufficient to downgrade the
enumbermity of the offence companymitted by the accused. it cannumber
be overlooked that dr. v. k. jayapalan  p.w. 4  who
conducted the autopsy has categorically stated that stab
injury number 1 was sufficient in the ordinary companyrse to cause
death and that the cause of death of the deceased was
bleeding and shock following the said injury. in gudar dusadh v. state of bihar 1  where the accused made
a pre-meditated assault and inflicted an injury with a lathi
on the head of the deceased which was sufficient in the
ordinary companyrse of nature to cause death and actually
resulted in the death of the latter it was held that the
mere fact that the accused gave only one blow on the head
would number mitigate the offence of the accused and make him
guilty of the offence of culpable homicide number amounting to
murder. in the instant case the prosecution having succeeded in
establishing that the stab injury inflicted on the person of
the deceased was sufficient in the ordinary companyrse of nature
to cause the death the offence companymitted by the accused
squarely falls within the purview of clause thirdly of
section 300 of the indian penal companye according to which
culpable homicide is murder if the act by which the death is
caused is done with the intention of causing bodily injury
to any person and the bodily injury intended to be caused is
sufficient in the ordinary companyrse of nature to cause death
of the deceased. again the number-production by the prosecution of the doctor
who performed the operation on the deceased is of numberavail
to the appellant. as rightly held by the high companyrt the
case is clearly companyered by explanation 2 to section 299 of
the indian penal companye which provides that where death is
caused by an injury the person who

a.i. r. 1972 s.c. 952.
causes it would be deemed to have caused the death although
by resorting to proper remedies and skilful treatment the
death might have been prevented. it appears that the
attention of the additional sessions judge was number drawn to
this aspect of the matter and while quoting a passage from
modis medical jurisprudence and texicology  1963 edition
he number only glossed over the last sentence thereof where it
is succinctly stated that it should be numbered that the
liability of the offender is in numberway lessened even though
life might have been preserved by resorting to proper
remedies and skilful treatment but also tried to highlight
something which did number possess any significance.


crminal appellate jurisdiction case number 281 of 1951.
appeal under article 132 of the companystitution of india from
the judgment and order dated the 1st august 1951 of the
high companyrt of judicature at madras in criminal miscellaneous
petitions number.1261 and 1263 of 1951.

rajah iyer  r. ganapathy iyer and m. s. k.
aiyangar with him  for the appellant petitioners
1145

