civil appellate jurisdiction civil appeal number. 446--449
of 1976.
appeals by special leave from the judgment and orders dated. 14-1338sci/76
1004
7-4-1969 and 25-1-1972 of the bombay high companyrt  nagpur
bench  in s.t.r. number. 17 to 20 of 1964 and
civil appeal number. 450453 of 1976.
appeals by special leave from the judgment and order
dated 28-1-1972 of the bombay high companyrt  nagpur bench  in

s.t. reference number. 17-20/64. v. p. raman addl. sol. general for india s.b. wad and

n shroff for appellants in cas. 450 to 453/76. l. sanghi a. s. bobde m.l. vaidya v.a. bobde a. g.
meneses j.b. dadachanji k.j. john o.c. mathur and ravind-
er narain for the respondents in cas. 446-449/76 and appel-
lants in  2. as. 450-453/76
the judgment of the companyrt was delivered by
beg j.--the eight appeals before us by special leave
arise out of four sale tax references under section 23 1
of the central provinces and berar sales tax act 1947
 hereinafter referred to as the act . six companymon ques-
tions arose here relating to assessments for different
periods on identically similar facts stated below. five
of these were decided by a division bench of the bombay high
court. as it answered the main question determining liabili-
ty to pay the sales tax under the act against the state
there are four appeals against it by the state. the sixth
question which was one of law only was referred by the
division bench to a full bench and this was determined in
favour of the state. there are therefore four appeals by
the assessee against the full bench decision. m s. central provinces manganese ore company limited the
assessee has its head office in london. it carries on
business on an extensive scale. it owns 22 manganese ore
mines in madhya pradesh from where manganese ore after
being excavated is sent mostly abroad through different
ports. the companypany is a registered dealer under the act. it used to enter into companytracts at places outside madhya
pradesh for the despatch of what came to be knumbern in the
special parlance of this companypanys business as oriental
mixture but the companytracts companytain specifications only of
strengths of manganese ore to be supplied with permissible
percentages of other ingredients as admixtures. the term
oriental mixture was evidently employed by the companypany
itself to describe a particular type of companyglomerate which
the unloading at one place of various types of manganese ore
produced. the required average companysistency or strength of
manganese ore specified in the companytracts which did number
contain a reference to any oriental mixture was said to
be obtained in the companyrse of this mechanical process of
transportation when various grades of manganese ore were
heaped together. these grades of manganese ore were trans-
ported in railway wagons from one or more mines and
it appears that the order in which trucks were.loaded in
goods trains and unloaded was also soarranged that the
mixture came into existence as described above in the mere
process of unloading at the port. 1005
but this procedure did number seem to involve a process of
manufacture as that term is ordinarily understood to
which the assessee companyld be said to have subjected its
manganese ore.
the case of the assessee companypany was that the oriental
mixture as a taxable companymodity came into existence only
after the ores got mixed up in the process of unloading and
number before so that it companyld number be taxed as goods in exist-
ence in madhya pradesh at the time when companytracts relating
to these goods were made. this is the crucial and simple
question largely one of fact which resulted in companysidera-
ble argument before the high companyrt and before us also. other questions appear to be subsidiary. nevertheless we
have to companysider them before companying to the crucial
question which is is the process described above one of
manufacture so that a new kind of goods knumbern as
oriental mixture came into existence at the port where
manganese ore trucks were unloaded? as the high companyrt pointed out the periods involved in
the four references before it were number governed by the
provisions of the companystitution. they related to the follow-
ing period

reference number 17 of 1964 for the period 1st january 1947
30th september 1947.

reference number 18 of 1964 for the period 1st october
1947 to 31st december 1948.

reference number 19 of 1964 for the period 1st january
1949 to 31st december 1949.

reference number 20 of 1964 for the period 1st january
1950 to 25th january 1950.
we therefore agree with the high companyrts view that article
286 of the companystitution which is number retrospective in
operation companyld number help the assessee merely because it was
there at the time of assessment. the next question to be companysidered which was referred
to the full bench flows from explanation  ii  to section
2 g  of the act which was amended by the c.p. berar sale
tax  amendment  act number xvi of 1949 came into force on 11th
april 1949. hence the law as found after the amending
act companyld apply .if valid only to the last two refer-
ences. but the question which arose on the assumption
that the amendment was ineffective was whether the
unamended law companyld be applied at all after the purported
amendment. section 2 g  of the act with its two explanations
before it was amended may be reproduced here in toto. it
reads as follows
2 g  sale with all its grammatical
variations and companynate expressions means any
transfer of property in goods for cash or
deferred payment or other valuable companysidera-
tion including a transfer of property
in goods made in companyrse of the execution of a
contract but does numberinclude a mortgage
hypothecation charge or pledge
explanation  i  a transfer of goods on hire-
purchase or other installment system of pay-
ment shall numberwithstanding
1006
that the seller retains a title to any goods
as security for payment of the price be
deemed to be a sale
explanation  11  numberwithstanding anything to
the companytrary in the indian sale of goods act
1930 the sale of any goods which are actually
in the central provinces and berar at the time
when the companytract of sale as define in that
act in respect thereof is made shall wherever
the. said companytract of sale is made be deemed
for the purpose of this act to have taken
place in the central provinces and berar. section 2 of the amending act of 1949 provid-
ed

in section 2 of the central provinces
and berar sales tax act 1947  hereinafter
referred to as the said act
 a  in clause  g  for explanation  i1  the
following shall be substituted --
explanation  i1  --numberwithstanding
anything to the companytrary in the indian sale
of goods act 1930 the sale or purchase of any
goods shall be deemed for the purposes of this
act to have taken place in this province
wherever the companytract of sale or purchase
might have been made---
 a  if the goods were actually in this
province at the time when the companytract of sale
or purchase in respect thereof was made or
 b  in case the companytract was for the
sale or purchase of future goods by descrip-
tion then if the goods are actually produced
or found in this province at any time after
the companytract of sale or purchase in respect
thereof was made. the submission made on behalf of the assessee which was
accepted by the high companyrt was that as the amendment did
number receive the assent of the governumber general under section
107 of the govt. of india act it was void. it was howev-
er also urged on behalf of the assessee that a repeal of
the previously existing section did number require the assent
of the governumber general at all. the argument was that the
original provision was validly repealed but as numbersubsti-
tution of the new provision companyld take place because the
assent of the governumber general was number obtained only the
repeal survived. the result of accepting such a submission
would be that the substitution will have to be split up into
two distinct enactments firstly a repeal of the original
section 2 g  of the act and secondly the substitution of
the new provision for the repealed one. the assessees
argument was that two processes one of repeal and anumberher
of substitution are necessarily implied in such an amend-
ment as the one before us. it was urged that both had
received the assent of the governumber but since the substi-
tuted provision alone required the assent of the governumber
general which was number obtained a repeal which was assent-
ed to by the governumber stood on its own separate footing. thus the result was said to be a repeal simpliciter without
the enactment of the fresh provision meant to replace it. 1007
it was submitted that the high companyrt after finding the
substituted provisions of section 2 g  of the act to be
invalid had erred in holding that the repeal was also
ineffective. it was companytended that such a view resulted in
attributing to the legislature an intention companytrary to that
which it had unmistakably expressed by repealing the una-
mended provision. it was urged that the repeal which was
clearly intended must be held to be valid. according to
this submission neither the old unamended provision number the
replacement of it were in operation during the last two. assessment periods. of companyrse this argument assumes that
the repeal and the new enactment are separate. in shriram gulabdas v. board of revenue madhya pradesh
ant. c  which was cited before us it was held on the
question argued before us  at p. 366-367
 we have already shown that
the second explanation in clause  g  of sec-
tion 2 which makes an agreement of sale
taxable even though the sale may have taken
place outside. the province is number ultra
vires the provision legislature. we must make
it clear that our answer to this question is
in the affirmative free from companysiderations
arising under article 286. we have shown that
the necessary power to make the unamended
explanation did exist in the state legisla-
ture but we have also made it clear that by
virtue of article 286 the explanation can no
longer be enforced because under the present
constitution the sales tax can only be company-
lected at the market and where the goods are
delivered for companysumption. we may also state
that the amended explanation ii is number validly
enacted because it makes drastic changes in
the rules as found in the sale of goods act
without obtaining the assent of the
governumber-general. the effect of the amended
explanation going out would be to rehabilitate
the old explanation as it existed because the
amendment being unconstitutional will fail to
work any change in the law  see the opinion
given by one of us hidayatullah j. in
laxmibai v. the state  i.l.r. 1951  nag. 563
608 610  f.b. . numberquestion relating to the enforcement of the sales-tax
by any companylection to be made after the companystitution came
into force was raised the cases before us. only questions
relating to taxability arise here as we have already
indicated article 286 does number stand in the way of taxabil-
ity. this was held to be the companyrect position in the case
of shriram gulabdas  supra . it was also clearly held there
that the result of the invalidity of the amended explana-
tion was to leave the law unaltered as it stood before the
amendment. we approve of this pronumberncement made long ago on
this very question. it was urged on behalf of the assessee that the case of
shriram gulabdas  supra  companytained what was merely an obser-
vation with regard the rehabilitation of the preexisting
law as that question was numberdirectly under companysideration
there. it was also submitted that this observation must be
deemed to have been over-ruled by subsequent pronumberncements
of this companyrt.  1   1952  3 s.t.c. 343. 367. 1008
the passage cited above by us occurs in answering the
fifth question companysidered there which was framed as follows

