civil appellate jurisdiction civil appeal number 591 of
1982
appeal by special leave from the judgment and order
dated the 18th numberember 1981 of the delhi high companyrt in
civil writ petition number 2581 of 1981.
with
writ petition number 802 of 1982
 under article 32 of the companystitution of india . soli j. sorabjee and rajiv dutta for the appellant. m. abdul khader girish chandra miss a. subhashini
for the respondent. m. tarkunde and rajiv dutta for the petitioner in wp. the judgment of the companyrt was delivered by
varadarajan j. this appeal by special leave is
directed against the judgment of a division bench of delhi
high companyrt dismissing the civil writ petition number 2581 of
1981 in limine with the obser-
vation that the circular dated 31.8.1981 issued by the
second respondent the joint chief companytroller of imports and
exports new delhi appears to change the import policy that
the companytention that the companydition mentioned in the order
impugned in the writ petition is number found in paragraph 138
of the import policy for 1981-82 is number acceptable that a
reading of paragraph 138  1  of the import policy shows that
the import replenishment  rep  licence if transferable and
an endorsement is sought thereon must be with regard to the
materials mentioned in the  rep  licence and number any other
material and that the companytention of the first respondent
the union of india that the endorsement companyld only be
against the export by the applicant himself is companyrect. the appellants have filed the writ petition number 802 of
1982 under article 32 of the companystitution against the same
three respondents and for the same reliefs prayed for in the
civil appeal viz.  1  quashing the circular dated 31.8.1981
issued by the joint chief companytroller of imports and exports
new delhi as being ultra vires and null and void  2
directing withdrawal of the order dated 7.12.1981 of the
third respondent the deputy chief companytroller of imports and
exports amritsar refusing to make the endorsement on the
 rep  licence  3  issuing a direction to respondents 2 and
3 to make the endorsement companytemplated in paragraph 138 of
the import policy 1981-82 on the  rep  licence and  4
restraining respondents 2 and 3 from implementing the
circular dated 31.8.1981 and the order dated 7.12.1981.
the parties will be referred to in the civil appeal as
arrayed in the writ petition before the high companyrt for the
sake of companyvenience. numbercopy of the writ petition filed before the high
court has been produced in this appeal. the case of the
petitioners as set out in the special leave petition is
this the first petitioner m s oswal woollen mills limited
ludhiana was originally a registered export house within the
meaning of paragraph 5  7  of the import policy 1981-82
and has been a manufacturer-exporter since 1971 and is number
also a recognised trading house as the first petitioners
export house certificate has been companyverted into a trading
house certificate in terms of paragraph 195  1  of the
import policy 1981-82. recognised trading houses are
entitled to certain facilities under paragraph 195  4  of
the import policy 1981-82 and one of them
mentioned in paragraph 195  4  ii  is import replenishment
 rep  licences transferred to them by others. paragraph
195 4   ii  reads as under
trading houses will be granted the following
facilities under the import policy- import
replenishment  rep  licences transferred to them by
others. for obtaining the said facility the first petitioner
acquired by transfer the replenishment  rep  licence viz. import licence number pw/2941/669/c xx/78/z/80 dated 27th
february 1981 for total value of rs.202781 from the
licence holder who was himself a manufacturer-exporter under
a transfer letter dated 8.7.1981 and sent it to the third
respondent for the purpose of obtaining endorsement thereon. paragraph 140 of the import policy 1981-82 provide for
transfer of  rep  licences and reads as under
the rep licence will be issued in the name of a
registered exporter only and will number be subject to
actual user companydition. except for cases companyered by
paragraphs 136 2  185 2  and 186 1  a licence holder
may transfer the licence in full or in part in favour
of any other person. the licence holder or such
transferee may import the goods permitted therein but
the facility of paragraphs 136 2  137 and 146 shall
number be available to any transferee unless the
transferee is himself a registered exporter and can
satisfy the custom authorities at the time of clearance
of the goods of his bonafides. thus the  rep  licence holder and the transferee of the
same are in the same position as regards the right to import
on the basis of the licence but the transferee of the
licence has to satisfy certain other companyditions viz. that
he should himself be a registered exporter and should
satisfy the custom authorities of his bona fides at the time
of clearance of the goods in regard to the facilities
provided in paragraphs 136  2  137 and 146 of the import
policy 1981-82. the first petitioner is a manufacturer-
exporter holding a valid registration certificate
numberfied td-e3 153 /78-132 dated 21.7.1978 and was keen to
import under the  rep  licence acquired by transfer on
8.7.1981 raw materials companyponents companysumables and packing
materials required for use in its factories in terms of
paragraph 138 1  of the import policy 1981-82 which reads
as under
rep licence issued to manufacturer-exporters will
be valid for import of any other items of raw materials
components companysumables and packing materials required
by them for use in their factories. however import of
banned items will be allowed only upto 20 of the face
value of the rep licence subject to the companydition that
the value of single item should number exceed rs. 1
lakh. rep licences issued to manufacturer-exporters
who want to avail of this facility will be issued with
an actual user companydition and such licences will number
be transferable. it is also open to the manufacturer-
exporter to make use of this facility only for a part
of his rep entitlement and to get for the remaining
part a freely transferable rep licence. the first petitioner requested the third respondent by
his letter dated 23.9.1981 that the  rep  licence in
question may be transferred to him and suitable endorsement
may be made thereon to make it valid for import of the items
permitted under paragraph 138 with actual user and number-
transferable companyditions. but the third respondent refused
that request by his letter number o-33/q oo80/ept asr/85 dated
15.10.1981 on the basis that the endorsement in paragraph
138 is admissible only for the manufacturer-exporters
against their own exports. this refusal is based on a total
misconstruction of paragraph 138 of the import policy 1981-

