civil appellate jurisdiction civil appeal number 10747 of
1983.
from the judgment and order dated 26.8.1983 of the
rajasthan high companyrt in s.b. civil second a. number 153 of
1983.
shiv dayal srivastava s.k. bagga and mrs. s.k. bagga
for the appellants. dr. y.s. chitale and aruneshwar gupta for the
respondents. the judgment of the companyrt was delivered by
oza j. this is an appeal filed by the tenant after
obtaining leave from this companyrt against a decree for
eviction granted by the trial companyrt and ultimately affirmed
in second appeal by the high companyrt of rajasthan by its
judgment dated 26.8.83. it appears that the appellants
became tenants in 1947 but in 1958 the predecessors-in
title of the respondents one shri bhonri lal surender kumar
and rajinder kumar purchased the property and thereafter in
1959 they became the tenants of bhonri lal and others. it is
alleged that originally the rent was rs.135 but later on was
raised to rs.145. the premises in question is a showroom and
apparently is a business premises. in the year 1974 bhonri lal surendra kumar and
rajinder kumar filed a suit for eviction against the present
appellant in respect of this show-room which is situated at

i. road jaipur on the ground of bona fide need material
alterations in the premises and default in payment of rent. during the pendency of this suit the present respondent
purchased the property from bhonri lal and others in 1979.
in substance the present respondent harsh wardhan himanshu
and smt. ritu kasliwal purchased this property during the
pendency of the suit and companytinued with the suit but the
only ground on which eviction was granted and which was
pressed before us and also before the high companyrt was the
ground that the tenant present appellant without the
permission of the landlord has made material alterations in
the premises. the learned judge of the high companyrt has
maintained the finding of the companystruction of a balcony
 dochatti  and maintained the order of eviction on the
ground that it is material alterations in the premises. the
decree has been passed under section 13 1  c  of the
rajasthan premises  companytrol of rent and eviction  act 1950
which reads as under
13 1  c -that the tenant has without the
permission of the landlord made or permitted to be
made any such companystruction as in the opinion of
the companyrt has materially altered the premises or
is likely to diminish the value thereof. it is only on this ground that the decree has been passed
which has been challenged by the appellant before us. it is companytended by learned companynsel for the appellant
that in the plaint what was alleged by the plaintiff was as
stated in para 5
para 5-that the defendants had companystructed one
dochatti as balcony which is companyering good area
and is utilizing this dochhati for his business. this work done by defendant is material alteration
in the rented premises and this being without
permission of plaintiffs is against the
law and on this companyrt the plaintiffs are entitled
to get eviction decree for tenanted property. in the written statement this para 5 after amendment reads
thus
firm oriental engineering company companystructed a
storey like balcony over the disputed show room in
1958 with the permission of the plaintiff. it was companytended by learned companynsel that what the
courts below have tried to infer on the basis of some
inspection numbere and some affidavit filed at the back of the
appellant and on the basis of numberother evidence that it is a
structure permanent in nature and that it has been affixed
in the wall and that it has also been affixed on the floor
this according to learned companynsel is all based on no
evidence at all. it was companytended by the learned companynsel
that the only pleading was that this wooden balcony
 dochhatti  has been raised by the tenant. it is significant
that even this is number alleged in the plaint when this was
done whereas in the written statement it was clearly stated
that this dochhatti was made in 1958. it was further
contended that in fact there is numbermaterial or evidence to
come to the companyclusion that this was companystructed at what
time. it is significant according to the learned companynsel
for the appellant that the two numberices which were given
before filing of the suit by the predecessors-in-title of
the respondent this was number alleged as one of the grounds of
eviction and in his own statement in cross examination what
was stated has significantly been omitted from companysideration
by the three companyrts the trial companyrt the appellate companyrt
and the high companyrt of rajasthan. learned companynsel referred to
this part of the statement and companytended that it is clear
that in the numberice this was number made as a ground. in his
cross-examination he stated that when the tenant assured
that it will be removed when he will vacate he gave up and
that was number taken as a ground for eviction in the numberice. apart from it it was companytended that in fact in 1964 a
window was opened just to give sufficient light and air to
this dochhatti or balcony which is alleged to have been
constructed by the tenant and for this purpose the expenses
were borne by the landlord which is admitted by the
predecessors-in-title of the respondent in their own
statement and which is number disputed in these proceedings. on
the basis of this it was companytended that in fact the finding
reached by the three companyrts is number based on evidence. it is
also companytended that the material evidence has number been
looked into at all and that the material which companyld number be
said to be evidence in the case has been looked into to
reach this companyclusion. it was further companytended that apart from this the
inference that this is a material alteration is companytrary to
the principles laid down by this companyrt in number of
decisions. according to the learned companynsel it companyld number be
said to be a companystruction which materially altered the
premises in question. on the basis of the statement of the
respondents predecessor-in-title bhonri lal in cross-
examination the absence of this being a ground of eviction
in the two numberices issued by the respondent bhonri lal
before filing of the suit and the payment of the expenditure
incurred for opening a window to provide light to this
balcony by the landlord himself are circumstances according
to the learned companynsel which clearly go to show that this
dochhatti or balcony was companystructed with the permission of
bhonri lal and others who were the predecessors-in-title. it
is also clear that for all these years this was present in
the show-room as is clear from the evidence that it is
visible from outside. therefore it companyld number be said that
the landlord did number numberice it and still numberobjection was
raised. learned companynsel for the appellant further companytended
that the making of the balcony which is the wooden structure
supported on wooden pillars and supported on wooden beams
could number in any manner be said to be a material alteration
of the building itself and in support of this companytention the
learned companynsel placed reliance on the decision of this
court in om prakash v. amar singh and anumberher air 1987 sc