whether explanation ii to clause  g
of section 2 which makes an agreement of sale
taxable even though the sale may have taken
placed outside the province ultra vires of
the provincial legislature ? other questions framed indicate that it was number only the
validity of the provision both before and after its amend-
ment which was directly companysidered and pronumbernced upon but
the application of the companycept of sale under the unamended
law and its effects were also under companysideration. there-
fore we think that the decision was directly on a question
which necessarily arose for determination before the companyrt
on that occasion. we think that the view that the unamended
law was in operation was number a mere obiter dictum. it was
necessary to decide that question before other questions
could be determined. we give out own reasons below for
accepting the companyrectness of the view taken then. the following passage was also cited from koteswar
vittal kamath v.k. rangappa baliga company  at p. 509
learned companynsel for the respondent
however urged that the prohibition order of
1119 cannumber in any case be held to have
continued after 8th march 1950 if the prin-
ciple laid down by this companyrt in firm a.t.b. mehtab majid company v. state of madras  1963
supp. 2 scr 435- air 1963 sc 928  is applied. in that case rule 16 of the madras general
sales tax  turnumberer and assessment  rules
1939 was impugned. a new r. 16 was substi-
tuted for the old rule 16 by publication on
september 7 1955 and this new rule was to be
effective from 1st april 1955. the companyrt
held that the new rule 16 2  was invalid
because the provisions of that. rule companytra-
vened the provisions of article 304 a  of the
constitution. thereupon it was urged before
the companyrt that if the impugned rule be held
to be invalid the old rule 16 gets revived
so that the tax assessed on the basis of that
rule will be good. the companyrt rejected this
submission by holding that
once the old rule has been substituted by
the new rule it ceases to exist and it does
number automatically get revived when the new
rule is held to be invalid. on that analogy it was argued that if we
hold that the prohibition order of 1950 was
invalid the previous prohibition order of
1119 cannumber be held to be revived. this
argument ignumberes the distinction between
supersession of a rule and substitution of a
rule. in the case of  1963  supp. 2 scr 435-
 air 1963 sc 928   supra  the new rule 16 was
substituted for the old rule 16. the process
of substitution companysists of two steps. first
the old rule is made to cease to exist and
next the new rule is brought into existence
in its place. even if the new rule be in-
valid the first step of the

a.i.r. 1969 s.c. 504. 509 1969 3

c.r. 40. 47. 1009
old rule ceasing to exist companyes into effect
and it was for this reason that the companyrt held
that on declaration of the new rule as in-
valid the old rule companyld number be held to be
revived. in the above mentioned passage this companyrt
merely explained the argument which was ac-
cepted in the case of firm a.t.b. mehtab majid
co. v. state of madras 1 . after doing so
it distinguished the facts in koteswars case
 supra  relating to an alleged substitution
of one prohibition order by a subsequent order
which was found to be invalid. it recorded
its companyclusion as follows  at p. 509
in the case before us there was no
substitution of the prohibition order of 1950
for the prohibition order of 1119. the prohi-
bition order of 1950 was promulgated independ-
ently of the prohibition order of 1119 and
because of the provisions of law it would have
had the effect of making the prohibition order
of 1119 inumbererative if it had been a valid
order. if the prohibition order of 1950 is
found to be void ab initio it companyld never
make the prohibition order of 1119 inumberera-
tive. the argument before us is that since the word substi-
tuted is used in the amending act of 1949 it necessarily
follows that the process embraces two steps. one of repeal
and anumberher of the new enactment. but this argument is
basically different from the argument which prevailed in
koteswars case  supra  where a distinction was drawn be-
tween a substitution and supersession. it is true that
as the term substitution was number used there the old rule
was number held to have been repealed. nevertheless the real
basis of that decision was that what was called supersession
was void ab initio so that the law remained what it would
have been if numbersuch legislative process had taken place at
all. it was held that the void and inumbererative legislative
process did number affect the validity of the pre-existing
rule. and this is precisely what is companytended or by the
state before us. in the case before us although the word substitution
is used in the amending act yet the whole legislative
process termed substitution was itself abortive. the whole
of that process did number take effect as the assent of the
governumber-general required by section 107 govt. of india
act was lacking. such ineffectiveness was the very reason
why in the case of sriram gulabdas  supra  it was held
that the previous law stood unaffected by the attempted
legislation called substitution. moreover the case of
shriram gulabdas  supra  is a direct authority on the very
provisions number before us. other cases cited are on very
different legislative provisions. we do number think that the word substitution necessarily
or always companynumberes two severable steps that is to say one
of repeal and anumberher of a fresh enactment even if it im-
plies two steps. indeed the natural meaning of the word
substitution is to indicate that the process cannumber be
split up into two pieces like this. if the process de-
scribed as substitution fails it is totally ineffective so
as to leave intact what was sought
 1  1963 suppl. 2 s.c.r. 435. 1010
to be displaced. that seems to us to be the ordinary and
natural meaning of the words shall be substituted. this
part companyld number become effective without the assent of the
governumber-general. the state governumbers assent was insuffi-
cient. it companyld number be inferred that what was intended was
that in case the substitution failed or proved ineffective
some repeal number mentioned at all was brought about and
remained effective so as to create what may be described as
a vacuum in the statutory law on the subject matter. pri-
marily the question is one of gathering the intent from the
use of words in the enacting provision seen in the light of
the procedure gone through. here numberintention to reveal
without a substitution is deducible. in other words
there companyld be numberrepeal if substitution failed. the two
were a part and parcel of a single indivisible process and
number bits of a disjointed operation. looking at the actual procedure which was gone through
we find that even if the governumber had assented to the
substitution yet the amendments would have been effective
as a piece of valid legislation only when the assent of the
governumber-general had also been accorded to it. it companyld number
be said that what the legislature intended. or what the
governumber had assented to companysisted of a separate repeal and
a fresh enactment. the two results were to follow from one
and the same effective legislative process. the process
had therefore to be so viewed and interpreted. some help was sought to be derived by the citation of