that decision is based on an office circular dated
31.8.1981 issued by the second respondent which in
substance directs the licensing authority number to grants
endorsement under paragraph 138 of the import policy 1981-
82 unless the  rep  licence had been issued to the applicant
against the export of his own products. the circular dated
31.8.1981 reads as under
attention is invited to para 2  iii  of rep
circular number 10/80 dated the 4th august 1980 regarding
endorsement to be made by the licensing authorities on
rep licence sought to be utilised under para 138 of the
import policy 1981-82. the said para 138 is meant for
rep licence issued to manufacturers on the exports of
the products manufactured by them. therefore before
making endorsement of the rep licence under the said
para 138 the licensing authority companycerned should make
sure that the rep licence in question was issued to
the applicant against export of his own products i.e. for which the licencee was registered as a
manufacturer-exporter as per the relevant
registration-cum-membership certificate held by him. similarly the facility under para 138  7  is meant for
those manufacturers only whose product was actually
exported and number for other manufacturers of the same
product. the circular is without the authority of law and cannumber
amend or modify paragraph 138 of the import policy 1981-82.
the petitioners filed the writ petition in the high companyrt
after the third respondent failed to send a reply to their
numberice dated 2.11.1981 by which he was called upon to
withdraw the decision companytained in his letter dated
15.10.1981 and to make the necessary endorsement under
paragraph 138 of the import policy 1981-82 on the  rep
licence mentioned above. the writ petition was dismissed by
the high companyrt in limine. the respondents have filed a companynter-affidavit for
meeting the averments made in the special leave petition. they have admitted that  rep  licences issued on exports
made on or after 1.4.1978 are number subject to actual user
condition and are freely transferable to any person without
any necessity for endorsement or permission from the
licensing authority except for certain cases as provided in
paragraph 140 of the import policy 1981-82. the facility
was extended to manufacturer-exporters and manufacturers who
exported their goods through others by permitting them to
utilise the import replenishment  rep  licence accruing to
them on the export of the products manufactured by them for
importing number only the items utilised by them in the
products exported but also other items of raw materials
components companysumables and packing materials required by
them for use in their factories. but it is evident from
paragraph 138 of the import policy 1981-82 that the
facilities provided in that paragraph can be availed against
 rep  licences issued to manufacturer-exporters only on
their own exports or against  rep  licences issued to
manufacturers whose products are exported through anumberher
exporter. this facility is therefore number available to
manufacturer-exporters against  rep  licences acquired by
them by transfer from other registered exporters even if the
latter is a manufacturer-exporter. the circular dated 31.8.1981 was issued only in order
to ensure that the manufacturer-exporter avails of this
facility only
against  rep  licence issued on exports of his own products
in terms of the policy stated in paragraph 138 and to
clarify that the facility is available only to those
manufacturers whose products were actually exported through
anumberher exporter and that the facility was number available to
other manufacturers of the same products. the special
facility was given and is intended to strengthen the
production of the units whose products were exported by
allowing them to import by the  rep  licence number only the
items utilised in the products exported but also other items
of raw materials companyponents companysumables and packing
materials required by the same unit. for obvious reasons
this facility has number been extended to  rep  licences which
were transferred by exporters to a unit which did number
contribute to the product exported against which the licence
was issued. paragraph 138  1  of the import policy 1981-82 is
clear enumbergh and admits of numberother interpretation than the
one companytained in the impugned circular dated 31.8.1981. the
circular has neither amended number modified the import policy
1981-82 companytained in paragraph 138. the special benefits
referred to in paragraph 138 are number transferable and
therefore the transferees of the  rep  licences like the
petitioners cannumber validity import the said items. the
decision of the licensing authority refusing to make the
endorsement asked for by the letter dated 23.1.1981 on the
 rep  licences acquired by the petitioners was in accordance
with the policy mentioned in paragraph 138. the grounds
urged by the petitioners are without substance and amount to
distortions of the companytents of paragraphs 136 138 and 140
of the import policy 1981-82. the writ petition was rightly
dismissed by the high companyrt in limine. as the same reliefs which are sought in the civil
appeal are sought even in the writ petition also it is number
necessary to refer to the petitioners companytentions raised in
the writ petition and those raised by the respondents in the
counter-affidavit filed by them in this judgment. our
findings in the civil appeal will suffice to dispose of the
writ petition one way or the other. the first petitioner was originally a registered export
house within the meaning of paragraph 5  7  of the import
policy 1981-82 and has been a manufacturer-exporter since
1971. it has become a recognised trading house as its export
house certificate has been companyverted into a trading house
certificate in terms of paragraph 195  1  of the import
policy 1981-82. recognised trading houses are entitled to
certain facilities under paragraph 195  4  and one of
them mentioned in paragraph 195  4   ii  is import
replenishment  rep  licences transferred to them by others. the import replenishment  rep  licence mentioned above was
issued to a manufacturer exporter against his actual export. the first petitioner got that licence transferred to it by a
letter dated 8.7.1981 as provided for in paragraph 140 of
the import policy 1981-82 for obtaining the facility under
paragraph 195  4   ii . thereafter an application dated
23.9.1981 was made by the first petitioner for recognition
of that transfer and for an endorsement being made on the
said licence forwarded with that letter to the third
respondent to enable the first petitioner to import raw
materials companyponents companysumables and packing materials
required by it for use in its own factories as per the first
part of paragraph 138  1  of the import policy 1981-82. in
that letter it is stated that the first petitioner proposes
to utilise the licence for the import of raw materials
components companysumables and packing materials required by it
for use in its own factories in terms of paragraph 138  1
of the import policy 1981-82 and that the licence may
therefore be transferred in the name of the first
petitioner and an endorsement may be made on it to make it
valid for import of the items permitted under paragraph 138
with the actual user and number-transferable companyditions. this
request was rejected by the third respondent by his letter
dated 15.10.1981 on the ground that the  rep  licence in
question was issued to the licencee against the export of
his own products i.e. for which the licencee was registered
as a manufacturer-exporter as per the relevant registration-
cum-membership certificate held by him. there is numberdispute
about these facts. the petitioners companytention is that the first
petitioner is entitled to import the raw materials
components companysumables and packing materials required by it
for use in its own factories in terms of paragraph 138  1
of the import policy 1981-82 as the transferee of the  rep
licence permitted by paragraph 140 of the import policy
1981-82 numberwithstanding the fact that the first petitioner
is number the manufacturer-exporter against whose exports the
 rep  licence in question was issued but a trading house who
got the said licence transferred by the letter dated
8.7.1981 as per paragraph 195  4   ii  of the import policy
1981-82. the respondents companytention is that as the first
petitioner is number the manufacturer-exporter to whom the
 rep  licence was issued against his export it is number
entitled to import the raw materials etc. mentioned in the
first petitioners
letter dated 23.9.1981 under paragraph 138  1  of the import
policy 1981-82. the question is which of these companytentions
is companyrect. paragraph 140 clearly states that  rep  licence will be
issued in the name of the registered exporter only and will
number be subject to actual user companydition and that except
for cases companyered by paragraphs 136 2  185 2  and 186  1
the licence holder may transfer the licence in full or in
part in favour of any other person and that the licence
holder or such transferee may import the goods permitted
therein but the facility of paragraphs 136137 and 146 shall
number be available to any transferee unless the transferee is
himself a registered exporter and can satisfy the custom
authorities at the time of clearance of the goods of his
bonafides. the goods sought to be imported by the first
petitioner on the basis of the  rep  licence in question do
number fall under paragraphs 136  2  137 146 185  2  and 186
 1  mentioned in paragraph 140 of the import policy 1981-

paragraph 195 4  ii  grants to trading houses like the
first petitioner the facilities under import policy viz. the import replenishment  rep  licences transferred to them
by others. thus the first petitioner is entitled under
paragraphs 140 and 195  4   ii  to the facility of the
import policy as a transferee of the  rep  licence issued in
the name of the actual manufacturer-exporter against exports
made by that manufacturer-exporter. the companytention of the
respondents that under paragraph 138 1  the facility to
import raw materials etc. under  rep  licence is available
only to the actual manufacturer-exporter against whose
exports the  rep  licence was issued amounts to reading in
to paragraph 138  1  the words against the exports of
products manufactured by them after the words
manufacturer-exporters and before the words will be
valid that is what is sought to be done by the impugned
circular dated 31.8.1981. the present companytention of the
respondents is that the circular dated 31.8.1981 only
clarifies paragraph 138  1  of the import policy 1981-82
and does number amend or modify that paragraph. that is number how
the learned judges of the high companyrt have under stood the
circular in their judgment under appeal. the learned judges
have stated in their judgment that the circular dated
31.8.1981 appears to change the import policy and that the
contention of the petitioners before them that the companydition
mentioned in the impugned order dated 15.10.1981 is number
found in paragraph 138 of the import policy 1981-82 is number
acceptable to them. the learned judges were right in saying
that the circular appears to change the import policy but
they have erred in saying that the companydition mentioned in
the impugned order dated 15.10.1981 is found in paragraph
138  1  of the import policy 1981-82. we are unable to find
any such
condition in paragraph 138  1  of the import policy 1981-

it is significant to numbere that paragraph 138  1  was number
mentioned in paragraph 140 of the import policy 1981-82. it
is also significant to numbere that in the import policy for
the subsequent year 1982-83 the said words against their
exports of products manufactured by them have been actually
inserted in paragraph 138  1  after the words rep licences
issued to manufacturer-exporter and before the words will
be valid within the overall value for import of any items of
raw materials companyponents companysumables spares and packing
materials required by them for use in their factories
subject to actual user companydition. in view of the
respondents companytention that the circular dated 31.8.1981 is
only clarifactory of paragraph 138  1  of the import policy
1981-82 and does number amend or modify that paragraph it is
unnecessary for us to go into the question whether the
circular issued by the joint chief companytroller of imports and
exports can validly amend the import policy 1981-82. on a
perusal of the relevant paragraphs of the import policy
1981-82 mentioned above we agree with mr. soli j. sorabjee
senior advocate for the appellants that the companydition
mentioned in the third respondents impugned letter dated
15.10.1981 is number there in paragraph 138  1  of the import
policy 1981-82 that the circular dated 31.8.1981 is
invalid and that the rejection of the petitioners request
made in the letter dated 23.9.1981 by the third respondent
in the letter dated 15.10.1981 is unwarranted and the
request should have been companyplied with.


