PETITIONER: <NAME> @ RONALD JAMES ALWARIS ETC. Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 05/03/1998 BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI ACT: HEADNOTE: JUDGMENT:

With Criminal Appeal Nos. 1065-66 of 1997.

J U D G M E N T QUADRI, J.

The appellants [<NAME> (A -1), <NAME> @ Ronald James Alwaris (A-2) and <NAME> @ Santosh Balkrishna Desai (A-3)], in these three appeals, have been found guilty of offences under Section 302 read with Section 34  and are condemned to death; they are also awarded different punishments under various provisions of the Indian penal Code on their trial by the learned Additional Sessions Judge, Pune in Sessions Case No. 574 of 1992 vide Judgment dated April 28/29, 1995. In regard to sentence of death awarded to the three appellants, the learned Additional Sessions Judge referred the case, Confirmation Case No. 1 of 1995, to <ORG>, which was heard along with three appeals filed by the above said three appellants. They were disposed of by <ORG> by a common judgment dated March 27, 1996, confirming the conviction of and sentences awarded to the appellants. Against the said judgment, by special leave, these appeals are filed.

The case set up by the prosecution is as follows: A new colony, <ORG>, is situate at Baner road near Pune. Among newly constructed houses are two bungalows, 'Rooman Bungalow' of Mr. <NAME>, the president of, and 'Rohini Bungalow' of Mr. <NAME>, the Secretary off the <ORG>, which are separated by a Kutcha road. In Rooman bungalow a well placed family of <NAME> was residing. The family comprised of four members, namely, Mr. <NAME>, a Mechanical Engineer, who was working as Executive officer in <ORG> at Hadapsar, Fune; Mrs. Ruhi <NAME>, Ph. D., a research scholar, who having worked as Head of <ORG> business management (M.B.A.), had started working with <ORG> as visiting professor and was organising seminars for M.B.A. students; a seventeen years old son Mr. Rohan <NAME>, a student studying in the last year of the Computer Engineering course and a sixteen years old daughter, Ms. Reina <NAME>, who was doing course of diploma of Hotel Management and Catering Technology. To undergo practical training programmed of two months, on July 8, 1992, she left pune for Bombay where she was staying in MLA Hostel. Out of the relations of Mr. <NAME>, his brother, Mr. Vijay <NAME> who was working as Assistant Commissioner Revenue, his sisters, Mrs. <NAME> and Mrs. <NAME>, his nephews <NAME>/o Mr. Vijay <NAME>, <NAME> (A-1) S/o Mrs. <NAME> and niece <NAME>/o Mrs. <NAME> and Mrs. <NAME> (mother of Mrs. Ruhi <NAME>) who was a cancer patient and was undergoing treatment in <ORG>, need be mentioned.

<NAME> (<ORG>1) and his two friends, <NAME> and <NAME>, A - 2 and <ORG> 3 reside at Borivili, Bombay, whereas <ORG> 2 resides at Vasai, Distt. Thane, Bombay. They went to pune on July 18, 1992. There they contacted <NAME> (PW -46), a partner of <ORG> for a room. For obtaining the room, <ORG>1 signed, what is known as A Form ( Article 98 ). They were given Room No. 16 in that hotel. it appears <ORG> 1 left the hotel but <ORG>2 and <ORG>3 stayed there till the morning of 20th July. <NAME> ( PW - 47), a room boy, took them to that room and looked after them during their stay. After <ORG> 1 joined them on 20th July, they left. They paid the charges of the hotel under receipt ( Article 97 ). They asked PW-46 about tourist vehicle to go to Panchgani. He suggested them to approach <ORG>, near <ORG>, Pune. They Went there and contacted <NAME> ( PW- 69), Manager of the said <ORG>. As no vehicle was available with <ORG>, he arranged Maruti Van No. MH- 15<ORG> 263 of <NAME>, a sub-contractor, whose driver was paid Rupees two hundred. The name of the hirer was noted as <NAME> of 1312, Shivaji Nagar, Pune on the chit ( Article 89 ) (Exhibit 258) for booking the vehicle, which was signed by <ORG>1. They then went to the hotel, took the luggage and left the hotel at about 1.30 P.M. From the statement of Mr. <NAME> (PW-45) it has come on record that from his medical shop, <ORG>1 purchased adhesive tape. At about 6.30 P.M., they came to Bharti Vidyapeeth Rickshaw Stand at Dhankawadi, pune and hired rickshaw bearing Registration No. MPF-1044. The rickshaw driver (PW -42) who was also the owner of the said rickshaw, took them to <ORG> near Lalit Mahal Hotel on Fergusson College Road. From there, they went to Baner road ahead of Green Park Hotel. To the left side of that hotel is a kutcha road leading to <ORG>, which had become slushy due to rain. So the rickshaw driver refused to go further on the road but <ORG> 1 who was said to be wearing goggles took out a revolver and directed him to proceed. Accordingly, he advanced further. The rickshaw was stopped near the <NAME> bungalow wherein the lights inside and outside were 'on'. In the verandah of the bungalow, there persons were talking <NAME> and his two class mates, <NAME> (PW-29) and <NAME> (PW-

34). PWs. 29 and 34, stated that they were students of Computer engineering in <ORG> at Dhankavadi; that <NAME> was their friend from the first year of the course; that they were close to one another and were frequently visiting the house of <NAME>, they brought a book and a note book ( Articles 30 and 31) to his house on 20th July between 8.15 and 8.30 P.M. When they were talking with each other in the verandah of the bungalow, having come down from the room of <NAME>, which was on the first floor, they noticed that three persons came to the bungalow in a rickshaw and approached them; one of them wished <NAME> saying Hello <NAME>. <NAME> introduced that person as <NAME> (A-1) who in turn introduced A-2 and A-3 as <NAME> and <NAME> to them. A- 1 expressed to <NAME> that they wanted to stay overnight at his bungalow as their vehicle has broken down on their way to panchgani. All of them stood talking there for about eight minutes and then <NAME> told them to sit inside the house. A-1, A-2 and A-3 left their muddy shoes in the Verandah and entered in the house. Thereafter, PWs. 29 and 34 left and on their way, about 50-100 feet away from the bungalow, noticed that the parents of <NAME> were coming in their <ORG> car from the opposite direction.

Smt. <NAME> (PW- 35) is the maid servant, who was attending to the work of cleaning utensils and washing clothes at the residence of Mr. <NAME>. Her son and daughter also used to attend to the work at the bungalow. She was attending to the work at 5.00 P.M. or 5.30 p.m. for about one or two hours. On 20th July, she went to the residence of Mr. <NAME> at 5.00 or 5.30 P.M. and pressed the door bell, Mr. <NAME> opened the door. He was alone at that time. After attending to the work, she left. When she was leaving, she found that Mr. <NAME> had come. He told her to come early on the next day as she would have to go the hospital to get his ailing mother-in-law discharged.

