JUDGMENT <NAME>, <NAME>

1. This is an application on behalf of one <NAME> under Article 226 of the Constitution of India for a writ preventing the <ORG> from enforcing an order under Clause (b) of Sub-section (1) of Section 2, Bihar Maintenance of Public Order Act, 1949 (Bihar Act III  of 1950) restricting the petitioner's movements by forbidding him from going to any place in the districts of Singhbhum and Manbhum. The order is in the following terms:

"<ORG> Patna, 6th January 1949.

ORDERS.

No.---

62(4)/48 C.E. Whereas the Governor of Bihar is satisfied with respect to the person known as Shree Brajnandan Sharma, son of Shree Ayodhya Prasad Sharma of village Dabaul P.S. Hilsa, district Patna at present Jamadova P.S. Jorapokhary, Dhanbad, that with a view to preventing him from acting in a manner prejudicial to the public safety and the maintenance of the public order it is necessary to make the following order :

Now, therefore, in exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 2 , Bihar Maintenance of Public Order Act, 1949 (Bihar Act (III  of 1950) the Governor of Bihar is pleased to direct that the said <NAME> shall not with effect from the date of service on him of this order be in any place in the district of Singhbhum and Manbhum.

By order of the Governor of Bihar, <NAME>, Under-Secretary to Government."

2. This order is dated 6th January 1949, but that is obviously a clerical error for 6th January 1960, when in fact the order was passed. It was, thus passed before the New Constitution came into force on 26th January, and Mr. <NAME>, who represents the petitioner, concedes that he could not successfully challenge the order before 26th January. His contention is, however, that on the Constitution coming into force, the restrictive provisions in Act III [3] of 1950 and also the order passed thereunder became void under Article 13 (1) of the Constitution read with Articles 19(1)(d) and 19(5). Article 13(1) says :

"13 (1). All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."

Article 19 (1) provides :

"19 (1). All citizens shall have the right -

(d) to move freely throughout the territory of India." Article 19 (5) is in these terms :

"19 (5), Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any scheduled tribe."

It is contended that the provision for restricting an individual's movements contained in Section 2 (1) (b) of the Act is not reasonable because it provides for orders not on reasonable grounds, but on the satisfaction of <ORG> which may be reasonable or unreasonable. But that, in any event, is a subjective matter in regard to which, upon the terms of the Act the <ORG> cannot apply an objective test of reasonableness. Moreover, the Act does not even make it obligatory on any particular individual to satisfy himself, and merely involves the satisfaction of some unknown individual official, purporting to represent the <ORG>. The order purports to express the satisfaction of the Governor, but admittedly the Governor personally has nothing to do with it. It is the order of the <ORG> in his name. (We are informed by the learned Advocate-General that in fact in such cases the satisfaction is that of the Chief Minister, who himself considers and approves the order). Next, the Act does not provide any opportunity to the petitioner to vindicate himself, or challenge the order, or even to learn the reasons for the order. It provides no remedy for an unreasonable order, and does not even provide for the service upon him of the grounds for the order as in the case of detenus. The order itself does not set out the grounds on which it was made and gives the petitioner no opportunity to challenge it in the <ORG>. The petitioner asked for the grounds on 19th January, but received no reply. The present application was made on 9th February and a rule was issued on the 14th. On the 10th February, directly after this application was filed, the petitioner received a letter stating that the grounds for the order were "Repeated incitement to violence." No particulars were given, but merely this vague and general statement.

3. Secondly, Mr. <NAME> contends that whatever may be said about the Act, there were, in any case, no reasonable grounds for this order. The petitioner had not done anything to merit it. It was passed mala fide because the petitioner was the General Secretary of <ORG>, which wag registered as a Trade Union as far back as 1930 and duly recognised by the employers, <ORG>, and the Government was trying to support a rival Trade Union under the auspices of <ORG> (I. N. T. U. C.).

4. In my opinion, we are alone concerned with the validity of the restrictive provisions contained in the Act. We are in no way concerned with the merits of the particular order and cannot enter into them. The wording of the Act does not entitle the <ORG> to consider the order on its merits; nor do the provisions of Article 19 (5). The wording of Article 19 (5) makes It quite clear that the words "reasonable restrictions" refer to the law itself, and not to orders passed under the law. The clause speaks of any existing law in so far as it imposes reasonable restrictions, and the making of a law imposing reasonable restrictions. If the law is valid, there appears to be nothing anywhere in the Constitution, or in the particular Act itself, enabling the <ORG> to consider the merits of the order. The <ORG>, of course, on general principles, can always upset an order on the ground of mala fides. But when the Court is prevented from going into the merits, it is for all practical purposes impossible to consider whether the order is in fact bona fide or mala fide. On the other band, if the restrictive provisions in the Act are void, quite obviously the order made thereunder is void, so that, in short, the sole question is the validity of Section 2 (1) (b) of the Act.

5. It is apparent on the face of it that the provision does represent an interference with the fundamental right guaranteed by Article 19 (1) (d). A citizen (and it is not contended that the petitioner is not a citizen) is entitled to move freely throughout the territory of India, But under the provision in the Act, the Government can, and has, made an order preventing him from going into two districts. The freedom of movement is restricted to that extent. Therefore, there is no escape from the position that under Article 13 (1) this provision became void on 26th January unless it is saved by Article 19 , Clause (5). Daring the existence of a state of emergency it might be saved under Article 358 , But there has been no proclamation of an emergency, and Article 368 has no application to the present case.

6. This application, therefore, in my judgment, turns entirely upon the narrow point of the interpretation of the relevant Act and of Article 19 (5) of the Constitution. If we hold that the restrictive provision in the Act is not the imposing of reasonable restrictions on the exercise of the fundamental right in question, then the provision must go.

7. The learned Advocate General has argued that it is not open to the <ORG> to consider the reasonableness or otherwise of the provision. The <ORG> itself is the sole Judge of reason, ableness, and if the <ORG> makes a provision, the <ORG> must accept it as reasonable. I find it difficult to follow that argument. If this is correct, the word 'reasonable' in Clause (5) is rendered completely nugatory. The Constitution says the restrictions must be reasonable. Obviously, it is for the <ORG> to decide whether restrictive provisions are reasonable or not. But then, says the Advocate-General, this amounts to substituting one subjective test for another, namely, the satisfaction of the <ORG> hearing the case for the satisfaction of the executive official who makes the order. That argument, in my opinion, is also incorrect. The <ORG> do not apply any subjective test. It is well settled that there can be an objective test of reasonable ness, and that is what the <ORG> apply, They do not ask themselves, do we, as individuals, feel satisfied that the restrictions are reasonable? But, would that fictitious individual, "the reason able man," that is to say, the normal average man, regard them as reasonable? That is a well recognised legal means of examining the question of reasonableness, and it is essentially an objective test. If we hold that no normally constituted person of average intelligence could possibly regard the provision as reasonable, then our decision would be that it is an unreasonable provision, but not otherwise. For an authority for this proposition it is sufficient to cite one <ORG> decision, <CITATION> , 73 I. A. 144 : (A. I. R. (33) 1946 P. C. 123 : 47 Cr. L.J. 831). In that case the <ORG> were considering Rule 129, Sub-rule (1), Defence of India Rules, 1939, under which "any police officer. .... may arrest without warrant any person whom be reasonably suspects of having acted . . .. . in a manner prejudicial to the public safety or to the efficient prosecution of the war."

Where a police officer made an arrest under this provision <ORG> held that the burden was on him to prove to the satisfaction of the <ORG> before whom the arrest was challenged that he had reasonable grounds of suspicion. If he failed to discharge that burden, an order made by <ORG> under Sub-rule (4) of Rule 129 for the temporary custody of the detenu was invalid.

8. In exactly the same way the <ORG> Government having acted under Act III [3] of 1960 to interfere with the petitioner's fundamental rights, the burden is on the Government to establish that the provision is valid, that is to say, that it is reasonable, for, under the Constitution, the only restrictions that can be placed upon this particular fundamental right must be of reasonable character. There has been a prima facie infringement of that right, and prima facie no law can infringe that right. Therefore, the burden is, in my opinion, on the <ORG> to bring that law within the exception contained in Article 19 , Clause (5) which alone can save it.

9. Turning now to the question of fact whether the impugned provision imposes only reasonable restrictions, the answer must. I think, be in the negative, for the power of restriction contained in the provision is based, not on any reasonable grounds, but upon the satisfaction of some individual who, so far as the wording of the Act is concerned, is completely amorphous; and the provision is in such terms that it is not open to the <ORG> to examine the reasonableness or otherwise of orders passed. Upon the terms of the Act, all the <ORG> can inquire into is the existence of the satisfaction. Quite clearly, such a provision might conceivably be used merely to exclude political opponents, or, as is suggested in the present case, (I do not mean to say I accept the suggestion. I am not considering it) to favour one of two rival <ORG> and suppress the other. A law which enables such things to be done is not, in my judgment, a reasonable law. There can be no presumption that an executive official will always act reason. ably. There may be presumption that he will act bona fide; but that is a different thing. The test is, in my opinion, not what is actually done under the law, but what the law enables to be done. If the law enables orders to be passed which are unreasonable, and yet are consistent with its terms, then that cannot be called a law operating to impose only reasonable restrictions. I use the word "only" advisedly because it appears to me that if the law enables unreasonable action in any case, then it cannot be saved by Article 19 (5). In my opinion, a law to satisfy the criterion imposed by Article 19 (5) must be so framed as to leave it open to the <ORG>s to apply the objective test of reasonableness to its operation. This law is not so framed.