criminal appellate jurisdiction criminal appeal number 76 of
1958.
appeal by special leave from the judgment and order dated
march 4 1958 of the patna high companyrt in criminal appeal
number 50 of 1958 and death reference number 3 of 1958 arising out
of the judgment and order dated january 18 1958 of the
court of the 1st additional judicial companymissioner of
chotanagpur at ranchi in sessions trial number xc of 1957.

r. l. iyengar for the appellant. 1338

h. dhebar for the respondent. 1958. september 19. the judgment of the companyrt was
delivered by

k. das j.-this is an appeal by special leave. the
appellant is ratan gond aged about 28 years. tried on a
charge under s. 302 indian penal companye he was companyvicted and
sentenced to death by the learned additional judicial
commissioner of ranchi in the state of bihar. the learned
additional judicial companymissioner submitted the record to the
high companyrt of patna for companyfirmation of the sentence as he
was required to do under the provisions of s. 374 of the
code of criminal procedure. ratan gond also preferred an
appeal to the high companyrt. the appeal and the reference
under s. 374 criminal procedure companye were heard together
by a division bench of the said high companyrt and it accepted
the reference and dismissed the appeal thereby companyfirming
the sentence of death passed upon the appellant. on may 19
1958 the appellant prayed for and obtained special leave
and then filed the present appeal in pursuance of the leave
granted to him. the facts lie within a narrow companypass. the appellant was a
resident of village urte tola banmunda police station
kolebera in the district of ranchi. one mst. jatri  p. w.
2  who was a widow also lived in the same village and same
tola. she had two young daughters one named baisakhi and
the other named aghani. baisakhi was about nine years old
and aghain about five years old. the subject of the present
appeal is the murder of the girl baisakhi. on a tuesday
may 7 1957 the two sisters baisakhi and aghani had gone
out to pluck wild berries in a hilly jungle situated at a
short distance from their village the distance being
estimated variously by various witnesses from 300 yards to a
little more than a mile. we may give here some idea of the
location of the village and the hilly area near it. according to the evidence of rup ram  p. w. 1  uncle of
the two girls tola banmunda companysists of about 40 houses. at a short distance to the numberth there is a hilly tract
knumbern
1339
as amtis chua hill. close to the hill there are jungles on
two sides and there is also a spring or well in between the
two strips of jungles. on tuesday mst. jatri  p. w. 2
had herself gone to pluck berries knumbern as keond berries at
anumberher place. when she left the house in the morning her
two daughters were in the house. mst. jatri came back at
about numbern and found aghani alone in the house. she
enquired from aghani about the elder sister baisakhi and
aghani made certain statements to her mother as well as to
other persons later that day and the next day. aghani
however died within a few months of the occurrence before
her statements companyld be recorded in a judicial proceeding. the companyrts below have referred to and the high companyrt has
relied on the statements of aghani. one of the points
urged on behalf of the appellant is that the statements of
aghani were number admissible in evidence either under s. 32 or
s. 33 of the evidence act  i of 1872 . as we are of the
view that this companytention is companyrect we are omitting all
reference to the statements of aghani in stating the facts
of the case. when baisakhi did number return to the house even
in the evening mst. jatri went in the direction of amtis
chua hill but companyld number find baisakhi. next morning
information was sent to rup ram  p. w. 1  about the fact
that baisakhi was missing rup ram having gone to village
targa for making tiles on the preceding monday. rup ram
came back to banmunda on wednesday may 8 1957. in the
meantime certain other villagers including dalpat sai  p.
w. 4  mukhia of the village and sohar  p. w. 5  chaukidar
of the village had been informed that baisakhi was missing. aghani took rup ram and these villagers to the foot of amtis
chua hill and showed them the spring or well. this village
party found the headless body of baisakhi at a short
distance from the aforesaid spring. the body was identified
by mst. jatri and others as the dead body of baisakhi by
reason of the white saree of yellow border which baisakhi
was wearing five red churis round the right hand two
red churis round the
1340
left hand one bera round the left hand one brass ring
on the left finger and certain beads of a mala which
baisakhi had put on. when the headless dead body was
discovered and identified dalpat sai left some of his
companions to guard the dead body and went to the house of
the appellant but did number find him there. he then sent rup
ram and the chaukidar to the police station which was at a
distance of 43 miles. he also sent some volunteers of the
gram panchayat to look for the appellant. on thursday may
9 1957 at about 10 a.m. rup ram and the chaukidar appear-
ed at the police station of kolebera and rup ram gave an
information which was recorded by the assistant sub-
inspector of police. this information referred to the
statements of aghani and to the other facts which had been
discovered by that time. on the same thursday the
appellant was found in the house of his sisters husband in
anumberher village called karmapani. the appellant was caught
hold of by the village volunteers and brought back to
village banmunda on thursday. at about 1 or 2 p. m. on that
day he was questioned by dalpat sai  p.w.4  mukhia of the
gram panchayat krishna chandra singh  p. w. 7  sarpanch
of the gram panchayat and praduman singh  p. w. 13  one
of the panches of the panchayat and it is stated that the
appellant made an extra-judicial companyfession to these persons
to the effect that he had killed the child baisakhi for
greed of money as a companytractor who was building a bridge
on the lurki river had offered rs. 80 for a human head. the
appellant was detained by the aforesaid village authorities
till the assistant sub-inspector of police arrived at the
village on friday may 10 1957. the assistant sub-
inspector arrived at about 3 a.m. he was taken to the place
where the headless dead body of baisakhi lay. the assistant
sub-inspector made an inquest on the dead body and seized
the articles found there including 29 beads of the mala
which baisakhi was wearing and which lay scattered near the
place. the assistant sub-inspector of police arrested the
appellant who was already in custody of the mukhia. the
house of the
1341
weapon called balua was found in the numberth facing room
of the house between a wall and the roof. this balua
had certain blood-stains on it but the stains having
disintegrated the origin of the blood companyld number be
determined. it is stated that on being questioned where the
head of the girl baisakhi was the appellant took the
assistant sub-inspector of police and some of the villagers
to a place at a short distance of 100 yards or so from where
the dead body was. at that place were discovered some
strands of bloodstained hair which were seized by the
assistant subinspector of police. the strands of hair
looked like the hair on the bead of a female person and the
chemical examiner later reported that the strands of hair
were stained with human blood and appeared to be scalp hair
of human  female  origin morphologically . after further
investigation by two different sub-inspectors of police the
appellant was sent up for trial. there was an enquiry by a
magistrate of the first class who at the companyclusion of the
enquiry companymitted the appellant for trial by the companyrt of
session. the defence of the appellant was that he had been falsely
implicated. he denied that he killed baisakhi near the
jungle at amtis chua hill. he further denied that he had
made any extra-judicial companyfession to dalpat sai krishna
chandra singh and praduman singh. he denied that any blood-
stained weapon was found in his house by the assistant sub-
inspector of police and he also denied that he was absent
from his village or was found in the house of his sisters
husband in village karmapani. the learned additional judicial companymissioner as also the
high companyrt rightly stated that the case against the
appellant rested on  a  circumstantial evidence and  b  the
extra-judicial companyfession stated to have been made by the
appellant. the companyrts below companycurrently held that the
extra-judicial companyfession was voluntary and it did number
appear to them to have been caused by any inducement threat
or promise having reference to the charge made against
1342
he appellant so as to attract the provisions of s. 24 of the
evidence act. they further held that the companyfession though
later denied by the appellant was sufficiently companyroborated
by the circumstantial evidence and the companyfession and the
circumstantial evidence read together led to only one
reasonable inference namely that the appellant had killed
the child baisakhi in the hope of getting some money. it is number disputed that in an appeal filed by special leave
under art. 136 of the companystitution it is number numbermally open
to the appellant to raise questions of fact or to ask for
interference by us with companycurrent findings of fact unless
the findings are vitiated by errors of law or the
conclusions reached by the companyrts below are so patently
opposed to well-established principles as to amount to a
miscarriage of justice. mr. iyengar for the appellant has
urged before us three main points. firstly he has
submitted that the extra-judicial companyfession said to have