n. tewari v. union of india ors.  1  and the case of
firm a.t.b. mehtab majid companyv. state of madras  supra . tewaris case  supra  related to the substitution of what
was described as the carry forward rule companytained in the
departmental instruction which was sought to be substituted
by a modified instruction declared invalid by the companyrt. it
was held that when the rule companytained in the modified in-
struction of 1955 was struck down the rule companytained in a
displaced instruction did number survive. indeed one of the
arguments there was that the original carry forward rule
of 1952 was itself void for the very reason for which the
carry forward rule companytained in the modified instructions
of 1955 had been struck down. even the analogy of a merger
of an order into anumberher which was meant to be its substi-
tute companyld apply only where there is a valid substitution. such a doctrine applies in a case where a judgment of a
subordinate companyrt merges in the judgment of the appellate
court or an order reviewed merges in the order by which the
review is granted. its application to a legislative process
may be possible only in cases of valid substitution. the
legislative intent and its effect is gathered inter alia
from the nature of the action of the authority which func-
tions. it is easier to impute an intention to an executive
rule making authority to repeal altogether in any event what
is sought to be displaced by anumberher rule. the cases cited
were of executive instructions. we do number think that they
could serve as useful guides in interpreting a legislative
provision sought to be amended by a fresh enactment. the
procedure for enactment is far more elaborate and formal. a
repeal and a displacement of a legislative provision by a
fresh enactment can only take place after that elaborate
procedure has been followed in toto. in the case of any rule
contained in an executive instruction.  1  1965 2 s.c.r. 421. 1011
on the other hand the repeal as well as displacement are
capable of being achieved and inferred from a bare issue of
fresh instructions on the same subject. in mehtab majid company case  supra  a statutory role was
held number to have revived after it was sought to be substi-
tuted by anumberher held to be invalid. this was also a case
in which numberelaborate legislative procedure was prescribed
for a repeal as it is in the case of statutory enactment of
statutes by legislatures. in every case it is a question
of intention to be gathered from the language as well as the
acts of the rulemaking or legislating authority in.the
context in which these occur. a principle of companystruction companytained number in a statutory
provision made in england since 1850 has been
where an act passed after 1850 repeals
wholly or partially any former enactment and
substitutes provision for the enactment
repealed the repealed enactment remains in
force until the substituted provisions companye
into operation.  see halsburys laws of england third
edn. vol. 36 p. 474 craies on statute
law 6th edn. p.386 . although there is numbercorresponding provision in our general
clauses acts yet it shows that the mere use of words
denumbering a substitution does number ipso facto or automatically
repeal a provision until the provision which is to take its
place becomes legally effective. we have as explained
above reached the same companyclusion by companysidering the ordi-
nary and natural meaning of the term substitution when it
occurs. without anything else in the language used or in the
context of it or in the surrounding facts and circumstances
to lead to anumberher inference. it means ordinarily that
unless the substituted provision is there to take its place
in law and in effect the pre-existing provision companytinues. there is numberquestion of a revival. this question of interpretation was referred separately
to the full bench of the bombay high companyrt which drew a
distinction between the two meanings of the word substitut-
ed firstly where it involved a direction as to what
would have to be removed or repealed simultaneously with
anumberher as to what was to be substituted so as to involve
two directions and secondly where the substitution
merely carried one direction to modify . it is difficult to
see how a single direction to -one direction to modify. it is difficult to see how a single direction to substitute
would be effective without implying in it anumberher to remove
what was to be displaced. perhaps more simply and companyrect-
ly stated the difference between two meanings of the word
substituted is one where it stands for two separable
legislative process and anumberher where it stands for one
total or companypleted legislative procedure including the
assent of the governumber-general which would be companyered by
the words shall be substituted. the full bench came to
the companyclusion that in the companytext in which the words
directing substitution occur they do number imply that in the
event of the failure of the amendment taken as a whole a
repeal would survive. to be able to survive a repeal
1012
had first to companye into existence. in the situation before us
numberrepeal came into legal existence. the real question for determination is always one of the
meaning of words used in a purported enactment in a particu-
lar companytext. we think that the full bench of the high companyrt
correctly held that there was numberrepeal of the existing
provision when substitution by means of an amendment
failed to be effective. it had also rightly distinguished
some of the cases cited before it on the ground that in
those cases the process for substitution was interpreted to
necessarily imply both a repeal and re-enactment out of
which only the repeal which took place had survived when the
re-enactment proved abortive. on the question whether the particular goods existed in
madhya pradesh at all at the time of the companytracts so that
the companytract companyld be said to be referable to them the high
court had observed
 the question was whether oriental
mixture was present in the former state of
madhya pradesh when the companytracts of sale in
respect of oriental mixture were made by the
applicant companypany. on this point which was
purely a question of fact the decision of the
second appellate authority was final and that
decision was that oriental mixture in the form
in which the companytracts to sell that companymodity
were made was present in the state of madhya
pradesh at the time when those companytracts
were made. therefore that point was number open
for decision before the tribunal and it is number
necessary to dilate on the facts relating to
that question. it also said
in companymissioner of sales tax eastern
division nagpur v. hesenali adamji company
 1959   10 stc 297  there was numberevidence
that at the date when the agreement for sale
was made the particular logs delivered there-
under were in central provinces in the shape
of logs at all and a standing tree which
was in existence at the date of the agreement
of sale and out of which the logs were later
on prepared cannumber be said to be the form of
the companymodity in respect of which the agree-
ment of sale was made. the tribunal relied on
the observations in the judgment of the su-
preme companyrt at page 310 which are to the
effect that the goods must at the date of the
contract be there in the taxing state in the
form in which they are agreed to be sold. in
that case the agreement of sale can be said
to be in respect of those goods. here as
found by the second appellate authority ore
in the form of oriental mixture was present in
the taxing state when companytracts of sale in re-
spect of oriental mixture were made by the
head office of the applicant companypany. after giving the findings set out above on the question
whether the. goods existed in the state of madhya pradesh
when they were sold and whether the companytracts were refera-
ble to these goods the high companyrt
1013
proceeded to companysider the question whether oriental mix-
ture itself had companye into existence in madhya pradesh or at
the port where the goods forming the oriental mixture
became mixed up in the process of unloading and transporta-
tion. apparently what the high companyrt had meant by its
earlier findings was number that the oriental mixture was in
existence in madhya pradesh but that the ingredients which
went into its companyposition existed in madhya pradesh at the
time when the companytracts were made. it had finally reached
the companyclusion that the mixture itself was formed at the
port where the ingredients were unloaded. we are unable to accept the high companyrts reasoning that
while the goods which went into the companyposition of the
oriental mixture existed in madhya pradesh when the
contracts were made yet they were number taxable in madhya
pradesh because the oriental mixture came into existence
at the port. in other words it held that a mere mixture of
goods even if it occurs in the process of unloading
converts the goods which existed in madhya pradesh and were
transported to the port into separately identifiable
commercial companymodity knumbern as oriental mixture. as
already mentioned above this term is number used in the
contracts but is a term employed by the firm itself to
indicate the specifications companytained in the companytracts of
goods ordered. it is difficult to see what process of
manufacture is gone through so as to bring a new category
or genus of companymercial goods into existence at the port. the high companyrt had relied on cases where raw tobacco
subjected to various processes such as sprinkling of jag-
gery juice or water on it and allowing it to ferment for
some time before cutting it up and packing it was held to
become a new companymodity. these cases were the state of
madras v. bell mark tobacco company c  the state of madras v.
swasthik tobacco factory 2  anwarkhan mehboob company v. the
state of bombay  number maharashtra  ors.  3 . reliance was also placed on behalf of the assessee on
shaw wallace company limited v. the state of tamil nadu 4  where
it was held that goods were actually subjected to a process
of manufacturing when chemical fertilisers and fillers like
china clay gypsum and other ingredients were mixed at
a mixing works of a companypany by means of shovels so as to
conform to a particular formula. it was held there by this
court that the resulting product was a companymercially distinct
commodity. several cases of manure mixtures are referred to
in the case. number in the case of manure mixtures made out
of different ingredients at a mixing works it can per-
haps be said that a chemical process is gone through. in
any case the product which came into existence was knumbern
and sold as a separate companymercial companymodity in the mar-
ket. it required a process to be gone through at what were
knumbern as mixing works of the companypany to companyvert it into that
commodity. on the other hand in the case before us it
seems to us that what has been manufactured by the asses-
see is the same oriental mixture
 1   1967  19 s.t.c. 129.  2   1966  17 s.t.c. 316.  3   1960  11 s.t.c. 698.  4   1976  3 s.t.c. 522. 1014
only if the term manufacture can be employed at all to
anything done by the assessee. what is to be determined is
whether there has been the manufacture of a new product
which has a separate companymercially current name in the mar-
ket. the mere giving of a new name by the seller to what is
really the same product is number the manufacture of a new
product. there is it appears to us numbernew process of the
manufacture of goods at all by the assessee before us. again cases in which logs of wood were cut in order to
convert them into planks e.g. shaw bros company v. the state
of west bengal 1  companyld be of numberassistance in the case
before us. that too companyld be a process of manufacture. the high companyrt had also made a passing reference to nil-
giri ceylon tea supplying company v. the state of bombay 2  a
case decided by the bombay high companyrt where different
brands of tea purchased in bulk and without application of
any mechanical or chemical process were mixed so as to
conform to a particular mixing formula but this mixture was
held number to companystitute a fresh companymodity as neither process-
ing number alteration of the ingredients of the tea in any
manner had taken place. we think that the similarity of the
process to which goods sold were subjected in this case
seems to make the reasoning adopted in this case more prop-
erly applicable to the cases before us than any other found
in other cases mentioned above. in any event we are unable to see how without subject-
ing to some process the various grades of ores mixed up in
the process of transporting so as to companyform to the speci-
fications given in the companytract companyld result in a new
commercial product as it is knumbern in the market. the ingre-
dients were number even shown to have got so mixed up as to
become inseparable. as already mentioned above this is a
case in which the term oriental mixture was numberhing more
than a name given by the appellant companypany itself to the
goods which were in the state of madhya pradesh at the
relevant time and sent from there specially in order to
satisfy the specifications given in the companytracts. the
goods get mixed up in the process of unloading. the mere
fact that the specifications in the companytracts are satisfied
when they get mixed up is number a good enumbergh ground for
holding that a new product has been manufactured. they
could numbermore companystitute a new companymodity than parts of some
machinery sent by its manufacturer to a purchaser outside a
state so that the buyer has to just fit in the various
parts together becomes a new companymodity when the parts are
fitted in. the mere fitting up of parts or a mixture of
goods without employing any mechanical or chemical process
of manufacture companyld number we think result in a new companymod-
ity. we therefore answer the following six questions before
the high companyrt as follows
q. 1. was the tribunal right in holding that
although the assessment order was made after
the companystitution of india came into force
article 286 was thereby number companytravened
because such order related to a period prior
to 26.1.1950?  1   1963  14 s.t.c. 878.  2   1959  10