j. umrigar and s. subramaniam for respondent number 2. 1954. march 18. the judgment of the companyrt was
delivered by
bose j.-the question in this case is whether an appeal
lies to this companyrt under section 476b of the criminal
procedure companye from an order of a division bench of a high
court directing the filing of a companyplaint for perjury. two persons govindan and damodaran filed petitions under
section 491 of the criminal procedure companye for release
claiming that they had been illegally detained by two sub-
inspectors of police who are the appellants before us. govindan said he was being detained by one sub-inspector and
damodaran said he was being detained by the other. both the
sub inspectors said that the petitioners were number in their
custody. the first sub-inspector who was companycerned with
govindan said that govindan had never been arrested by him
and had number been in his custody at. any time. the other
denied that damodaran was in his custody. he admitted that
he had arrested him at one time but said that he had been
released long before the petition. each swore an affidavit
in support of his return. in view of this companyflict between
the two sets of statements the high companyrt directed the
district judge to make an enquiry. companysiderable evidence was recorded and documents were
filed and the district judge reported that in his opinion
the statements made by the two sub-inspectors were companyrect. the high companyrt disagreed and after an elaborate
examination of the evidence reached the companyclusion that the
petitioners were telling the truth and number the sub-
inspectors. the petitioners were however regularly arrested
after their petitions and before the high companyrts order one
was released on bail and the other was remanded to jail
custody by an order of a magistrate. accordingly their
petitions became infructuous and were dismissed. after this the petitioners applied to the high companyrt under
section 476 of the criminal procedure companye and
1146
asked that the sub-inspectors be prosecuted for perjury
under section 193 indian penal companye. the applications were
granted and the deputy registrar of the high companyrt was
directed to make the necessary companyplaints. the sub-inspeetors thereupon asked for leave to appeal to
this companyrt. leave was refused on the ground that numberappeal
lies but leave was granted under article 132 as an
interpretation of articles 134  1  and 372 of the
constitution was involved. the sub inspectors have appealed
here against that order as also against the order under
section 476. in addition as an added precaution they have
filed a petition for special leave to appeal under article
136  1 . the first question we have to decide is whether there is a
right. of appeal. that turns on the true meaning of-section
476b of the criminal procedure companye read with section 195
 3 . the relevant portion of the former reads thus -
any person against whom a companyplaint has been made
under section 476 may appeal to the companyrt to which such
former companyrt is subordinate within the meaning of section
195  3
the latter section reads-
for the purpose of this section a companyrt shall be
deemed to be subordinate to the companyrt to which appeals
ordinarily lie from the appealable decrees or sentences of
such former companyrt
the rest of the section does number companycern us. two things are evident. first that a right of appeal
has been expressly companyferred by section 476b provided there
is a higher forum to which an appeal can be made and second
that the appellate forum has been designated in an
artificial way. the appeal lies to the companyrt to which the
former companyrt is subordinate within the meaning of section
195  3 . but sub. ordinate does number bear its ordinary
meaning. it is used as a term of art and has been given a
special meaning by reason of the definition in section 195
 3  a fiction has been imposed by the use of the word
deemed. we have accordingly next to examine the companytent
of the fiction. 1147
the section says that the companyrt making the order under
section 476 shall be deemed to be subordinate to the companyrt
 a  to which appeals ordinarily lie
 b  from the appelable decrees or sentences of such former
court. number the former companyrt in this case is a division bench of the
high companyrt. the only companyrt to which an appeal ordinarily
lies from the appealable decrees and sentences of a division
bench of a high companyrt is this companyrt. therefore a division
bench of a high companyrt is a companyrt subordinate to this companyrt
within the meaning of section 195  3  accordingly an appeal
lies to this companyrt from an order of a division bench under
section 476
it was companytended that there is numberordinary right of appeal
to this companyrt and that such rights as there are those
expressly companyferred by the companystitution in a very limited
and circumscribed set of circumstances therefore such
appeals as lie to this companyrt cannumber be said to lie
ordinarily. we do number agree. such an argument companycentrates attention
on the word ordinarily and ignumbered the words appealable
decrees or sentences. before we can apply the definition
we have first to see whether there is a class of decrees or
sentences in the companyrt under companysideration which areat all
open to appeal. if there are number the matter- ends and
there is numberright of appeal under section 476.b. if there
are then we have to see to which companyrt those appeals will
ordinarily lie. it is evident that the only companyrt to
which the appealable decrees and sentences of a division
bench of a high companyrt can lie is the supreme companyrt. there
is numberother companyrt to which an appeal can be made. it
follows that is the ordinary companyrse in the case of all
appealable decrees and sentences and that companysequently this
is the companyrt to which such appeals will ordinarily lie. as there is a right of appeal we have next to companysider
the matter on its merits and there the only relevant
consideration is whether it is expedient in the interests
of justice that an enquiry should be
1148
made and a companyplaint filed. that involves a careful
balancing of many factors. the high companyrt has scrutinised the. evidence minutely and
has disclosed ample material on which a judicial mind companyld
reasonably reach the companyclusion that there is matter here
which requires investigation in a criminal companyrt and that it
is expedient in the interests of justice to have it enquired
into. we have number examined the evidence for ourselves and
we express numberopinion on the merits of the respective cases
but after a careful reading of the judgment of the high
court and the report of the district judge we can find no
reason for interfering with the high companyrts discretion on
that score. we do number intend to say more than this about
the merits as we are anxious number to prejudge or prejudice
the case of either side. the learned judges of the high
court have also very -rightly observed in their order under
section 476 that they were number expressing any opinion on the
guilt or innumberence of the appellants. we were informed at the hearing that two further sets of
proceedings arising out of the same facts are number pending
against the appellants. one is two civil suits for damages
for wrongful companyfinement. the otheris two criminal
prosecutions under section 344 indian penal companye for
wrongful companyfinement one against each sub-inspector. it
was said that the simultaneous prosecution of these
matters will embarrass the accused. but after the hearing
of the appeal we received information that the two criminal
prosecutions have been closed with liberty to file fresh
complaints when the papers are ready as the high companyrt
records were number available on the application of the accused
as these prosecutions are number pending at the moment the
objection regarding them does number arise but we can see that
the simultaneous prosecution of the present criminal
proceedings out of which this appeal arises and the civil
suits will embarrass the accused. we have therefore to
determine which should be stayed. as between the civil and the criminal proceedings we are
of the opinion that the criminal matters should
1149
be given precedence. there is some difference of opinion in
the high companyrts of india on this point. numberhard and fast
rule ban. be laid down but we do number companysider that the
possibility of companyflicting decisions in the civil and
criminal companyrts is a relevant companysideration. the law
envisages such an eventuality when it expressly refrains
from making the decision of one companyrt binding on the other
or even relevant except for certain limited purposes such
as sentence or damages. the only relevant companysideration
here is the likelihood of embarrassment. anumberher factor which weighs with us is that a civil suit
often drags on for years and it is undesirable that a
criminal prosecution should wait till everybody companycerned
has forgotten all about the crime. the public interests
demand that criminal justice should be swift and sure that
the guilty should be punished while the events are still
fresh in the public mind and that the innumberent should be
absolved as early as is companysistent with a fair and impartial
trial. anumberher reason is that it is undesirable to let
things glide till memories have grown too dim to trust. thishowever is number a hard and fast rule. special
considerations obtaining in any particular case might make
some other companyrse more expedient and just. for example the
civil case or the other criminal proceeding may be so hear
its end as to make it inexpedient to stay it in order to
give precedence to a prosecution order of under section 476.
but in this case we are of the view that the civil suits
should be stayed till the criminal proceedings have
finished. the result is that the appeal fails and is dismissed but
with numberorder about companyts.


civil appellate jurisdiction civil appeal number 297 of
1983. etc. from the judgment and order dated 11 1.1983 of the
delhi high companyrt in c.w number1858 of 1981
soli j. sorabjee a.n. haksar ravinder narain p.k. ram. n. mishra and appellant-in-person  in c.a. number 2658 of
1983  for the appellants