On the night of 20th July, 1992, <NAME> (PW-21), watchman of the society noticed Mrs. <NAME> in the house when he and the other watchman were collecting torch and other things from the rear side of the bungalow. Next day, i.e., on 21st July, in the morning when he went to the bungalow to put back the torch, he found the footwears, containing mud, lying over in the verandah and lights of the bungalow `on'. He kept the torch as usual and went home. At about 8.00 in the morning on 21st July, <NAME> (PW-22), the milkman, who went to deliver the milk, noticed that three persons were leaving the <NAME> bungalow in the car. He went and kept the milk bags in the rack and the newspaper given to him by the newspaper man (PW-23) at the bungalow and gave the usual call "Dooh" Mr. <NAME> (PW-23) is the newspaper man. He was delivering `<ORG>' and `<ORG>' newspaper at the residence of Mr. <NAME>. He stated that on 21st July, he met PW-22 in the morning and handed over him the newspaper for delivering it at <NAME>' bungalow as he was going there to supply milk. Mr. <NAME> (PW-24). who was a resident of that colony noticed, after he returned to his house leaving the children in the school, that the <ORG> car of the <NAME>' family had stuck in the mud and that two persons, who came out of the car, were pushing the car on 21st July at about 8.00 A.M. Thereafter, they boarded the car and went away. At about the same time, Mr. <NAME> (PW-26), owner of <ORG> bungalow, referred to above, while he was taking his wife to <ORG> in Loyalla, Pashan Road, Pune, found <ORG> car of Mr. <NAME> outside the gate but later it followed his car. After coming on the main Baner Road, he stopped his car near Hotel Green Park and gave signal to stop mr. <NAME>'s car. When the car stopped, he peeped through the door glass and saw two persons on the front seats and one person on the year seat. He gave the descriptions of the driver and person sitting next to him, but not of the person sitting on the hind seat, which coincide with the identity of A-1 and A-2. Finding that Mr. Mohal <NAME> was not in the car, he told them to go.

The <ORG> car was later found abandoned by A-1, A-2 and A-3 at Shirur. Thereafter, they started dealing with the properties of <NAME>. At about 11.15 A.M., on the same day, from Shirur they boarded the bus; this fact is spoken to by the bus driver, <NAME> (PW-55). At about 12.30 P.M.. A-1 went to <ORG>, Pune, presented a cheque (Exhibit 146) for Rs. 12,000/- purportedly signed by Mr. <NAME> and drawn in favour of one Mr. <NAME>, to the <ORG> clerk, <NAME> (PW-31) who asked A-1 to sign at the back of the cheque and he signed as <NAME>. P.W. 31 gave Token No. 109 ( Article 142 ) and endorsed `109' on the cheque. The cheque was given to Mr. <NAME>, the Assistant Branch Manager (PW-30), for verification. He found that the signature of mr. <NAME> was not tallying and so A-1 was asked by him either to get mr. <NAME>'s instruction or another cheque from him. He also asked A-1 to return the token and take back the cheque, but A-1 disappeared from the <ORG>, Consequently, the uncashed cheque remained with the <ORG> and the token remained with A-1. On the same day, A-1 went to <NAME> (PW-19) to pledge ear-tops ( Article 83 ) but as he did not help, a-1 got the services of <NAME> (PW-28), <NAME> (PW-37) and <NAME> (PW-36) for pledging the ear-tops.

Not finding <NAME> in the college on 21st July, <ORG> tried to contact him on phone after returning from college but got no response . On 21st July, 1992, <ORG>35 went for her daily chore at about 4.00 P.M., rang the bell but nobody opened the door. She went to the back side of the bungalow and knocked the door. She did no get any response. She found the milk sachets in the verandah. She thought that the condition of the mother of Mrs. <NAME> might be serious and the family might have gone to the hospital. So, she took the milk sachets and went home. At about sunset, she sent her daughter and son with the milk bags to the bungalow to deliver the same, but they returned with the milk bags stating that nobody was attending to the door bell and also informed that the <ORG> car was not in the porch. <ORG>26 did not see Mr. Mohan <NAME> and his <ORG> car in the evening of 21st July, generally, he used to see Mr. <NAME> in the evening between 7.00 and 7.30 P.M. On 22nd July, in the morning, when <ORG>22 went to <NAME> bungalow, he saw the newspaper attached to the gate. He entered the gate and went near the rack and found the newspaper of the earlier day still there but he did not find the milk bags put by him on 21st July. He kept the newspaper of 22nd July, which he had picked up from the gate and shouted "Doodh, Doodh." As the <ORG> car was not there, he thought the family had gone out. He pressed the door bell but did not get any response. he then left the place with milk bags. On the way, he enquired from the wife of watchman of bungalow of Sardarji and learnt that the relative of <NAME>s' family was sick and that they might have gone there and that somebody might have taken away the milk bags. On 22nd July, <ORG>23 kept newspaper at the gate in the morning as usual. On the evening of 22nd July, after <ORG> 26 returned from his work, he did no see Mr. <NAME> between 7.00 and 7.30 P.M. as usual and he also noticed that the car of Mr. <NAME> was not in the bungalow. In the evening, the nephew and niece of Mr. <NAME>, <NAME> and <NAME>, came to the bungalow to enquire as their parents were informed that neither Mrs. <NAME> nor any member of her family had gone to <ORG> to see her ailing mother and they were not getting any response on phone. They noticed that the lights on the ground floor of <NAME> bungalow were burning. On 22nd July, when <ORG>21 went to the bungalow at 9.00 P.m., he pushed the door bell button but the bell did not ring. The entrance door of the bungalow was closed, the lights were `on' on the ground and the first floor but the <ORG> car was not there, Then he went to the bungalow of <ORG>26. When he returned, he found <ORG>3, two others and <ORG>26 there, They asked <ORG>21 to go on the terrace and find out if there was anything abnormal. He reported that he did not find anything there but thereafter he pointed out that ants were going in and coming out of the bath room on the ground floor. He then removed glass and saw that human bodies were lying in the tub in the bath room. All the doors were closed. By that time, Vijay <NAME> (<ORG>3) had also come. He and pw-21 went to the police in a jeep. <NAME>, Assistant Sub- Inspector of Police (<ORG>63) and <ORG>82 accompanied them to the scene of offence. They broke open the door of the kitchen. They found that the house was ransacked. The disfigured dead bodies of Mr. Mohan <NAME>, Mrs. Ruhi <NAME> and their son, <NAME> <NAME> were lying in the tub in the bath room. The dead bodies were removed from the tub and panchnamas were prepared. Mr. <NAME> (<ORG>1) is the panch witness of inquest panchnamas conducted by <ORG>

78. Exhibit 11 is the inquest panchnamas of the dead body of <NAME>, which was dignified by <ORG>26. In the said panchnama, the condition of the body was described. Exhibit 12 is the inquest panchnama of the dead body of Mrs. <NAME>, which was identified by <ORG>3. The condition of the dead body was described therein. Exhibit 12 is the inquest panchnama in respect of the dead body of Mr. <NAME>. It contains the particulars of the dead body of Mr. <NAME>. The dead bodies were sent to the hospital for post-mortem examination. Dr. <NAME> (<ORG>73) conducted autopsy on the dead bodies o the deceased, <NAME> and <NAME> and issued post-mortem certificate, Exh.268 and Exh. 270 respectively, and Dr. <NAME> (<ORG>74) conducted autopsy on the dead body of Mrs. <NAME> and issued the post-mortem certificate (Exh. 278). <ORG>73 opined that the cause of death of Mr <NAME> and of mr. <NAME> was due to suffocation of the neck. Similar was the opinion of <ORG> as to the cause of death of Mrs. <NAME>. Among the injuries found on the dead body of Mrs. <NAME>, there were injuries on her private parts which were opined to be due to violent sexual attack by more than one person on her. <ORG> conducted <NAME> (Exh. 28) of the scene of occurrence and the following among other articles were found: spool of celo plast, Newspaper, . The Sakal. of 18th July, 1992, but it did not have the first and the last page; Books of <ORG>29, Gold Flake cigarette stubs; bed sheet containing stains of blood and semen in the bath room, it was also noted that the <ORG> car (MAF-5436) of <NAME> was not at the bungalow. The investigating officer (<ORG>83) was entrusted with this case. He took over the case from <ORG> 82 and continued investigation. He sent the message about the theft of the car and kept PSI <NAME> (<ORG>48) on watch duty. <ORG>78 was entrusted with further investigation.