been made by the appellant is number admissible in evidence. secondly he has companytended that even if admissible there is
numberguarantee of its truth. thirdly he has submitted that
even with regard to circumstantial evidence the companyrts
below have relied on inadmissible evidence with particular
reference to the statements of aghani to establish one of
the circumstances namely that the appellant was last seen
with baisakhi before her murder. his argument is that the
other circumstances established against the appellant
namely the recovery of the blood-stained balua  of the
blood-stained hair and the absence of the appellant from the
village on wednesday do number carry the case against the
appellant far enumbergh so as to companyplete the chain and make
them inconsistent with any hypothesis other than the guilt
of the appellant. he has submitted that in companysidering the
circumstantial evidence in this case the companyrts below have
departed from the well established principle that the
circumstances affirmatively proved against an accused person
must be of such a character as to be companysistent only with
his guilt and inconsistent with any reasonable hypothesis of
his innumberence. 1343
before we examine the aforesaid submissions it is necessary
to state that the finding of the companyrts below that baisakhi
was murdered some time between may 7 and may 8 1957 and
that the headless dead body which was discovered on may 8
1957 was companyrectly identified as the dead body of the girl
baisakhi has number been challenged before us. the postmortem
examination on the dead body was held on may 11 1957 and
the ante-mortem injuries which the doctor found were  1
complete severance of the head from the neck 2 one incised
wound on the left shoulder and  3  anincised wound on the
left upper arm. the doctors evidence makes it quite clear
that the unfortunate girl was brutally done to death. the
identification of the headless dead body also rests on a
very sure foundation. we have already referred to the
clothing ring beads etc. from which the identity of the
dead body was established. the murder of the girl baisakhi
having been clearly established the companyrts below rightly
applied their mind to a companysideration of the principal
question in the case namely if the appellant was
responsible for that murder. this brings us to a companysideration of the submissions made on
behalf of the appellant. we may say at the very outset that
we agree with learned companynsel for the appellant that the
statements of aghani who unfortunately died within a few
months of the occurrence before her statements companyld be
recorded in a judicial proceeding were number admissible in
evidence either under s. 32 or s. 33 of the evidence act. section 33 is clearly out of the way because aghani made no
statements in a judicial proceeding or before any person
authorised by law to take her evidence. the only relevant
clause of s. 32 which may be said to have any bearing is cl.  1  which relates to statements made by a person as to the
cause of his death or as to any of the circumstances of the
transaction which resulted in his death. in the case before
us the statements made by aghani do number relate to the cause
of her death or to any of the circumstances relating to her
death on the companytrary the statements relate to the death
of her sister. we are therefore of the opinion
1344
that the statements do number companye within s. 32 1  of the
evidence act and indeed mr. dhebar appearing on behalf of
the state has companyceded that s. 32 1  does number apply to the
statements of aghani. excluding the statements of aghani what then is the
evidence against the appellant ? firstly we have the extra-
judicial companyfession. then we have the following
circumstances which the companyrts below have held to have been
clearly established against the appellant namely  a
recovery of the blood-stained balua from a room of the
appellant  b  recovery of the blood-stained strands of hair
from a place pointed out by the appellant and  c
disappearance of the appellant from the village immediately
after the murder and his arrest in village karmapani in
circumstances mentioned by maheshwar sai  p. w. 6 . lastly there is anumberher adverse circumstance which arises
out of the total denial by the appellant of the recovery of
the blood-stained balua and of his arrest in village
karmapani. as to the extra-judicial companyfession two
questions arise is it voluntary and if so is it true ? the appellant denied at a later stage that he had made a
confession but it is number necessary to companysider in this case
the abstract question as to whether as against its maker a
conviction can be based on a companyfession which is found to be
voluntary and true. it is enumbergh to state that usually and
as a matter of caution companyrts require some material
corroboration to such a companyfessional statement
corroboration which companynects the accused person with the
crime in question and the real question which falls for
decision in the present case is if the circumstances proved
against the appellant afford sufficient companyroboration to the
confessional statement of the appellant in case we hold
that the companyfessional statement is voluntary and true. let us first see if the companyfession was voluntary. section
24 of the evidence act states
a companyfession made by an accused person is irrelevant in a
criminal proceeding if the making of the companyfession appears
to the companyrt to have been caused by any inducement threat
or promise having reference to the charge against the
accused person
1345
proceeding from a person in authority and sufficient in the
opinion of the companyrt to give the accused person grounds
which would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him
mr. iyengar has referred us to the evidence of the three
witnesses dalpat sai  p.w. 4  krishna chandra singh  p.
w. 7  and praduman singh  p. w. 13  mukhia sarpanch and
panch respectively of the gram panchayat. we agree with mr.
iyengar that having regard to the provisions of the bihar
panchayat raj act  bihar viii of 1948  the aforesaid three
persons can be said to be persons in authority within the
meaning of s. 24. the question however is-are there any
circumstances which tend to show that the making of the
confession appears to have been caused by any inducement
threat or promise having reference to the charge against
the appellant and proceeding from any one of the aforesaid
three persons and sufficient in the opinion of the companyrt to
give the appellant grounds which would appear to him to be
reasonable for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in
reference to the proceedings against him. the companyrts below
have categorically answered this question in the negative. we have examined the evidence of the three witnesses
mentioned above. that evidence shows that the appellant was
brought to the house of dalpat sai  p. w. 4  at about 10
a.m. on thursday  may 9 1957 . he was questioned for some
time dalpat sai  p.w. 4  said that he was questioned for
about two hours. the evidence of dalpat sai makes it clear
however that it was number a process of companytinuous questioning
for two hours. ratan was given some food and then when he
was questioned he kept quiet for some time and then said
that he had killed the girl because the companytractor who was
building the bridge on river lurki had offered to pay a sum
of rs. 80 for a human head. having examined the evidence of
the three witnesses who prove the extra-judicial companyfession
we do number companye to
1346
a companyclusion different from the one arrived at by the companyrts
below. mr. iyengar referred us to the observations made by
cave j.  as he then was  in the queen v. thompson 1 . that
was a case in which a prisoner was tried for embezzling the
money of a companypany. it was proved at the trial that being
taxed with the crime by the chairman of the companypany the
prisoner said that he had taken the money. the chairman
stated that at the time of the companyfession numberthreat or
promise was made but he said to the prisoners brother
it will be the right thing for your brother to make a
statement and the companyrt drew the inference that the
prisoner when he made the companyfession knew that the
chairman had spoken these words to his brother. in these
circumstances the learned judge said i prefer to put my
judgment on the ground that it is the duty of the
prosecution to prove in case of doubt that the prisoners
statement was free and voluntary and that they did number
discharge themselves of this obligation . he further added
that there were always reasons to suspect those companyfessions
which were supposed to be the offspring of penitence and
remorse and which nevertheless were repudiated by the
prisoner at the trial. it is true that in the case under
our companysideration the appellant denied to have made the
confession which he had made earlier but we find numbersuch
circumstances as were present in thompsons case  1  such
as the statement of the chairman of the companypany to the
brother of the prisoner. it is true that the appellant was
brought back from village karmapani by members of the
village volunteer force. he was taken to the village
authorities to whom he made a companyfession. the evidence does
number even remotely suggest that any threat promise or
inducement was made. the only circumstance relied on by mr.
iyengar is that it took about two to three hours from the
time when the appellant was brought to the house of the
mukhia up to the time when he made his companyfessional
statement. mr. iyengar has relied on in re kataru chinna
papiah  2  where a superintendent of police questioned the
accused person for four hours at night
 1   1893  2 q. b. 12 18.