10. A matter which was raised was the effect of Section 28 , Adaptation of Laws Order, 1950. That rule runs as follows :

"Any <ORG>, <ORG> or authority requited or empowered to enforce any law in force in the territory of India immediately before the appointed day shall notwithstanding that this order makes no provision or Insufficient provision for the adaptation of the law or the purpose of bringing it into accord with the provisions of the Constitution, construe the law with all such adaptations as are necessary for the said purpose;

Provided that if any question arises regarding the adaptations with which such law should be construed for the said purpose, the question shall be referred to <ORG> if the law relates to a matter enumerated in List I or List III In Schedule 7 to the Constitution, and to the State Government concerned in any other case, and the decision of that Government on any such reference shall be final."

11. Bihar Act III  of 1950 has not been specifically adapted in the President's Order, but it might be argued that the <ORG> must adapt it under this Rule 28 so as to insert the word "reasonably" in the objective sense before the word "satisfied". It will suffice to deal with this very briefly because the learned Advocate-General does not rely upon any such argument or on this provision. It is enough to say that I agree entirely with the observations on this point made by the Calcutta. Full Bench in Criminal Misc. case no. 51 of 1950, D/- 27- <CITATION> , 54 C. W. N. 394 : (A.I.R. (37) 1950 Cal. 274 (S.B.)). This rule purports to delegate legislative power to the <ORG>. But the maxim delegata potestas non potest delegari clearly applies, and if the President can legislate under Article 372 in this regard, he cannot delegate his authority to the <ORG>. Moreover, I think the less said the better about a provision which directs that the final arbiter between two parties concerned in a case before the <ORG> shall be one of those parties, namely, <ORG>. We must take the Act as we find it. And if the Act is in such terms that it prevents the <ORG> from applying the objective test of reasonableness, then the Act is not one imposing reasonable restrictions

12. I hold accordingly that Section 2 (1) (b) of the Act became void on 26bh January and it necessarily follows that the order made under that provision became void. I would accordingly give the petitioner a declaration to that effect. It has been suggested that the petitioner cannot be afforded any further relief, nor does he require it unless and until the <ORG> take some action against him for disobedience of the order, But I fail to understand why, is circumstance like this, the petitioner should be put to the harassment of possible arrest for disobeying the order and having to approach the <ORG> once more. I think Article 226 , when it says that <ORG> shall have power to issue to any person or authority, including in appropriate cases any <ORG>, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose, means more than this and gives us full authority, and indeed, a duty to issue necessary directions. If the direction does not conform exactly to one of the writs specifically mentioned that does not matter. We are given the widest powers of issuing directions, orders or writs, and in the present case, besides making a declaration that the order is void, I would issue a direction upon the State <ORG> prohibiting it and any of its officers from taking any action for the enforcement of the order in question.

12a. The petitioner, is my opinion, is entitled to his costs against the <ORG>, which I would assess at five gold mohurs.

13. <NAME> J. The fundamental rights in the exercise of which the petitioner has been restricted are the rights given to all citizens by Clause (d) of Article 19 (1 ), namely, the right "to move freely throughout the territory of India," and the right given by Clause (e), namely, the right "to reside ..... in any part of the territory of India." It is patent that, from time to time, the <ORG> may find it necessary to restrain individuals or classes of individuals in the enjoyment of their fundamental rights. A convicted criminal, for instance, who has been ordered to report his movements to the police cannot be allowed to move freely throughout the territory of India. <ORG> recognized this, and in enacting Clauses (2) to (6) of Article 19 endeavoured to define the limits subject to which the <ORG> might impose statutory restrictions on the exercise by citizens of their fundamental rights, The question that arises here is whether or not the Bihar <ORG> hag exceeded the limits imposed on it by the Constitution. In deciding this question it must be assumed that in certain areas in this province conditions exist or are likely to exist is which the public safety may be endangered and the maintenance of public order may become a matter of difficulty. It must also be assumed that, in exercising the powers conferred on it by this Act, <ORG> or other authority to whom the powers are entrusted will exercise them is good faith. Clause (b) of Section 2 (1) of the Act empowers <ORG> to exclude, either absolutely or subject to certain conditions, an individual from "any area or place." The area or place in question must, it is clear, be an area or place in which, if the person against whom the order is made is permitted to enter it subject to as conditions, the public safety and the maintenance of public order is likely to be endangered. As order excluding a person from any such area or place is an order which is to remain in operation for six months, although it may be renewed for a further period. Certain places or classes of place may, under the Act, be declared protected places and the public in general are not permitted to eater such places without authority. These, is brief, are the restrictions imposed by the Act on the exercise of the fundamental right of freedom of movement. The Act , it may be added, is a temporary Act to meet conditions arising during a period of transition and is to remain in force for two years. The words "reasonable restrictions ... in the interests of the general public" mean, is my opinion, restrictions which are reasonably necessary for the protection of the public. It seems to me impossible to say that in no circumstances can it be necessary to exclude particular individuals from areas or places in which the public safety and the maintenance of public order has been or is likely to be endangered. Also, it seems to me impossible to say that the extent to which the fundamental rights of such an individual have been interfered with is an unreasonable extent. He is entitled to move freely throughout the whole of the rest of the territory of India and is merely excluded from moving freely or residing in a particular local area or place, so that the restrictions imposed on him are the minimum restrictions necessary in the interests of the general public.

14. Mr. <NAME>, for the petitioner, has not contended that it may not be necessary in certain circumstances to impose restrictions of this kind on the exercise by individuals of their fundamental rights to move freely and to reside in any part of the territory of India. The learned advocate for the petitioner has directed his attack on the Bihar Maintenance of Public Order Act to other features is it. It is pointed out that it is left to <ORG> to impose the restrictions and that, in practice under the rules of business, orders may be passed by a comparatively subordinate official. Orders of this kind must, however, in the nature of things, often be passed without delay and must be passed by or on the advice of officials who are in the best position to judge of the seriousness of the situation which has arisen or is likely to arise. <ORG> conferred on the executive a power of a much more extensive kind, namely, a power to deprive a citizen temporarily of his liberty. When this was pointed out to Mr. <NAME>, the learned advocate for the petitioner said that a person against whom an order of preventive detention was made, was entitled to be informed of the grounds on which it had been made and to make a representation against it, whereas a person, such as his client, against whom an order of externment had been made, was not entitled either to know the grounds on which it had been made or to make any representation against it. This, Mr. <NAME> vehemently contended, is in the highest degree unreasonable. In other words, the validity of the Bihar Maintenance of Public Order Act, 1950, is challenged, not on the ground that the restrictions which it imposes are not reasonable restrictions, nor on the ground that these restrictions have not been imposed in the interest of the general public, but on the ground that the law is an unreasonable law.

15. The word "reasonable" which now appears in Clauses (3) to (5) of Article 19 of the Constitution is not to be found in the Draft Constitution Under the Draft Constitution, it was left to the legislature, and to the legislature alone, to decide whether any restrictions which the Ministry of the day sought to impose were reasonable restrictions and as such ought to be imposed. I am inclined myself to think that the introduction at the last moment of the word "reasonable" was, perhaps, unfortunate. The result of inserting it clearly is that the judiciary is now empowered to review certain decisions of the legislature, decisions taken quite possibly, after a very full deliberation and with a knowledge of local conditions which the judiciary does not and cannot possess, There must be numerous statutes and statutory orders which in one way or another impose restrictions on the exercise of fundamental rights and I hesitate to subscribe to the proposition that it is now open to the judiciary to examine these statutes and statutory orders in detail and pronounce any of them to be void on the ground that they do not contain provisions which, in the opinion of the judiciary, they ought to have contained. That, in the ultimate analysis, is what we are really invited to do here. What is the criterion to be adopted by the <ORG> in deciding whether legislation of this kind is or is not valid legislation ? What is the question to which the <ORG> are bound to address themselves? The answer given by the Constitution is that the question is this: "Are the restrictions which have been or can be imposed reasonable restrictions in the interests of the general public? "That, it seems to me, is equivalent to saying : "Are the restrictions reasonably necessary in the interests of the general public ?" or, to depart still further from the language used in the Constitution:

"Is the extent to which the rights of individuals are, or are liable to be, interfered with no more than is reasonably necessary for the protection of the public ?"

If that is the criterion to be adopted, then it is, I think, immaterial that there may be ancillary provisions in the statute which may lead to hardship in individual cases. Whether such provisions were reasonable or not was a matter for the legislature to determine, and the judiciary cannot now sit in review over what the legislature has done. My learned brothers, as I understand their judgments, are of opinion that the question to which the <ORG> should address themselves is this: "Are the restrictions reasonable restrictions ?" and that restrictions which, imposed by one authority and in one manner are reasonable restrictions may not be reasonable restrictions if imposed by another authority and in another manner. For more than one reason, however, I am of opinion that the criterion to be adopted is the former and not the latter criterion. In the first place, if the latter criterion is the correct one, then it is necessary to divorce the words "reasonable restrictions" from the words "in the interests of the general public," but these two sets of words must, in my opinion, be read together. Secondly, the ordinary rule is that, while it is for the judiciary to decide whether the legislature has exceeded the limits of its legislative jurisdiction, it is not open to the judiciary to pronounce on the reasonableness or otherwise of anything which has been done by the legislature within such limits (<ORG> v. <NAME>, 1899 A. C. 580 at p. 585 : (68 L. J. P. C. 118). The framers of the Constitution have, by inserting the word "reasonable", permitted the judiciary to encroach on the sphere of the legislature but it ought, I think, to be assumed that their intention was that the encroachment should be confined within the narrowest possible dimensions. In other words, the <ORG> ought not to pronounce on the reasonableness of something that has been done by the legislature, still less render what has been done void and of no effect, unless it is quite clear that it was intended that they should have power to do this under the Constitution. Thirdly--and this is a circumstance which weighs a great deal with me--when the validity of a law which has been duly passed after full discussion by both Chambers of the legislature and hag received the assent of the President is challenged, the onus is, and is very heavily, on the person who challenges it to show that it is an unconstitutional law. In this connection I may refer to two American decisions. <NAME>, in the Legal Tender Cases, 12 wall at p. 531, said :

"It is Incumbent, therefore, upon those who affirm the unconstitutionality of an Act of <ORG> to show clearly that it is in violation of the provisions of the Constitution. It is not sufficient for them that they succeed in raising a doubt,"

and <NAME>, in <NAME> v. <NAME>, 6 Cranch 87, said :

"It is not on slight implication and vain conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatability with each other."