PW-22, PW-23 and PW-35 noticed in the morning of 23rd July. 1992 that the police had taken charge of the `Rooman bungalow' and sealed it.

On 23rd July, 1992 A-1 gave <ORG> digital wrist watch ( Article 114 ) to <NAME> (PW-58) or repair. A- 2 kept VCR ( Article 64 ) with <NAME> (PW-

59). With the help of PW-59 , A-2 went to <NAME> (PW-60), a jeweller, and sold two gold bangles ( Article 66 ) for Rs. 4760/-. A-2 had kept scientific calculator (Article

138), <ORG> camera ( Article 136 ), Flash gun ( Article 137 ), Flash gun tube ( Article 139 ) and Plastic Bag ( Article 140 ) with <NAME> (PW-58). He also sold some gold ornaments, chain, ring, ear-tops etc. (Articles 67 to 72) to PW-60 with the help of PW-59. A-3 pledged ladies wrist watch ( Article 95 ) with <NAME> (PW-56) for Rs. 250/- on July 24, 1992. He gave some trousers to <NAME> (PW-61) for alteration for the purpose of reducing the length and on the next day, he gave Table clock ( Article 96 ) of <ORG> to <NAME> (PW-57).

On 23rd July, Ms. <NAME>, the only surviving member of the <NAME>' family, returned to Pune from Bombay. On 24th July the funeral and the burial of the deceased persons, Mr. <NAME>, Mrs. <NAME> and Mr. <NAME>, took place. On the same day, the maruti car of Mr. <NAME> was escorted from Shirur petrol Pump. <NAME> (PW-78) brought the car at Chaturshringi Police station and on the morning of 25th July, he handed over all the articles and the concerned papers which were found in the said car.

On the night of July 27th, <NAME> (PW-

83) and his party went to Bombay in three vehicles. After getting the clues of the accused persons, they first went to Borivili. A-3 was not there in the house but his brother 's wife, Smt. <NAME>, was there. In the search made by them, certain articles were found. Exhibit 30 is the search panchnama. PW-6 is one of the panch witnesses. Among the articles found were: silver tea set, silver tray, two pairs of socks. two sets of keys, the keys included <ORG> car key, the key of <ORG> and the key of the main door of <NAME> bungalow, one stainless steel knife, one hot-shot camera and one two-in-one of <ORG>. In the said tape recorder, one cassette was there with a sticker containing the name, address and phone number of Mr. <NAME>. The seizure memo of these articles is Exhibit 30. The panchas and PW-83 signed the said seizure memo. A-1 and A-2 were arrested on 28th July, 1992, On personal search of A-1, one cigarette packet of Gold Flake containing four cigarettes, one key and Rs.19/- were found with him. The arrest panchnama is Exhibit 31. Those articles were not seized. Thereafter, Exh. 32, arrest panchnama of A-2 was drawn. No incriminating articles were found from his person. A-2 made his voluntary statement (Exhibit 36) pursuant to which a black brief case of VIP company with the stickers "M" "O" was recovered. On opening the said brief case, visiting card of Mr. <NAME>, <ORG>, was found. The other articles recovered were one small tape recorder, one transistor, one Eliminator, one wrist watch of <ORG>, one country made revolver, one pair of shoes wrapped in the first and the last page of the newspaper of Pune `The <ORG>' dated 18th July, 1992 and one button knife having hrass handle. In the said revolver, there were four cartridges. The articles recovered under panchnama (Ext 37) are marked as Articles 55 to 63. Pursuant to the further statement (Exhibit 38) made by A-2 VCR of <ORG> was recovered from the house of one <NAME> (PW-59) and ornaments (Articles 64 to 73) were recovered from <ORG> shop, V.P. Road, Borivili. The ornaments that were sold by A-2 on 24th and 25th July are three golden rings, two bangles having black beads, one neckless (disco chain), one pair of ear tops and one small ear chain. The gold ornaments and the receipt books were seized under recovery Panchnama Exhibit 39.

On 30th July. 1992, PW-26, the owner and resident of <NAME> bungalow and the Secretary of the society identified A-1 and A-2 in the TIP as well as in the court at the trial. PWs.30 and 31 , the Assistant Branch Manager and the Bank Clerk respectively of he <ORG>, Hadapsar Branch identified A-1 in TIP on 30th July, 1992 as well as at the trial in court. On 5th August , 1992, A-3 was identified in TIP by PWs.46 and 47, the partner and room boy respectively of <ORG> and by PW-55, the driver of the bus. On 26th August, 1992, A-1 and a-2 were identified in TIP by PW-46, PW-47 and PW-69. All of them identified the three appellants at their trial also in the court. Apart from the above witnesses, A-1 to A-3 were identified by PW-29, PW-34, PW-42 and PW-45, though they did not participate in TIP. PW-11, PW-19, PW-28, PW-36 and PW-37, who heloed A-1 in court . So also PW-58 identified A-1 in court. A-2 was identified in court by PW-59 whom he is said to have given VCR. So also by PW-58 whom A-2 is said to have given <ORG> camera, calculator, flash gun, flash gun tube and yellow plastic bag for keeping them with him. PW-60, a jeweller at <ORG>, who purchased a gold chain, three gold rings, one chain of ear tops, a pair of ear tops with the help of PW-59, identified A-2 in court. Apart from the witnesses already referred to above, A-3 was also identified in court by PW-56 who was handed over ladies wrist watch (Citizen) by A-3. <NAME> a tailor, who was given two jean pants for alteration by A-3 identified him in court. A-3 was also identified in court by PW-57 who was given table clock of <ORG> for keeping it with him. The aforementioned articles were recovered at the instance of the appellants within a week of the date of commission of the offence. Those articles were identified in the test identification of the articles by PW-3 and PW-40, the only remaining member of the <NAME> family.