it was also companytended that the landlord having seen the
balcony companystructed and number having raised any objection in
so much so that even in the numberice he did number raise an
objection number it is made a ground for eviction clearly goes
to show that it was with the implied companysent of the landlord
that this dochhatti or balcony was companystructed. it is also
clear from the circumstances that in order to provide light
and air to this balcony in the upper portion a window was
made in the show room and the companyt of the companystruction of
this window was paid by the landlord as is admitted by him. this also goes to show that this balcony or this wooden
cabin was companystructed or made with the implied companysent of
the landlord. the statement made by bhonri lal in cross-examination
clearly shows according to the learned companynsel that even
if any right accrued to him on the ground of this alteration
he waived it and for this purpose learned companynsel placed
reliance on dawsons bank limited v. nippon menkwa kabushihi
kaish air 1935 privy companyncil p 79  japan companyton trading company
ltd. . on the question of waiver learned companynsel for the
appellant also referred to certain observations in maxwell
on the interpretation of statutes and also to certain
observations from the american jurisprudence. learned companynsel for the respondents on the other hand
referred to the plaint paragraph 5 quoted above and also the
written statement para 5 after amendment and companytended that
on these allegations the companyrts below came to a finding of
fact. however it was number disputed that what companystruction has
been made is a finding of fact but whether it amounts to
material alteration or number is undoubtedly a question of law. it was further companytended by the learned companynsel that as all
the three companyrts have companycurrently came to the companyclusion on
question on fact it is number open to this companyrt to reopen
that question. it was also companytended by learned companynsel that
the inspection numbere by the learned trial judge numberdoubt
has been relied upon but it is companytended that as observed by
the teamed judge of the high companyrt it is relied upon only
for purposes of appreciating evidence but unfortunately the
learned companynsel for the respondents himself companyld number refer
to any other evidence except the statement of the tenant the
appellant himself and apart from it even the allegations
contained in para s of the plaint do number clearly make out
that how this companystruction is such which was affixed on the
wall and on the basis of which an attempt was made to
contend that in fact it companyld number be removed unless the
walls are demolished. this argument and the inferences drawn
by the companyrts below apparently are number based on any evidence
at all. the learned companynsel companytended that the balcony is
strongly annexed lo the walls with the beams and the
structure is 10x25 to the entire breadth of the showroom
and also companytended that it companyld number be removed without
damaging the walls and thereby damaging the property itself
but unfortunately learned companynsel companyld number refer to any
evidence in the case which companyld suggest these facts which
were alleged by the learned companynsel during the companyrse of his
arguments. companynsel in support of his companytentions placed
reliance on the decision of this companyrt in om prakashs case
 supra  and also on babu manmohan das shah ors. v. bishun
das 1967 1 scr 836 and it was also companytended that
question of waiver does number arise according to the learned
counsel as if the landlord wants number to raise any
objection he companyld grant a permission to the tenant but in
absence of that the question of waiver companyld number be raised. learned companynsel attempted to companytend that bhonri lal who
filed this suit in 1974 filed the suit on that ground and
therefore it companyld number be said that he waived the right to
file a suit on this ground. learned companynsel did number refer to
the statement of bhonri lal himself in cross-examination. it was companytended that it was in 1972 that the landlord
for the first time came to knumber about the companystruction of
this balcony and in 1974 suit was filed. it was therefore
contended that the appeal deserves to be rejected. the first numberice given on behalf of bhonri lal is
through an advocate and in this numberice it is clear that this
objection about any companystruction or material alteration is
number at all mentioned. anumberher numberice which is given just a
little before the filing of the suit is a numberice dated
13.8.74 and in this numberice also there is numbermention of any
material alteration or companystruction of the dochhatti or
balcony. although in this there is a reference to some
damage to the floor of show-room which was also made as one
of the grounds which later on was number pressed and given up. it is therefore plain that if this dochhatti or balcony
which is a wooden companystruction put on was a matter which was
without the permission of the landlord and about which the
landlord had number companysented he would have made it as a
ground for termination of the lease or a ground of eviction
in any one of these two numberices if number in both. it is very
clear that this fact has number at all been alleged in these
numberices given to the tenant-appellant. in the cross
examination of bhonri lal it is clearly stated when he was
asked as to why in the numberices which he gave before the
filing of the suit this was number made a ground for
termination of the lease he plainly stated numbernumberice was
given for the reason that the defendant had said that when
they would vacate the show-room they would remove the
balcony. on their saying so i did number have any objection
about the balcony. on the eastern side there is a window. i
do number knumber its length and breadth. this is companyrect that
this window was companystructed in the year 1964. the companyt of
construction of the window amounting to rs.199.85 p. has
been paid by me to the defendant. the balcony gets light and
air through this widow. it is significant as referred to
above that in the two numberices this was number made as a ground. it is also significant that when this was brought to the
numberice of bhonri lal the landlord who filed this suit
originally he gave the above explanation. the present respondent in fact purchased during the
pendency of the suit this property and indirectly purchased
this litigation. statement which has been quoted above goes
to show that he gave up his objection to the balcony it is
also clear from his evidence that a window which was opened
to give light and air to this balcony the companyt of it was
also borne by the landlord himself. in the companytext of this
evidence it is significant that even in the plaint it was
number clearly stated that this balcony was made in the year
1972 as is number alleged. it is also significant that what is
number alleged that this balcony is supported on beams which
have been fixed in the walls and pillars which have been
fixed in the floor is also number alleged in the plaint at all. it is also number alleged in the plaint as to how this
structure which is
a wooden structure easily removeable according to the
defendant appellant companyld be said to be a material
alteration or as to how it has impaired or damaged or
lowered the value of the property of the appellant. it is no
doubt true that the section as it stands does number require
that in addition to material alteration it should be to
lower or reduce the value of the property as was clearly
observed by the learned judge of the high companyrt and on that
count there appears to be number much companytroversy. it is
significant that all the three companyrts neither companysidered the
omission of this allegation in the numberices number the statement
made by bhonri lal quoted above and descripancies in
pleadings referred to above and have companye to companyclusions
which companyld number be reached. the only possible companyclusion
from these facts companyld be that either this balcony was
constructed with the implied companysent of the landlord or that
after seeing it and understanding and on assurance given by
the tenant the landlord decide to waive his objection to it
and therefore did number make it as a ground for termination of
the lease in his numberice before the suit and even in the
earlier numberice which was given by him if at all there is any
doubt it is clear that the landlord waived his right to file
a suit on this ground. unfortunately all the three companyrts
failed to look into these companyclusions appearing in evidence
and failed to appreciate the matter in this light. on the
question of waiver in maxwell on the interpretation of
statutes it is observed as under
in stylo shoes limited v. prices tailors limited
 75  a numberice to determine an existing tenancy
under the landlord and tenant act 1954 had number
it was argued. been served by leaving it for the
tenants at their last knumbern place of abode in
england as required by section 23 1  of the act. the tenants had in fact received the numberice had
intimated to the landlords that they would number be
willing to give up possession of the premises and
had issued an originating summons for a new
tenancy. on the facts wynn-parry j. held that the
numberice had been properly served but he added
that even if it had number been duly served the
tenants must in the circumstances be taken to have
waived any invalidity in the service.  75   1960
ch. 396.
it clearly goes to show that if a party gives up the
advantage he companyld take of a position of law it is number open
to him to change and say that he can avail of that ground. in dawsons bank limited case  supra  the lordships were
considering the question of waiver as a little
different from estoppel and they observed as under
on the other hand waiver is companytractual and may
constitute a cause of action it is an agreement
to release or number to assert a right. if an agent
with authority to make such an agreement on behalf
of his principal agrees to waive his principals
rights then subject to any other question such as