While, by the application of these fundamental principles I am driven to the conclusion that it was intended that the judiciary should be entitled to say that the extent to which restrictions can be imposed is or is not reasonable, I am not driven to the conclusion that it was intended that it should also be entitled to say that the manner in which the restrictions are to be imposed in individual cases is or is not a reasonable manner.

16. I have had the advantage of reading the judgment which has just been delivered by my Lord the Chief Justice and the judgment which is about to be delivered by my brother <NAME>, and as the view which both of them take is diametrically opposed to my own, I have studied them with the care and attention which they deserve. My Lord the Chief Justice in summing up his conclusions observes :

"A law which enables such things to be done is not, in my judgment, a reasonable law."

With the greatest respect I submit that it is not open to any Court to pronounce a law to be an unconstitutional law on such a ground. My brother <NAME> at the commencement of his judgment observes :

"Where a Court has to decide whether a particular provision of law does or dogs not operate to impose reasonable restrictions on the right of free movement, the teat must necessarily be what has been described, perhaps not very happily, as the objective teat."

Reverting to the point again at a later stage in his judgment <NAME>, observes :

"I would give to the word 'reasonable' occurring in Clause (5) of Article 19 the full significance of its accepted connotations."

The word "reasonable" may have been used in the sense in which <NAME> now construes it in certain enactments in England, but where so used it has invariably qualified some such word as "cause" or "belief" or "suspicion." I cannot agree that where it qualifies such a word as restrictions this is or indeed can be one of its "accepted connotations." Certainly it is not to be found anywhere in the two columns devoted to the word "reasonable" in the Oxford Dictionary. The argument which has commended itself to my brother <NAME> and which is, substantially the argument which has also commended itself to my Lord the Chief Justice, appears to me to be founded on the single word "reasonable" and further on the assumption that that word was used by <ORG> not in its ordinary dictionary meaning but in a highly esoteric sense. In <NAME> v. Sir <NAME>, 1942 A. C. 206 at p. 268 : (1941-3 ALL E. R. 338) an argument based on the word "reasonable" was addressed to <ORG>, and in repelling it Lord <NAME> observed :

"I cannot accept that contention, which seems to me to subordinate the whole substance of the enactment to a single word which itself is ambiguous and inconclusive."

If ever there was a case in which it was not permissible, and was in the highest degree dangerous, to depart from the accepted canons of construction it is this case. We are here to construe the constitution, and narrow and technical constructions ought, if possible, to be avoided. <NAME> in his Constitutional law, para. 18, quoted in Quick and Garran on the Constitution of the Australian Commonwealth, p. 794, says this :

"In the practical application of legal principles in the common affairs of life, the written agreement, the deed, the testament, the statute, are construed by the aid of the same rules, simply because they are written. The written constitution, merely because it is written, can form no exception. The must that can be said is, that, as greater interests are involved which affect the state rather than the individual, all narrow and technical construction should, as far as possible, be avoided; the nature of the writing as an organic law should be allowed its full effect."

And the result in this case of putting what appears to me to be a highly unnatural and artificial meaning on the word "reasonable" is that a law duly enacted by the legislature of Bihar is pronounced to be void and the executive is deprived of a weapon, which if used in the manner in which it is intended to be used may be of great benefit to the community and productive of comparatively little harm to individuals.

17. My difficulties in the way of accepting the view taken by my learned brothers by no means end here, We were told by the learned Advocate General that this order was made by and with the approval of the Hon'ble the Chief Minister. It is beyond the power of the Hon'ble the Chief Minister to establish by evidence in a Court of law what the state of his mind was when he made the order. It is equally beyond the power of the petitioner to disprove what according to the Hon'ble the Chief Minister, the state of his mind then was. But is it beyond the power of the Hon'ble the Chief Minister to satisfy a Court by legal evidence that the restriction imposed on the petitioner is a reasonable restriction? I will give a more striking illustration. The employees of a power-house or a water works go on strike. Tempers rise. Threats of sabotage are uttered, Sticks of dynamite disappear from a neighbouring colliery. The Hon'ble the Chief Minister makes an order under this Act declaring the power house or water-works and surrounding area a "protected place". A constable stops a citizen from exercising his fundamental right to move freely along a road within the area cordoned off. In the view taken by my learned brothers, the order of the Hon'ble the Chief Minister affords no protection to the constable. The constable, if called to answer in a Court of law must show that he had reason to suspect that the man had a stick of dynamite in his pocket. Yet, if what had to be demonstrated in a Court of law, was not the state of the constable's mind but the propriety of the order, any jury would very probably intimate at as early stage of the proceedings that it did not wish to hear further evidence and would return a verdict in favour of the Hon'ble the Chief Minister without leaving the jury box.

18. England has a longer legal history than any other country in the world. When England was covered with forests and men moved slowly on horse-back or in stage-coach, the only safeguard which a man had in the enjoyment of personal liberty was the common law and the verdict of a jury. That was why the Barons at Bunny made in 1215 stipulated that no freeman should be arrested or imprisoned "nisi vel per legerh tarrae vel per indicium parium." But the right to personal liberty and the right to move freely from one place to another are rights of a somewhat different character and are in fact dealt with in separate and distinct articles of the Constitution. The Barons who extorted the Great Charter from King <NAME> were as much Frenchmen as they were Englishmen and they demanded and obtained the right to move from their estates in England to their estates in Normandy whenever they chose. But, when the Great Charter was renewed in the reign of <NAME>, this right was not conceded. For centuries thereafter the <ORG> continued to issue the writ ne exeat regno and eventually statute law prohibited any English.

man from leaving the realm except under a license which it was in the discretion of the <ORG> to grant or to withhold. (Vide Blackstone, vol. I. p. 265). Even today an Englishman refused a passport does not and cannot turn to the <ORG>. His grievance, it is perfectly well understood, is one to be ventilated elsewhere--on the floor of <ORG> or the public platform or in the press. In 1944 and 1945, when the invasion of the continent by British and American troops was impending, large numbers of Englishmen were compelled by executive order to leave, or were prevented from entering, certain areas on the south coast. These orders could not be, and so far as I am aware, were never sought to be, challenged in the <ORG>. It is true that the orders were made in exercise of powers conferred by emergency legislation. But the Bihar Maintenance of Public Order Act, 1950, is a piece of emergency legislation. The emergency may be less grave and less apparent than was the emergency in England in 1944-1945, but as I said at the outset, it is not for us to question the existence of it and it would be rash to do so when yesterday, in a neighbouring province, something very much in the nature of martial law was proclaimed. It is the duty and privilege of the <ORG> to protect citizens in the exercise of their fundamental rights and when a citizen complains that some fundamental right of his has been invaded the <ORG> may--and indeed, if a prima facie case is made out, must--call on the person or authority responsible to justify what he has done under the law of the land. But when that person or authority cart point to a duly enacted law which, on the face of it, affords him complete justification and it is contended that the apparent justification is no real justification as the law is not a law at all, the position materially alters. The onus is no longer on the defendant. It is and is very heavily on the plaintiff. It can make no difference that the question at issue is not whether <ORG> has trespassed into a field of legislative activity reserved for the centre but whether it hag trespassed into a field in which neither it nor <ORG> itself has any legislative jurisdiction at all. The canons of interpretation which must be applied are the same. <ORG> met in the middle of the twentieth century and the citizen of India as much as the citizen of England, who has been refused a passport, has other protections besides the <ORG>. The framers of the Constitution, in express words, themselves conferred on the executive power to deprive a man of his personal liberty, and I cannot be persuaded that they intended that the power of <ORG> to authorize the executive to place restrictions on the exercise by individual citizens of fundamental rights for less vital to them than their right to personal liberty should be so circumscribed a power as my learned brothers would have it to be. In my opinion the only ground on which an order of this kind can be challenged here is that it was not made in good faith and as that has not been urged or successfully urged. I would accordingly dismiss the application.

<NAME>, J.

19. I have reached the same conclusion as my Lord <NAME> that Section 2 (1) (b), Bihar Maintenance of Public Order Act, 1949 (Bihar Act III  of 1960), in so far as it operates to restrict freedom of movement of a free Citizen, became void by reason of Article 13 (1 ), read with Article 19 of the Constitution of India, which came into force on 26th January 1950. In view of the constitutional importance of the question raised. I think that I should state, briefly, my reasons for reaching the same conclusion, avoiding at the same time a repetition of the reasons already stated by my Lord <NAME>.

20. Section 2 (1) (b), Bihar Maintenance of Public Order Act, 1949, is in the following terms:

"2 (1) The Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order it is necessary so to do, make an order-

(b) directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or persons as may be specified therein, be shall not be in any such area or plane in the Province of Bihar as may be specified in the order;"

Article 19 of the Constitution of India, so far as is relevant to this case, states :

"19 (1) All citizens shall have the right -

* * * * (d) to move freely throughout the territory of India ; (e) to reside and settle in any part of the territory of India." Article 13 (1) of the Constitution states: "13 (1). All laws in force In the territory of India Immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency, be void."