The cigarette stubs of Gold Flake found at the scene of occurrence and noted in the panchnama (Exhibit 28) were sent for chemical analysis. Bed sheet found in the master bed room of <NAME> bungalow containing the stains of blood and semen was also sent to the chemical analyser along with other blood stained articles. The blood and hairs of the appellants were sent for chemical analysis. The reports of the chemical analyst disclose that the blood group of the deceased mr. <NAME>, Mrs. <NAME> and Mr. <NAME> was `B' group (Exhibits 341, 342 and 343). The blood group of A-1 is `A', of A-2 is `AB' and of A-3 is `O' (Exhibits 337, 338 and 339). Exhibit 340 contains the report which shows that the semen detected on the pieces of bed sheet is human - of blood groups `A', `AB' as well as `O' in serial Nos. 21 and 22 and that the stains of saliva on the cigarette stubs are of group `A'. Thus, it is demonstrated that saliva on the cigarette stubs was that of A-1 and that semen stains detected on the bed sheets were that of A-1, A-2 and A-3 having regard to their respective blood groups `A', `AB' and `O'. The Gold Flake cigarette stubs are sought to be connected with the Gold Flake packet of cigarettes found on the search of the person of A-1 at the time of his arrest on 28th July, 1992. So also the newspaper `<ORG>' of July 18, 1992 noted in panchnama of the scene of occurrence (Exhibit 28) not containing the first and the last page is sought to be connected with the recovery made at the instance of A-2 where pair of shoes of <NAME> was found wrapped in the missing pages (first and the last pages of `<ORG>'). On 6th August, 1992. A-1 made the statement (Exhibit 69) and thereafter led the investigating officer to rooman bungalow here he pointed out a commode in which the articles were thrown. After search, adhesive tape, nylon strip and nylon rope were found in the drainage pipe leading from the commode to the septic tank of the said bungalow. The adhesive tape, some hairs and small ear ring of yellow colour was found stuck with the adhesive tape. The ring recovered is the counterpart of the ear ring (one) mentioned in Exh.28 and was identified by PW-40 as belonging to her mother. The hairs were similar to that of late Mrs. <NAME>. The tape was containing the superficial layer of the skin which explains the injury Nos. 28 and 29 in the post- mortem report (Exh. 278). The writings found on "A Form. ( Article 98 ) of <ORG> and on the chit (Article

89), written at the time of hiring the car through PW-69 and on the back of cheque of July 20, 1992 [Exh. 146] which was presented by A-1 to <ORG> were sent to the hand writing expert, <NAME> (PW-80) who opined that the writings on those articles were similar to that of admitted writing of A-1 . After the <ORG> car bearing registration No. MMP-5346 of the <NAME>' family was discovered in Shirur near petrol pump, it was noted that there were finger prints thereon. Finger print expert was called. The finger prints found on the rear view mirror and the print of the palm found on the frame of the rear left hand side of <ORG> car, were taken. The finger prints and the palm prints of the appellants were also taken for purposes of comparison. Finger print expert, Mr. <NAME> (PW-52) after enlarging and comparing the prints on the car with the admitted prints of the appellants found that the palm prints on the frame of the door of <ORG> car were that of A-2. They are said to contain nine similarities between the print of the car and the admitted print of A-2.

Admittedly, there are no eye witnesses of the occurrence. The entire evidence is circumstantial evidence. The prosecution culled out the circumstances from the evidence on record, proved them and relied upon them to establish its case. The trial court enumerated them and after due consideration held that they formed a complete chain so as to bring home the guilt of the accused without giving room to any other hypothesis consistent with the innocence of the accused. Accordingly, the trial court found the appellants guilty and convicted then of offences punishable under Section 302 read Section 34  and sentenced them to death subject to confirmation by <ORG>; Section 449 read with section 34  sentenced them to suffer rigorous imprisonment for five years and to pay a fine of Rupees two hundred and in default, suffer one month rigorous imprisonment; Section 347 read with Section 34 , sentenced them to rigorous imprisonment of one year and to pay a fine of rupees one hundred and in default, suffer one month rigorous imprisonment; Section 394 read with Section 34 , sentenced them to rigorous imprisonment for seven years and to pay a fine of Rupees two hundred and in default, suffer one month rigorous imprisonment; Section 376 (2) (g) IPC , sentenced them to ten years rigorous imprisonment and to pay a fine of Rupees two hundred and i default, one month rigorous imprisonment; Section 467 / 471 read with Section 34 , sentenced them to rigorous imprisonment for five years and to pay a fine of Rupees five hundred and in default, one month's rigorous imprisonment; Section 201 read with Section 34 , sentenced them to rigorous imprisonment for three years and to pay a fine of Rupees two hundred, in default, one month's rigorous imprisonment. Further, A-2 and A-3 were convicted for offences under Sections 109 , 467 and 471 but no separate sentence was passed on that count. It was, however, directed that substantive sentences shall run concurrently.

As already noted above, <ORG> heard the reference with regard to confirmation of the sentence of death awarded to the appellants along with the appeals filed by them and after considering the entire evidence exhaustively, confirmed the judgment of the trial court except in respect of charge under Section 201 .

In these appeals, various contentions were urged by <NAME>, the learned senior counsel appearing for Appellants Nos. 1 and 2 and Smt. <NAME> , for appellant No. 3. On the submissions of learned counsel for the appellants, thee points worth consideration arise: (1) what, if any, would be the effect of:

(a) identification of the appellants by the witnesses for the first time in court [without participating in test identification parade]; and

(b) the alleged non-compliance of sub-section (4) of Section 100 and sub-section (3) and (4) of Section 166 .;

on the judgment under appeal?

(2) whether the charge under Section 376 against the appellants has been made out; and (3) whether the facts and circumstances of the case justify awarding of death sentence to the appellants. Point No. 1 : This consists of two parts; part- (a) deals with identification of the appellants by various witnesses and part (b) is about not calling local panch witnesses at the time of conducting recovery panchnama and not taking the help of local police.

We shall take up Part (a) first. After their arrest, the appellants were identified by various witnesses; some identified then in test identification parade and subsequently in court but some identified them for the first time in Court A-1 and A-2 were arrested on 28th July, 1992. The first test identification parade [TIP] in respect of them was conducted by special Judge, <NAME> (PW-76) in the Yerawada Central Prison, Pune on July 30, 1992 where PW- 26 identified A-1 and A-2. In that TIP, PW-30 and PW-31 also identified A-1. A-3 was arrested on 3rd August, 1992. He was produced before the court on 4th August, 1992 and magisterial custody was obtained for identification parade. The second TIP was conducted in the presence of PW-76 at Yerawada Central Prison on 5th August, 1992 wherein PW-46, PW-47, PW-55 and PW-69 identified A-3. On 26th August, 1992, the third identification parade was held in the presence of PW-76 at Yerawada Central Prison, Pune in which A-1 and A-2 were identified by PW-46, PW-47 and PW-69. Those witnesses identified the appellants in the court also. Further, PW-11, PW-19, PW-28, PW-36, PW-37 and PW-58 identified A-1 in court. A-2 was identified by PW-56, PW-57, PW-59, PW-60 and PW-61 in court. A-3 was identified in court by PW-56, PW-57 and PW-61. A-1 to A-3 were also identified by PW-29, Pw-34, PW-42 and PW-45 in court. It may be noted here that many of these witnesses did not participate in the TIP. So far as identification by these witnesses at the time of trial without their participation in the TIP is concerned, it was argued that their identification was worthless and, therefore, that part of the evidence should be excluded from consideration and thus a vital link in the chain of circumstances would be missing, so their conviction based on such identification had to be set aside, <NAME>, the learned senior counsel for the State of Maharashtra, contended that the test identification of an accused by a witness was for the purposes of ensuring that the prosecution was on the right track and to ensure that the memory of the witness did not fail on account of lapse of time from his first seeing the accused and this criteria would not apply to a witness who has known the accused earlier, so their identification for the first time at the time of trial would not demolish the case of the prosecution. Mr. <NAME>'s attack is directed mainly against identification of the appellants by PW-29 and PW-34 for the first time in court. These two witnesses establish an important link in the chain of circumstance, that is, entry of the appellants in `Rooman bungalow' with muddy shoes on the night of 20th July, 1992 at about 8.30 P.M.

Section 9 of the Evidence Act deals with relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of any thing or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the court, afortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIF is not a substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the court. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such piece of evidence. But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony.