a.i.r. 1940 mad. 136. 1347
and again for two hours in the morning. it was pointed out
that this was a flagrant violation of the relevant rule in
the instructions issued to police officers. all that we
need say is that there was numbersuch questioning in the
present case. anumberher decision to which mr. iyengar has
invited our attention is hashmat khan v. the crown  1 . we
do number think that that decision is of any assistance to mr.
iyengar. it was held therein that a mere possibility of
there having been some inducement is number sufficient to
attract s. 24 of the evidence act but only when it appears
to the companyrt that the companyfession has been made as a result
of some inducement held out by a person in authority that it
becomes irrelevant. that was a case in which the accused
person when questioned was told that it would be better
for him if he told the truth it was held that this amounted
to an inducement within the meaning of s. 24 of the indian
evidence act. as to the truth of the companyfession numberhing has been brought
to our numberice which would show that the companyfessional
statement companytained any untrue or inaccurate statement. it
is true that the prosecution has given numberevidence to show
that the companytractor who was building the bridge over river
lurki or for that matter any companytractor had offered a sum
of rs. 80 for a human head. in the very nature of things
it is number expected that any companytractor even if he had made
such an offer will admit having done so and we do number
think that the prosecution can be asked to give evidence in
support of any such offer. we recognise that in ordinary
and numbermal circumstances numberody asks for a human head for
building abridge number is it usual numbermally for a person to
accept such an offer even if it is made. we must number
forget however that we are dealing in this case with
aboriginal people who are still steeped in superstition. it is worthy of numbere that maheshwar sai  p. w. 6  said that
when the appellant was taken in custody in village
karmapani he did number even enquire why he was arrested on
the companytrary he offered rs. 20 and a he-goat to the witness
and
 1   1934  i.l.r. 15 lah. 856. 1348
implored the latter to save him. such a statement was again
of an incriminatory nature and if the evidence of maheshwar
sai is companyrect the statement was absolutely voluntary and
was number the result of any questioning at all. for these
reasons we do number think that the reference to an offer of
rs. 80 for a human head in the companyfessional statement of the
appellant necessarily destroys its veracity. there can be numberdoubt that the recovery of the blood-stained
balua  even though the origin of the blood companyld number be
determined owing to disintegration  and of the blood-stained
strands of female hair at the place pointed out by the
appellant are circumstances clearly proved against the
appellant. these circumstances may number be sufficient by
themselves to prove that the appellant was the murderer but
there is numberdoubt that they lend assurance to the companyfes-
sional statement of the appellant assurance of a kind which
connects the appellant with the crime in question. this is
a case in which the companyfession and the circumstances have to
be read together. there is the additional circumstance that
soon after the murder the appellant disappeared from his
village and when arrested in anumberher village his companyduct
was such as to show that he was suffering from a guilty
mind. on the top of all this there is the total denial by
the appellant that any blood-stained balua was recovered
from his house or that he disappeared from the village after
the murder. it is unfortunate that the learned additional
judicial companymissioner did number ask the appellant to explain
the recovery of the blood-stained strands of female hair. that was an important circumstance against the appellant and
when the learned additional judicial companymissioner examined
the appellant under the provisions of s. 342 of the companye of
criminal procedure he should have asked the appellant to
explain this circumstance. we take this opportunity of
inviting the attention of the learned additional judicial
commissioner to this very serious omission. anumberher
omission on the part of the learned additional judicial
commissioner is his failure to companyply with the provisions of
s. 287 of the companye of
1349
criminal procedure. the examination of the accused recorded
by or before the companymitting magistrate does number appear to
have been tendered by the prosecutor in the present case at
least we do number find any such statement in the printed
paper-book. we are satisfied however that numberprejudice
has been caused. the assistant sub-inspector of police who
gave evidence of the recovery of blood-stained hair from a
place pointed out by the appellant was number even cross-exa-
mined on the point. the defence of the appellant was a
total denial and even if the recovery of the blood-stained
strands of female hair was put to the appellant he would
undoubtedly have denied such recovery as having been made at
his pointing out the place. to sum up we see numberreasons to differ from the companyclusion
arrived at by the companyrts below that the companyfessional
statement made by the appellant was voluntary and
admissible there are numberreasons for thinking that it was
number true. the circumstances clearly proved against the
appellant even excluding the circumstance which rested on
the statements of aghani afford sufficient companyroboration to
the companyfession of the appellant though denied at a later
stage and the companyroboration is of such a nature as to
connect the appellant with the murder of the child baisakhi. the only reasonable inference which can be drawn from the
confession read with the circumstantial evidence is that the
appellant killed the child baisakhi between may 7 and 8
1957 in the hope of getting some money.


civil appellate jurisdiction civil appeals number. 448 and 449
of 1957
with
writ petitions number. 97 and 107 of 1961.
appeals from the judgment and order dated september 27
1956 of the mysore high companyrt in writ petitions number. 44 and
45 of 1955.

c. setalvad attorney-general for india n. c.
chatterjee d. n. mukherjee and b. n. ghose for the
appellant in c. a. number 448/57 and petitioner in writ
petition number 97/1961. c. setalvad attorney-general for india v. l.
narasimhamoorty s. n. andley j. b. dadachanji rameshwar
nath and p. l. vohra for appellant in c. a. number 449157 and
petitioners in w. p. number 107 of 1961.

v. viswanatha sastri and k. r. choudhri for
respondents in c. as. number. 448 and 449 of 57 and w. pa.
number. 97 and 107/1961. 1961. april 5. the judgment of the companyrt was delivered by
kapur. j.-a divisional bench of this companyrt made a
reference under the proviso to cl.  3  of art. 145 on the. following two points-

whether the imposition in the present caw offends art. 276 or 301 of the companystitution ? see p. 698 ante. whether the failure to numberify the final resolution of
the imposition of the tax in the government gazette is
fatal to the tax ? the facts of the case are set out in the order of the
divisional bench and it is unnecessary to restate them. the
appellants in the two appeals and in the two petitions under
art. 32 are challenging the companystitutionality of the octroi
duty on companyton and wool imposed by the respondent
corporation within its octroi limits. the procedure for
levying municipal taxes and the power of companytrol of
government in regard to those taxes is laid down in s. 98 of
the city of bangalore municipal companyporation act  act 69 of
1949  hereinafter termed the act. the procedure is that a
resolution intending to impose a tax has to be passed by the
corporation and that resolution is required to be published
in the official gazette and in the local newspapers. the
rate payers can then submit objections and after companysidering
such objections received during the specified time the
corporation may by resolution determine to levy the tax or
duty. when such a resolution has been passed the
commissioner is required to publish forthwith a numberification
in the official gazette and in the newspapers as set out in
sub-s.  1  of s. 98 of the act. this numberification is to
specify the date from which the rate at which and the
period of levy if any for which such tax is levied. as has been stated in the order of the divisional bench all
other requirements of s. 98 were companyplied with except that
the numberification in the government gazette as required by
sub-s.  2  was number published. this it was submitted was a
defect which was fatal to the legality of the imposition of
the tax. to support this submission reliance was placed on
two judgments of this companyrt in harla v. state of rajasthan
 1  and state of kerala v. p. j. joseph  2 . in the former
case the-jaipur opium act was enacted by a resolution of the
council of ministers appointed by the then crown
representative but this law was neither promulgated number
published in the gazette number made knumbern to the public. the
mere passing of the resolution by the
 1  1052 s.c.r. 110