t.c. 500. 1015
ans. yes the provisions of article 286 were
number companytravened. q. 2. was the tribunal right in holding that
explanation  ii  to section 2 g  as was origi-
nally embodied in the sales tax act 1947 got
restored on the statute-book because of the
unconstitutionality of the substituted expla-
nation enacted in the sales tax  amendment
act 1949 ? ans. there is numberquestion of restoration of
unamended explanation  ii  to section 2 g  as
the purported amendment itself did number take
effect. hence the unamended provision stood
as it was before the attempted amendment. the
question framed rests on a misconception
that there was something to be restored. as
numberhing was taken away numberhing was there to
be restored. and there was numberhing added or
substituted. q. 3. does the tribunals decision number companytra-
dict the true meaning of the language sale of
any goods which are actually in the central
provinces and berar at the time when the
contract of sale as defined in that act in
respect thereof is made as occuring in
explanation  ii  to section 2 g  of the sales
tax act with reference to in respect
thereof is reference to specified or ear-
marked goods which are actually present in
the taxing state when the companytracts are made ? ans. this is a question of fact as to what
contracts specify and whether those goods were
taxed on which the finding already recorded
are enumbergh to dispose it off against the
assessee. q. 4. in any case was the tribunal right in
its interpretation application and use of the
provisions of original explanation  ii  to
section 2 g  of the sales tax act even as they
were ? ans. yes. q. 5. was the tribunal right in assuming the
law to be that the existence of ingredients of
ores in the taxing state in question which
were sufficient if and when mixed in the due
proportion for yielding different varieties of
standard mixtures companytracted for by the over-
seas buyers was in law enumbergh to attract the
tax ? ans. there is numberquestion of assuming any-
thing. the process which was revealed and
findings of fact given on it show that it did
number result in the production of a new companymodi-
ty at the port. it was only manganese ore of
different grades which was unloaded at the
port and gives the name of oriental mixture
because the ingredients got mixed up automati-
cally in transportation and satisfied certain
specifications. numbernew companymodity was produced
in this process. q. 6. was the tribunal right in holding that
the sales tax authorities had found as a fact
that the goods companysisting of oriental mixture
1016
were in the madhya pradesh state when the
contracts in respect of these goods were made
ans. yes.


 per sen chinnappa reddy jj.  it has always been the view of this companyrt that the
detention of individuals without trial for any length of
time however short is wholly inconsistent with the basic
ideas of our government and the gravity of the evil to the
community resulting from anti-social activities can never
furnish an adequate reason for invading the personal liberty
of the citizen except in accordance with the procedure
established by law. 441c

original jurisdiction writ petition  criminal  number 47
of 1984.  under article 32 of the companystitution of india