<CITATION> , the witness saw the assailants when they were running away after the alleged murder. Observing that the witness had only a mere fleeting glimpse and for identification on would certainly expect more firm and positive reference, this court did not consider it safe to rely on the TIP evidence as corroborative evidence of identification in court by the witness. About the identification of the accused in court, it was indicated that the same did not provide safe and trustworthy evidence to sustain conviction. This court also explained the nature of identification parade, its essentials and value.

<CITATION> a three- Judge Bench of this Court while dealing with the question of the identification parade observed as follows:

"it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial...The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be use for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating of contradicting the statement in court of the identifying witness".

<NAME>, learned counsel for the appellants, relied upon the observations of this Court in <CITATION> and argued that the evidence of identification of PWs.29 and 34 is valueless as they were not called to identify the appellants in the test identification parade. In that case, the charge against the accused was that they entered into a conspiracy as members of naxalite party to raid the police station Kuttiadi. In the course of the raid, the police station was attacked and articles were burnt. No member of the police station or staff was able to identify the raiders. Apart from the evidence of conspiracy, there was evidence of PW-25 who identified the appellants therein running away near the scene of occurrence after the raid took place in the police station. Firstly, his presence in the travelling bungalow was doubted and secondly it was pointed out that he identified the appellants therein a persons who were running away near the place of occurrence and that the witness had admitted that he knew those two persons by face, yet he named them while identifying them in court. it was observed that there was huge crowd after the police station was attacked and if those two appellants wee seen running away that by itself should not show that they had taken part in the raid. It was on those facts, it was observed that where a witness identified an accused in the court for the first time, who was not known to him, his evidence was absolutely valueless unless there had been a previous test identification parade to test his power of observation and that the idea of holding test identification parade was to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness might have seen only once and that if no test identification parade was held, it would be wholly unsafe to rely on his bare testimony regarding the identification of a accused for the first time in court. The rational behind the observation of this court is that as the evidence of identification of an accused in court is inherently of weak character, as such it requires corroboration by way of test identification parade, so where the attending circumstances are such that the possibility of identifying the accused by the witness becomes bleak, as in that case, the witness only saw the appellants running away from the crowd, then such uncorroborated evidence cannot be relied upon to base a conviction. That judgment, in our view, did not lay down as a principle of law that where the accused was known to the witness from an earlier period or where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to observe the distinctive features of the accused, his evidence of identification in the court cannot be given any credence merely because the witness was not asked to identify the accused in the test identification parade.

<CITATION> the accused, along with others, was convicted under Section 392 read with Section 34 . The victim did not give the name or description of the appellant therein in the first information report. This court observed that the total absence of any such description which would have provided a yardstick to evaluate the identification of the appellant at a later date by a victim would render his later identification weak. No test identification was conducted in that case so, it was held that the identification in court would hardly furnish any evidence against the appellant. Indeed, in that case, this court observed that the witness did not give the description of the accused in the first information report or before the identification and the evidence of his identification was found to be weak, in the absence of corroboration, for being acted upon.

The identification of appellants by PW-29, PW-34, PW-42 and PW-45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of appellants by PW-42 and PW-45 are concerned, the trial court as well as <ORG> had not accepted the same but the identification of appellants by PW-29 and PW-34 had been accepted by both the trial court as well as by <ORG> and in our view rightly. We have already laid down above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the above mentioned aspect, the evidence of PW-42 and PW-45 has been rightly rejected by the trial court and <ORG> as PW-42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to Rooman bungalow in the night. So also PW-45's identification of A-1 in court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A-1 closely. But the same is not the position with PW-29 and PW-34. They were talking to the deceased <NAME> at the time when the appellants came to rooman bungalow. Indeed A-1 wished the deceased <NAME> who introduced A-1 as <NAME>. Thereafter, A-1 introduced A-2 and A-3 to <NAME> and PW- 29 and PW-34. They talked together for about 7-8 minutes and on <NAME>'s saying them to sit inside the house, they left their soiled shoes in the verandah and entered the house. it can safely be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24th July, 1992, the defence in their searching and lengthy cross- examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such evidence of identification of the appellants at their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial court as well as by <ORG>. We, therefore, find no illegality in the judgment of the courts below in accepting their evidence of identification.

A faint attempt is also made to attack the identification of articles by PW-3 and PW-40 on the ground that some of the articles are common articles. Both the trial court as well as <ORG> rightly accepted the identification of articles by those witnesses. As the brother of the deceased <NAME> and the daughter of the deceased, late Mrs. and Mr. <NAME>, would certainly be in a position to identify the articles even if they are of common nature. This contention has been mentioned only to be rejected.

The next aspect of this point remain to be considered. It pertains to the search and recovery of articles in alleged violation of the provisions of Section 100(4) and Section 166(3) and (4) Cr.P.C .

It will be useful to read both sub-section (4) and (5) of Section 100 here:

"(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched s situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any or them so to do.

(5) The search shall' be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it".

These provisions require the officer making the search under Chapter VII to call two or more respectable inhabitants of the locality in which the place to be searched is situate and if no such inhabitant of that locality is willing to be a witness to the search, then to call persons of any other of any other locality to attend and witness the search and for that purpose, the officer making the search is empowered to issue an order in writing to them or any of them so to do. The search has to be made in their presence and a list of things seized in the course of such search and of the places in which the things are found, is required to be prepared by the said officer and signed by such witnesses. it further provides that unless specially summoned by the court, such persons/witness in the search need not attend the court.

<CITATION> the witnesses of the search were the custom officials themselves. <ORG> held that as no independent witness of the locality was taken by the custom authorities to witness the search, no reliance could be placed on the searches or the recovery of the smuggled articles. <ORG> also rejected the evidence of lone non-official witness on the ground that he was not a witness of the locality and on the ground that he has assented to accompany the police and custom officials to witness the various recoveries wherever he was taken by the police. Disapproving the view of <ORG> of Bombay, this Court held that the fact that they were custom officials would be no ground to distrust their evidence; so also the fact that the non-official witness was approached by the police and the custom authorities to accompany them to witness the search would not by itself show that he was an unreliable or interested witness. Observing that his evidence was corroborated by the police officer of the rank of Sub-Inspector, this Court held that his evidence ought to be believed. It may be noted that the evidence of the witness of search was accepted notwithstanding the fact that he was not of the locality where the search took place and notwithstanding the fact he was brought by the police along with them for the purposes of search. The evidence, however, can be rejected if it suffers from any serious infirmities or if there is any inherent inconsistency in the testimony. It there is intrinsic merit in the evidence of the witness of search the same cannot be rejected solely on the ground that witness is not from the locality of search or that he was brought by the police with it. We are not persuaded to accept the contention that the evidence of <NAME> (PW-6) cannot be accepted for the reasons that he was not a witness of the locality and that he was brought from Pune by the investigating officer to witness the search. He was one of the drivers of the cars in which the investigating team came to Bombay from Pune. For the sake of convenience, he was taken as a witness for search. We do not find any material in the cross-examination to discredit his testimony. The only ground of attack on the evidence of PW-6 that he was not from the locality as contemplated under sub- section (40 of Section 100 . fails because in our view a witness of search other than the one from the locality even if he has been brought by the investigating agencies along with them cannot be disbelieved only on that ground and we do no find anything in his evidence to discredit his testimony.