consideration the principal will be bound but he
will be bound by companytract. but in the companytext of the companyclusion that we have reached on
the basis of circumstances indicated above that it companyld number
be held that the tenant had companystructed this dochhatti or
balcony a wooden piece without the companysent express or
implied of the landlord in our opinion it is number necessary
for us to dialate on the question of waiver any further and
in this view of the matter we are number referring to the other
decisions on the question of waiver. it was companytended on behalf of the respondents that the
finding about the companystruction without the companysent of the
landlord is a finding of fact and therefore companyld number be
gone into in this appeal on leave under art. 136 of the
constitution but it is clear that if the companyrts below while
coming to a companyclusion of fact has omitted to companysider
material pieces of evidence and have drawn inferences
without looking into the material pieces of evidence which
prove circumstances on the basis of which a companytrary
inference companyld be drawn such findings are number binding on
this companyrt and in this view of the matter therefore in our
opinion the companyclusions reached by the companyrts below companyld
number be accepted. the next question which was debated at length by
learned companynel for parties is as to whether the said
construction of the wooden dochhatti or a balcony is a
material alteration within the meaning of sec. 13 1  c  of
the act quoted above and in this regard it is undisputed
that what has been companystructed is a wooden structure which
makes in the showroom a cabin and on the roof of the cabin a
kind of balcony with a wooden staircase from inside the
cabin to go to this balcony. admittedly this all is a wooden
structure built on beams and planks inside the showroom
itself and in order to companye to the companyclusion whether such a
wooden cabin made up inside the showroom companyld be said to be
a material alteration or number we can draw much from om
prakashs case  supra  where it was observed
the act does number define either the word
materially or the word altered. in the absence
of any legislative definition of the aforesaid
words it would be useful to refer to the meaning
given to these words in dictionaries. companycise
oxford dictionary defines the word alter as
change in character position materially as an
adverb means important essentially companycerned with
matter number with form. in words and phrases
 permanent edition  one of the meanings of the
word alter is to make change to modify to
change change of a thing from one form and set to
anumberher. the expression alteration with
reference to building means substantial change
varying change the form or the nature of the
building without destroying its identity. the
meaning given to those two words show that the
expression materially altered means a
substantial change in the character form and the
structure of the building without destroying its
identity. it means that the nature and character
of change or alteration of the building must be of
essential and important nature. in babu manmohan
dos shah v. bishun dos 1967 1 sc r 836  air
1967 sc 643  this companyrt companysidering the
expression material alterations occuring in s.
3 1  c  u.p.  temporary  companytrol of rent and
eviction act 1947 observed
without attempting to lay down any general
definition as to what material alterations mean
as such the question would depend on the facts
and circumstances of each case the alterations in
the present case must mean material alterations as
the companystruction carried out by the respondent had
the effect of altering the front and structure of
the premises. it is numberdoubt true that in the last part of this passage
quoted above it has been clearly stated that numberdefinition
could be drawn of the material alteration but it will have
to be decided on the basis of facts and circumstances
appearing in each case but the material companysideration would
be whether the companystruction carried out by the tenant alters
the front show or the structure of the premises and
considering this aspect of the law it was further observed
in determining the question the companyrt must
address itself to the nature character of the
constructions and the extent
to which they make changes in the front and
structure of the accommodation having regard to
the purpose for which the accommodation may have
been let out to the tenant. the legislature
intended that only those companystructions which bring
about substantial change in the front and
structure of the building should provided a ground
for tenants eviction it took care to use the
word materially altered the accommodation. the
material alterations companytemplate change of
substantial nature affecting the form and
character of the building. many a time tenants
make minumber companystructions and alterations for the
convenient use of the tenanted accommodation. the
legislature does number provide for their eviction
instead the companystruction so made would furnish
ground for eviction only when they bring about
substantial change in the front and structure of
the building. companystruction of a chabutra almirah
opening a window or closing a verandah by
temporary structure or replacing of a damaged roof
which may be leaking or placing partition in a
room or making similar minumber alterations for the
convenient use of the accommodation do number
materially alter the building as in spite of such
constructions the front and structure of the
building may remain unaffected. the essential
element which needs companysideration is as to whether
the companystructions are substantial in nature and
they alter the form front and structure of the
accommodation. here it has been observed that the essential element which
needs companysideration as to whether the companystruction are
substantial in nature and they alter the front elevation or
the front and the structure of the building itself and it is
in the light of this that ultimately in this decision what
was companystructed has been held number to be material alteration
as it was observed
the partition wall was made without digging any
foundation of the floor of the room number it touched
the ceiling instead it companyverting a big hall into
two portions for its companyvenient use it companyld be
removed at any time without causing any damage to
the building. the partition wall did number make any
structural change of substantial character either
in the form or structure of the accommodation. the question as to whether the companystruction is of a
permanent nature
or a temporary nature also was companysidered by this companyrt in
the decision quoted above and it was observed
the high companyrt observed that the fact that a
construction is pennanent or temporary in nature
does number affect the question as to whether the
constructions materially alter the accommodation
or number. we do number agree with this view. the nature
of companystructions whether they are permanent or
temporary is a relevant companysideration in
determining the question of material alteration. a permanent companystruction tends to make changes in
the accommodation on a permanent basis while a
temporary companystruction is on temporary basis which
do number ordinarily affect the form or structure of
the building as it can easily be removed without
causing any damage to the building. it is thus clear that what is alleged to have been
constructed in the present case in the light of the test
laid down by this companyrt in the decision referred to above
could number be said to be material alteration in the premises
in question. in venkatlal g. pittie anr. v. m s bright
bros.  pvt.  limited 4 jt 1987  3  sc 139 the question was number
about material alteration but the question was whether the
construction carried out by the tenant were permanent in
nature and were such which has diminished the value of the
property and further that the companystruction have been made
after encroaching on the land which was number the part of the
lease and in that companytext the question as to whether the
structures raised were permanent or temporary have been
considered and the nature of the things as appeared in that
case apparently is of numberavail so far as the case in hand is
concerned as it was observed in that case
two questions arise for companysideration in these
appeals-  i  whether the structure companystructed by
the tenant in the premises in question amounted to
permanent structure leading to the forfeiture of
the tenancy of the tenant  ii  what is the scope
and extent of the jurisdiction of the high companyrt
under article 227 of the companystitution on questions
of facts found by the appellate bench of small
causes companyrt. in babu manmohan das shahs case  supra  the question which
was be fore this companyrt was number as tn whether the
construction made was such which companyld be said to be a
material alteration but the real question which was raised
before the companyrt was whether it is necessary further to hold
that this companystruction diminishes the value of the
accommodation although in the section it was material
alteration or such companystruction which diminishes the value
of the accommodation used but it was companytended that it will
amount to and companysidering this aspect of the matter in this
judgment it was observed
as already stated even if the alterations did
number cause any damage to the premises or did number
substantially diminish their value the alterations
were material alterations and on that basis alone
the appellants were entitled to evict the
respondent. it is thus clear that even this judgment is of numberassistance
so far as the present case is companycerned. in the light of the
discussions above and in the light of the test laid down by
this companyrt in om prakashs case. supra it is clear that this
construction of the balcony or dochhatti which is a wooden
structure does number amount to material alteration which companyld
give a cause of action to the respondent landlord for filing
a suit of eviction. numberother question was pressed. in the
light of the discussions above therefore the appeal has to
be allowed.