It is not in dispute that the Bihar Maintenance of Public Order Act, 1949, was a law in force in the territory of India immediately before the commencement of the Constitution, within the meaning of the definition of the expression laws in force' in Clause (3) of Article 13 of the Constitution. If the provisions in Section 3 (1) of the Bihar Act and the provisions in Article 19 (1) (d) and (e) of the Constitution are juxtaposed, the inconsistency between the two at once strikes the reader. Sub-clause (d) of Article 19 (1) of the Constitution guarantees to all citizens of India the right to move freely throughout the territory of India, and Sub-clause (e) gives the right to reside and settle in any part of India. Section 2 (1) (b) of the Bihar Act authorises the issue of an order imposing restrictions on such free movement or on the right of residence in any area or place in the State of Bihar, on the satisfaction of the Provincial Government, that is, <ORG>. This inconsistency at once attracts the operation of Article 13 (1) of the Constitution, and the Bihar Act is rendered void to the extent of the inconsistency under the said article: there is, however, Clause (5) of Article 19 of the Constitution which, amongst other things, saves the operation of any existing law in so far as it imposes reasonable restrictions on the exercise of the right conferred by Sub-clause (d) and Sub-clause (e). Clause (5) of Article 19 is in the following terms:

"(5) Nothing in Sub-clause (d), (e) and (f) of the said clause shall affect the operation of any existing law in as far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe."

Therefore, the crucial question in this case is if the operation of Section 2 (1) (b) of the Bihar Act is saved by Clause (5) of Article 19 of the Constitution.

21. I do not think that there is any doubt that it is for this <ORG> to consider and decide whether the operation of Section 2 (1) (b) of the Bihar Act is or is not saved by Clause (5) of Article 19 of the Constitution. The rights guaranteed under Part III of the Constitution are justiciable rights, for the enforcement of which there are remedies including the remedy guaranteed by Article 32.  Article 226 of the Constitution also provides a remedy, and gives this <ORG> power to issue directions, orders or writs to any person or authority, including in appropriate cases any <ORG>, for the enforcement of any of the rights conferred by Part III. If, therefore, this <ORG> is to decide whether the operation of Section 2 (1) (b) of the Bihar Act is saved by Clause (5) of Article 19 of the Constitution, it would follow, ex hypothesi, that this <ORG> must also determine whether Section 2 (1) (b) of the Bihar Act imposes or operates to impose reasonable restrictions on the exercise of the right conferred by Sub-clauses (d) and (e) of Clause (1) of Article 19 of the Constitution. Where a <ORG> has to decide whether a particular provision of law does or does not operate to impose reasonable restrictions on the right of free movement or residence, the test must necessarily be what has been described, perhaps not very happily, as the objective test. Since the decision of <ORG> in the now famous case of <NAME> v. Sir <NAME>, 1942 A. C. 206: (1941-3 ALL E. R. 338) the distinction between the objective and subjective tests has frequently been the subject of judicial consideration in the <ORG>s in India and England.

The words 'objective' and 'subjective' have a philosophical flavour; but put in ordinary language--e. g., the language used by Lord <NAME> in <NAME>'s case, (1913 A. c. 306 : 1941-3 ALL. E. R. 338) the objective test merely means an "external standard to be applied by some one other than the authority imposing the restriction, namely by a judge" ; whereas, the subjective test excludes an external yardstick and means the decision of the person who acts--may be reasonably ; but still it is his decision and not the decision of any one else. As Lord <NAME> said in <NAME>'s case, (1942 A. C. 206: 1941-3 ALL E. R. 338) the words 'reasonable' ''connotes a quality or characteristic. Who is to decide on reasonableness is a different matter, which depends on the circumstances." Under Article 19 (5) of the Constitution, the <ORG> is to decide on reasonableness: this cannot be disputed. The position, therefore, reduces itself to this: under Clause (5) of Article 19 this <ORG> is to determine whether the relevant provisions of the Bihar Act impose or operate to impose reasonable restrictions on the right of free movement or residence of a citizen ; but the relevant provisions of the Bihar Act make it quite clear that the only prerequisite for such imposition is that <ORG> (which will mean the Governor under the General Clauses Act , though under the rules of Executive Business the matter may be dealt with by some other person; may be the Chief Minister as is stated by the learned Advocate-General in this case) is satisfied that a restriction should be imposed on the free movement or residence of a citizen. Thus, while Clause (5) of Article 19 of the Constitution requires the <ORG> to consider the reasonableness of the restrictions, the law which is to be saved under Clause (5) states that the satisfaction of <ORG>, and not reasonableness by any external standard is the only pre-requisite for imposing the restrictions. In my opinion, this, at once, demonstrates that the relevant provisions of the Bihar Act are not saved by Clause (5) of Article 19 of the Constitution. To hold otherwise would mean that the right of free movement or residence guaranteed by Article 19 can be taken away by any law irrespective of the consideration whether that law imposes or operates to impose reasonable restrictions or not.

22. It has been contended by the learned Advocate-General that reasonableness, expediency, public policy are matters for the <ORG> and not for the <ORG>, That is so, where no constitutional limitation is imposed on the power of legislation. The Constitution of India, however, imposes certain constitutional limitations, one of such limitations being embodied in Article 13 of the Constitution. Then, it is contended that all that the <ORG> can examine under Clause (5) of Article 19 is whether the restrictions imposed are in themselves, as to their nature and extent, reasonable or not. It is pointed out that the adjective "reasonable" qualifies "restrictions"; therefore, so the argument proceeds, the <ORG> should not go into the question as to which authority imposes the restrictions, which authority is to be satisfied, etc. It is argued that these are matters for the <ORG>, and ideas such as are involved in the application of subjective or objective tests are irrelevant for the purpose of construing Clause (5) of Article 19 of the Constitution. I agree that the adjective "reasonable" goes with the word "restrictions." I do not accept, however, the argument that only the territorial or external extent of the restrictions imposed need be considered under Clause (5) of Article 19. If the <ORG> is to consider the nature of the restrictions, for determining whether they are reasonable or not, the question at once arises whether the law operating to impose the restrictions allows a <ORG> to consider their reasonableness. I concede that, as a matter of fact, the satisfaction of the Governor or of the Chief Minister or, for that matter, of any other officer need not necessarily be unreasonable; and we should not presume that they will act unreasonably. But the test is not the operation of a particular order passed against a particular person; the test is what does the law imposing or operating to impose the restrictions authorise. If that law says that no other pre-requisite is necessary except the satisfaction of one person, however perfect that person may be, then the teat of reasonableness as applied by <ORG>s is taken away, and the law to that extent ceases to be a law imposing or operating to impose reasonable restrictions within the meaning of Clause (5) of Article 19 of the Constitution. In other words, the law which imposes or operates to impose restrictions on the free movement or residence of a citizen must not exclude an external test of reasonableness; if it does, that law is not saved by Clause (5) of Article 19.

23. I need not repeat what my Lord the Chief Justice has stated regarding the absence of any provisions in the Bihar Act for giving a person, whose movement is restricted, an opportunity of vindicating his position etc. The whole scheme of the Bihar Act is that the satisfaction of <ORG> is the only test, and nobody else can question that satisfaction on any ground whatsoever. That has also been the view consistently expressed by this Court, before the Constitution Act came into force: see <CITATION> , A. I. R. (86) 1949 Pat. 1 : (60 Cr. L. J. 44).

24. It is to be observed that Clause (5) of Article 19 of the Constitution refers not merely to the operation of an existing law, but also to the making of any law in future by the <ORG> under which restrictions can be imposed on the exercise of the right conferred by Sub-clauses (d) and (e) of Article 19 (1) of the Constitution. If the view for which the learned Advocate-General contends is accepted as correct, it would mean that the <ORG> can make a law imposing restrictions on the fundamental right of free movement and residence laying down in that law that the only prerequisite for the imposition of the restrictions is the satisfaction of the <ORG>, and the person whose freedom is restricted will have no remedy to get the curtailment or abridgment of his right tested on the touchstone of reasonableness by a Court of law. It would mean that what the Constitution gives with one hand under Article 19 (1) is taken away by the other hand under Article 19 (5). I am unable to subscribe to the view that Clause (5) of Article 19 was intended to make the right given by Article 19 (1) so illusory, I would give to the word "reasonable" occurring in Clause (5) of Article 19 the full significance of its accepted connotation. It is to be observed that there are other Articles where the test of reasonableness has not been incorporated ; see Article 25 (2) which is in similar terms but without the word "reasonable." Even in Clause (2) of Art 19, the word "reasonable" does not occur. I do not think that the word "reasonable" which did not occur in the relevant clause of the Draft Constitution was inserted either inadvertently or without meaning.

25. There has been some argument before us on the footing that if the test of reasonableness does not enter into a law made for preventive detention under Article 22 , a fortiori that test should not enter into the lesser matter of a restriction on free movement or residence. The reply to this argument is that the two matters are separately dealt with, and the mechanism of safeguards provided is different in respect of the two matters. The learned Advocate-General referred us to a large number of decisions on the question that this <ORG> cannot sit in appeal over the <ORG>, and that the reasonableness of a particular piece of legislation is not for the <ORG>s to determine. All those decisions relate to legislation on which there is no constitutional limitation, and I do not think that any useful purpose will be served by examining those decisions in detail. The question here is not one of legislative theory or practice, but the true scope and effect of Clause (5) of Article 19 ,

26. There has been some argument before us as to whether Article 226 of the Constitution provides the appropriate remedy in this case. In view of the very wide terms of that Article, I think that the petitioner is entitled to ask us for an order against <ORG> prohibiting that Government from enforcing the order which must be declared to be void after 26th January 1950. The order infringes a fundamental right of the citizen, and Article 226 provides the appropriate remedy.