Section 166 is an enabling provision, which enables an officer in charge of a police station to require another to issue search warrant. Sub-section (3) of Section 166 provides that whenever there is a reason to believe that by requiring an officer in charge of another police station section to cause a search to be made under sub-section (1) of that section might occasion delay and result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for the investigating officer of team making investigation under Chapter XII to search or cause to search any place in the limits of another police section in n accordance with the provisions of Section 165 . as if such place were within the limits of his own police station. Sub-section (4) requires that after conducting the search as contemplated under sub-section (3), the officer shall forthwith sent a notice to the officer in charge of the police station within the limits of such place and a copy of the list, if any, prepared under Section 100 to that police station and to the nearest Magistrate empowered to take cognizance of the offence along with the copies of the record referred to in sub-sections (1) and (3) of Section 165 . When the investigating officer (PW-83) was questioned on this aspect, he replied that he wrote two letters to the police station in which the articles were seized. However, what is pointed out before us is that the copies of the letters sent to the other police station in whose jurisdiction the search and seizures were made, had not been produced. We find no substance in this submission. The witness stated that he has sent the letter to the concerned police station, therefore, the presumption under Illustration (e) of Section 114 of the Evidence Act would arise and the official acts would be deemed to have been performed regularly. There is thus no non-compliance o the aforementioned provisions of the Code of Criminal Procedure.

Apropos the recovery of articles belonging to the <NAME> family from the possession of the appellants soon after the robbery and the murder of the deceased (Mr. <NAME>, Mrs. <NAME> and Mr. <NAME>) which possession has remained unexplained by the appellants, so the presumption under Illustration (a) of Section 114 of the Evidence Act will be attracted. It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. The irresistible conclusion would, therefore, be that the appellants and no one else had committed three murders and the robbery.

In <NAME> vs. State of Madhya Pradesh the appellant gained access to the house of the deceased who was childless on the pretext that by sorcery, he would remove the evil effect which would enable him to beget children. On 20th January, 1975, he took the deceased to a nearby nala on the pretext of performing some religious rites, killed him there and threw his dead body in the nala. In the same way, he killed another lady of the family, named Smt. <NAME>, one of the wives of the deceased. He then went to the house of the deceased and killed his mother <NAME> and his nephew Mr. <NAME> while they were sleeping there. he ransacked the house, broke open the boxes, took away number of articles including transistor, watch, torch, clothes, ornaments etc. On the next day, the neighbour of the deceased and his nephew finding unusual calm in the house peeped inside the house and found the dead bodies of <NAME> and Mr. <NAME>. On 28th January, 1975 the appellant was arrested and at his instance the stolen articles were recovered from him. They were put for identification and were identified by the surviving wife of the deceased. On those facts, the learned Sessions Judge convicted the appellant for offence under Sections 302 and 394 . <ORG> confirmed the conviction and sentence, on appeal. On further appeal to <ORG>, by special leave, it was held that the offences were committed on the night intervening January 20 and 21 and the stolen property was recovered from the house of the appellant or at his instance on January 28, 1975. The accused did not explain about the possession of those articles. It is observed that the question whether a presumption should be drawn under Illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and circumstances of each case and that the nature of the stolen articles, manner of their acquisition, nature of evidence about its identity, the manner it which they were dealt with by the appellant, the place and circumstances of their recovery, the length of intervening period, the ability or otherwise of the appellant to explain his possession are factors which should be taken into consideration in arriving at a decision and held that there was ample justification


JUDGMENT Venkataramaiya, C.J.

1. The petitioner who was in the service of <ORG> as a teacher was dismissed by an order of the District Educational Officer on 8-12-53. Thereupon he petitioned to <ORG> for setting aside that order but was unsuccessful. He has applied to this Court for the order being quashed on the ground that no opportunity was afforded to him to explain why the order should not have been passed.

It is admitted, however, that the appointment he held was temporary, that prior to his dismissal he was involved in an assault against a collegue, and that as a punishment for this a penalty was imposed upon him and paid up.

2. There is no doubt that Article 311 of the Con-stitutlon requires that a person should be notified to show cause why disciplinary action should not be taken against him before he is removed from service or otherwise dealt with. The fact that the petitioner was employed temporarily does not justify the course prescribed by the said Article being dispensed with. The loss of the petition is no doubt the result of dismissal, or of the service being terminated either because the vacancy in which the appointment was made has ceased to exist, or the appointment itself is abolished.

There is, however, a stigma, disqualification or taint of being unfit or unworthy for service attac-hing to an order of dismissal, and this mav render the person concerned ineligible to be employed else where. This Is a factor which cannot be ignored, in applying Article 311; and for the purpose of the said Article it makes no difference whether the dismissal relates to a person who is a permanent or temporary incumbent.

3. The question whether temporary employees can claim benefit of Article 311 arose in a case in <ORG> and it was held in <CITATION> ) that it operates equally in favour of both classes of employees. <NAME>

<NAME> on behalf of the learned Advocate-General concedes that no notice was issued to the petitioner to show cause why he should not be dismissed, and that being so, the order is illegal and is accordingly set aside. It is open to the Government to deal with the petitioner in a proper manner as prescribed by law and take such action as it may deem fit.

4. Having regard to the circumstances in which the order apparently was passed, we do not think the petitioner is entitled to costs. We, therefore, dirct the parties to bear their own costs.