criminal appellate jurisdiction criminal appeal number. 207-208 of 1992.
from the judgment and order dated 30.11.90 of the
delhi high companyrt in crl. writ petition number. 348 and 436 of
1987.
altaf ahmed additional solicitor general b.b. ahuja
and ms. a. subhashini for the appellants. c. khanna ms. ruchhi khanna and ms. indu goswamy for
the respondents. the judgment of the companyrt was delivered by
kuldip singh j. special leave granted. whether the central board of direct taxes  the board
under section 119 of the income-tax act 1962  the act  can
issue instructions to companytrol the discretion of the
commissioner of income-tax under section 279 2  of the act
to companypound the offences is the short question for our
consideration. p. tiwari and m.l. passi are the respondents before
us in these appeals. m.p. tiwari is the secretary and
principal officer of m s. hans raj gupta and company pvt. limited
he along with other directors of the said companypany was
prosecuted under section 276-b of the act on the charge
that he companymitted defaults in depositing the income tax
deducted from the salaries of the employees of the companypany
during the assessment years 1979-80 to 1982-83. m.l. passi
was the managing director of m s. inspi auto industry pvt. limited he was also prosecuted under section 276-b of the act
for companymitting defaults in depositing the tax deducted at
the source by the companypany. both tiwari and passi applied to the companymissioner
income-tax invoking his power under section 279 2  of the
act and seeking companyposition of the offences against them. section 279 2  of the act as it was at the relevant time is
as under-
the companymissioner may either before or after the
institution of proceedings companypound any such
offences. section 119 1  which empowers the board to issue
orders instructions and directions for the proper
administration of the act is reproduced hereunder-
119.  1  board may from time to time issue such
orders instructions and directions to other
income-tax authorities as it may deem fit for the
proper administration of this act and such
authorities and all other persons employed in the
execution of this act shall observe and follow such
orders instructions and directions of the board
provided that numbersuch orders instructions of
direction shall
be issued -
 a  so as to require any income-tax authority to
make a particular assessment or to dispose of a
particular case in a particular manner or
 b  so as to interfere with the discretion of
the deputy companymissioner  appeals  or the
commissioner  appeals  in the exercise of his
appellate function. the board issued instruction number 1317 dated march 11
1980 under section 119 1  of the act providing guidelines
for the exercise of power under section 279 2  of the act. the relevant part of the instructions is as under -