27. In conclusion I must make it clear that this decision must not be understood in the sense that the <ORG> cannot make any law imposing or operating to impose restrictions on freedom of movement of a citizen. The <ORG> can do so, and in so doing may authorise any person or even the <ORG> to take action; but the law imposing or operating to impose such restrictions must fulfil the test of Clause (5) of Article 19 , viz., the test of reasonableness as distinct front the mere satisfaction of one individual or authority, with or without reason. My learned brother <NAME> has referred to what is reported to have taken place in a neighbouring province. I do not know, and it is not for me to say, that circumstances have not arisen or may not arise, which necessitate the imposition of restrictions on personal freedom. But our duty is to interpret the law as it is, leaving it to the proper authority to change the law or enforce the emergency provisions in part XIII of the Constitution, if necessary. As long as the law is what it is, it must "speak the same language" (to quote the words of Lord <NAME>) for all--in times of stress as in times of quiet.


<NAME>, J.

1. These appeals arise from an order of <NAME>, J., dismissing two connected petitions, one to quash a penalty of Rs. 1,000 in lieu of confiscation of goods under Section 42 (3) (a) of the Madras General Sales Tax Act, 1959 and the other for a direction to the respondents to deliver to the appellant the goods which had been seized and confiscated while on transit at Kandaigoundan Chavadi check-post, which is the border of Coimbatore district in this State, and Calicut in the Kerala State. The learned Judge declined to accept that the said provision is invalid, and held that <CITATION> (1965) 16 S.T.C. 708, and <CITATION> (1968) 1 S.C.J. 121 : (1967) 2 I.T.J. 919 :(1968) 1 An.W.R.(S.C.) 43 : (1968)1 M.L.J , (S.C.). 43 : (1967) 20 S.T.C. 453. in which this Court held, the Supreme Court agreeing with it that Section 41 (4) was invalid,were distinguishable.

2. The lorry K. L. R. 3919, was searched by the Check-post Officer and was found to carry at the time 85 bags of which 45 contained maida, 20 atta and 20 khandasari sugar. The lorry driver, however, carried with him a sale bill and delivery note which covered only 85 bags of atta. On the ground that the lorry attempted to transport without any sale bill or delivery note for the maida and khandasari sugar and on suspicion that there was an attempt at evasion of tax, the Check-post Officer by an order dated 2nd March, 1965 confiscated the goods, but gave an option to the appellant to pay a penalty of Rs. 1,000 in lieu of confiscation of the goods. The Check-post Officer declined to accept the explanation of the appellant which was that he had purchased in Madras 85 bags of atta, 45 bags of maida and in Nellore 20 bags of khandasari sugar, he being of the view, as we said, that there was really an attempt to suppress the sales of the maida and khandasari sugar under the cloak of the sale bill and delivery note for atta only.

3. Before <NAME>, J., no attempt appears to have been made to challenge the validity of the penalty order on its merits and the learned Judge proceeded on the basis that in the exercise of writ jurisdiction the finding of the Check-post Officer that the explanation of the appellant was not acceptable could not be revised. No point about this has been made for the appellant before us. The appeals have therefore, been confined to the validity of Section 42 (3) (a) and the effect of <CITATION> (1965) 16 S.T.C. 708 and <CITATION> (1968) 1 S.C.J. 121 : (1967) 2 I.T.J. 919 : (1968) 1 An.W.R. (S.C.) 43 : (1968) 1 M.L.J. (S.C.)43 : (1968)2O S.T.C. 453 on that question.

4. <CITATION> (1965) 16 S.T.C. 708, decided by a Division Bench of this Court, to which one of us was a party, held that the Madras General Sales Tax Act was not a law of goods and a power to confiscate is not ancillary or incidental to a power to tax on sale or purchase of goods, though of course such power to tax undoubtedly included the power to make due provisions to prevent or check evasion of tax and make it unprofitable. On that view this Court struck down Section 41 (4) which provided for search and seizure from the premises of a dealer goods unaccounted for and for confiscation thereof. The section also provided for levy of penalty in lieu of such confiscation. <ORG> agreed with the conclusion of this Court as to the invalidity of Section 41 (4), but on a different ground. Clause (a) of the second proviso to Section 41 (4) which was introduced by a latter amendment, stated that in cases where the goods are taxable under this Act, in addition to the tax recoverable, a sum of money not exceeding one thousand rupees or double the amount of tax recoverable, whichever is greater, may be levied as penalty in lieu of confiscation. <ORG>, with reference to this provision, observed (at page 465):

But under Clause (a) of the second proviso the tax is ordered to be recovered even before the sale, in addition to the penalty not exceeding Rs. 1,000 or double the amount of tax recoverable whichever is greater.

Referring to the scheme of the Act, <ORG> considered that in a large majority of cases covered by the Act the tax was payable at the point of first sale in the State, and that, therefore, Clause (a) of the second proviso was clearly repugnant to the general scheme of the Act. In the words of <ORG> (at page 466):

We are, therefore, of opinion that Clause (a) of the second proviso being repugnant to the entire scheme of the Act, in so far as it provides for recovery of tax even before the first sale in this State, which is the point of time in a large majority of cases for recovery of tax, must fall on the ground of repugnancy....We therefore agree with <ORG> and strike down Sub-section (4) but for reasons different from those which commended themselves to <ORG>.

In so holding, <ORG> made it clear that it did not propose to decide the general question whether a power to confiscate goods found on search and not accounted for in the books of account of the dealer was an ancillary power necessary for the purpose of stopping evasion of tax.

5. Section 42 (3) of the Act, with which we are concerned in the appeals before us, is substantially in pari materia, if not identical, with Section 41 (4) the only difference being that unlike the latter, which provides for goods searched and seized in the premises of the dealer, which are not accounted for, the former concerns itself with goods under transport by any vehicle or boat across the check-post or barrier, and not covered by the specified documents. Except for this difference, which is quite inconsequential from the standpoint of the question of invalidity, Clause (a) of the second proviso to Section 42 (3) is word for word identical with Clause (a) of the second proviso to Section 41 (4). The separate and independent reasoning on the basis of which this <ORG> and the Supreme <ORG> struck down Section 41 (4) as invalid seems, as we think, to apply with equal force to the invalidity of Section 42 (3).

6. <NAME>, J., however, felt that there was difference between Section 41 (4) and Section 42 (3) but he did not proceed to detail the difference. As far as we are able to see, except the difference, which we mentioned, there is no other existing between the language, scheme, object and effect of the two provisions. The learned Judge having noticed the two decisions, one of this <ORG> and the other of the Supreme <ORG>, that the ratio or the principle of those decisions will not apply to the facts of the petitions before him, because, in his opinion, it had been established by the finding of the Check-post Officer that the taxable event had occurred and the transactions become exigible to tax. In such a case, the learned Judge was of opinion that there might be room to hold that the power to seize and confiscate the goods was ancillary to the power to tax and further the basis of the reasoning of the Supreme <ORG> that a power to confiscate even before the taxable event had occurred, that is to say a sale or purchase, was inconsistent with the scheme of the Act which was to charge first sales or purchases in the State, was not present here. In our opinion, the factual position in this case has or can have no bearing on the legislative competence to enact Section 41 (4) or Section 42 (3) in their present form, or the invalidity of the provisions, because they, as they exist at the moment proceed to charge the goods to tax even before a sale or purchase thereof has occurred which is repugnant to the scheme of the Act. Legislative competency to provide for confiscation of goods entirely depends on whether such a power is ancillary or incidental to a power to check evasion of tax or to make it unprofitable which is undoubtedly a part of the power to tax on sale or purchase of goods. This <ORG> held that such a power was not ancillary or incidental to the power of taxation of sale or purchase of goods. That conclusion rested entirely on the scope and ambit of Entry 54 in List II of the Constitution, not on the factual position, whether a sale or purchase had in a given case taken place. The learned Judge, as we have already mentioned, was of opinion that there might be room to hold that the power to seize and confiscate goods was ancillary to the power to tax sales, where a sale in a given case had taken place. That, we are bound to point out, was directly in conflict with the view in <CITATION> (1965) 16 S.T.C. 708, which is binding on us as well as the learned Judge. The view of this <ORG> was untouched by the Supreme <ORG> as expressly mentioned by it. Nor the fact that a sale or purchase had taken place in a given case could make any difference to the invalidity of Section 42 (3) because, that question depended on the actual language employed by the <ORG>. The vice according to the Supreme <ORG> which invalidated Section 41 (4) lay in the fact that it charged goods to tax even before the taxable event has occurred which is repugnant to the entire scheme of the Act. That repugnancy is not solved by stating that the Check-post Officer has found that there has been a sale or purchase in respect of the goods seized and confiscated.

7. Apart from what we have said, we are also unable to appreciate how the finding of the Check-post Officer that there had been a sale would at all in the present context, be relevant to Section 42 (3), proviso 2 (a). The appellant is an out of State dealer. So far as his purchase of khandasari sugar from Nellore is concerned, the transport by him has no reference to any sale or purchase, whether inter-State or intra-State, chargeable to tax in this State. It does not also appear that the sales of goods in question are subject to single point of taxation. Even so, it is nobody's case that the first sales or any sales, for that matter have been effected by the appellant. In such circumstances, two things will follow : one is if there is evasion of tax it is not on the part of the appellant. If he colluded, as the learned Judge apparently thought, that is not covered by the penal provision in Section 42 (3). Secondly it is only where the goods are chargeable to tax, so to speak, with reference to Section 42 (3), proviso 2 (a) that any occasion for seizure and confiscation of the goods can arise. That even does not appear, on the facts, to have happened. It is not any taxable event, but it is only a taxable event which is exigible to tax at the hands of the assessee and is the subject-matter of evasion, that will come within the purview of Section 42 (3). That is not the case here.