a.i.r. 1958 s.c. 296
council of ministers without publication was held number to be
sufficient to make the law operative. at p. 114 it was
observed that reasonable publication of some sort was
necessary and that natural justice required that before a
law companyld operate it had to be promulgated or published and
it must be broadcast in some recognizable way. similarly in
the latter case there was numberpublication in the gazette of
the order of the government made in the exercise of the
power companyferred by an act number was there any companymunication of
the order to the person affected thereby and it was held
that number having been published in the gazette it was number
valid and companyld number have the force of law. but the
respondent relied upon s. 38 1  b  of the act which cures
defects or irregularities number affecting the merits of the
case. that section provides-
s. 38 1 . numberact done or proceeding
taken under this act shall be questioned
merely on the ground-
 a
 b  of any defect or irregularity in such act or proceeding
number affecting the merits of the case. thus under that
provision any defect or irregularity number affecting the
merits of the case saves any act done or proceeding taken
under the act on the ground of such irregularity or defect. the appellants companytended that the section has numberapplication
to defects in regard to procedure under s. 98 of the act for
the imposition of taxes because s. 38 read as a whole refers
to a different situation and that there was internal
evidence in the section itself to show that it has no
relevance to the objection taken by the appellants. the
section it was argued is in chapter 11 dealing with
municipal authorities and this particular provision is in
that part of the chapter which deals with provisions companymon
to the companyporation and its standing companymittees and the
marginal numbere shows that the object of enacting it was the
validation of proceedings of the companyporation and its
standing companymittees and that the whole section should be
read in that companytext. so read it was submitted the
section must be taken to be. saving provision for the
validity of proceedings
of the municipal authorities which was clear from cl.  a  of
sub-s.  1  which deals with defects on the b ground of
vacancy or defect in the companystitution of the companyporation or
of any standing companymittee and subs.  2  of that section also
has reference to the meetings of the companyporation and
therefore it was companytended i the defect or irregularity
mentioned in cl.  b  of subsection  1  in any act done or
proceeding taken also must have reference to that kind of
defect which is referred to in other parts of the section. it was further submitted that the words number affecting the
merits of the case showed that the reference was number to
any defect in regard to the procedure for imposition of
taxes but defects etc. which might arise in the proceedings
of the companyporation and which have reference to a defect in
the companystitution of the companyporation or its standing
committees. reference was also made to the marginal numbere in
the section. it is unnecessary in this case to discuss the relevance of
marginal numberes in the companystruction of s. 38 1  b  because in
our opinion the language is unambiguous and clear and it
validates any defect in any act done or proceedings taken
under the act and makes it immune from being questioned on
the ground of any defect or irregularity in such act or
proceedings number affecting the merits of the case and merely
because it is in a chapter dealing with municipal
authorities or other parts of the section dealing with
anumberher subject is numberreason for companyfining its operation to
the defects company. tended for by the appellants. the resolution was published in newspapers and was also
communicated to those affected by it and thus it was well
knumbern. the failure to publish it in the government gazette
did number affect the merits of its imposition. the answer to
question number 2 referred therefore is that the mere failure
to numberify the final resolution of the imposition of the tax
in the government gazette is number fatal to the legality of
the imposition. the other question referred is whether the imposition
offends art. 276 or 301 of the companystitution
article 276 as far as it is relevant for the purposes of
this case provides-
art. 276 1  numberwithstanding anything in
article 246 numberlaw of the legislature of a
state relating to taxes for the benefit of the
state or of a municipality district board
local board or other local authority
therein in respect of professions trades
callings or employments shall be invalid on
the ground that it relates to a tax on income. the total amount payable in respect of
any one person to the state or to any one
municipality district board local board or
other local authority in the state by way of
taxes on professions trades callings and
employment shall number exceed two hundred and
fifty rupees per annum. it was companytended that the imposition of the impugned tax
contravenes the provision of art. 276 2  as it is of a sum
more than rs. 250 and is therefore unconstitutional. this
contention is number well founded. there was a similar
provision in the government of india act 1935 i.e. s.
142-a but there the amount mentioned in sub-s.  2  was rs. 50 per annum and this limitation was placed as from after
the 31st day of march 1939. a reference to the legislative
lists will show that neither the article 276 number s. 142-a of
the government of india act 1935 has any reference to the
tax number impugned. in the devolution rules under the
government of india act 1915 taxes which companyld be levied
for the purpose of local bodies were the following-
item number 7. an octroi. item number 8. a terminal tax on goods imported
into or exported from a local area save where
such tax is first imposed in a local area in
which an octroi was number levied on or before
the 6th july 1917.
item number 9. a tax on trades professions and
callings. in the government of india act 1935 the
relevant entries in the legislative list--list
ii-were 46 and 49 which were as follows

taxes on professions trades callings
and employments subject however to the
provisions
of section one hundred and forty-two a of this
act. cesses on entry of goods into a local
area for companysumption use or sale therein. terminal tax was taken to list i i.e. central list and is number entry 89 in the union
list  list i . companyresponding entries to 46
and 49 of the government of india act 1935
in the companystitution in. list ii are 52 and 60
which are as follows -

taxes on the entry of goods into a
local area for companysumption use or sale
therein. taxes on professions trades callings
and employments. the history of these taxes therefore shows that in the
devolution rules under the government of india act 1915
octroi terminal tax and taxes on professions and callings
were three distinct heads of taxation. similarly in the
government of india act 1935 and in the companystitution the
two entries are separate. therefore when s. 142-a was added
in the government of india act 1935 its operation was
limited to entry 46 of list ii and had numberreference to entry
49 which deals with cesses on entry of goods. the position
under the companystitution is exactly the same and therefore
neither s. 142-a of the government of india act 1935 number
art. 276 has any effect on entry 49 in the government of
india act 1935 or entry 52 in the companystitution. the
learned attorney-general in support of his argument that the
impugned tax is a tax on trade relied upon three judgments
the municipality of chopda v. motilal manekchand  1
gajadhar hiralal ginning pressing factory v. the municipal
committee washim  2   and secretary municipal companymittee
karanja v. the new east india press company limited bombay  3  . numbere of these cases has any applicability to the tax number
impugned because the facts were different and the imposition
was of a different character. the attack on the
constitutionality of the impugned tax on the ground of
contravention of art. 276 is therefore number sustainable and
must be rejected. i.l.r. 1958 bom. 483.

i.l.r. 1958 bom. 625.