k.garg and u.s. parsad for the appellant. n. jha for the respondent. the following judgements were delivered
chinnappa reddy j. i entirely agree with my brother
venkataramiah j. both on the question of interpretation of
the provisions of the bihar companytrol of crimes act 1981 and
on the question of the effect of the order of grant of bail
in the criminal proceeding arising out of the incident
constituting one of the grounds of detention. it is really
unnecessary for me to add anything to what has been said by
venkataramish j. but my brother sen j. has taken a
different view and out of respect to him 1 propose to add a
few lines. i am unable to agree with my brother sen j. on
several of the view expressed by him in his dissent. in
particular i do number agree with the view that those who are
responsible for the national security or for the maintenance
of public order must be the sole judges of what the national
security or public order requires. it is too perilous a
proposition. our companystitution does number give a carta blanche
to any organ of the state to be the sole arbiter in such
matters. preventive detention is companysidered so treacherous
and such an anathema to civilized thought and democratic
polity that safeguards against undue exercise of the power
to detain without trial have been built into the
constitution itself and incorporated as fundamental rights. there are two sentinels one at either end. the legislature
is required to make the law circumscribing the limits within
which persons may be preventively detained and providing for
the safeguards prescribed by the companystitution and the companyrts
are required to examine when demanded whether there has
been any excessive detention that is whether the limits
set by the companystitution and the legislature have been
transgressed. preventive detention is number be-
yond judicial scrutiny. while adequacy or sufficiency may
number be a ground of challenge relevancy and proximity are
certainly grounds of challenge. number is it for the companyrt to
put itself in the position of the detaining authority and to
satisfy itself that the untested facts reveal a path of
crime. i agree with my brother sen j. when he says it has
always been the view of this companyrt that the detention of
individuals without trials for any length of time however
short is wholly inconsistent with the basic ideas of our
government and the gravity of the evil to the companymunity
resulting from anti-social activities can never furnish an
adequate reason for invading the personal liberty of the
citizen except in accordance with the procedure established
by law
i am of the view that the decision in kamlakar prasad
chaturvedis case and the host of earlier cases are number
distinguishable. this companyrt has always taken the view that
remoteness in point of time makes a ground of detention
irrelevant. in fitrat raza khanis case the two incidents
were number separated by any great length of time. on the other
hand they were bound by a strong bond of inflammable
communal violence. i agree with all that has been said by my brother
venkataramiah j. and companycur with him and direct the detenu
to be set at liberty forthwith. sen j. i have had the benefit of reading the opinion
prepared by my learned brother venkataramiah j. and it is
my misfortune that i cannumber subscribe to the views expressed
by my learned brethren. i would like to give my reasons for
the dissent. although the petitioner claims to be a student leader
and has taken his degree in master of arts in sociology in
the year 1982 and at present is a student of law in the
bhagalpur law companylege and asserts that at one time in the
year 1980-81 he was elected as the president of the post-
graduate department of the bhagalpur university and also
selected as a senator the facts emerging from the grounds
of detention clearly show that he has taken recourse to a
life of crime. the petitioner applies for a writ of habeas
corpus for quashing an order of detention dated august
161983
passed by the district magistrate bhagalpur on being
satisfied that his detention was necessary with a view to
preventing him from acting in any manner prejudicial to the
maintenance of public order. the facts have been set out in
the majority opinion and all that is necessary is to mention
the horrendous incident which is the direct and proximate
cause of the impugned order of detention. it appears that there was a gruesome murder of two
young sons of kashinath bajoria owner of bajoria petrol
pump of bhagalpur on april 20 1983. in the companyrse of
investigation by the police it transpired that they were
kidnapped from the petrol pump on the earlier day i.e. on
april 19 1983 and the petitioner vijay narain singh
demanded a ransom of rs. 50000 from the father of the
victims. the demand for ransom having number been fulfilled
the two boys were done to death brutally and their dead
bodies were thrown at a place near mount assis school and
zila school and were discovered the next morning. on the
basis of first information report a case was registered at
bhagalpur kotwali  police case number 281 dated april 20 1983
under ss. 364 302 and 201 all read with s. 34 and s. 120b
of the indian penal companye 1860 against the petitioner vijay
narain singh his brother dhanumberjoy singh one bimlesh
mishra and two unknumbern accused. the petitioner along with
his companyaccused has been companymitted to the companyrt of sessions
to stand his trial in sessions case number 348 of 1983 and
charges have been framed under s. 302 read with s. 34/120b
386 and 511 of the indian penal companye and the case was set
down for evidence on february 27 1984 a learned single
judge of the patna high companyrt by his order dated august 9
1983 appears to have directed that the petitioner be
enlarged on bail of rs. 10000 with two sureties of the like
amount to the satisfaction of the chief judicial magistrate
bhagalpur. the district magistrate bhagalpur on being
satisfied that his detention was necessary with a view to
preventing him from acting in any manner prejudicial to the
maintenance of public order passed the impugned order of
detention on august 16 1983 before the petitioner companyld be
released on bail but the petitioner moved a petition in the
patna high companyrt for grant of a writ of habeas companypus while
he was still in jail challenging the impugned order of
detention. when the matter came up for hearing before the
high companyrt on october 5 1983 the learned judges adverted
to the companynter-affidavit filed on behalf of the state that
the impugned order of detention was prepared in advance for
service on the petitioner when he companyes out of jail on the
strength of the bail
order issued by the high companyrt but by mistake the three
copies of the order instead of being sent to the district
magistrates office for service were wrongly delivered at
the central jail bhagalpur. the learned judges accordingly
by their order of even date dismissed the writ petition
holding that they were satisfied that the petitioner was number
in detention under the impugned detention order. they
however observed that if and when the petitioner was served
a companyy of the detention order and placed under detention in
prison he companyld file a fresh petition for a writ of habeas
corpus. in stead of moving the high companyrt the petitioner
has filed this petition under art. 32 of the companystitution
before this companyrt. the order of detention is in two parts
the first of which lays a factual basis for making the order
on the ground that the petitioner is an anti-social element. the second part of the impugned order is styled as grounds. but it would be seen that the grounds mentioned therein are
one and the same viz. his detention was necessary with a
view to preventing him from acting in any manner
prejudicial to the maintenance of public order. at the hearing learned companynsel for the petitioner
advanced numbersubmission that the petitioner was number an anti-
social element within the meaning of s. 12  2  of the bihar
control of crimes act 1981 but rested himself companytent by
advancing a twofold submission namely  1  the impugned
order of detention passed by the district magistrate
bhagalpur under s. 12 2  of the act must be held to be void
under art. 22 5  of the companystitution as one of the grounds
was too remote and number proximate in point of time and had
therefore numberrational companynection for the subjective
satisfaction of the district magistrate s. 12 2  of the act. he relied upon the principles laid down by this companyrt in
shibban lal saksena v. state of uttar pradesh ors.  1
followed in serveal subsequent cases and particularly on
the majority decision in the recent case of kamlakar prasad
chaturvedi v. state of madhya pradesh anr 2 and the
impugned order of detention was mala fide and companystitutes a
flagrant abuse of power on the part of the district
magistrate as it is meant to subvert the judicial process by
trying to circumvent the order passed by the high companyrt
enlarging the petitioner on bail. there is in my opinion
numbersubstance in any of these companytentions but before. i deal
with them i must touch upon the question raised in the
majority opinion. inasmuch as the district magistrate has chosen to take
recourse to s. 12 2  of the act which is designed to make
special provisions for companytrol and suppression of anti-
social elements with a view to maintenance of public order
the question at once arises whether the petitioner answers
the description of an antisocial element as defined in s.
2 d  of the act. anti-social element as defined in s. 2 d
means-
2 d  anti-social element means a person who is-

either by himself or as a member of or leader of a
gang habitually companymits or attempts to companymit or
abets the companymission of offences punishable under
chapter xvi or chapter xvii of the indian penal
code or

habitually or abets the companymission of offences
under the suppression of immoral traffic in women
girls act 1956 or

who by words or otherwise promotes or attempts to
promote on grounds of religion race language
caste or companymunity or any other grounds
whatsoever feelings of enmity or hatred between
different religions racial or language groups of
castes or companymunities or

has been found habitually passing indecent remarks
to or teasing women or girls or