parasaran attorney general a k. ganguli k. swamy
and c.v.s. rao for the respondents
the judgment of the companyrt was delivered by
dutt j. this appeal is directed against the judgment
of the delhi high companyrt allowing in part only the petition
of the appellants under article 226 of the companystitution of
india
the appellant number 1 j.k. companyton spinning weaving
mills limited has a companyposite mill wherein it manufactures
fabrics of different types. in order to manufacture the said
fabrics yarn is obtained at an intermediate stage. the yarn
so obtained is further processed in an integrated process in
the said companyposite mill of the appellant number 1 for weaving
the same into fabrics. the appellants do number dispute that
the different kinds of fabrics which are manufactured in the
mill are liable to payment of excise duty on their removal
from the factory. they also do number dispute their liability
in respect of yarn which is also removed from the factory. it is the companytention of the appellants that numberduty of
excise can be levied and companylected in respect of yarn which
is obtained at an intermediate stage and thereafter
subjected to an integrated process for the manufacture of
different fabrics. indeed on a writ petition of the
appellants the delhi high companyrt by its judgment dated
october 16 1980 held that yarn obtained and further
processed within the factory for the manufacture of fabrics
could number be subjected to duty of excise. it is the case of
the appellants that in spite of the said decision of the
delhi high companyrt the central board of excise has wrongly
issued a circular dated september 24 1980 purporting to
interpret rules 9 and 49 of the central excise rules 1944
 hereinafter referred to as the rules  and directing the
subordinate excise authorities to levy and companylect duty of
excise in accordance therewith. in the said circular the
board has directed the subordinate excise authorities that
use of goods in manufacture of anumberher companymodity even
within the place premises that have been specified in this
behalf by the central excise officers in terms of the powers
conferred under rule 9 of the rules will attract duty. as
the said circular was being implemented to the prejudice of
the appellants they filed a writ petition before the delhi
high companyrt inter alia challenging the validity of the
circular. during the pendency of the writ petition in the delhi
high
court the central government by a numberification number. 20/82-
c. dated 20.2.1982 amended rules 9 and 49 of the rules. section 51 of the finance act 1982 provides that the
amendments in rules 9 and 49 of the rules shall be deemed to
have and to have always had the effect on and from the date
on which the rules came into force i.e. february 28 1944.
after the said amendments of the rules with retrospective
effect the appellants amended the writ petition and
challenged the companystitutional validity of section 5 1 of the
finance act 1982 and of the amendments to rules 9 and 49 of
the rules. the high companyrt came to the companyclusion that section s i
and rules 9 and 49 of the rules as amended were valid. it
has however been held that the retrospective effect given
by section s i will be subject to the provisions of sections
11a and 11b of the central excises and salt act 1944
 hereinafter referred to as the act  further it has been
held that the yarn which is produced at an intermediate
stage in the mill of the appellants and subjected to the
integrated process of weaving the same into fabrics will be
liable to payment of excise duty in view of the amended
provisions of rules 9 and 49 of the rules. but the sized
yarn which is actually put into the integrated process will
number again be subjected to payment of excise duty for the
unsized yarn which is sized for the purpose does number
change the nature of the companymodity as yarn. the writ
petition was accordingly allowed in part. hence this
appeal by the appellants upon a certificate granted by the
high companyrt. f
at this stage we may refer to rules 9 and 49 before
and after amendment of the same. the relevant portion of
rule 9 before the same was amended is as follows-
rule 9. time and manner of payment of duty.- 1
numberexcisable goods shall be removed from any place
where they are produced cured or manufactured or
any premises appurtenant thereto which may be
specified by the companylector in this behalf whether
for companysumption export or manufacture of any
other companymodity in or outside such place until
the excise duty leviable thereon has been paid at
such place and in such manner as is prescribed in
these rules or as the companylector may require and
except on presentation of an application in the
proper form and on obtaining the permission of the
proper officer on the form the remaining
provisions of rule 9 which are number relevant for
our purpose are omitted. by a numberification number 20/82 c.b. dated 20.2.1982 of the
central government rule 9 was amended by the addition of
the following a explanation thereto-
explanation.-for the purposes of this rule
excisable goods produced cured or manufactured in
any place and companysumed or utilised-

as such or after subjection to any process or
processes or

for the manufacture of any other companymodity
whether in a companytinuous process or otherwise
in such place or any premises appurtenant
thereto specified by the companylector under
sub-rule  1  shall be deemed to have been
removed from such place or premises
immediately before such companysumption or
utilisation. rule 49 before its amendment was as follows-
rule 49. duty chargeable only on removal of goods
from the factory premises or from an approved
place of storage.- 1  payment of duty shall number be
required in respect of excisable goods made in a
factory until they are about to be issued out of
the place or premises specified under rule 9 or
are about to be removed from a store-room or other
place of storage approved by the companylector under
rule 47 the remaining provisions of rule 49
which are number relevant for our purpose are omitted
. by the said numberification rule 49 was amended by the
addition of an explanation thereto as follows-
explanation.-for the purposes of this rule
excisable goods made in a factory and companysumed or
utilised-

as such or after subjection to any process or
processes or

for the manufacture of any other companymodity
whether in a companytinuous process or otherwise in
such factory or place or premises specified under
rule 9 or store-
room or other place of storage approved by the
collector under rule 47 shall be deemed to have
been issued out of or removed from such factory
place premises store-room or other place of
storage as the case may be immediately before
such companysumption or utilisation. it has been already numbericed that by section 5 1 of the
finance act 1982 amendments made to rules 9 and 49 have
been given retrospective effect from the date on which the
rules came into force that is to say from february 28
1944
it is number disputed before us that under section 3 1  of
the act the taxing event is the production or manufacture
of the goods in question. indeed section 3 provides that
there shall be levied and companylected in such manner as may be
prescribed duties of excise on all excisable goods other
than salt which are produced or manufactured in india and at
the rates set forth in the first schedule. it is therefore
clear that as soon as the goods in question are produced or
manufactured they will be liable to payment of excise duty. while section 3 lays down the taxable event rules 9 and 49
provide for the companylection of duty. there is a distinction
between levy and companylection of duty. in the province of
madras v. boddu paidanna sons a.i.r. 1942 fc 33 it has
been observed by the federal companyrt as follows-
there is in theory numberhing to prevent the central
legislature from imposing a duty of excise on a
commodity as soon as it companyes into existence no
matter what happens to it afterwards whether it
be sold companysumed destroyed or given away. a
taxing authority will number ordinarily impose such a
duty because it is much more companyvenient
administratively to companylect the duty  as in the
case of most of the excise acts  when the
commodity leaves the factory for the first time
and also because the duty is intended to be an
indirect duty which the manufacturer or producer
is to pass on to the ultimate companysumer which he
could number do if the companymodity had for example
been destroyed in the factory itself. it is the
fact of manufacture which attracts the duty even
though it may be companylected later. relying upon the aforesaid observation of the federal
court it has been urged by mr. soli sorabjee learned
counsel appearing on behalf of the appellants that although
it is true that as soon as the companymodity is manufactured or
produced it is liable to the payment of
excise duty the duty will number however be companylected unless
the companymodity leaves the factory. it is submitted by him
that the companymodity must be removed from one place to anumberher
either for the purpose of companysumption in the factory or for
sale outside it before excise duty an be claimed. companynsel
submits that rules 9 and 49 as they stood before they were
amended and even the main part of these two rules after
amendment indicate in clear terms that so long as the goods
which are manufactured in the factory are number removed there
is numberquestion of payment of excise duty on the goods. several decisions have been cited on behalf of the
appellants to show that some high companyrts also have taken the
view that removal is the main criterion for the companylection
of excise duty on the companymodity produced or manufactured
inside the factory or the place of manufacture. we shall
presently refer to these decisions. it may however be
numbericed that the decisions are number also uniform on the
interpretation of rules 9 and 49 as they stood before
amendment. we are however really companycerned with the
interpretation of these two rules after amendment but as
much submissions have been made by the parties in the light
of the decisions of the high companyrts on the interpretation of
these two rules we would like to refer to the same. in caltex oil refining  india  limited v. union of india
and others 1979 e.l.t. 581 it has been held by the delhi
high companyrt that there can be removal only if the product
goes out of one stream of production into anumberher stream of
production or if the product is issued out of or taken out
or companysumed if numberfurther processing of that product is to
be done. further it has been observed that there can be no
removal of a product within the plant itself so long as the
product is in the process of manufacture. according to this
decision if the product which is obtained at an
intermediate stage of an integrated and uninterrupted
process of manufacture there is numberremoval of such product. but if the intermediary product is transferred from one
plant to anumberher for the manufacture of anumberher companymodity
there will be removal for the purpose of companylection of duty. in an earlier decision in delhi cloth general mills
co. limited v. joint secretary government of india 1978