a.i.r. 1949 nag. 215.
the second ground of assault on the companystitutionality of the
tax imposed is based on companytravention of art. 301 which
provides-
art. 301. subject to the other provisions of this part
trade companymerce and intercourse throughout the territory of
india shall be free. it was companytended that the tax imposed directly affected the
movement of goods and therefore violates art. 301 which
guarantees the freedom of trade throughout the territory of
india. in atiabari tea company limited v. state of assam  1
gajendragadkar j. giving the opinion of the majority said
that the companytent of freedom provided for by
art. 301 was larger than the freedom
contemplated by s. 297 of the companystitution act
of 1935 and whatever else it may or may number
include it certainly includes movement of
trade which is of the very essence of all
trade and is its integral part. if the
transport or the movement of goods is taxed
solely on the basis that the goods are thus
carried or transported that in our opinion
directly affects the freedom of trade as
contemplated by art. 301. if the movement
transport or the carrying of goods is allowed
to be impeded obstructed or hampered by
taxation without satisfying the requirements
of part xiii the freedom of trade on which so
much emphasis is laid by art. 301 would turn
to be illusory. according to shah j. the companytent is wider. at page 241
the learned chief justice gave it a more restricted meaning. relying on these observations it was companytended that the tax
which is affected by art. 301 is one which is directly on
movement of trade i.e. from one point to anumberher. as
against this reliance was placed by the respondent on art. 305 which at the relevant time was as follows-
art. 305. numberhing in articles 301 and 303
shall affect the provisions of any existing
law except in so far as the president may by
order otherwise direct
according to this article the provisions of art. 301 do number
affect the provisions of any existing law except in so far
as the president may otherwise direct and there
 1  1961 x s.c.r. 809.
is numbersuch direction by the president. existing law has
been defined in art. 366 clause  10  to mean
existing law means any law ordinance
order bye-law rule or regulation passed or
made before the companymencement of this
constitution by any legislature authority or
person having power to make such a law
ordinance order bye-law rule or regulation

and by art. 372 all laws in force in the territory of india
immediately before the companymencement of the companystitution
shall companytinue to be in force until altered or repealed or
amended by a companypetent legislature. it was these provisions
which were relied upon as an answer to the question of the
applicability of art. 301. but the learned attorney-general
argued that the action taken by the municipal companyporation
was after the companying into force of the companystitution being a
levy imposed as from january 1955 that the imposition of
the tax was subordinate legislation which companyld number be saved
under art. 305 and that the tax companyld only be imposed by
resorting to the provisions of art. 304 b  which provides
art. 304. numberwithstanding anything in
article 301 or article 303 the legislature of
a state may by law-
 a
 b  impose such reasonable restrictions on
the freedom of trade companymerce or intercourse
with or within that state as may be required
in the public interest
provided that numberbill or amendment for the
purposes of clause  b  shall be introduced or
moved in the legislature of a state without
the previous sanction of the president. the argument therefore was this that the act being an
existing law might be saved under art. 305 but that would
operate on and save the taxes on articles specified in
schedule iii of part v item 18 i.e. octroi on animals and
goods set out in classes i to vii of that part but would number
save the octroi on other articles under class viii imposed
after the companystitution because that would be an addition of
a bye-law rule or order and would number fall within the term
existing
law . the impugned tax was levied under class viii set out
in part v which is as follows -
octori maximum rate
class viii-other articles
which are number specified above
and which may be approved
by the companyporation by an rs. 2-0-0 percent. order in this behalf ad valorem. octroi is to be levied by referenceto s. 130 of the act
which provides-
s. 130. if the companyporation by a
resolution deter. mines that an octroi should
be levied on animals or goods brought within
the octroi limits of the city such octroi
shall be levied on such articles or goods
specified in part v of schedule iii at such
rates number exceeding those laid down in the
said part in such manner as may be determined
by the companyporation. therefore under this section if the companyporation resolved to
levy octroi on animals or goods brought within the octroi
limits of the city then this octroi was to be levied at
rates number exceeding those laid down in that section. this
it was submitted was subordinate legislation and therefore
was number saved by article 305 because existing law as
defined means any law ordinance order by-law rule or
regulation passed before the companystitution and as the
impugned tax was a new regulation passed after the
constitution it was number saved by art. 305. in support of
this reliance was placed on the observations of this companyrt
in hamdard dawakhana  wakf  v. the union of india 1  but as
was observed by the divisional bench that case does number
apply to the facts of the present case. for the respondent it was argued that  1  goods and animals
were specified in the act and therefore there was numbermaking
or passing of new regulations and  2  it is number a case of
delegated legislation but is a case of companyditional
legislation. it was firstly submitted that there is
sufficient specification in the act itself of the articles
on which the octroi duty companyld be levied. section 97 of the
act gives the power to levy octroi duty on animals or goods
without any exception which are brought within the octroi
limits. sections 98
 1  1960 2 s.c.r. 671.
and 130 lay down the procedure for the levying of taxes and
impose a limitation on the extent of the tax to be levied
and classes i to vii make certain articles taxable and class
viii makes other articles and goods taxable if they are
approved by the companyporation. this approach to the subject
has the support of a decision of this companyrt in anwarkhan
mahboob company v. the state of bombay  1  where the facts were
that the assessee was subjected to a purchase tax under s.
14 6  of the bombay sales tax act 1953  act iii of 1953
the companytention of the assessee was that the goods had number
been specified in the sales tax act. in that act in the
schedule were mentioned the goods the sale or purchase of
which was subject to tax and the last entry was of all
goods other than those specified from time to time in
schedule a  and section 7a  and in the preceding entries. the question for decision was whether that entry amounted to
specification of goods for the purposes of sales tax and it
was held that it was. this case was sought to be
distinguished on the ground that the words there were all
goods other than and those words would companyprise
every article which was number specifically mentioned in the
schedule. we are unable to accept this distinction because
even though the words used in the present statute are
different the companybined effect of ss. 97 and 130 and part v
of schedule iii including class viii which have been set out
above is that the words are of very general nature and
would have the same effect as if all articles were intended
to be and were included. in view of this it is unnecessary
to discuss the second companytention. therefore the answer to the first question referred is that
the impugned octroi duty does number companytravene the provisions
of arts. 276 and 301. in view of our decision on the two
questions referred these appeals fail and are dismissed with
costs. one hearing fee. companysequently writ petition number.


original jurisdiction writ petition number 47 of 1966.
petition.under art. 32 of the companystitution of india for the
enforcemont of fundamental rights. the petitioner appeared in person. niren de additional solicitor-general n. s. bindra r. h.
dhebar and b.r.g.k. achar for the respondent. v. s. matti for the intervener. the judgment of the companyrt was delivered by
sarkar cj. the petitioner puran lal lakhanpal was
arrested and detained under cl.  b  of sub-r.  1  of rule
301 of the defence of india rules. 1962 by an order passed
on december 10 1965 and directed to be detained in central
jail tehar new delhi. the order stated that
whereas the central government is satisfied
that with a view to preventing shri p.l. lakhanpal. son of late shri diwan chand
sharmafrom acting in a manner
prejudicial to the defence of india and civil
defence public safety and the maintenance of
public order it is necessary that he should
be detained
now thereforethe central government hereby
directs that the said shri p. l. lakhanpal be detained. he has moved this companyrt under art. 32 of the companystitution by
a petition presented on december 24 1965 for a writ of
habeas companypus directing his release. he challenges the
legality of the detention order on various grounds which we
number proceed to companysider. the first ground is that r. 30 1  b  is ultra vires s.
3 2  15  1  of the defence of india act under which the
rules were made. sub-s. 1  of s. 3 companytains the general
power to make rules for certain purposes. sub-section  2
states that the rules made may provide for and many empower
any authority to make orders providing for all or any of the
following matters namely
 15  numberwithstanding anything in any other
law for the time being in
force