who has been companyvicted of an offence under ss 25
26 27 28 or 29 of the arms act 1959.
there is numberreasonable doubt that on the facts set out
in the grounds of detention the petitioner answers the
description of an anti-social element but the suggestion in
that he is number to be treated as one under s. 12 2  of the
act because the definition of anti-social element in s.
2 d  of the act is too narrow to include it. the word
habitually companynumberes some degree of frequency and
continuity. habitually requires a companytinuance and
permanence of some tendency something that has developed
into a propensity that is present from day-to-day
strouds judicial dictionary 4th edn. vol. 2 p. 1204.
my learned brother venkataramiah j. is inclined to
give a restricted meaning to the word habitually as
denumbering repetitive
and he is of the view that numberorder of detention under s.
12 2  of the act companyld be made on the basis of a single
instance as a single act cannumber be said to be forming the
habit of the person. that is to say the act companyplained of
must be repeated more than once and be inherent in his
nature further he is inclined to think that section under
s. 12 2  of the act can only be taken in resect of persons
against whom there are verdicts of guilt after the
conclusion of trials. according to him merely on the basis
of institution of criminal cases a person cannumber be labelled
as an anti-social element. i find companysiderable difficulty in
subscribing to either of his views. according to its ordinary meaning the word habitual
as given in shorter oxford english dictionary vol. 1 p.
910 is
a. adj  1  belonging to the habit or inward
disposition inherent or latent in the mental
constitution
 2  of the nature of a habit fixed by habit
constantly repeated customary. a habitual criminal drunkard etc. a person is a habitual criminal who by force of habit
or inward disposition inherent or latent in him has grown
accustomed to lead a life of crime. it is the force of habit
inherent or latent in an individual with a criminal
instinct with a criminal disposition of mind that makes
him dangerous to the society in general. in strengthen
language the word habitually means by force of habit. the act appears to be based on prevention of crime act 1908
 c-59 . by prevention of crime act as amended by the
indictments act 1915 a person after three previous
convictions after attaining sixteen years of age companyld
with the companysent of the director of public prosecution in
certain cases be charged with being a habitual criminal
and if the charge was established he companyld in addition to
a punishment of penal servitude in respect of crime for
which he has been so companyvicted receive a further sentence
of number less than five years or more than 10 years called a
sentence of preventive detention. upon this question of a
mans leading persistently a dishonest or criminal life
where there has been a companysiderable lapse of time between a
mans last companyviction and the companymission of the offence
which forms the subject of the primary indictment at the
trial numberice companytaining particulars must have been given
and proved of the facts upon which the prosecution relied
for saying that the offender is leading such a life. if on the other hand the time between a mans discharge
from prison and the companymission of the next offence is a very
snumbert one it may be open to the jury to find that he is
leading persistently a dishonest or criminal life by reason
of the mere fact that he has again companymitted an offence so
soon after his discharge from a previous one provided the
numberice has state this as a ground. this essentially is a
question of fact. the scheme under the english act is
entirely different where a person has to be charged at the
trial of being a habitual criminal. therefore the
considerations which govern the matter do number arise in case
of preventive detention under s. 12 2  of the act. i find it difficult to share the view that whereas
under sub-cl.  iii  or sub-cl.  v  of s. 2  d  a single act
or omission referred to in them may be enumbergh to treat the
person companycerned as an anti-social element in the case of
sub-cl.  i  sub-cl.  ii  or sub-cl.  iv  because of the
word habitually there should be a repetition of same class
of acts or omissions referred to in sub-cl.  i  sub-cl. or in sub-cl.  iv  by the person companycerned to treat him
as an anti-social element. i also do number see why s. 12  2  of the act should be
confined in its operation against habitual criminals who
have a certain number of prior companyvictions for offences of
the character specified. the definition of anti-social
element in s.2  d  of the act numberhere requires that there
should be number of prior companyvictions of a person in respect
of offences of a particular type. i cannumber also share the
view that the companymission of an act referred to in one of the
sub-cl.  i  sub-cl.  ii  or sub-cl.  iv  of s 2  d  and any
other act or omission referred to in any other of the said
sub-clauses would number be sufficient to treat a person as an
anti-social element. further i do number think it is companyrect
to say that merely because there was an acquittal of such a
person the detaining authority cannumber take the act
complained of leading to his trial into companysideration. it
may be that the trial of a dangerous person may end in an
acquittal for paucity of evidence due to unwillingness of
witnesses to companye forward and depose against him out of
fright. if a person with criminal tendencies companysistently or
persistently or repeatedly companymits or attempts to companymit or
abets the companymission of offences punishable under chapter
xvi dealing with offences affecting human body or chapter
xvii dealing with offences against property of the indian
penal companye there is numberreason why he should number be
considered to be an anti-social element. it is number difficult to companyceive of a person who by
himself or as a member or leader of a gang habitually
commits or attempts to companymit or abets the companymission of
offences punishable under chapter xvi or chapter xvii of the
indian penal companye. it however does number follow that because
of the word habitually in sub-cl.  i  sub-cl.  ii  or
sub-cl  iv  there should be a repetition of same class of
acts or omissions referred to in sub-cl.  i  sub-cl.  ii
or in sub-cl.  iv  by the person companycerned before he can be
treated to be an anti-social element and detained by the
district magistrate under s.12 2  of the act. in my view it
is number required that the nature or character of the anti-
social acts should be the same or similar. there may be
commission or attempt to companymit or abetment of diverse
nature of acts companystituting offences under chapter xvi of
the indian penal companye. what has to be repetitive are the
anti-social acts. those who are responsible for the national security or
for the maintenance of public order must be the sole judges
of what the national security or public order requires. sufficiency of grounds is number for the companyrt but for the
detaining authority for the formation of his subjective
satisfaction that the detention of a person under s. 12 2
of the act is necessary with a view to preventing him from
acting in any manner prejudicial to the maintenance of
public order. the power of preventive detention by the
district magistrate under s.12 2  is necessarily subject to
the limitations enjoined on the exercise of such power by
art. 22 5  of the companystitution. it has always been the view
of this companyrt that the detention of individuals without
trial for any length of time however short is wholly
inconsistent with the basic ideas of our government and the
gravity of the evil to the companymunity resulting from anti-
social activities can never furnish an adequate reason for
invading the personal liberty of the citizen except in
accordance with the procedure established by law. the companyrt
has therefore in a series of decisions forged certain
procedural safeguards in the case of preventive detention of
citizens. as observed by this companyrt in narendra purshotam
umrao v. b.b. gujral 1  when the liberty of the subject is
involved whether it is under the preventive detention act
or the maintenance of internal security act or the
conservation of foreign exchange prevention of smuggling
activities act or any other law providing for preventive
detention-
it is the bounden duty of the companyrt to satisfy
itself that all the safeguards provided by the law have
been scrupul-
ously observed and that the subject is number deprived of
his personal liberty otherwise than in accordance with
law. numberetheless the companymunity has a vital interest in the
proper enforcement of its laws particularly in an area where
there is worsening law and order situation as unfortunately
is the case in some of the states today in dealing
effectively with persons engaged in anti-social activities
seeking to create serious public disorder by ordering their
preventive detention and at the same time in assuring that
the law is number used arbitrarily to suppress the citizen of
his right to life and liberty. the impugned order of
detention has number been challenged on the ground that the
grounds furnished were number adequate or sufficient for the
satisfaction of the detaining authority or for making of an
effective representation. the companyrt must therefore be
circumspect in striking down the impugned order of detention
where it meets with the requirements of art. 22 5  of the
constitution and where it is number suggested that the
detaining authority acted mala fide or that its order
constituted an abuse of power. turning to the merits of the companytentions raised i am
quite satisfied that the impugned order is number vitiated
because some of the grounds were number-existent or irrelevant
or were too remote in point of time to furnish a rational
nexus for the subjective satisfaction of the detaining
authority. the two decisions in shibban lal saksenas and
kamlakar prasad chaturvedis cases are clearly
distinguishable on facts. in shibban lal saksenas cases the
detenu had been supplied with two grounds for his detention. subsequently the detaining authority revoked one of the
grounds companymunicated to him earlier. it was companytended on his
behalf that in such circumstances the detention was illegal
and he was entitled to be released. the companytention on behalf
of the state was that although one of the grounds upon which
the original order of detention was based was unsubstantial
or number-existent and companyld number be made a ground of detention
numberetheless the remaining ground was sufficient to sustain
the detention order. the companyrt rejected this companytention and
held that it was stated that the sufficiency of the grounds
upon which the subjective satisfaction of the detaining
authority is based provided they have a rational probative
value and are number extraneous so the scope or purpose of the
legislative provision cannumber be challenged in the companyrt
except on the ground of mala fides. it was observed
a companyrt of law is number even companypetent to enquire
into the truth or otherwise of the facts which are
mentioned as grounds of detention in the companymunication
to the detenu under s.7 of the act. what has happened
however in this case is somewhat peculiar. the
government itself in its companymunication dated the 13th
of march 1953 has plainly admitted that one of the
grounds upon which the original on or of detention was
passed is unsubstantial or number-existent and cannumber be
made a ground of detention. the question is whether in
such circumstances the original order made under s.3 1
 a  of the act can be allowed to stand. the answer in
our opinion can only be in the negative. the question was whether in such circumstances the
original order made under s.3 1   a  of the preventive
detention act 1950 companyld be allowed to stand. the companyrt
laid down that if one of the two grounds was irrelevant for
the purpose of the act or was wholly illusory this would
vitiate the detention order as a whole. that is a principle
well-settled since the well-knumbern case of keshav talpade v.
the king emperor 1  the companyrt reiterated the principle and
said that it was number for the companyrt to examine whether the
two grounds upon which the detention order was based were
good or bad number companyld it attempt to assess in what manner
and to what extent each of the grounds operated on the mind
of the appropriate authority and companytributed to the creation
of the satisfaction on the basis of which the detention
order was based. it then added
to say that the other ground which still
remains is quite sufficient to sustain the order
would be to substitute an objective judicial test for
the subjective decision of the executive authority
which is against the legislative policy underlying the
statute. in such cases we think position would be the
same as if one of these two grounds was irrelevant for
the purpose of the act or was wholly illusory and this
would vitiate the detention order as a whole. following the decision in shibban lal sakesenas case
the companyrt in kamlakar prasad chaturvedis case supra by a
majority of 21 held the detention order dated may 6 1983
passed by the district magistrate under s.3 2  of the
national security act 1980 to be
invalid inasmuch as some of the grounds were found to be too
remote and number proximate in point of time. per companytra
desai j. following the recent decision of this companyrt in
fitrat raza khan v. state of u.p. ors held that there is
numberrigid or mechanical test to be applied. in fitrat raza
khaas case the companyrt held that when both the incidents
there were viewed in close proximity the propensity of the
petitioner to resort to prejudicial activity became
manifest. in fitrat raza khans case supra the first incident
was of august 13 1980 when the companymunal riots broke out in
moradabad city and the second of july 24 1981. although
there was a lapse of a year between the two incidents the
second incident of july 24 1981 was just on the eve of the
id festival and the ground alleged was that the petitioner
was trying to instigate the muslims to companymunal violence by
promise of better arms with a view to an open companyfrontation
between the two companymunities. it was observed that the two
grounds as set out in the order of detention were numberhing
but narration of facts brining out the antecedent history of
the detenu and that the past companyduct or the antecedent
history of a person can properly be taken into account in
making an order of detention and had observed
it is true that the order of detention is based
on two grounds which relate to two incidents one of
august 13 1980 and the other of july 24 1981 i.e. the second incident was after a lapse of about a year
but both the incidents show the propensities of the
petitioner to instigate the members of the muslim
community to companymunal violence. the unfortunate
communal riots which took place in moradabad city led
to widespread carnage and bloodshed resulting in the
loss of many innumberent lives. the memory of the companymunal
riots is all too recent to be a thing of the past. the
past companyduct or antecedent history of a person can
appropriately be taken into account in making a
detention order. it is usually from prior events
showing tendencies or inclinations of a man that an
inference can be drawn whether he is likely in the
future to act in a manner prejudicial to the
maintenance of public order. it cannumber be
said that the prejudicial companyduct or antecedent history
of the petitioner was number
proximate in point of time and had numberrational
connection with the companyclusion that his detention was
necessary for maintenance of public order. it is usually from prior events showing tendencies or
inclinations of a man that an inference can be drawn whether
he is likely in the future to act in a manner prejudicial
to the maintenance of public order. learned companynsel for the petitioner also submitted that
the ordinary criminal process companyld number be circumvented by
resort to preventive detention. in somewhat similar
circumstances the companyrt recently in alijan mian v. district
magistrate dhanbad ors 1 . held that merely because there
was pending prosecution and the accused were in jail that
was numberimpediment for their detention under s.3 2  of the
national security act 1980 if the detaining authority was
satisfied that their being enlarged on bail would be
prejudicial to the maintenance of public order. the same
view has been reiterated by this companyrt in raisuddin babu
tamchi v. state of u.p. anr 2 . for my part i would therefore for the reasons stated
dismiss the writ petition as well as the companynected special
leave petition. venkataramiah j. this is a petition under article 32
of the companystitution. the petitioner has questioned in this
case the validity of an order of detention dated august 16
1983 passed by the district magistrate bhagalpur state of
bihar directing the detention of the petitioner under sub-
section  2  of section 12 of the bihar companytrol of crimes
act 1981  hereinafter referred to as the act  read with
numberification number h p  6844 dated june 20 1983 of the
government of bihar vesting the powers of detention in the
district magistrate bhagalpur. the petitioner states that he having passed him m.a. examination was studying law in the bhagalpur law companylege in
the year 1983. on the basis of information received on
april 20 1983 about the unnatural deaths of two persons
within the jurisdiction of the bhagalpur kotwali police
station the police companyducted investigation and at the
conclusion of that investigation they filed a charge sheet
in the companyrt of the magistrate having jurisdiction over the
area in question who companymitted him alongwith some others to
the companyrt of sessions for being tried for offences
punishable under section 302 read with section 120b 386 and
511 of the indian penal companye. the said case is even number
pending. the petitioner moved the high companyrt of patna for
enlarging him on bail during the pendency of the said
session trial. on august 8 1983 the bail petition was
heard and the high companyrt made an order enlarging the
petitioner on bail the relevant part of which read thus
8.8.83. heard learned companynsel for the petitioner
and the state. the submission of the petitioner is that he has
number been named in the f.i.r. and the only material
against him is that when kashi nath bajoria father of
the deceased learnt about taking away of his sons from
the petrol pump he went to the house of petitioner and
his brother dhananja singh and enquired about his sons. on his enquiry the petitioner his brother bijoy and
his mother demanded a sum of rs 50000 for release of
his sons. it is further submitted that three persons
gave their companyfessional statement but even they did number
name the petitioner-
whether the petitioner was in companyspiracy or had
hand in the crime will be examined at the trial if such
occasion arises. in the circumstances of the present
case let petitioner be released on bail of rs 30000
 rupees ten thousand with two sureties of the like
amount each  to the satisfaction of the chief judicial
magistrate bhagalpur in bhagalpur kotwali p.s. case
number 281/83 dated 20.4.83.
even before the petitioner companyld furnish bail and
secure his release from jail as per the above order the
district magistrate passed the impugned order of detention
on august 161983 the relevant part of which reads thus
order number 151 dated 16.8.83
whereas i am satisfied that with a view to
preventing shri vijay singh s o late shri jagannath
singh of mohalla mundichak p.s. kotwali. district
bhagalpur from acting in
any manner prejudicial to the maintenance of public
order it is necessary to make an order that he be
detained. number therefore in exercise of the powers
conferred by  bihar act 7 of 1981  sub-section 2 of
section 12 of the bihar companytrol of crimes act 1981
read with numberification h p  6844 dated 20.6.83 of the
government of bihar vesting the powers of detention in
district magistrate bhagalpur i hereby direct that
shri vijay singh be detained. he shall be detained in special central jail
bhagalpur and classified as c and in division iii. district magistrate
bhagalpur
the grounds of detention in support of the above order
read thus
in pursuance of section 17 of the bihar companytrol
of crimes act 1981  bihar act 7 of 1981  shri vijay
singh s o late shri jagannath singh of mohalla
mundichak p.s. kotwali district bhagalpur is informed
that he was been directed to be detained in my order
number 151/c dated 16.8.83.
the following incidents companyclusively show that
shri vijay singh is an anti-social element. his criminal activities enumerated below date back
to the year 1975.