5. Application allowed.


PETITIONER: WELCOME HOTEL AND OTHERS Vs. RESPONDENT: STATE OF ANDHRA PRADESH AND OTHERS DATE OF JUDGMENT22/08/1983 BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J) CITATION: 1983 AIR 1015 1983 SCR (3) 674 1983 SCC (4) 575 1983 SCALE (2)131 CITATOR INFO : F 1987 SC1802 (11) ACT: Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order, 1978-Validity of. Essential Commodities Act , 1955-S. 2(a) (v)- "Foodstuffs", meaning of-Whether it includes cooked food ?- Mechanics of price fixation under the Act-Extent of scope for interference by <ORG>. HEADNOTE: The Government of Andhra Pradesh, in exercise of powers conferred under the Essential Commodities Act , 1955 promulgated the Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order, 1978 fixing the maximum prices of seven items of cooked food listed in the Schedule thereto. As the hoteliers in the State raised a hue and cry, <ORG> effected an upward revision of the prices fixed by an Amending Order dated December 11, 1980. The hoteliers were not satisfied with that and negotiations were held between them and <NAME> and as a consequence another order dated January 5, 1981 was issued effecting yet another upward revision in the maximum prices fixed and also reducing the number of scheduled items from seven to six. Ignoring this order which replaced the earlier orders, the petitioners approached this <ORG> questioning the validity of the earlier orders and obtained an ex parte stay. The contentions raised were: (i) that <ORG> was not competent to issue any price control measure in respect of 'cooked food' as the expression 'foodstuffs' under the Act means raw foodstuffs only; and (ii) that the fixation of maximum prices of scheduled items under the impugned orders was arbitrary and violative of Art. 14 inasmuch as the prices were economically unprofitable as the same had been arrived at without scientifically examining the prices of inputs, over-head charges, etc. Dismissing the petitions, ^ HELD: 1. The expression 'foodstuffs' in s. 2(a) (v) of the Essential Commodities Act , 1955 includes cooked food. If power to control prices of raw foodstuffs such as rice or wheat in conferred by s. 3, there is no justification for that power not comprehending within its fold the power to regulate prices of articles made out of such raw foodstuffs. [678 A-C] (i) The Essential Commodities Act , 1955 has the same object as the 1946 Act and therefore the expression 'foodstuffs' in the 1955 Act must receive 675 the same construction which it received under the 1946 Act. Expressions such as 'food crops', 'spices' and 'condiments' indicate different spices of articles of food but the general expression 'foodstuffs' was interpreted in the context of the 1946 Act to include spices and condiments also. It was pointed out that although expressions 'food' and 'foodstuffs' could be used in both a wide and a narrow sense, the expression 'foodstuffs' had been used in a wider sense in the 1946 Act. [679 <CITATION> ,  S.C.R. 877 referred to. (ii) The expression 'food' has generally been understood to mean nutritive material absorbed or taken into the body of an organism which serves for purposes of growth, work or repair and for the maintenance of the vital process. What human beings consume is styled as food and what animals consume is described as animal feed. This distinction has to be borne in mind. The expression 'foodstuffs' is made of two expressions, 'food' and 'stuff'. In other words, the stuff which is used as food would be foodstuff. Therefore, foodstuff is that which is taken into the system to maintain life and growth and to supply for waste of tissue. If raw foodstuff with a view to making it consumable by human beings undergoes a change in its condition by the process of cooking, the derivative is none the less foodstuff. [679 H, 680 A-B] (iii) That the expression 'foodstuff' as used in the 1955 Act comprehends cooked food is also clear from the fact that 'food crop' has been separately defined in the Act. [680 D] 2. (a) The mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. [681 <CITATION> ,  3 S.C.R. 293 relied on. (b) The petitioners ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies. No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold. It is the overall picture in the trade or commerce that needs to be examined. The petitioners have not shown that in their overall turnover they have since the promulgation of impugned orders suffered losses. And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still-born at the hands of the <ORG> because of the ex parte stay order obtained by the petitioners. [681 D-F] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition Nos. 43 of 1981, 51-53, 415-18/81, 5465-5562/83, 1751-52/81 and 7763-7890 of 1983.

<NAME>, <NAME>, <NAME> and <NAME> for the Petitioners.

<NAME>, Ms. <NAME> and <NAME> for the Respondent.

The Judgment of the Court was delivered by <ORG>, J. Should Art. 32 of the Constitution lend its assistance to petitioners in this group of petitions so that the poor in Andhra Pradesh can be successfully deprived of their staple simple breakfast ? Even an imaginary marginal dent in the profits of the hoteliers stirs it into action by an easy resort to a writ petition under Art. 32 and an ex- parte stay which itself is success even if the petition ultimately fails because in the meantime the measure which may possibly affect their profits is kept under suspended animation and the profit being continuously derived from scattered consumers is not refundable and the unjust enrichment is enjoyed with impunity. This case amply illustrates the point.

Hoteliers of Andhra Pradesh raised a hue and cry when the Government of Andhra Pradesh-the first respondent enacted and proclaimed in exercise of the powers conferred by Sec. 3 of the Essential Commodities Act , 1955 (1955 Act for short) read with the notification of <ORG> dated June 9, 1978, the Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order. 1978 (1978 Order for short) dated September 8, 1978 whereby it was made obligatory for the catering establishments to display the prices of all foodstuffs served by the establishment and simultaneously fixed the maximum price of seven items of food comprising the poorman's menu in the State of Andhra Pradesh. The seven items enumerated in the Schedule appended to the 1978 Order include idli, vada, upma, sada dosa, puree, coffee, tea and a rice plate (scheduled items for short). Cl. 3 of the Order prescribed maximum prices of the scheduled items of food and cl. 4 makes it obligatory to display in English and principal language of the area the weight or measure and price of every item of foodstuff offered for sale in the establishment. There were consequential provisions such as power to issue directions, power to call for information, power of entry, search & seizure and power to grant exemption as also power to amend the Schedule. A clarificatory notification was issued on October 3, 1978 giving certain directions.

The Schedule and the rates set out therein were modified by the Amending Order dated December 11, 1980. The amendment catered to an upward revision of the prices. It seems some further negotiations took place between the Minister of Civil Supplies and Labour on the one hand and hoteliers on the other which led to a notification dated January 5, 1981 (1981 Order for short) giving further upward revision in maximum price of scheduled items and the scheduled items were reduced from 7 to 6 deleting rice place. Ignoring this latest order which replaced the earlier orders, the petitioners approached this <ORG> and obtained an ex-parte stay of the implementation of Orders dated September 5, 1978 and December 11, 1980. In fact, but for the intervention by the <ORG> staying the operation of earlier orders, the order dated January 5, 1981 was not stayed yet effectively the petitioners succeeded in putting into cold storage the price fixation order leaving them free to charge any price unhampered and uninhibited by any governmental action.

Dr. <NAME>, who led on behalf of the petitioners made two submissions which have nothing to do with the validity or legality of the impugned Orders. He submitted that the <ORG> should give a direction to <ORG> to re-examine the prices of inputs and overhead charges so as to arrive at such maximum price of the scheduled commodities as to ensure a reasonable return on the investment which would render the restriction on the fundamental right to carry on trade, reasonable and satisfy Art. 19 (1) (g) of the Constitution. He next submitted that there are certain directions in the 1978 and 1981 orders which are impossible of compliance and, therefore, the petitioners should be heard before they are compelled to implement the conditions. Neither of the submissions has any impact on the validity of the impugned Orders. It may, however, be pointed out how the petitioners suppressing material facts succeeded in obtaining an ex-parte stay order. In the counter-affidavit filed by one Mr. <NAME>, Director of Civil Supplies, it was stated that after the Order dated December 11, 1980 was issued the hoteliers resorted to some agitation which led to the Minister of Civil Supplies calling a meeting of the hoteliers. What transpired at this meeting may be extracted from the counter-affidavit:

"The Minister for Civil Supplies therefore convened a meeting at Hyderabad on 31.12.80 with the representatives of hoteliers all over the State and the Joint Collectors. At the said meeting all the issues involved were thoroughly discussed. After prolonged discussions, the hoteliers of the districts have agreed unanimously for reducing the prices in respect of 6 items of foodstuffs excluding meals and an undertaking to that effect was signed by the hoteliers at 1.30 a.m. on 1.1.1981."

A copy of the undertaking is produced at Annexure 'B' to the counter-affidavit which inter alia also provided that the rates of the scheduled items determined with the consent of the hoteliers will be reviewed after three months. What is now demanded is that <ORG> should examine the prices of inputs and overhead charges and determine afresh the maximum prices of the scheduled items, which was very much an integral part of an over all agreement between <ORG> and the hoteliers. After suppressing this material fact from the <ORG> in the petition, the petitioners obtained an ex-parte stay order on January 12, 1981 and this was suppression of such a material fact as would disentitle the petitioners to any relief at the hands of this <ORG>. That apart review at reasonable interval is implicit in any price fixation measure.

The second submission that the petitioners be heard to point out the impossibility of complying with some of the conditions of the Orders is merely to be stated to be rejected. If the real bone of contention was the maximum price of scheduled items which was to be thrashed out by discussion, it is not possible to accept the submission that the petitioners would not have put forth their grievances about the impossibility of complying with some of the conditions of the impugned orders. There is not a whisper about it in the agreement Annexure 'B' and we do not find anything very unusual or impracticable in the conditions prescribed in the impugned orders.