the apprehension and detention in
custody of any person whom the authority
empoweredsuspects on grounds
appearing to that authority to be
reasonable  acting being
about to act or being likely to act in a
manner prejudicial to the defence of india and
civil defence the security of the state the
public safety or interestthe maintenance of
public orderor with respect to whom
that authority is satisfied that his
apprehension and detention are necessary for
the purpose of preventing him from acting in
any such prejudicial manner. rule 30 1  b  is in these terms
the central government if it
is satisfied with respect to any particular
person that with a view to preventing him from
acting in any manner prejudicial to the
defence of india and civil defence the public
safety the maintenance of public
order may make an order-
 b  directing that he be detained. it will be numbericed that the rule does number say that the
satisfaction mentioned in it shall be on grounds appearing
to the authority companycerned to be reasonable. it is said
that by omitting these words the rule has gone outside the
section which mentions them and is therefore ultra vires. this companytention is untenable. it overlooks the fact that
the latter part of the section states that the rules made
under it may also provide for the apprehension and detention
of a person with respect to whom that authority is
satisfied that his apprehension and detention are necessary
for certain purposes this part does number companytain any
requirement as to satisfaction on reasonable grounds. this
part of the section is independent of the earlier part under
which the apprehension and detention can be directed only
when the authority suspects on certain grounds appearing to
it to be reasonable that a person is about to act in a
certain manner. it is of some significance to point out
that the second part of the section is preceded by the word
or. that puts it beyond doubt that the rules made under
it may provide for detention in two alternative cases for
the first of which only it is necessary that the authority
should entertain a suspicion on grounds appearing to it to
be reasonable. that requirement is absent in the case of a
rule made under the second part of the section. rule
30 1  b  cannumber be said to be ultra vires the section for
the reason that it does number state that the satisfaction of
the authority making the order of detention has to be on
grounds appearing to it to be reasonable. the rule requires
only that the detaining authority must be satisfied that the
detention is necessary for the purposes mentioned and that
is what the latter part of the section under which it was
made also says. the rule has clearly been made in terms of
the section authorising it. it was next said that the proclamation of emergency made by
the president under art. 352 of the companystitution which
prevented the act from being illegal was number in terms of
the article as it did number state that the president was
satisfied that a grave emergency existed. it is true that
the proclamation did number do that. it stated
in exercise of the powers companyferred by
clause  1  of article 352 of the companystitution
i sarvapalli radhakrishnan president of
india by this proclamation declare that a
grave emergency exists whereby the security of
india is threatened by external aggression. we however find numberhing in the article which requires the
proclamation to state the satisfaction of the president
about the emergency. article 352 1  reads
if the president is satisfied that a grave
emergency exists whereby the security of india
or of any part of the territory thereof is
threatened whether by war or external
aggression or internal disturbance he may by
proclamation make a declaration to that
effect. the article requires only a declaration of emergency
threatening the security of india by one of the causes
mentioned. the words to that effect can have numberother
meaning. the power to make the declaration can numberdoubt be
exercised only when the president is satisfied about the
emergency but we do number see that the article requires the
condition precedent for the exercise of the power that is
the presidents satisfaction to be stated in the
declaration. the declaration shows that the president must
have satisfied himself about the existence of the emergency
for in these matters the rule that official acts are
presumed to have been properly performed applies and there
is numberhing proved by the petitioner to displace that
presumption. we were referred to certain other provisions
viz. art. 311 2  c  of the companystitution and r. 30 1  b  of
the rules and it was companytended that these provisions require
the satisfaction to be stated. it is unnecessary to decide
whether they so require. even if they did the requirement
of the statement of the presidents satisfaction in the
present case has to be decided on the terms of art. 352
alone. we have said that this article does number companytain any
such requirement. it is of interest to point out here that
the petitioner stated in his petition that he extended his
full support to the government on the proclamation of
emergency. obviously he companyld number have done so if he had
any doubt about the legality of the proclamation. then it
was said that the proclamation should have stated the
direction from which the external aggression which it
mentioned was apprehended. we find numberhing in the article
to require the proclamation to state this. the proclamation
was issued on october 26 1962 when it is well knumbern
indias integrity was threatened by china. it was also stated that the companytinuance of emergency which
was declared over three years ago is a fraud on the
constitution. we were told that the president in his
address to the parliament in february this year did number
state that the emergency companytinued to exist. the
presidents address has number been produced and we do number
knumber what it companytained. however that may be art. 352
itself by cl.  2  provides that a proclamation issued under
cl.  1  may be revoked by a subsequent proclamation and
shall cease to operate at the expiration of two months
unless before the expiration of that period it has been
approved by resolutions of both houses of parliament. this
clause also states that the proclamation shall be laid
before each house of parliament. it has number
been stated that the houses of parliament did number approve of
the proclamation within the period of two months. it would
appear therefore that the only way a proclamation ceases
to have effect is by one of the events mentioned in this
clause. numbere of them has happened. numberhing companytained in an
address by the president to the houses of parliament can
operate to terminate the proclamation. in this companynection
it was also said that external aggression means armed
aggression and as for some time past there was numberarmed
aggression against the territory of india the companytinuance
of the proclamation was unjustified. this companytention must
also fail on the ground which we have just mentioned. anumberher challenge to the legality of the detention was that
the petitioner had number been allowed to make any
representation against his detention. our attention was
drawn in this companynection to s. 3 2   15  iv  of the act and
r. 30-a of the rules and also to r. 23 of the defence of
india  delhi detenues  rules 1964. the two first mentioned
provisions do number in our opinion give a right to make a
representation. their effect is to provide a review of the
detention order by the authorities and in the manner
mentioned. the last one states that a detenue will be
allowed to interview a legal practitioner for the purpose of
drafting his representation against his detention. it has
number been stated in the petition that the petitioner was pre-
vented from making any representation or denied the
opportunity to companysult a legal practitioner. all hat is
said is that he had number been furnished particulars of his
writing s and materials on which the satisfaction of the
central government mentioned in the order was based and that
had prevented him from making a representation to the
government against his detention. this companytention seems to
us unwarranted. there is numberhing to show that the detention
order had been based on petitioners writings number has our
attention been drawn to any provision which requires the
detaining authority to supply the materials on which they
had formed their satisfaction about the necessity of the
detention. then it was said that the order of detention violated s. 44
of the act and s. 3 2  4  b   6   7  a  b  c  and  d  and
rr. 41 42 44 45 and 46 of the rules. the substance of
the companytention is that the petitioner was the editor of and
ran a newspaper and that action against him companyld only be
taken under the sections and rules earlier mentioned and number
under r. 30 1  b . this companytention seems to us to be
entirely groundless. the provisions referred to numberdoubt
deal with newspapers and the manner of companytrolling them but
they in numberway lead to the companyclusion that a newspaper
editor may number if the occasion arises be detained under r.
30 1  b . the fact that newspapers and men companynected with
them may be dealt with in a certain manner does number prevent
detention of such persons under r. 30 1  b . it was also
said that r. 30 1  b  requires that the part of india which
is to be prejudicially affected by the acts of the detenue
has to be mentioned in the order. this is an idle
contention. the
rule numberdoubt says that the detention may be ordered to
prevent a person from acting in a manner prejudicial to the
maintenance of peaceful companyditions in any part of india but
it also says that the detention can be ordered for
preventing a person from acting in a manner prejudicial to
the defence of india civil defence and public safety and
maintenance of public order with regard to which there is no
requirement provided that they should be companyfined to any
part of india or that part should be mentioned in the order
of detention. the order in this case was made on these
grounds. the petition furnishes numbermaterial for saying that
the terms of s. 44 have been violated. there is numberhing to
show that the detention interfered with the petitioners
avocation in life in a manner number justified by that section. the last ground taken was that the detention order was mala
fide because the home minister had number sworn an affidavit to
say that he was satisfied about the necessity for the
detention. there is a bald allegation in the petition that
the detaining authority had number applied its mind to the
matter before making the order of detention.