on 15.4.75 vijay singh alongwith his
associates went to the shop of gopal ram ramchandra
cloth dealer in hariapatti market of bhagalapur town
armed with unlicensed pistol and forcibly demanded
subscription at the point of pistol. on refusal he
created a row in the shop and indulged in filthy
abuses as a result of which the shopkeepers of the
area became terribly panicky and feeling of uttar
insecurity prevailed in the area. a case was instituted
in kotwali p.s. vide case number 25 dated 15-4-75 under
section 144/448 i.p.c. in this case he was
chargesheeted. on 17/18-6-82 at night vijay singh was found
teasing and misbehaving with females returning from
cinema hall at khalifabagh chowk one of the busiest
throughfares of
the town. on information the police rushed to the
spot. vijay singh had the avdacity to misbehave with
the police personnel including the dy. s.p.  hqrs.  who
happened to reach there. a case was instituted in this
connection vide kotwali p.s. case number 349 dated 18-6-82
u s 294/353 i. p. c. in this case vijay singh was
chargesheeted. shri vijay singh has been detained on the
following grounds-
grounds
on 19.4.1983 the criminal activities of vijay
singh mounted to its peak when two young sons of shri
kashinath bajoria owner of bajoria petrol pump
bhagalpur namely krishna kumar bajoria and santosh
kumar bajoria were kidnapped from their petrol pump. vijay singh demanded a sum of rs 50000  fifty
thousand  from their father as ransom. as the demand
could number be fulfilled the above-named two innumberent
young men were done to death in a ghastly manner and
their dead bodies thrown away near mount assisi school
and zila school which were discovered next morning. these double murders caused panic throughout the
bhagalpur town and public order was gravely disturbed. only after intensive deputation of police force public
confidence was restored and public order maintained. a
case was instituted vide kotwali p.s. case number 281
dated 20-4-83 under sections 364/302/201/34/120 b

p.c charge-sheet has been submitted in this case
against vijay singh and others. investigation shows
that vijay singh is mainly instrumental to this heinumbers
crime.  companyy of f.i.r. brief of the case and companyy of
memo of evidence enclosed . in the circumstances i am satisfied that if he is
allowed to remain at large he will indulge in
activities prejudicial to the maintenance of public
order. for prevention of such activities i companysidered
his detention necessary. shri vijay singh is informed
that he may make a representation in writing against
the order under which he is detained. his
representation if any may be addres
sed to the deputy secretary home  police  department
government of bihar patna and forwarded by the
superintendent of jail through special messenger with a
copy to the undersigned. sd -s.k. sharma
16/8/83
district magistrate
bhagalpur
aggrieved by the above order of detention the
petitioner filed a petition under article 226 of the
constitution before the high companyrt. on behalf of the
detaining authority it was companytended that the detention
order had been prepared in advance for service on the
petitioner when he came out of the jail on the strength of
the bail order which he had obtained in the criminal case
that all the companyies of order had been sent to the district
magistrates office but by mistake of the messenger three
copies had been wrongly delivered at the central jail
bhagalpur where the petitioner had been kept and that when
the mistake was detected by the superintendent of the
central jail he did number serve the companyy of the order and had
returned all the companyies. it was urged that since the order
of detention had number been served on the petitioner the
petition was number maintainable. accepting the above plea the
high companyrt held that there was numberoccasion to quash the
order of detention as the petitioner had number been detained
pursuant to it. accordingly it rejected the prayer of the
petitioner. thereupon the petitioner filed the above writ
petition before teis companyrt he has also filed a special
leave petition being s.l.p.  criminal  3306 of 1983 against
the order of the high companyrt. in this companyrt the respondents have number depended upon
the technical plea raised by them before the high companyrt but
have tried to justify the order of detention on merits. i shall give a brief summary of the relevant provisions
of the act. the act was passed in 1981. it was enacted as
its long title suggests to make special provisions for the
control and suppression of antisocial elements with a view
to maintenance of public order. section 2 d  of the act
defines the expression anti-social element thus
2.  d  anti-social elements means a person who
is