8. Before we leave this case, there is one other matter to which we would like to make reference. The learned Judge referred to <CITATION> (1967) 2 An.W.R. 71 : 19 S.T.C. 506. But this very case was noticed by <ORG> in <CITATION> (1968) 1 S.C.J. 121 : (1967) 2 I.T.J. 919 : (1968) 1 An.W.R. (S.C.) 43 : (1968) 1 M.L.J. (S.C.) 43 : (1967) 20 S.T.C. 453, and it was pointed out that the Andhra Act did not contain a provision like Section 41 (4), proviso 2 (a). That made all the difference, as <ORG> itself pointed out, because the main body of Sub-section (4) of Section 41 as was held by <ORG>, ought to be read as qualified by and in the sense of the two provisos to Section 41 (4).

9. We hold that Section 42 (3) is unconstitutional and invalid, and strike it down. The appeals are allowed with costs throughout. Counsel's fee Rs. 100 in each case. We are informed that in obedience to an interlocutory order of this Court the relative bags of maida and atta have been returned to the appellant, but 20 bags of khandasari sugar, the subject-matter of confiscation, had been sold by the department, in open market. In the circumstances, this will be taken note of and the respondents will pay the sale proceeds of the khandasari sugar to the appellant.

W.P. No. 1077 of 1968.--This petition is not opposed by the <ORG>. This is allowed but with no costs.


JUDGMENT <NAME>, J.

1. This suit was brought in <ORG> at Calcutta on August 22, 1933. The plaintiff was <NAME> daughter and only child then surviving of one <NAME>, a Hindu governed by the <NAME>, who had died in 1929. He had in his lifetime established certain family idols and had dedicated to them considerable properties movable and immovable/ His only son <NAME> had died in 1932 leaving a widow <NAME> and three daughters.

2. By her suit <NAME> claimed to have become on the death of <NAME> entitled to the sebaiti of the idols and to the management of the debut-ter property. She impleaded <NAME> and her daughters as persons wrongfully in possession of the debutter properties and falsely claiming to be se-baits : though as between themselves the widow on ordinary principles of succession would of course take before the daughters. <NAME> and <NAME> have both died while the present appeal to His Majesty was pending, the former on February 15 and the latter on January 18, 1939. The question to be answered is whether on <NAME>'s death the sebaiti devolved upon his heirs-that is, in the first place, upon his widow-or whether it went to <NAME> as the person who at that date was the nearest surviving heir of the founder <NAME>. The learned trial Judge <NAME> took the latter view and by his decree of August 26, 1937, found in favour of <NAME>, but on appeal <NAME>, and <NAME> found in favour of <NAME>, and their decree of July 11, 1938, dismissed the suit. The same principles apply on the death of these two ladies. On the view taken by the trial Judge the sebaiti is now vested in the sons of <NAME> and of the sister who had predeceased her-the seven appellants. On the view taken by the appellate bench it has devolved, upon <NAME>'s daughters, the three respondents.

<NAME> (d. 1929).

<NAME> (d. 1926).

| _________________________________________________________ | | | Bhabatarini (d. 1939) <NAME> (d. 1932) Sudhanshu Badani =Krishnandan =<NAME> (d. 1939) (d. 1928) | | =Niranjan | | | | _______________________________________ | | | | | | | Ashalata Kanaklata Diptilata | | (Respondent) (Respondent) (Respondent) | | | | _________________________________ | | | | | <NAME> 2 daughters | (Appellant) (Appellant) | | _______________________________________________________________ | | | | | | Kiriti Bihbuti Mritunjoy Jyotirmoy Hiranmoy 4 daughters (Appellant) (Appellant) (Appellant) (Appellant) (Appellant)

3. The terms of the dedication made by <NAME> are to be found in an arpannama or deed of dedication dated March 31, 1922. Seven years afterwards he purported to cancel this instrument and to re-dedicate the same properties on different terms by a deed dated February 13, 1929 ; but <ORG> have found and it is now accepted by both parties to the present appeal that this deed of 1929 had in law no effect upon the previous dedication. The provisions made by <NAME> for the devolution of the sebaiti are to be found solely in the deed of 1922. Those which became effective in the events which happened are that <NAME> and his wife <NAME> should be the first sebaits and that on the death of <NAME> (who survived his wife) <NAME> should be sebait in his stead. This appointment of <NAME> was followed by provisions purporting to say who should succeed him in the sebaiti, but these provisions were in law of no effect. Upon the death of <NAME> in 1932 the specific provisions validly made by <NAME> as founder with respect to the succession to the office of sebait became exhausted.

4. What happened then to the sebaiti right ? Cases are not wanting in which it has been said that it goes to the heirs of their founder. Of these the leading authority is perhaps <NAME> v. <NAME> (1889) L.R. 16 I.A. 137, where Lord <NAME> said (p. 144):

According to Hindu law, when the worship of a thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to shew a different mode of devolution.

The case itself was one in which a custom of primogeniture obtained in the plaintiff's family. The principle thus enunciated was said to be illustrated by the case of <NAME> v. <NAME> (1870) 5 Beng. L.R. 181, where the founder had appointed his sister sebait and provided that each sebait should appoint his or her successor. The sister having died without making any appointment, it was held by <NAME> and <NAME> that " the managership must revert to the heirs of the person who endowed the property." To appoint to the founder as the person from whom descent was to be traced was enough to end the case as the suit was brought by the sister's husband's brother claiming as her heir and the defendants were the founder's widows. The language of Lord <NAME> above cited was restated by Sir <NAME> in <CITATION> (1904) L.R. 31 I.A. 203 : s.c. 7 Bom. L.R. 765, in the form (p. 208).

that the title to the property, or to the management and control of the property, as the case may be, follows the line of inheritance from the founder.

5. Save for one case, however, no decision appears to have been directed to declaring for the purposes of any case like the present, the exact method of determining the individual person or persons who should be the first takers after those specifically nominated to the office by the founder. The decision which deals with this precise question is <CITATION> (1915) 20 C. W. N. 314, 404, a decision of <NAME> and Richardson JJ. In that case the founder left a widow and six sons. He nominated his widow and two sons to be successively sebaits after his death and gave no further directions. When the last of the three nominated sebaits died, it was held that the next takers were "the heirs of the founder at the time"-namely, the four sons then surviving. It was argued to the contrary that on the death of the founder all his sons took a vested interest subject to the right of the nominated persons-that is, a remainder subject to three successive life estates in the office. This view was, however, rejected, Sir Asutosh <NAME> saying (p. 317) :

We are of opinion that this contention is unsound and that the principle of vested interest while the actual enjoyment of the expected interest is postponed till the termination of the life estate, as expounded by their Lordships of <ORG> in <NAME> v. <NAME> (1846) 4 M. I.A. 137 has no application to cases of the description now before us. No doubt, a <NAME> holds his office for life, ( <CITATION> (1907) I.L.R. 35 Cal. 226) but this does not signify that he has a life interest in the office with the remainder presently vested in the next taker. The entire office is vested in him, though his powers of alienation are qualified and restricted.... The position of a <NAME> is analogous to that of a Hindu female (widow, daughter or mother) in possession of the estate of the last full owner rather than to that of the holder of a life estate. When a Hindu female is thus in possession she represents the estate completely and though her powers of disposition may be of a restricted character, no one else has a vested interest in the estate during her lifetime. Similarly, when a founder has given valid directions as to the devolution of the <NAME>ship, as in the present case upon the death of the last <NAME>, the office vests in persons who at the time constitute the heirs of the founder; provided the last <NAME> has not taken it absolutely ; when the oftice has so vested in them, upon the death of each member of the group, it passes by succession to his heir....

6. This is the principle for which Mr. <NAME> on behalf of the appellants now contends-that the necessity of treating the sebait in office as completely representing the idol and its property prevents the recognition of any other person as having a vested interest in remainder ; and thus prevents any interests in the sebaiti from being, as the learned trial Judge expresses it, " carried along the straight line of inheritance from the founder ", during the time that the office is held by any person to whom the founder has granted the sebaiti but not absolutely or so as to devolve upon his heirs.

7. The learned trial Judge in a very clear and careful judgment followed the decision in <NAME>'s case. The learned Chief Justice took the view that, subject to the right given to <NAME> by the deed of 1922, " the sebaitee and the right of disposing of it" remained vested in <NAME>, and on <NAME>'s death passed to <NAME> as his heir.