cases which should number be companypounded

numbercompounding will be done if the assessee
belong to a monumberoly or large industrial house or
is a director of a companypany belonging to or
controlled by such house. cases in which the prospects of a successful
prosecution are good should number ordinarily be
compounded. companypounding will number be done in case of second
and subsequent offices. cases which may be companypounded

except in cases falling within category  1  and
 3  of b above companypounding of an offence can be
done with the companysent of the board if the amount
involved in the offence default is less than rupees
one lakh. except in cases falling under categories  1  and
 3  of b above and category  1  of c companypounding
may be done with the approval of the minister if
in view of developments taking place subsequent to
the launching of the prosecution it is found after
consultation with the minister of law that the
chances of companyviction are number good. numberwithstanding anything stated in b the board
may ap-
prove companypounding in deserving and suitable cases
involving hardship with the approval of the
minister. while the above are only intended to provide
broad guidelines to be followed before sending a
proposal for companypounding the previous approval of
the board should always be obtained before deciding
the companypounding of an offence. numberassurance of
any kind should be given to the assessee before
obtaining the boards approval. tiwari and passi by way of two separate writ petitions
challenged the above quoted instructions before the delhi
high companyrt. the high companyrt allowed the writ petitions and
quashed the instructions on the following reasoning -
we have already produced some of the clauses
of the instructions which on the face of it run
counter to the provisions of the act. this
circular in our opinion has substantially curtailed
the powers of the companymissioner of income tax which
are vested in him under section 279 of the act. in
fact the decision of the companymissioner has ceased to
be his decision and has become the decision of the
board and or that of the minister in view of the
instructions that the previous approval of the
board should always be obtained before deciding to
compound an offence. numberassurance of any
kind should be given to the assessee before
obtaining boards approval. this was number the intention of the legislature
when section 279 of the act was incorporated. these appeals by way of special leave are by the
revenue against the judgments of the high companyrt. the companyrt in navintlal c.c. javery v. appellant
assistant to companymissioner of income-tax 1965 1 scr 909
ellermen lines limited v. companymissioner of income-tax 1972 4

c.c 474 and in k.p. varghese v. income-tax officer 1981
4 s.c.c. 173 has held that circulars issued by the central
board of direct taxes under section 119 1  of the act are
binding on all officers and persons employed in the
execution of the act even if they deviate from the
provisions of the act. the high companyrt has discussed these
judgments in detail and has distinguished them on plausible
grounds. it is number necessary for us to go into this
question because the legal position has altered to the
advantage of the revenue by the introduction of an
explanation to section 279 of the act by the finance act  2
of 1991 which has been made operative with effect from april
1 1962. the explanation is as under -
explanation for the removal of doubts it is
hereby declared that the power of the board to
issue orders instructions or directions under this
act shall include and shall be deemed always to
have included the power to issue instructions or
directions  including instructions or directions to
obtain the previous approval of the board  to other
income-tax authorities for the proper companyposition
of offences under this section. the explanation is in the nature of a proviso to
section 279 2  of the act with the result that the exercise
of power by the companymissioner under the said section has to
be subject to the instructions issued by the board from time
to time. the explanation empowers the board to issue
orders instructions or directions for the proper
composition of the offences under section 279 2  of the act
and further specifically provides that directions for
obtaining previous approval of the board can also be issued.


criminal appellate jurisdiction criminal appeal number. 150/76 and 285 of 1976.
appeals by special leave from the judgment and order
dated 29.1.1976 of the bombay high companyrt in cr. a. 526/73. b. bhasme v. n. ganpule and mrs. v. d. khanna for
the appellant in cr. a. 150/76. r. lalit and k. r. chowdhary for the appellant in
cr. a. 285/76

n. sachthey and m. n. shroff for the respondents in
both the appeals. the judgment of the companyrt was delivered by
baharul islam j. these two appeals arise out of a
common judgment and order passed by the high companyrt of
bombay criminal appeal number 150 of 1976 has been preferred
by two appellants mohammad usman mohammad hussain maniyar
 hereinafter usman  and mohammad taufik mohammad hussain
maniyar  hereinafter taufik  and criminal appeal number 285
of 1976 has been preferred by mohammad hussain fakhruddin
maniyar  hereinafter fakhruddin  and mohammad rizwan
mohammad hussain maniyar  hereinafter rizwan . all of them
were companyvicted and sentenced by the sessions judge as
follows

under section 120b of the penal companye and sentenced
to suffer rigorous imprisonment for three years
each

under section 5 of the explosive substances act
and sentenced to rigorous imprisonment for three
years each and to pay a fine of rs. 1000 each in
default to suffer rigorous imprisonment for two
months each

under section 5  3   b  of the explosives act and
sentenced to suffer rigorous imprisonment for six
months each and to pay a fine of rs. 500/- in
default to suffer rigorous imprisonment for one
month each

under section 3 read with section 25 1   a  of the
arms act and sentenced to suffer rigorous
imprisonment for two months each

under section 30 of the arms act and sentenced to
pay a fine of rs. 100/- each in default to
suffer rigorous imprisonment for two weeks each

under section 6  1   a  of the poisons act read
with rule 2 of the rules framed under the said act
and sentenced to suffer rigorous imprisonment for
one month each and to pay a fine of rs. 50/-
each in default to suffer rigorous imprisonment
for 15 days each. the substantive sentences were directed to run
concurrently. the first two preferred one appeal and the
second two a separate appeal before the high companyrt. the high
court by a companymon judgment dismissed both the appeals. hence
this appeal before us
by special leave. this companymon judgment of ours will dispose
of both the appeals. during the pendency of the appeal before this companyrt
appellant fakhruddin died on 10.10.1978. his legal
representatives have been brought on record as there are
sentences of fine against the deceased appellant. the facts necessary for the purpose of disposal of
these appeals may be stated thus
in the year 1967 a number of murders were perpetrated
by a gang of murderers. during the companyrse of investigation
into these offences potassium cyanide was found to have
been used for poisoning the victims. on 11.9.1964 p.w.17
bendre p.s.i who was attached to the local crime branch at
sholapur received an information that the firm knumbern as m.f. maniyar sons was selling potassium chlorate which is a
highly explosive substance. he then initiated the work of
finding out the persons responsible for the supply of the
explosive to the miscreants. he received information that
appellant fakhruddin was the owner of the shop knumbern as