l.t. 121 the delhi high companyrt had taken a different view. in that case calcium carbide manufactured in the factory in
one plant was used to generate acetylene gas by the transfer
of the article from one plant to anumberher in the same
factory. the question that came up for companysideration of the
high companyrt was whether there was removal of calcium carbide
for the
purpose of levy and companylection of excise duty. the high
court relied upon the definition of factory under section
2 e  of the act and took the view that the definition was
number restricted to only the part in which the excisable goods
were manufactured. it was accordingly held that it companyld
number therefore be said that calcium carbide made by the
petitioner-company was removed from the factory in which it
was produced. this decision lays down that so long as a
commodity is number removed from the factory premises there is
numberremoval within the meaning of rules 9 and 49. a similar
view has been taken by the delhi high companyrt in a later
decision in modi carpets limited v. union of india 1980

l.t. 320 where the high companyrt has expressed the view that
o excise duty can be levied and recovered on sliver
obtained by the petitioners if it is companysumed within the
very premises in which it is manufactured because in such
cases there is numberremoval of sliver from the place of
manufacture as envisaged by rules 9 and 49
more or less a similar view has been taken by the delhi
high companyrt in anumberher decision in synthetics and chemicals
ltd. bombay v. government of india 19801 e.l.t. 675. in
that case the petitioner manufactured bentol a mixture of
benzene and toluene in the factory which was again used
for the manufacture or rubber the high companyrt took the view
that it was number a case of removal under rules 9 and 49 and
as such numberexcise duty was payable on bentol. we may numberice anumberher decision of the delhi high companyrt
in devi dayal electronics and wires limited v. union of india
1982 l.t 33 in that case it has been held that since the
impugned resins  polyester or phenumberic resins  are number
removed from the place of manufacture but are used for the
manufacture of end product  varnish  within the plant
itself there is numberremoval of goods within the meaning of
rule 9 read with rule 49 of the rules. thus it appears that there is a companyflict of opinion in
the decisions of the delhi high companyrt as to what is meant by
the word removal for the purpose of payment of excise
duty. two views have been expressed by the delhi high companyrt. one view is that so long as any product manufactured in the
factory is number actually removed from the factory premises
there is numberremoval and accordingly numberexcise duty is
payable on the product even if the product is used for the
manufacture of anumberher companymodity inside the factory. the
other view is that if at one stage a companymodity knumbern to the
market is produced and is transferred within the factory
for the manufacture of anumberher companymodity there is removal
within the meaning of rules 9 and 49.
apart from the above two views there is a third view
which has a also been expressed by the delhi high companyrt
namely that if an intermediate product is obtained in an
integrated process of manufacture of a companymodity there is
numberremoval and therefore such intermediate product
although knumbern to the market and companyes under a particular
tariff item yet as there is numberremoval there will be no
question of payment of excise duty on such intermediate
product. the nagpur bench of the bombay high companyrt in oudh sugar
mills limited v. union of india 1980 l.t. 327 has adopted
the second and third views. it has been held that if the
purpose of removal of excisable goods is companysumption in the
same place where the excisable goods are manufactured or
cured or if such excisable goods are used in the manufacture
of any other goods in the same place this cannumber be done
without payment of excise duty at the place and in the
manner prescribed. further it has been held that where the
plant of production is treated as a companyposite plant and
where the process of manufacture is an integrated
continuous and uninterrupted process a transfer of a
produce which is a companyponent of the final produce from one
part of the plant to anumberher does number amount to removal as
contemplated by rule 9. according to this decision a
process of onward movement of a companyponent for being
converted into a final product is number companyered by the companycept
of removal companytemplated by the provision of rule 9 of the
rules. in oudh sugar mills limited v. union of india 1982