<NAME> then had not only a ' life' sebaitee but the right of disposing of the sebaitee ; he had the complete heritable and descendible rights of a sebait.

so that his rights passed to his heirs under the Hindu law. Their Lordships do not appreciate that any question arises in this case as to a right of disposing of the sebaiti, and they do not here discuss this somewhat special subject-matter. <NAME> addressed himself to the reasoning of <NAME>'s case. He was critical of " the observation that there is no vested remaindtr in anybody in such cases." He pointed out that a Hindu widow is regarded as a surviving half of her husband, and observed that the idea that there can be no residuary right in anybody so long as a sebait is actually in office can be supported only on the principle that sebaiti is an office pure and simple and not a property. His conclusion was thus expressed :

To me it seems that both the elements of office and property, of duties and personal interest, are mixed up and blended together in the conception of sebaitship. One of the elements cannot be detached from the other. The entire rights remain with the grantor when a deity is founded and it is open to him to dispose of these rights in any way he likes. If there is no disposition, sebaitship remains like any other heritable property in the line of the founder and each succeeding <NAME> succeeds to the rights by virtue of his being an heir to his immediate predecessor and not to the original grantor. If it is disposed of completely and absolutely in favour of another person, there remains nothing in the grantor except the possibility of a reverter when there is a failure of extinction of the line of <NAME>s indicated by him. If, on the other hand, the founder has parted with his rights only in a partial manner for the lifetime of the grantee the residue still remains in him and his heirs, and on the death of the grantee, the heir of the founder living at the time is entitled to the <NAME>ship. If the grantee in such cases happens to be the sole heir of the founder upon whom the residuary right devolves at the same time and he becomes the <NAME> under law as well, then, whether or not we invoke the technical doctrine of merger or coalescence of the particular estate with the residue, his position in my opinion is that of an absolute <NAME> whose rights devolve upon his heirs and not upon the heirs of the founder at his death. If there was no grant in his favour, he would have been entitled to an estate of inheritance under law as regards the <NAME>ee, and the fact that there is a grant in his favour of a limited right cannot make his position worse, and take away from him the higher rights which he had irrespective of the grant. It would be opposed to all principles of law to require that in such cases on the death of the <NAME> who was himself the heir of the grantor, the successor can come in only to use the technical phrase per formam doni.

8. The fact that the person nominated by the founder to succeed him was not a stranger but his only son appears at first sight at least to put a special element of difficulty in the way of the appellants. But their Lordships are not of opinion that this case can or should be dealt with by distinguishing, it from <NAME>'s case without examining the principles therein laid down. It was the decision of two learned Judges of distinction, one of whom as a Bengali lawyer of wide experience had very exceptional qualifications for forming an opinion upon the matter. The authority of the decision is not in their Lordships' view impaired by reason that the same result might have been arrived at on an alterative ground-namely, that the sebaiti had been given absolutely to the last of the nominated persons. Nor can it be fairly said that the law as to sebaits has of late altered in material respects by reason of the discussions which ended in the full bench case of <NAME> v. <NAME> (1932) I.L.R. 60 Cal. 452, F.B. The effect of that case and of the <ORG>'s decision which confirmed it- <CITATION> (1936) L.R. 63 I.A. 448 : s.c. 38 Bom. L.R. 1250-was, however, to emphasise the proprietary element in sebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. It must be noticed, however, that though certain cases are referred to in the judgment in <NAME>'s case, the learned Judges do not profess to be following any previous decision as covering the particular point now in question, Taking their stand upon the proposition that the entire office is vested in the person who holds it at any given time, they arrive at the conclusion that it is impossible to give recognition to any interest as vested in another. Abstract reasoning of this character is never without its perils in matters of first impression. Before the results can be accepted a careful regard must be had to practical consequences and to competing analogies or principles. This is all the more advisable in the present case since there are elements in the Hindu law of idol and sebait which the ordinary Hindu law of property finds somewhat intractable. Their Lordships cannot but agree with the remark of <NAME> that analogies-tenant for life, tenant in tail, Hindu woman's estate-however helpful can be pushed too far.

9. Reference was made by the trial Judge and in the argument before their Lordships to the case of <CITATION> , and it may be as well to notice that no question as to the correctness of the rule in <NAME>'s case was raised by the facts or considered by the <ORG>. The testator <NAME> left three sons, two of whom, <NAME> and <NAME>, were appointed by him to be the first sebaits and the provisions of his will marked out an invalid and illegal line of descent to take effect upon their death. On the death of these two sons, there survived the remaining son, <NAME>, one son of <NAME>, and four sons of <NAME>. <NAME> was not so uninstructed as to claim that he alone inherited the sebaiti right but only claimed that he was one of the persons entitled as heirs of his father. This was made clear by the sixth paragraph of his affidavit of August 15, 1933, and it was accepted that, as <NAME> put it in his judgment, " <NAME> would succeed along with the heirs of <NAME> and <NAME> as joint heirs of the testator." Under the <NAME> as under the Mitakshara grandsons whose father is dead take simultaneously with sons and per stirpes. The <ORG> having held overruling the appellate bench that the line of descent prescribed by the testator to take effect upon the death of <NAME> and <NAME> was illegal, applied " the ordinary Hindu law of succession " and restored the decree to <NAME>, that the persons to succeed the nominated sons were " the heirs of the testator."

10. The case now before the <ORG> is not one where the founder has made no disposition with respect to the <NAME> nor. has he disposed of it absolutely and completely in favour of another. It requires an intermediate case to raise the difficulty which is here presented-a case where the only disposition made by the founder is that he has made a grant to X, or to X and Y in succession, of the office of <ORG> without intending or at least without effectively directing that the heirs of either are to take. Had no such nomination been made, it is clear that the <NAME> would have devolved in the line of the founder in like manner as property inherited from a male owner who had held it in severalty and that the next heir if a male would become a fresh stock of descent. Unless, therefore, there be cogent reason to the contrary, the principle to be applied to the intermediate case would seem to be that the course of devolution prescribed by the ordinary law should give way so far as is necessary to let in the persons nominated by the founder, but no further. It is here that the analogy of the Hindu woman and the reversioner is apt to be misleading. The Hindu widow is not the only person who can have a Hindu woman's estate and the point that she is said to be a surviving half of her husband might perhaps be overstressed. But the Hindu widow-first of all the female heirs in the table of succession-never takes in the presence of son, grandson or great grandson : and when upon her death the estate devolves upon the person who is the nearest living heir of her husband, this cannot operate to cut out heirs of a son or grandson who survived him. What the appellants seek in the present case is to cut out the daughters of <NAME> who are, the heirs of <NAME>'s surviving son, since they are not heirs of <NAME> at all. Disparate are the results of analogy.

11. Still, it must be recognised that the sebait must completely represent the idol or the endowment-the deity, the religious purpose, the debutter property. As laid down by the <ORG> in a case already cited (<NAME>'s case) the right of suit is in the sebait in such sense that if the sebait be a minor the period of limitation is postponed in view of his incapacity. It would be intolerable that the office should be duplicated by including with the incumbent his successor or that third parties should be required to deal both with sebaits and with presumptive sebaits. This is a practical requirement and proceeds from reasons which have not much in common with the case of a Hindu woman's estate. The Hindu woman " represents her husband's estate " in the sense that she is owner of it-though a limited owner ; having a power of disposition which is limited by reason that she is not herself a stock of descent and has a duty to protect the reversion. The reversioner when he succeeds to the estate may deal with it at his pleasure. The sebait has certainly a right of property in his office and it may be correct to say that he has some sort of beneficial interest in the debutter property, but the idol is the owner of the property and the limit set to the sebait's power of disposition is set not to preserve the interest of the next sebait but to maintain and preserve by proper management the endowment or religious institution. The nature and extent of the power of alienation for necessity is laid down in Hunoommpersaud Panday v. <NAME> (1856) 6 M. I.A. 393- perhaps the most often cited of all the cases in the Indian reports ; for the principles expounded by Lord Justice <NAME> apply not only to the sebait and the Hindu widow but to the karta of a joint family acting on behalf of minor members and to a mother acting as guardian of the property of her minor son.

12. The question remains to be answered on its merits : If it be recognised that the sebait must completely represent the idol, does it follow that nothing save a spes successions can be attributed to anyone else? If the founder appoints X to be the first sebait but not absolutely or so as to carry any interest to any heir of X, has he left no interest in himself ? Their Lordships agree with the appellate bench of <ORG> that these questions cannot be answered as the appellants' case requires. They think that <NAME>'s case should on this point be overruled. It seems possible in theory to lay down a series of rules for determining which person in a family should succeed to the office of sebait to the family idol without assuming that the office is property at all. Such rules might be made to follow more or less completely the same course as the line of succession to the property of a Hindu male owner. This, however, is no more than a fancy to be mentioned only for distinction's sake and to be put aside as soon as mentioned. It is not a theory which anyone maintains nor would it serve the appellants' purpose to suggest it. It must now be taken that the sebaiti is property, that it is not a catena of successive life estates (Gnanasambanda Pandora Sannadhi v. <NAME> (1899) L.R. 27 I.A.69, 78 : s.c. 2 Bom. L.R. 597), but is heritable-heritable, property which in the first instance is vested in the founder. It must further be accepted that the founder may direct that a designated person should hold the office during that person's life either immediately or on the death of a previous holder ; and that such direction-subject to the relevant conditions as to perpetuity, whatever these may be-will be good although it carries no right to the heirs of the grantee and does not amount to a complete disposal of the sebaiti.

13. If then on the death of the grantee the sebaiti goes to the founder or his heirs, this is because the right of the founder is heritable and he has not completely disposed of the interest which he has therein. It is impossible to represent this as a spes successionis. It is a right in the founder and his heirs. It is the same estate of inheritance as the founder held at the date of the grant. The grant did not exhaust it or terminate the founder's interest. On the death of the grantee the sebaiti " reverts " because the heritable interest of the founder has ceased to be qualified by the grant.

14. It is only with some difficulty that any theory can successfully hold together the two elements of "office" and "property", but the sebaiti right involves both and neither element is to be discarded. Their Lordships are not certain that they have succeeded in forming a precise notion of the difficulty that is apprehended from admitting the possibility that an interest in remainder can be vested in the founder or an heir of the founder during the incumbency of the grantee.