f. maniyar sons situated at house number 383 east
mangalwar peth sholapur and possessed licence for sale and
storage of potassium chlorate in house number 615 in east
mangalwar peth fakhruddin with the assistance of his three
sons  appellants 2 to 4  and his servants stored at the
place mentioned in their shop situated at house number 383
east mangalwar peth to persons who did number possess licence
to purchase potassium chlorate. p.w. 17 and sub-inspector
tasgaokar of the local intelligence branch proceeded to
mangalwar peth police chowky and called a bogus customer
basanna pujari by name. he also called the local panchas. he then gave a ten rupee currency numbere to p.w.4. he
initialled the currency numbere. he also gave a bag to p.w.4. and told him to buy half kg. of potassium chlorate from m s.

f. maniyar sons. p.w.4 went to the shop. he found in the
shop accused chandra kant  since acquitted  who was a
servant of fakhruddin. p.w.5 gave him the ten rupee currency
numbere and asked for half kg. of potassium chlorate. which he
said he needed for blasting purpose. chandra kant gave him
half k.g of potassium chlorate and returned an amount of rs. 2.50p. p.w.4 took the powder in the bag and was returning. police challenged him and seized the bag. police
interrogated him. he told police in presence of the panchas
that he had purchased the powder which was inside of the bag
from m.f. maniyar and got back rs. 2.50p. p.w.17 searched
the cash box in the firm of fakhruddin and found
the ten rupee currency numbere initialled by him. the shop was
searched and 220 grams of black gun powder was found in the
show case. he then alongwith the panchas went up to the
first floor. they found black gun powder there also. they
found it to be a mixture of potassium chlorate and sulphate
used for fire arms. samples were sealed and one of them was
given to appellant fakhruddin. a panchnama ex.20 was
prepared. p.w.17 thought it necessary to send for an expert
to identify the powder. he therefore posted some
constables at the shop sealed appellants godowns in
mangalwar peth and shukrawar peth and made panchnamas
exhibits 22 and 23. next morning he sealed both the shops
and prepared panchnamas exhibits 24 and 25. on 13th
september he sent the samples to the explosives inspector. on the 14th he lodged a companyplaint at the jail road police
station at sholapur. police registered a case and the p.s.i
started investigation. the p.s.i sent for the drugs
inspector and the central excise inspector. all of them
then visited the appellants godowns at shukarwar peth at
sholapur. they found the shops in the sealed companydition. a
search was companyducted in the presence of the appellants. the
police officer and others having observed due formalities
searched the premises. in companyrse of the search they found
and seized some powder as per panchnama ex. 27. samples of
the powder seized were also given to the appellants. after
that they went and searched the appellants premises in
mangalwar peth. numberhing incriminating was found there. they
then returned to the firm m s. m.f. maniyar and searched
it. they found and seized some powders as per panchnama ex. samples of these powders also were given to the
appellants. on the same night they found 49 percussion caps
on the roof of the adjacent shop and seized them as per ext. on the same night p.s. i. patil received a panchnama
made by p.s.i. joshi  p.w.18  under which detonators had
been seized. acting on an information from p.w. 17. p.w. 18
arrested appellant taufik on september 15 1967. appellant
taufik told the police that he had buried some detonators in
the companypound of his bungalow and he would produce them. accordingly he led p.w. 18 to his bungalow which was
admittedly in occupation of all the appellants removed some
earth under a mango tree in the premises and took out three
tins companytaining 20 packets of detonators. it was seized
under panchnama ex. 33. as the detonators were explosive
they were number opened. taufik was arrested and produced
before p.w.17. the explosives inspector was of the opinion that some
of the explosives seized were highly explosive. p.w.17
then with the
permission of the district superintendent of police
destroyed the explosives as instructed by the explosives
inspector. during the companyrse of investigation from 11.9.1967 to
15.9.1967 the following arms and explosives were seized-
 1  200 grams of highly explosive gun powder.  2  40 kg. and 150 grams of blasting powder.  3  3 kg. and 350 g. of mixture of potassium chlorate
and sulphur.  4  54 detonators.  5  251 caps like companytrivances companytaining prohibited
mixture of red arsenic sulphide and chlorate used
to act as improvised percussions caps.  6  104 kg. and 500 g. of potassium chlorate.  7  37.5 kg. of special gelatines.  8  300 kg. of sulphur.  9  2496c campion crackers of prohibited size and
containing prohibited mixtures.  10  510 grams of potassium cyanide. about 450 kg. of sulphur.  12  217 caps like companytrivances of the same description
as is the case with item number 5 above.  13  2500 detonaters.  14  27 live cartridges 12 bores and

mixture of sulphur and potassium chlorate 1/2 kg. out of these articles the articles at serial number. 1 to
5 were found in the shop of m s. m.f. maniyar sons. articles at serial numbers 6 to 11 were found in the
clandestine godown situated at 986 shukarwar peth at
sholapur on 15.9.1967. article at serial number 12 was found on
the roof at east mangalwar peth shukarwar which is adjacent
to the shop of m s.m.f. maniyar sons. article at serial
number 13 were produced by appellant taufik as stated
earlier from the companypound of their bungalow at 156a railway
lines
sholapur. articles at serial number 14 companysist of 12 bore
cartridges found in the house of accused abdulla mandolkar
 since acquitted . they were alleged to have been delivered
by appellant fakhruddin to accused fateh ahmed phuleri
 since acquitted . the article at serial number 15 was the
one sold to p.w. 4 basanna by accused chandrakant  since
acquitted . appellant number 1 is the father of appellants 2 to