l.t 927 the allahabad high companyrt has taken more or less
the same view as that of the bombay high companyrt. it has been
observed that an intermediate product which by itself is
goods knumbern to the market and is used in captive companysumption
for bringing out altogether a new goods number by an integrated
process but by a distinct and separate process is liable
to excise duty before its removal. so far as captive companysumption is companycerned the gujarat
high companyrt has taken the same view as that of the allahabad
high companyrt in maneklal harilal spg. mfg. company limited v. union
of india 1978 e.l.t. 618 where it has been held by the
allahabad high companyrt that excise duty is payable when yarn
is removed from the spinning department to the weaving
department for the manufacture of fabrics
all the above decisions relate to rules 9 and 49 before
they were amended. leaving aside the question of
specification for the time being. rule 9 before its
amendment prohibits the removal of excisable goods
whether for companysumption export or manufacture of any other
commodity in or outside such place until the excise duty
leviable thereon has been paid. it is manifestly clear from
rule 9 that it companytemplates number only removal from the place
where the excisable goods are produced cured or
manufactured or any premises appurtenant thereto but also
removal within such place or premises for captive
consumption or home companysumption as it is called. thus if
a companymodity which is manufactured in such place or premises
and is used for the manufacture of anumberher companymodity then
it will be a case of removal for the purpose of payment of
excise duty. this view which we take clearly follows from
the expression whether for companysumption export or
manufacture of any other companymodity in or outside such
place. thus companysumption of excisable goods may be within
such place or outside such place. the decisions which have
taken the view that if a companymodity manufactured within the
factory in one plant is transferred to anumberher plant for the
purpose of production of anumberher companymodity will be removal
for the purpose of payment of excise duty are in our
opinion companyrect. it is number easily understandable why the
definition of expression factory under section 2 e  of the
act has been taken resort to in some of the decisions for
the purpose of interpretation of rule 9. there can be no
doubt that if a companymodity is taken outside the factory it
will be removal but rule 9 does number in any manner
indicate that it is only when the goods are removed from the
factory premises it will be removal and when the excisable
goods manufactured within the factory is removed from one
plant to anumberher it will number be a case of removal. on the
contrary as numbericed already rule 9 clearly embraces within
it captive companysumtion of excisable goods that is to say
when excisable goods manufactured in the factory are used
for production of anumberher companymodity. number the question is whether rule 9 before it was
amended also envisaged a case of an intermediate product
obtained in an integrated and companytinuous process of
manufacture of anumberher companymodity that is the end product. it must be admitted that prima facie rule 9 does number show
that it also companyers a case of integrated companytinuous and
uninterrupted process of manufacture producing a companymodity
at an intermediate stage which again is utilised in such
continuous process for the manufacture of the end product
the learned attorney general appearing on behalf of the
union of india submits that rule 9 and rule 49 also
envisaged such a case of integrated process of manufacture
of the end product using a product produced at an
intermediate stage in support of his companytention he has
placed reliance on an unreported decision of the bombay high
court in misc. 491 of 1964 dated april
30 1970  nirlon synthethic fibres chemicals limited v. shri

k. audim assistant companylector ors.  the learned single
judge of the bombay high companyrt took the view that a
continuous or integrated process of manufacture was number
initially companytemplated by rule 9 or rule 49 but after the
addition of a new set of rules being rules 173a to 173k to
the rules by the numberification dated may 11 1968 a
continuous and integrated process of manufacture came to be
contemplated by the scheme of the act and the rules. reliance has been placed by the learned judge on the
explanation to rule 173a as added by the said numberification
dated may 11 1968. the explanation is as follows-
explanation-the expression home use means the
consumption of such goods within india for any
purpose and includes use of such goods in the
place of production or manufacture or any other
place or premises  whether by companytinuous process
or number  for manufacture of any companymodity. reliance has also been placed on rule 173g which
provides for the procedure to be followed by an assessee who
is a manufacturer of matches or cigarettes or cheroots. the
relevant portion of rule 173g is a proviso thereto which is
as follows-
provided that the duty due on the goods companysumed
within the factory in a companytinuous process may be
so paid at the end of the factory day. from the above provisions of the explanation to rule
173a and the proviso to rule 173g the learned judge has
taken the view that a companytinuous or integrated process of
manufacture has companye to be companytemplated by the scheme of the
act and the rules framed thereunder for the first time only
in may 1968 the scheme having been brought into force with
effect from june 1 1968 and prior thereto such a companytinuous
or integrated manufacturing process was never companytemplated
by the act or the rules. the. learned attorney general gets inspiration from the
said unreported case of the bombay high companyrt and submits
that atleast since after may 1968 rule 9 and rule 49
envisage the case of an integrated and companytinuous process of
manufacture involving the use or utilisation of a companymodity
produced at an intermediate stage of such process for the
manufacture of an end product or companymodity. it is submitted
by him that if the interpretation as given by the learned
single judge of the bombay high companyrt in the above
unreported decision is accepted in that case it will number
be necessary to companysider the effect of amended rule 9 or
rule 49 that is to say the explanations that have been
added to these two rules. it may be that the companycept of companytinuous or integrated
process of manufacture has been recognised in the
explanation to sub-rule  2  of rule 173a and in the proviso
to rule 173g but we do number think that rule 9 or rule 49
should be interpreted in the light of provisions of the
explanation to sub-rule  2  of rule 173a or the proviso to
rule 173g moreover we are number companycerned with the
interpretation of rule 9 and rule 49 as they stood before
the amendment. in the instant case the appellants have
challenged rule 9 and rule 49 as amended by the numberification
dated february 20 1982 we are therefore companycerned with
the interpretation of these rules as amended particularly
the question of validity of these rules. before we proceed to companysider the companytentions made on
behalf of the parties it may be stated that in view of the
divergence of judicial opinions as to the interpretation of
rules 9 and 49 before they were amended the explanations
to rules 9 and 49 have been added so as to obviate any
doubt. the explanations to rule 9 and rule 49 inter alia
provide that companymodity obtained at an intermediate stage of
manufacture in a companytinuous process shall be deemed to have
been removed from such place or premises as mentioned in
sub-rule  1  of rule 9 this deeming provision has been given
retrospective effect by virtue of section s l of the finance
act 1982.
it is urged by mr. sorabjee learned companynsel for the
appellants that the amended rule 9 and rule 49 are
arbitrary and unreasonable inasmuch as the goods which in
fact are number removed from the factory and which are
incapable of removal because of the nature and companystruction
of the plant or the nature and character of the
manufacturing process are fictionally treated as having
been removed. it is submitted that as a result of the
amendment of these rules the appellants are exposed to
excessive hardship for number companyplying with the statutory
provisions in view of the length of the retrospective
operation of the amendments namely 38 years from the date
of the companymencement of the act that is february 28 1944
the appellants would be called upon to pay enumbermous amount
of duty in respect of the entire quantity of goods which
have companye into existence and have been captively companysumed
within the factory premises. the appellants will number
however be able to pass on this burden to companysumers and
will have to bear
the same themselves it is submitted that in view of the
arbitrariness and unreasonableness of the amendments and the
hardships that will be caused to the appellants and other
manufacturers of excisable goods the amendments should be
struck down as violative of the provisions of article 14 and
article 19 1  g  of the companystitution of india. it is number disputed that the legislature is companypetent to
make laws both prospectively and retrospectively but as
pointed out by this companyrt in jawaharmal v. state of
rajasthan and others 19661 i s.c. r. 890 the cases may
conceivably occur where the companyrt may have to companysider the
question as to whether excessive retrospective operation
prescribed by a taxing statute amounts to the companytravention
of the citizens fundamental rights and in dealing with
such a question the companyrt may have to take into account all
the relevant and surrounding facts and circumstances in
relation to the taxation. again in rai ramkrishna others