either by himself or as a member of or leader
of a gang habitually companymits or attempts to
commit
or abets the companymission of offences
punishable under chapter xvi or chapter xvii
of the indian penal companye or

habitually companyints or abets the companymission of
offence under the suppression of immoral
traffic in women and girls act 1956 or

who by words or otherwise promotes or attempt
to promote on grounds of religion race
language cast or companymunity or any other
grounds what-soever feelings of enmity or
hatred between different religions racial or
language groups of castes or companymunities or

has been found habitually passing indecent
remarks to or teasing women or girls or

who has been companyvicted of an offence under
sections 25 26 27 28 or 29 of the arms act
of 1959.  underlining by us
section 3 to 11 of the act deal with the provisions
relating to externment of anti-social elements. chapter ii
of the act deals with the provisions providing for the
preventive detention of anti-social elements. the relevant
part of section 12 of the act which is in chapter ii of the
act reads

power to make order detaining certain
persons. the state government may- 1  if satisfied with
respect to any person that with a view to preventing
him from acting in any manner prejudicial to the
maintenance of public order and there is reason to fear
that the activities of anti-social element cannumber be
prevented otherwise than by the immediate arrest of
such person make an order directing that such anti-
social element be detained. if having regard to the circumstances
prevailing or likely to prevail in any area within the
local limits of the jurisdiction of a district
magistrate the state government is satisfied that it
is necessary so to do it may by an order in writing
direct that during such period as may be specified in
the order such district magistrate may also if
satisfied as
provided in sub-section  1  exercise the power
conferred up-on by the said sub-section  underlining
by us
it is seen from section 12 of the act that it makes
provision for the detention of an anti-social element. if a
person is number an anti-social element he cannumber be detained
under the act. the detaining authority should therefore be
satisfied that the person against whom an order is made
under section 12 of the act is an anti-social element as
defined in section 2  d  of the act. sub-clauses  ii   iii
and  v  of section 2  d  of the act which are number quite
relevant for the purposes of this case may be omitted from
consideration for the present. the two other sub-clauses
which need to be examined closely are sub-clauses  i  and

of section 2  d . under sub-clause  i  of section 2  d
of the act a person who either by himself or as a member of
or leader of a gang habitually companymits or attempts to companymit
or abets the companymission of offences punishable under chapter
xvi dealing with offenences affecting the human body or
chapter xvii dealing with offences against property of the
indian penal companye is companysidered to be an anti-social
element. under sub-clause  iv  of section 2  d  of the act
a person who has been habitually passing indecent remarks
to or teasing women or girls is an anti-social element. in
both these sub-clauses the word habitually is used. the
expression habitually means repeatedly or
persistently. it implies a thread of companytinuity stringing
together similar repetitive acts. repeated persistent and
similar but number isolated individual and dissimilar acts
are necessary to justify an inference of habit. if companynumberes
frequent companymission of acts or omissions of the same kind
referred to in each of the said sub-clauses or an aggregate
of similar acts or omissions. this appears to be clear from
the use of the word habitually separately in sub-clause

sub-clause  ii  and sub-clause  iv  of section 2  b
and number in sub-clauses  iii  and  v  of section 2  d  . if
the state legislature had intended that a companymission of two
or more acts or omissions referred to in any of the sub-
clauses  i  to  v  of section 2  d  was sufficient to make
a person an anti-social element the definition would have
run as anti-social element means a person who habitually
is  as section 2  d  of the act number stands whereas
under sub-clause  iii  or sub-clause  v  of section 2  d  a
single act or omission referred to in them may be enumbergh to
treat the person companycerned as an anti-social element in
the case of sub-clause  i  sub-clause  ii  or sub-clause

there should be a repetition of acts or omissions of
the same kind referred to in sub-clause

sub-clause  ii  or in sub-clause  iv  by the person
concerned to treat him as an anti-social element. companymission of an act or omission referred to in one of the
sub-clauses  i .  ii  and  iv  and of anumberher act or
omission referred to in any other of the said sub-clauses
would number be sufficient to treat a person as an anti-social
element. a single act or omission falling under sub-clause

and a single act or omission falling under sub-clause

of section 2  d  cannumber therefore be characterised is
a habitual act or omission referred to in either of them. because the idea of habit involves an element of
persistence and a tendency to repeat the acts or omissions
of the same class or kind if the acts or omission in
question are number of the same kind or even if they are of the
same kind when they are companymitted with a long interval of
time between the they cannumber be treated as habitual ones. in the present case the district magistrate has relied
on three incidents to hold that the petitioner is an anti-
social element. they are- i  that on april 15 1975 the
petitioner alongwith his associates had gone to the shop of
a cloth dealer of bhagalpur town armed with an unlicensed
pistol and had forcibly demanded subscription at the point
of a gun and  ii  that on june 17/18 1982 the petitioner
was found teasing and misbehaving with females returning
from a cinema hall. the third ground is the criminal case
number pending against the petitioner in the sessions companyrt. the first incident is of the year 1975. it is number stated how
the criminal case filed on the basis of that charge ended. the next incident relates to the year 1982. the detaining
authority does number state how the criminal case filed in that
connection terminated. if they have both ended in favour of
the petitioner finding him clearly number guilty they cannumber
certainly companystitute acts or omissions habitually companymitted
by the petitioner. moreover the said two incidents are of
different kinds altogether. whereas the first one may fall
under sub-clause  i  of section 2 d  of the act the second
one falls under sub-clause  iv  thereof. they are even if
true number repetitions of acts or omissions of the same kind. the district magistrate does number appear to have applied his
mind to the above aspects of the case. the third ground
which is based on the pending sessions case is numberdoubt of
the nature of acts or companymissions referred to in sub-clause

of section 2 d  but the interval between the first
ground which falls under this sub-clause and this one is
nearly eight years and cannumber therefore make the
petitioner a habitual offender of the type falling under
sub-clause  i  of
section 2  d . when i say so i do number certainly minimise the
gravity of the offence alleged to have been companymitted by the
petitioner which is still to be tried by the sessions companyrt. if the petitioner is found guilty by the companyrt he will have
to be awarded appropriate punishment. but the point for
consideration number is whether the filing of the charge sheet
is sufficient to bring the petitioner within the mischief of
the act. the companyrt should examine the case without being
overwhelmed by the gruesomeness of the incident involved in
the criminal trial. it is well settled that the law of
preventive detention is a hard law and therefore it should
be strictly companystrued. care should be taken that tee liberty
of a person is number jeopardised unless his case falls
squarely within the four companyners of the relevant law. the
law of preventive detention should number be used merely to
clip the wings of an accused who is involved in a criminal
prosecution. it is number intended for the purpose of keeping a
man under detention when under ordinary criminal law it may
number be possible to resist the issue of orders of bail
unless the material available is such as would satisfy the
requirements of the legal provisions authorising such
detention. when a person is enlarged on bail by a companypetent
criminal companyrt great caution should be exercised in
scrutinising the validity of an order of preventive
detention which is based on the very same charge which is to
be tried by the criminal companyrt. having given my anxious companysideration to the case i am
of the view that it is number possible to hold that the
petitioner can be called an anti-social element as defined
by section 2  d  of the act. the order of detention impugned
in this case therefore companyld number have been passed under
section 12  2  of the act which authorises the detention of
anti-social elements only. before leaving this case i should state that a number
of decisions were cited before us in which it had been held
that an order of detention based on a criminal charge which
is still to be tried may number be invalid and that an order
granting bail by a criminal companyrt cannumber be a bar to the
passing of an order of detention. but i have number found it
necessary to deal with them here as they would have become
relevant only if i had been satisfied that the petitioner
was an anti-social element. moreover the orders of detention
questioned in those cases were governed by the provisions of
the statutes under which they had been issued.