15. What is the class of case in which it is thought that the existence of this right will prevent the sebait from representing the idol with that completeness which has hitherto been ceded to him ? Rights to prevent mismanagement, to preserve the foundation, can be asserted by anyone having an interest therein. Questions may arise which affect the title to the sebaiti right itself. But what claim to interference with the idol's worship or property can be based upon a right which has not vested in possession ? Why in any case should the element of " office " be regarded so little or disregarded so completely ? The Courts need give no countenance to such suggestions. If the office is heritable property and may be the subject of a grant limited to the period of the donee's life, the grant may be regarded as disabling the founder and any heir of his from having or asserting during the donee's life any right to represent the idol or manage its affairs or from impairing in any manner the right of sebaiti which has been granted and which has long been well defined by the law and practice of Hindus.

16. Applied to the facts of the particular case before the <ORG>, the argument for the appellants though presented with great clearness and ability by Mr. <NAME> remains unattractive. <NAME>, <NAME>'s only son, survived him. <NAME>'s only valid disposition of the sebaiti was in favour of <NAME>. His attempts to confer any interest to take effect after <NAME>'s death were illegal and ineffective. Yet the interest given to <NAME> is said to defeat his heritable right and to exclude his heirs. Their Lordships cannot accept such doctrine, which they regard as correctly refuted by the passage which they have cited from the judgment of <NAME>

17. They will humbly advise His Majesty that this appeal should be dismissed. The appellants must pay the respondents' costs.


JUDGMENT <NAME>, C.J.

1. This appeal is preferred by <ORG>, against the judgment of <NAME> in A. A. O. 369 of 1966, dismissing the appellant's application to register his trade mark.

2. The appellant made an application for registration of a trade mark consisting of the word 'Asthmix' in Part A of the Register in Class 5 in respect of a designation of goods, which, after amendment, read 'Pharmaceutical preparation for the treatment of Asthma'. A notice of opposition was lodged by the first respondent under S. 21 of the Trade and Merchandise Marks Act , 1958. The main grounds of opposition were that the opponents are the proprietors in India of the trade mark 'Asmac' registered under Cl. 5 in repect of pharmaceutical preparation for the treatment of asthma, that by long and extensive user the said trade mark had become exclusively associated by the trade and the public in India with them and had acquired a great reputation, that the appellant's trade mark is deceptively similar to theirs, that the appellant's mark did no qualify for registration under Section 9 of the Act and that in view of the deceptive similarity, the appellant's application should be rejected.

3. The Assistant Registrar of <ORG> found that there was a real tangible danger of confusion in the minds of the public. He also found that this is not a case where registration under S. 12(3) of the Act should be given. In the result, he dismissed the application with costs of the opponents.

4. On appeal by the appellant, <NAME> while finding that the marks are admittedly not identical, held that there was no visual similarity between the two competing marks and the phonetical test alone has to be applied to this case. In applying the phonetical test the learned Judge found that the persons who may be deputed for buying these medicines are mostly Indians and that their pronunciations of the English words are not likely to be perfect and proper and that these words are likely to be pronounced in various manner differing from State to State and from locality to locality depending upon the language used by the customers and their state of literacy. According to the learned Judge, the chances of confusion will be very little, but customers are not likely to hail only from the group of literate persons well versed in English language. The learned Judge upheld the conclusion arrived at by the Assistant Registrar that the confusion among the public as regards the trade origin of these competing goods cannot be ruled out. He also held that the appellant is not entitled to registration under Sec. 12(3) of the Act. Agreeing with the Registrar, the learned Judge dismissed the appeal.

5. The appellant asked for registration of the mark consisting of the word 'Asthmix' in Part A of the Register in class 5 in respect of Pharmaceutical preparation for the treatment of asthma. The appellant's medicine is packed in folders and bottles covered by a carton. The respondent's mark is registered with the word 'Asmac' in class 5 in respect of Pharmaceutical preparation for the treatment of asthma. The packing is in a small carton consisting of 20 tablets whereas that of the appellant is in folders consisting of ten tablets and in bottles for the liquid form. There is absolutely no similarity and no purchaser, whether intelligent or unwary could mistake one medicine for the other. This is the finding of the Assistant Registrar, though not in such specific words. After discussing the question of similarity, the Assistant Registrar observed-

"At first blush, I thought that such an objection would not be available to the opponents."

The learned Judge also found that the marks are admittedly not identical and there is no visual similarity between the two competing marks. We have no hesitation in accepting these findings and holding that there is no similarity whatsoever between the two products. It is also the admitted case of the parties.

6. It was urged that the words are deceptively similar, Section 11 of the Act states that a mark, the use of which would be likely to deceive or cause confusion, shall not be registered as a trade mark, Section 12(1) provides that save as provided in sub-section (3), no trade mark shall be registered in respect of any goods or description of gods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. The words 'deceptively similar' are defined in Section 2(1)(d) as 'a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion'. The effect of Sections 11 and 12 is that the mark shall not be registered, if the use o it would be likely to deceive or cause confusion and the goods are deceptively similar. The finding which we have already recorded would rule out any deceptive similarity or use of which would likely deceive or cause confusion. In spite of this finding, which in fact is not disputed, we would proceed to consider whether the8 order refusing registration by the Assistant Registrar and the learned Judge should be set aside.

7. The main ground on which the Assistant Registrar, whose opinion was accepted by the learned Judge, refused to register the trade mark is that there is phonetical similarity. The drugs are 'Asthmix' and 'Asmac'. At the first blush or on the first impression there could be no difficulty in coming to the conclusion that there is no similarity. But we have been taken through a number of decisions by both sides, each supporting its own stand. It may be frankly stated that it is difficult to deduce any principle of law from these decisions. The decisions have been rendered on the facts of the case and sometimes appear to be8 irreconcilable. In the circumstances, we would follow the principles laid down in Halsbury's Laws of England, Vol. 38, Simonds Edn. and by Lord <NAME> in <ORG>, application 1906-23 RPC 774. In Halsbury's Laws of England, Vol. 38 at page 586, it is stated-

"Thus, in the case of applications for registration of trade marks and in oppositions thereto, the onus is on the applicant to satisfy the Registrar that the trade mark applied for is not likely to deceive or8 cause confusion."

As regards resemblance, it is stated that it is a question of fact. The author observes-

"Whether or not any degree of resemblance likely to deceive or cause confusion exists, is a question of fact for the tribunal or court to decide upon the evidence in each case and is not a matter for witnesses. What degree of resemblance is likely to deceive or cause confusion in any instance is incapable of definition a priori and the observations of Judges upon other and quite different facts are usually of little help."

We resist from getting confused y referring to various decisions which deal with the particular trade mark under contest and would confine ourselves mainly to the facts of the case. In the oftquoted decision in <ORG> application, 1906-23 RPC 774, Lord <NAME> has laid down the tests as follows-

"You must take the two words, you must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customers who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods then you may refuse the registration, or rather you must refuse the registration in that case."

8. The primary tests are that the words should be judged by their look and by their sound. There is no similarity in the goods by their look in the present case. 'Asthmix' and 'Asmac' in our view are not similar in sound and are not likely to confuse any person. The reason given by the learned Judge is that the person who may buy the medicine such as nurses, compounders and other laymen in charge of the hospital and similar institutions are mostly Indians and that their pronunciation of the English words are not likely to be perfect and proper. It may be stated here that this medicine can be dispensed only on the prescription of the doctors. According to the learned Judge, the customers are not likely to hail only from the group of literate persons well versed in English language. The learned Judge expressed the view that orders for the preparation of the drug 'asmac' are placed over the telephone and are indistinctly heard over and that written prescriptions are mis-spelt or badly written. He felt that nurses, compounders and lay people in charge of the hospital and similar institutions may place orders orally or across the counter or over he phone, which may lead to some confusion. With respect, we do not accept these as proper tests. These medicines are schedule H drugs and can only be dispensed on the prescription of the medical practitioner.

Before the Assistant Registrar and the learned Judge, the appellant stated that he would be satisfied if the registration of the word 'asthmix' is confined to the drug which contained any of the drugs mentioned in schedule H. The question of an innocent and unwary purchaser walking to the shop and purchasing the medicine without a prescription does not arise. The medicine has to be dispensed on the counter on the prescription of the doctor. One can expect a compounder to dispense the medicine properly unless he is grossly negligent, for which contingency the trade mark law cannot give any protection. When a person authorised under the Act, namely, doctor, nurse or a compounder deputed by the hospital or similar institutions, goes to a pharmacy for buying the medicines, it is presumed that he is sufficiently informed as not to mistake one medicine for the other, when there is no similarity between the two drugs. It is farfetched to say that these persons are defective in the pronunciation of the English words making it possible that they would mix up between 'Asthmix' and 'asmac'. We are aware of the fact that in the case of pharmaceutical drugs, the court should be careful not to permit any room for confusion. The possibility of confusion is for a normal buyer or even an unwary purchaser and not for fools and idiots.

On a consideration of the entire facts of the case, we are satisfied that there is no deceptive similarity between the two marks. We are also satisfied that the Assistant Registrar was in error in refusing to register. It was contended that the decision of the Assistant Registrar should not be lightly interfered with by this court. If two views are possible and the Assistant Registrar has taken one view, the court would be reluctant to interfere with his discretion. But in a case where the court is convinced that the Assistant Registrar is in error in refusing to register the trade mark on the ground that there is deceptive similarity between the two marks, it is the duty of the court to interfere. It is not necessary to go into the question whether the mark should be registered under Section 12(3) of the Act, as we are satisfied that it should be registered under Section 12(1) . In the result, the appeal is allowed and the Assistant Registrar is directed to register the trade mark under Part A of the Register in Class 5 as prayed for. There will be no order as to costs.

9. Appeal allowed.