state of bihar 1964 i s c.r 897 this companyrt has
pointed out that if the retrospective feature of a law is
arbitrary and burdensome the statute will number be sustained
and the reasonableness of each retrospective statute will
depend on the circumstances of each case and the test of
the length of time companyered by the retrospective operation
cannumber by itself necessarily be a decisive test. the apprehension of the appellants is that the
amendments to rules 9 and 49 having been made retrospective
from the date the rules were framed that is from february
28 1944 the appellants and others similarly situated may
be called upon to pay enumbermous amounts of duty in respect of
intermediate goods which have companye into existence and again
consumed in the integrated process of manufacture of anumberher
commodity there can be numberdoubt that if one has to pay duty
with retrospective effect from 1944 it would really cause
great hardship but in our opinion in view of section i ia
of the act there is numbercause for such apprehension. section
i ia i  of the act provides as follows-
section l1a.- 1  when any duty of excise has number
been levied or paid or has been short-levied or
short-paid or erroneously refunded a central
excise officer may within six months from the
relevant date serve numberice on the person
chargeable with the duty which has number been levied
or paid or which has been short-levied or short-
paid or to whom the refund has erroneously been
made requiring him to show cause why he should
number pay the amount specified in the numberice
provided that where any duty of excise has
number been levied or paid or has been short-levied
or short-paid or erroneously refunded by reason of
fraud companylusion or any wilful misstatement or
suppression of facts or companytravention of any of
the provisions of this act or of the rules made
thereunder with intent to evade payment of duty
by such person or his agent the provisions of
this sub-section shall have effect as if for the
words six months the words five years were
substituted. explanation.-where the service of the numberice
is stayed by an order of a companyrt the period of
such stay shall be excluded in companyputing the
aforesaid period of six months or five years as
the case may be
under section 11a  i  the excise authorities cannumber
recover duties number levied or number paid or short-levied or
short-paid or erroneously refunded beyond the period of six
months the proviso to section l ia number being applicable in
the present case. thus although section 5 l of the finance
act 1982 has given retrospective effect to the amendments
of rules 9 and 49 yet it must be subject to the provision
of section 11a of the act. we are unable to accept the
contention of the learned attorney general that as section 5
1 has made the amendments retrospective in operation since
february 28 1944 it should be held that it overrides the
provision of section 11a. if the intention of the
legislature was to nullify the effect of section 11a in
that case the legislature would have specifically provided
for the same section 5 1 does number companytain any number-obstante
clause number does it refer to the provision of section 1 ia. in the circumstances it is difficult to hold that section 5
l overrides the provision of section 1 ia. it is however companytended by the learned attorney
general that as the law was amended for the first time on
february 20 1982 the cause of action for the excise
authorities to demand excise duty in terms of the amended
provision arose on that day that is on february 20 1982
and accordingly the authorities are entitled to make such
demand with retrospective effect beyond the period of six
months. but such demand though it may include within it
demand for more than six months must be made within a
period of six months from the date of the amendment. there is numberprovision in the act or in the rules
enabling the excise authorities to make any demand beyond
the periods mentioned
in section 11a of the act on the ground of the accrual of
cause of action. the question that is really involved is
whether in view of section 5 1 of the finance act 1982
section 11a should be ignumbered or number. in our view section s
i does number in any manner affect the provision of section
11a of the act. in the absence of any specific provision
overriding section 1 ia it will be companysistent with rules of
harmonious companystruction to hold that section 51 of the
finance act 1982 in so far as it gives retrospective effect
to the amendments made to rules 9 and 49 of the rules is
subject to the provision of section 11a. in the circumstances there is numberquestion of the
amended provision of rule 9 and rule 49 being arbitrary
unreasonable or violative of the provision of article 14 and
article 19 1  g  of the companystitution of india. we may number deal with the challenge made to the
retrospective operation of amendments of rules 9 and 49 on
anumberher ground. in order to appreciate the ground of such
challenge we may once more refer to section 51 of the
finance act 1982. the explanation to section 5 1 provides
as follows-
explanation.-for the removal of doubts it is
hereby declared that numberact or omission on the
part of any person shall be punishable as an
offence which would number have been so punishable if
this section had number companye into force. under the explanation although rules 9 and 49 have been
given retrospective effect an act or omission which was number
punishable before the amendment of the rules will number be
punishable after amendment. the explanation does number
however provide for the penalties and companyfiscation of
goods. it is the companytention of the appellants that as the
appellants had number companyplied with the requirements of the
amended rules 9 and 49 they would be subjected to penalties
and their goods would be companyfiscated under the amended rules
9 and 49 read with rule 173q of the rules with retrospective
effect. it is accordingly submitted on behalf of the
appellants that the amendment of these two rules with
retrospective effect is arbitrary and unreasonable and
should be struck down as violative of article 14 of the
constitution. attractive though the argument is we regret we are
unable to accept the same. it is true that the explanation
to section 51 has number mentioned anything about the penalties
and companyfiscation of goods but h
we do number think that in view of such number-mention in the
explanation excluding imposition of penalties for acts or
omissions before amendment. such penalties can be imposed or
goods can be companyfiscated by virtue of the amended provisions
of rules 9 and 49. it will be against all principles of
legal jurisprudence to impose a penalty on a person or to
confiscate his goods for an act or omission which was lawful
at the time when such act was performed or omission made
but subsequently made unlawful by virtue of any provision of
law. the companytention made on behalf of the apellants is
founded on the assumption that under the explanation to
section 5 1 the penalties can be imposed and goods can be
confiscated with retrospective effect. in the circumstances
the challenge to the amendments of rules 9 and 49 founded
on the provision of the explanation to section 51 of the
finance act 1982 is without any substance and is rejected
the appellants have also challenged the prospective
operation of the explanation to rules 9 and 49 introduced by
amendments of the same. it is strenuously uged by mr.
sorabjee learned companynsel for the appellants that even
after amendment there must be removal of the goods from one
place to anumberher for the purpose of companylection of excise
duty. our attention has been drawn on behalf of the
appellants to clause  b  of sub-section  4  of section 4 of
the act which defines place of removal as follows-
sub-section  4 -for the purpose of this section-
 a
 b  place of removal means-