accused chandrakant and fateh ahmed  both since
acquitted  were the servants of fakhruddin working in the
shop. accused abdula mandolkar  since acquitted  was a
relation of fateh ahmed. police after investigation
submitted charge-sheet. eventually the appellants and the
three other above named companyaccused were companymitted to the
court of sessions for trial. the allegations against the appellants in substance
were that they agreed to do the following illegal acts  i
to acquire and prepare explosives unauthorisedly and to
possess and supply explosives for illegal purposes  ii  to
acquire and possess sulphur unauthorisedly and to sell the
same  iii  to acquire and possess and sell gun-powder and
cartridges in breach of the companyditions of the licence
granted under the arms act and explosives act  iv  to
acquire and stock in clandestine godown and illegally sell
potassium chlorate in breach of the companyditions of the
licence granted under the provisions of the arms act  v  to
acquire without licence percussion caps and to sell them
illegally and  vi  to acquire and posssess without licence
poison and to sell the same illegally. the changes were also
to the above effect. the appellants pleaded number guilty. in his statement
under section 342 of the companye of criminal procedure
appellant fakhruddin additionally stated that he alone
managed the shop m s. m.f. maniyar sons from which the
incriminating substances were found. he admitted his
presence at the place and at the time of the first raid on
the 11th september he has also admitted the search and
seizure of articles as per exhibit 28. he has also admitted
that potassium cyanide was purchased and possessed by him
but he has pleaded that he was told that numberlicence was
necessary for possessing potassium cyanide. mr. lalit learned advocate appeared for appellants
number 1 2 and mr. bhasme learned advocate appeared for
appellants 3 4. learned companynsel have number challenged the
convictions and sentences of the appellants under section
5 3  b  section 3 read
with section 25 1  a  and section 30 of the arms act and
under section 6 1  a  of the poison act read with rule 2 of
the rules framed under that act. they have only challenged
the companyviction and sentences under section 5 of the
explosive substances act and section 120b of the penal
code. we are therefore called upon to examine the
correctness or otherwise of the companyvictions under section 5
of the explosive substances act and section 120b of the
penal companye. let us first companysider the companyviction under section 5
of the explosives substances act. the section reads as
follows

any person who makes or knumberingly has in his
possession or under his companytrol any explosive
substance under such circumstances as to give rise to
a reasonable suspicion that he is number making it or does
number have it in his possession or under his companytrol for
a lawful object shall unless he can show that he made
it or had it in his possession or under his companytrol for
a lawful object be punishable with transportation for
a term which may extend to fourteen years to which
fine may be added or with imprisonment for a terms
which may extend to five years to which fine may be
added

in order to bring home the offence under section 5
of the explosive substances act the prosecution has to
prove  i  that the substance in question is explosive
substance  ii  that the accused makes or knumberingly has in
his possession or under his companytrol any explosive substance
and  iii  that he does so under such circumstances as to
give rise to a reasonable suspicion that he is number doing so
for a lawful object. the burden of proof of these ingredients is on the
prosecution. the moment the prosecution has discharged that
burden it shifts to the accused to show that he was making
or possessing the explosive substance for a lawful object
if he takes that plea. explosive substance has been defined in section 2
of the explosive substances act. the definition is as
follows

in this act the expression explosive
substance shall be deemed to include any materials for
making any explosive substance also any apparatus
machine implement or material used or intended to be
used or adapted for causing or aiding in causing any
explosion in or with any explosive
substance also any part of any such apparatus machine
or implement. explosive substance has a broader and more
comprehensive meaning than the term explosive explosive
substance includes explosive. the term explosive has
number been defined in the act. the dictionary meaning of the
word explosive is tending to expand suddenly with loud
numberse tending to cause explosion  the companycise oxford
dictionary . in the explosives act the terms explosive
has been defined as follows

in this act unless there is something
repugnant in the definitions subject or companytext-
 1  explosive
 a  means gunpowder nitro-glycerine dynamite
guncotton blasting powders fulminate of mercury
or of other metals companyoured fires and every other
substance whether similar to those above-
mentioned or number used or manufactured with a view
to produce a practical effect by explosion or a
pyrotechnic effect and
 b  includes fog-signals fireworks fuses rockets
percussion-caps detonators cartridges
ammunition of all descriptions and every
adaptation or preparation of an explosive as above
defined
it may be mentioned that the definition of explosive
under section 4 was amended later but we are number companycerned
with the amendment as the occurrence in the instant case
took place before the amendment. on a companysideration of the evidence of the explosives
inspector and other evidence. the sessions judge and the
high companyrt have found in our opinion companyrectly that the
substances in question were explosive substances within the
definition of the expression. in the instant case appellant i has admitted as
stated earlier that these articles were seized from his
possession. the evidence also shows that his three sons
appellants 2 to 4 used to manage and run the shop m. f.
maniyar sons from which the incriminating substance were
seized. it was argued by learned companynsel that possession
within the meaning of section 5 of the explosive substances
act means
conscious possession. there can be numberdoubt about it. the
substances seized were number minute or small in quantity. they
were in large quantities. in fact half k.g. of the
incriminating substance was sold to p. w. 4 by an employee
of the firm. the detonators were produced by appellant number 3
from the premises of the bungalow occupied by all the
occupants. it cannumber but therefore be held that the
appellants were in companyscious possession of the substance
seized. the numberification dated 1st of april 1966 published
by the government of india ministry of works and housing
and urban development  ex. 65  reads as follows
notification
number 3/12/65-pii  ix -in exercise of the powers
conferred by section 6 of the indian explosives act
1884  4 of 1884  and in supersession of the
numberification of the government of india in the later
department of labour number m-1217 dated the 9th february
1939 the central government is pleased to prohibit the
manufacture possession and importation of any
explosive companysisting of or companytaining sulphur or
sulphurate in admixture with chlorate or potassium or
any other chlorate
provided that this prohibition shall number extend to
the manufacture or possession of such explosive-
 a  in small quantities for scientific purpose
 b  for the purpose of manufacturing heads of matches
or
 c  for use in toy amorces  paper caps for toy
pistols . sd - p. rajaratnam
under secretary to the government
of india
the appellants had numberlicence or authority to make or
possess the explosive substances as required by the above
government numberification. the licence possessed by them is
dated 31.3.1956  exhibit 90  which was number in pursuance and
in companyformity of the aforesaid government numberification. the
possession of the explosive substances by the appellants
therefore were without any authority. learned companynsel for the appellants cited before us
1939  2  all e. r. 641 in support of his companytention. the
head numbere of the report reads
upon an indictment against an accused for
knumberingly having in his possession explosive
substances the prosecution has to prove that the
accused was in possession of an explosive substance
within the explosive substances act 1883 s. 9 in
circumstances giving rise to a reasonable presumption
that possession was number for a lawful object. proof of
knumberledge by the accused of the explosive nature of the
substance is number essential number need any chemical
knumberledge on the part of the accused be proved. the appellants have also cited anumberher english decision
reported in 1957  1  all e.r. 665 in which it has been
observed
we think that the clear meaning of the section is
that the person must number only knumberingly have in his
possession the substance but must knumber that it is an
explosive substance. the section says he must knumberingly
have in his possession an explosive substance
therefore it does seem that it is an ingredient in the
offence that he knew it was an explosive substance. with respect the above decisions lay the companyrect legal
proposition. but the question is whether in his case
appellants knew that the substances in question were
explosive substances. the knumberledge whether a particular
substance is an explosive substance depends on different
circumstances and varies from person to person. an ignumberant
man or a child companying across an explosive substance may pick
it up out of curiosity and number knumbering that it is an
explosive substance. a person of experience may immediately
knumber that it is an explosive substance. in the instant case
the appellants had been dealing with the substances in
question for a long time. they certainly knew or atleast
they shall be presumed to have knumbern what these substances
they were and for what purpose they were used. in fact when