Mr. <NAME> who appeared for some of the petitioners urged that <ORG> is not competent to issue any price control measure in respect of cooked food because the Essential Commodities Act , 1955 which confers power to issue orders in respect of essential commodities does not confer any power to issue any order in respect of cooked food. Sec. 3 of Essential Commodities Act , 1955 confers power on <ORG> by an order to provide for regulating or prohibiting the production, distribution and supply and trade in essential commodity or for securing their equitable distribution and availability at fair prices. The power to fix price of essential commodity is implicit in the power conferred by Sec. 3 of the Act and what is implicit in Sec. 3 (1) is made explicit by cl. (c) of sub-section (2) of Sec. 3 which provides that an order made under Sec. 3 (1) may provide-(c) for controlling the price at which essential commodity may be bought or sold. Clause (a) of Sec. 2 defines 'essential commodity' to mean any of the items which include...(v) foodstuffs, including edible oilseeds and oils. The submission is that the expression 'foodstuffs' in its etymological and grammatical sense would mean raw foodstuffs or appropriately called food grains such as wheat, rice, jawar, bazra, maize etc. but not cooked food which is a perishable commodity. We see no justification for giving a restricted meaning to the expression 'foodstuffs'. If power to control prices of raw foodstuffs such as rice or wheat is conferred by Sec. 3, we see no justification for that power not comprehending within its fold the power to regulate prices of articles made out of such raw foodstuffs. Expression such as 'foodcrops' 'spices' and 'condiments' indicate different species of articles of food but the general expression 'foodstuffs' was interpreted to include spices and condiments also. <CITATION> (1) this Court construed the expression 'foodstuffs' in cl. (3) of the Spices (Forward Contract Prohibition) Order of 1944 read with Sec. 2 (a) of the Essential Supplies (Temporary Powers) Act, 1946 to include turmeric. After examining the definition of expression 'foodstuffs' in <ORG> and Webster's International Dictionary and some decisions bearing on the subject, this Court held that the expressions 'food' and 'foodstuffs' can be used in both a wide and a narrow sense and that the circumstances and background can alone determine which is proper in any given case. After examining the object and the intendment underlying enactment of Essential Supplies (Temporary Powers) Act, 1946, this Court held that if turmeric is a commodity essential to the life of the community it must be covered by the expression 'foodstuffs'. Accordingly, it was held that the expression 'foodstuffs' has been used in a wider sense in 1946 Act. It may be recalled that the Essential Commodities Act , 1955 was enacted for the control of the production, supply and distribution of and trade and commerce in essential commodities. It has the same object as the 1946 Act and therefore, the expression 'foodstuffs' in 1955 Act must receive the same construction. If that be so, the expression 'foodstuffs' must obviously include cooked food also.

Further the expression 'food' has generally been understood to mean nutritive material absorbed or taken into the body of an organism which serves for purposes of growth work or repair and for the maintenance of the vital process. What human beings consume is styled as food and what animals consume is described as animal feed. This distinction has to be borne in mind. Expression 'foodstuffs' is made of two expressions, 'food' plus 'stuff'. In other words, the stuff which is used as food would be foodstuff. Therefore, foodstuff is that which is taken into the system to maintain life and growth and to supply waste of tissue. If the raw foodstuff with a view to making it consumable by human beings undergoes a change of its condition by the process of cooking, the derivative is none the less foodstuff. If raw rice is foodstuff, does rice when boiled in water cease to be foodstuff. As the Chinese by an accidental fire in a hut where there were pigs learnt the advantage of consuming cooked food in place of raw food, the submission of Mr. <NAME> would make us march backward by centuries and be a disgrace to modern culinary art. And 'food crop' is another expression defined in the 1955 Act. Therefore, the expression 'foodstuff' as used in the 1955 Act comprehends cooked food. The contention of Mr. <NAME>, therefore, must be negatived.

It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore, the exercise of fixing maximum price suffers from the vice of arbitrariness and must be declared unconstitutional as being violative of Art. 14. While canvassing the submission, some attempt was made both on the side of the petitioners as well as on the side of the <ORG> to take us through the labyrinth of the tables drawn up by both side showing prices of inputs and overhead charges. We declined to be involved in the vortex of this cost accountant's exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise. The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical. For this malaise, petitioners have to thank themselves because it was an integral part of their agreement with <NAME> on December 31, 1980 that the maximum prices fixed by the impugned orders would be re-examined on the expiration of the three months from the date of the agreement. Instead of honoring this agreement, the petitioners within a span of 12 days rushed to this <ORG> and obtained ex-parte stay order wholly suppressing the fact that the orders impugned in these petitions have already been replaced by the latest order dated January 5, 1981. Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the <ORG>.

In order to illustrate how the <ORG> is not the forum for scientifically structuring prices of commodities, it may be pointed out that the petitioners in their price structure tables have added in respect of each scheduled item 24% of wages. Totalling the wages for seven items the wage bill accumulates at 175%. And that is equally true of other overhead charges. Add to this numerous other items of food sold by petitioners in their establishments and the utter unsustainability of their claim becomes manifest.

We would however, reject the contention about the mechanics of price fixation on the short ground that petitioners, ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies. No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold. It is the over all picture in the trade or commerce that needs to be examined. Petitioners have not shown that in their over all turnover they have since the promulgation of impugned orders suffered losses. And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still-born at the hands of the <ORG> because of the ex-parte stay order obtained by the petitioners. And we reject this contention for the additional reason as laid down by a Constitution Bench of seven learned Judges of this <ORG> in <ORG> etc. v. <ORG>) where <NAME>, C.J. observed as under;

"In the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid."

Not the slightest case is made out for departure from the proposition laid down by this <ORG> as extracted hereinabove.

Before we conclude, we would like to pin-point the unfair advantage which the petitioners have obtained by ex- parte stay suppressing the material fact that the later order had already replaced the earlier orders and the latest order was issued with their consent. In the Writ Petition No. 43/81 the prayer clause reads as under:

"Issue a writ of mandamus or any other appropriate writ or order holding that G.O. Ms. No. 548 dated 8.9.1978 and G.O. Ms. No. 626 dated 11.12.1980 of <ORG> and the notification issued by the Collector, the second respondent herein dated 16.12.1980 in pursuance of the said impugned Orders as ultra vires, unconstitutional and void and quash the same."

The bone of contention was not the power exercised by <ORG> but the maximum prices fixed in exercise of the power conferred on <ORG>. The maximum prices were to be regulated as per the order dated January 5, 1981, and even though this <ORG> was moved for ex-parte stay on January 12, 1981, the fact that the latest order dated January 5, 1981 has replaced the earlier orders was suppressed from the <ORG>. And peculiarly <ORG> did not pursue vigorously its latest notification dated January 5, 1981 because its operation was not stayed by the <ORG>. However, the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed. Now that we are dismissing these petitions and vacate the stay orders, the notification fixing the maximum prices will revive and can be enforced. But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the court by the exercise of the constitutional power under Art. 32 of the Constitution, and there is no way of depriving this unjust enrichment The <ORG> set up for justice, including socio-economic justice, unfortunately lent its assistance to such unjust enrichment and yet we are helpless.

For the reasons herein discussed, we find no merits in any of the contentions canvassed on behalf of the petitioners and therefore, these petitions fail and they are dismissed with costs in each.

H.L.C. Petition dismissed.