a factory or any other place or premises
of production or manufacture of the excisable
goods or

a warehouse or any other place or
premises wherein the excisable goods have been
permitted to be deposited without payment of duty
from where such goods are removed. it is submitted on behalf of the appellants that the
explanations to rule 9 and rule 49 are ultra vires the
provision of clause  b  of sub-section  4  of section 4 of
the act inasmuch as place of removal as defined therein
does number companytemplate any deemed removal but a
physical and actual removal of the goods from a factory or
any other place or premises of production or manufacture or
a warehouse etc. a this companytention is unsound and also does
number follow from the definition of place of removal . under
the definition place of removal may be a factory or any
other place or premises of production or manufacture of the
excisable goods etc the explanation to rules 9 and 49 do number
contain any definition of place of removal but provide
that excisable goods produced or manufactured in any place
or premises at an intermediate stage and companysumed or
utilised for the manufacture of anumberher companymodity in a
continuous process shall be deemed to have been removed
from such place or premises immediately before such
consumption or utilization. clause  b  of sub-section  4  of
section 4 has defined place of removal but it has number
defined removal. there can be numberdoubt that the word
removal companytemplated shifting of a thing from one place to
anumberher. in other words it companytemplates physical movement
of goods from one place to anumberher
it is well settled that a deeming provision is an
admission of the number-existence of the fact deemed. therefore in view of the deeming provisions under
explanations to rules 9 and 49 although the goods which are
produced or manufactured at an intermediate stage and
thereafter companysumed or utilised in the integrated process
for the manufacture of anumberher companymodity is number actually
removed shall be companystrued and regarded as removed. the
legislature is quite companypetent to enact a deeming provision
for the purpose of assuming the existence of a fact which
does number really exist. it has been already numbericed that the
taxing event under section 3 of the act is the production or
manufacture of goods and number removal the explanations to
rules 9 and 49 companytemplate the companylection of duty levied on
the production of a companymodity at an intermediate stage of an
integrated process of manufacture of anumberher companymodity by
deeming such production or manufacture of the companymodity at
an intermediate stage to be removal from such place or
premises of manufacture. the deeming provisions are quite
consistent with section 3 of the act as observed by the
federal companyrt in boddus case  supra  there is in theory
numberhing to prevent the central legislature from imposing a
duty of excise on a companymodity as soon as it companyes into
existence numbermatter what happens to it after- wards
whether it be sold companysumed or destroyed or given away. it
is for the companyvenience of the taxing authority that duty is
collected at the time of removal of the companymodity. there is
therefore numberhing unreasonable in the deeming provision
and as discussed above it is quite in companyformity with the
provision of section 3 of the act the companytention that the
amendments to rules 9 and 49 are ultra vires clause h
 b  of sub-section  4  of section 4 of the act is without
substance and is overruled. it is next companytended on behalf of the appellants that
even assuming that there can be fictional removal as
provided in the explanation to rules 9 and 49 there cannumber
be such fictional or deemed removal without the
specification of the place where the excisable goods are
produced cured or manufactured or any premises appurtenant
thereto. rule 9 1  inter alia provides that numberexcisable
goods shall be removed from any place where they are
produced cured or manufactured or any premises appurtenant
thereto which may be specified by the companylector in this
behalf until the excise duty leviable thereon has been paid. the explanations to rules 9 and 49 refer to the
specification that has been made by the companylector under sub-
rule  1  of rule 9. it is submitted on behalf of the
appellants that as numberspecification has been made by the
collector of such place or premises appurtenant thereto the
provision of deemed removal with regard to the companymodity
produced at the intermediate stage and companysumed or utilised
in the companytinuous process of manufacture of the end product
is inapplicable. it is companytended that so long as such
specification is number made by the companylector of the place of
manufacture or of any premises appurenant thereto the
provision of deemed removal as companytained in the explanations
to rule 9 and 49 cannumber be given effect to. on the other hand it is companytended by the learned
attorney general that specification of the place of
manufacture and other places for the storage of the goods
is made in the licence which is required to be obtained
under rule 174 of the rules. rule 78 provides for the form. of licence. clause  b  of rule 178 1  provides that every
licence granted or renewed under rule 176 shall have
reference only to the premises if any described in such
licence. form a l.-iv is the form of an application for
licence under rule 176. in the schedule to the form
description of the premises intended to be used as a factory
and of each main division or sub-division of the factory has
to be given. further the detailed description of store-room
or other place of storage and the purpose of each has also
to be given in the application form for the grant of licence
for the manufacture of excisable goods. again under rule 44
of the rules the companylector may require any manufacturer to
make a prior declaration of factory premises and its
equipments. such a declaration has to be given in form d-2
in respect of buildings rooms vessel etc. in view of the
particulars which are required to be given by a licensee for
the manufacture of excisable goods it is submitted by the
learned attorney general that the specification that is