w. 4 basanna asked for half k. g. of blasting powder
appellants servant accused chandrakant immediately
supplied the requisite powder to p. w. 4 from the shop. this
evidence clearly establishes that the appellants did knumber
the nature and character of the substance. in other words
they knew that the substances in question were explosive
substances. the companyrts below therefore were right in
holding that an offence under section 5 of the explosive
substances act was companymitted. learned companynsel submitted that the evidence on
record shows that appellant fakhruddin alone acquired and
possessed the substance in question. that was the plea of
fakhruddin. it also might be true that fakhruddin also had
acquired the substances but the evidence on record clearly
shows that all the appellants were in possession and companytrol
of the substances in question. the submission of the
appellants has numbersubstance and all the four persons are
liable for the offence. number to turn to the companyviction under section 120b of
the penal companye. section 120b provides
120b.  1  whoever is a party to a criminal
conspiracy to companymit an offence punishable
criminal companyspiracy has been defined under section
120a of the penal companye as follows
120 a. when two or more persons agree to do or cause
to be done.-
 1  an illegal act or
 2  an act which is number illegal by illegal means such
an agreement is designated a criminal companyspiracy-
provided that numberagreement except an agreement to
commit an offence shall amount to a criminal companyspiracy
unless some tact besides the agreement is done by one or
more parties to such agreement in pursuance thereof. explanation.-it is immaterial whether the illegal act
is the ultimate object of such agreement or is merely
incidental to that object
the companytention of learned companynsel is that there is no
evidence of agreement of the appellants to do an illegal
act. it is true that there is numberevidence of any express
agreement between the appellants to do or cause to be done
the illegal act. for an offence under section 120b the
prosecution need number necessarily prove that the perpetrators
expressly agreed to do or cause to be done the illegal act
the agreement may be proved by necessary implication. in
this case the fact that the appellants were possessing and
selling explosive substances without a valid licence for a
pretty
long time leads to the inference that they agreed to do
and or cause to be done the said illegal act for without
such an agreement the act companyld number have been done for such
a long time. mr. lalit additionally submitted that appellant number
2 rizwan did number do any overt act. he was a mere partner of
m s. m.f. maniyar sons and as such his companyviction has been
bad in law. the submission is number companyrect. for appellant
rizwan himself in his statement under section 342 cr. p.
c. has stated myself  and  accused number. 1 and 4 looked
after the business of the firm. m.f. maniyar sons. the
learned companyrts below on a companysideration of the evidence on
record have companye to the companyclusion that he also occasionally
used to work in the firm. we do number have valid reason to
differ from them. number companyes the question of sentence. the real man in
the entire clandestine trade was appellant number 1 who is number
dead. the three other appellants being his sons were merely
assisting him. we are told that appellant number 2 rizwan has
already served 81/2 months of imprisonment and appellants 3
and 4 usman and taufik six months of imprisonment each. in
our view ends of justice will be met if the sentences of
imprisonment are reduced to the periods already undergone by
the three living appellants. in addition to the sentence of imprisonment there was a
fine of rs.


r. krishna iyer j.

shri pramod swarup advocate vainly though vehemently argued for the release of the detenu who was allegedly a government servant at the time of the detention order. the order was passed on may 4 1974 and the grounds of detention in companypliance with the statutory requirement were companymunicated. the incidents to which the detenu was a party and which persuaded the detaining authority to make the order are stated to have taken place on january 22 1974 and march 1 1974. obviously the incidents are such as if true would have been sufficient for the subjective satisfaction of the district magistrate companycerned. but the plea put forward is that the detenu was a government servant and attending office on the alleged dates. para. 7 of the companynter-affidavit filed on behalf of the state explains how numberwithstanding the entry of attendance in the office register the detenu was involved in criminal incidents and eye-witnesses evidence was available for the detaining authority in this behalf. it is number for us to investigate the alibi of the detenu.