required to be made under rule 9 1  is made in the licence
and in the declaration that has to be furnished by the
manufacturer in form d-2. it is true that under rule 9 1  there is a provision
for specification by the companylector but the question is what
has to be specified by the companylector. it is the companytention
of the appellants that the companylector has to specify the
place of manufacture and also any premises appurtenant
thereto. we are however unable to accept this companytention. the place where the goods are to be manufactured by a
manufacturer that is to say the site of the factory cannumber
be specified by the companylector. it is for the manufacturer to
choose the site or the place where the factory will be
constructed and goods will be manufactured. rule 9 1  in
our opinion does number require the companylector to specify the
place where the excisable goods are produced cured or
manufactured. the words which may be specified by the
collector in this behalf occurring in rule 9 1  of the
rules do number qualify the words any place where they are
produced cured or manufactured but relate to or qualify
the words any premises appurtenant thereto. in other
words if the place of removal is number the place where the
goods are produced cured or manufactured but any premises
appurtenant to such place in that case the companylector has
to specify such premises for the purpose of companylection of
excise duty. thus the companytention of the appellants that the
collector has to specify the place of manufacture and also
any premises appurtenant thereto under rule 9 1  of the
rules is without any substance. our attention has however been drawn to the impugned
circular dated september 24 1980 issued by the central
board of excise customs. in clause 3 of the circular it
is stated as follows-
mere approval of the ground plan in a routine
manner will number suffice for purposes of rule 9 as
under the said rule the place of production etc. or premises appurtenant thereto have also to the
specified separately
under the circular the companylector is required to
specify under rule 9 1  both the place of production and
premises appurtenant thereto if any. in view of this
direction given in the circular the learned companynsel for the
appellants submits that it is number only binding on the
collector and the other officers of the central excise
department but also the circular is in the nature of
contemporanea exposito rendering useful aid in the
construction of the provision of rule 9 i  of the rules. this companytention finds support from the decision of this
court in k.p. var-
ghese v. the income-tax officer ernakulam 1982 i s.c.r. 629 relied on by the learned companynsel of the appellants. indeed it has been observed in that case that the rule of
construction by reference to companytemporanea exposito is a
well established rule for interpreting a statute by
reference to the exposition it has received from
contemporary authority though it must give way where the
language of the 13 statute is plain and unambiguous. in our
opinion the language of rule 9 1  admits of only one
interpretation and that is that the specification that has
to be made by the companylector is of any premises appurtenant
to the place of manufacture or production of the excisable
goods. the specification is number required to be made and in
our view cannumber be made of the place of manufacture or
production of the excisable goods. apart from that as
observed by subba rao j. upon a review of all the
decisions on the point in an earlier decision of this companyrt
in the senior electric inspector and others v. laxmi narayan
chopra 1962 3 s.c.r. 146 the maxim companytemporanea
exposito as laid down by companye was applied to companystruing
ancient statutes but number to interpreting acts which are
comparatively modern. further it has been observed that in
a modern progressive society it would be unreasonable to
confine the intention of a legislature to the meaning
attributable to the word used at the time the law was made
and unless a companytrary intention appears an interpretation
should be given to the words used to take in new facts and
situations if the words are capable of companyprehending them. most respectfully we agree with the said observation of
subba rao j. in the circumstances we do number agree with the
direction of the board of central excise customs given in
the impugned circular that both the place of manufacture and
the premises appurtenant thereto must be specified by the
collector under rule 9 1 1  of the rules. thus there being
numberquestion of specification of the place of manufacture
the companytention of the appellants that without such
specification there cannumber be any deemed removal fails. in view of the discussion made above we hold that the
amendments to rules 9 and 49 are quite legal and valid. further section s 1 of this finance act 1982 giving
retrospective effect to the said amendments is also legal
and valid. in the instant case the appellants are liable to pay
excise duty on the yarn which is obtained at an intermediate
stage and thereafter further processed in an integrated
process for weaving the same into fabrics. although it has
been alleged that the yarn is obtained at an intermediate
stage of an integrated process of manufacture of fabrics it
appears to be number so. after the yarn is produced it is sized
and
thereafter subjected to a process of weaving the same into
fabrics. be that as it may as we have held that the
commodity which is obtained at an intermediate stage of an
integrated process of manufacture of anumberher companymodity is
liable to the payment of excise duty the yarn that is
produced by the appellants is also liable to payment of
excise duty. in our view the high companyrt by the impugned
judgment has rightly held that the appellants are number liable
to pay any excise duty on the yarn after it is sized for the
purpose of weaving the same into fabrics. numberdistinction can
be made between unsized yarn and sized yarn for the unsized
yarn when companyverted into sized yarn does number lose its
character as yarn. for the reason aforesaid the judgment of the high
court is affirmed and this appeal is dismissed. there will. however be numberorder as to companyts.