PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF PUNJAB DATE OF JUDGMENT28/11/1995 BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) MUKHERJEE M.K. (J) CITATION: 1996 SCC (1) 458 JT 1995 (8) 434 1995 SCALE (6)653 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T S.B. <NAME> J.

Appellant, <NAME> has brought in challenge his conviction and sentence as imposed upon him by <ORG> at Chandigarh in Criminal Appeal No.637-DB of 1981. While allowing his appeal against conviction under Section 302 Indian Penal Code (in short ` IPC ') <ORG> has convicted him for the lesser offence under Section 304 Part I, IPC and sentenced him to undergo rigorous imprisonment for 10 years. The appellant's grievance is that he is not liable to be convicted even under the said provision.

In order to appreciate the grievance of the appellant a few relevant facts leading to this appeal deserve to be noted at the outset.

BACKGROUND FACTS :

The appellant who was accused no.1 along with two other accused <NAME> and <NAME> were charged with offences under Sections 302 , 307 , 325 , 324 , 323 read with Section 34 of the  on the allegation that on 11th January 1981 at about 6.00 p.m. in the area of village Nizamwala, in furtherance of their common intention which was to commit the murder of one lady Smt. <NAME>, the appellant did commit murder of the aforesaid Mst. <NAME> by intentionally causing her death whereas the other two accused committed offences under Section 302 read with Section 34 of the . Accused <NAME> was also charged with an offence under Section 307  for having fired a gun shot at one <NAME> with such intention and under such circumstances that if by that act he had caused the death of <NAME> he would have been guilty of murder while the appellant was charged with an offence under Section 307 read with Section 34 . It was also alleged that at the same time and place in furtherance of their common intention accused <NAME> Voluntarily caused hurt to <NAME> by means of a `gandasa', which is an instrument of cutting, and thereby committed an offence punishable under Section 324  whereas appellant and <NAME> accused were alleged to have committed offences punishable under Section 324 read with Section 34 of the . They were similarly charged for an offence for having caused hurt to one <NAME> by means of a `gandasa', which is an instrument of cutting. Appellant was also charged along with other co-accused for having committed an offence under Section 325 read with Section 34 of the  for having voluntarily caused grievous hurt to one <NAME>. Appellant was lastly charged with an offence under Section 27 of the Arms Act on the allegation that on the same date, time and place he had in his possession a single barreled 12 bore gun with intent to use the same for an unlawful purpose, that is, to commit the murder of Mst. <NAME> and that he actually used it for the above-said purpose thereby committing an offence under Section 325 of the .

The prosecution story briefly is to the effect that accused <NAME> is the sister's son of <NAME> accused and the appellant who belongs to village Baghewala, is their partyman. That prosecution witnesses, <NAME> and <NAME>, are the real brothers and Mst. <NAME> deceased was the wife of <NAME> and <NAME> is the nephew of <NAME>, <NAME> is the cousin of <NAME> and <NAME> is the nephew of <NAME>. That PW <NAME> was to celebrate Lohri festival in connection with the birth of his grand-child. He went to <NAME> at village Akku Masteke on 10th January 1981 to request him (<NAME>) to join the celebration of Lohri festival at his house. On 11th January 1981 at about 9.00 a.m. <NAME> came to the house of <NAME> and remained there upto 6.00 p.m. in connection with the distribution of sweets on the occasion of the birth of his (<NAME>'s) grand- child. At about 6.00 p.m. <NAME>, his wife Mst. <NAME>, his brother <NAME> came out of the house along with <NAME> to see the letter off. They were standing in front of the gate of his (<NAME>'s) house. At that time electric light which was fitted at his house, was illuminating in which a human being could be identified. <NAME> was going to connect his tractor with his trolley. Meanwhile, <NAME> accused armed with his D.B.B.L. gun, <NAME> accused armed with a single barrelled gun and <NAME> accused armed with `grandasa' came to the house of <NAME> and <NAME> raising `lalkaras'. <NAME> accused raised a `lalkara' that he and his companion co-accused were going to teach <NAME> and others a lesson for parking the tractor trolley in the lane. <NAME> accused opened the attack by firing from his D.B.B.L. gun towards <NAME>. However, the fire missed the target as he (<NAME>) had knelt down to save himself and the fire passed over his head. Thereafter appellant fired from his single barrelled gun and the shot hit Mst. <NAME> deceased near he pelvic region. On receipt of this injury, she fell down on the ground. Thereafter <NAME> accused dealt a `gandasa' blow on the head of <NAME> from its sharp side. Meanwhile <NAME> accused dealt blow with the butt of his gun on the left hand of <NAME> and another blow from the said butt on his right ear. Then <NAME> accused dealt a `gandasa' blow on the head of <NAME> from its reverse side. Thereupon <NAME>, <NAME> and <NAME> raised `raula' and on this, the accused decamped with their weapons. Before that, <NAME> and <NAME> also caused injuries on the person of appellant in their self- defence. Thereafter the PWs arranged a car in which <NAME> was placed. <NAME> and <NAME> accompanied her to Civil Hospital, Forezepore, at a distance of 14/15 kilometers. The car left village Nizamwala at about 6.45 p.m. but <NAME> died on the way at a distance of 6/7 miles near village Sodhiwala on their way to the Hospital.

On receipt of telephonic message, Inspector <NAME> of <ORG> Mallanwala went to <ORG>, Ferozepore, and recorded the statement of <NAME>, which formed the basis of the First Information Report. The inspector held inquest and sent the dead body of Smt. <NAME> to the mortuary for autopsy. Thereafter, he went to the spot, lifted blood-stained earth and recovered one empty catridge case from there. The accused were arrested on 17th January 1981 and their weapons were taken into possession.

After investigation the appellant along with his co- accused were chargesheeted and ultimately their case was committed to the court of Sessions for trial. The learned Trial Judge after recording evidence and hearing the rival versions took the view that appellant was guilty of an offence under Section 302 of the  for killing Smt. <NAME> and ordered him to undergo imprisonment for life and to pay a fine of Rs.3,000/- or in default to further undergo rigorous imprisonment for one and a half years, while <NAME> and <NAME> accused were sentenced under Section 302 read with Section 34 of  and were directed to undergo imprisonment for life and to pay a fine of Rs.1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each. <NAME> accused was sentenced under Section 307  and was directed to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs.300/- and in default of payment of fine to further undergo rigorous imprisonment for two months while the appellant and another accused <NAME> were sentenced under Section 307 read with Section 34  and were directed to undergo rigorous imprisonment for six months each and to pay a fine of Rs.100/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each. Appellant was also sentenced under Sections 324 and 325 read with Section 34 for the injuries caused to the concerned PWs as mentioned in the charge. He was sentenced to undergo rigorous imprisonment for six months under Section 27 of the Arms Act.

The aforesaid decision of <ORG> resulted in criminal appeal moved by the appellant and the other two accused <NAME> and <NAME> in <ORG> at Chandigarh. <ORG> of <ORG> after hearing the contesting parties came to the conclusion that the co-accused <NAME> and <NAME> deserved to be acquitted of the offences with which they were charged and the appeal qua them was fully allowed while so far as the appellant was concerned, he was acquitted of offences under Section 302 , Section 307 read with Section 34 , Sections 324 and 325 read with Section 34 I.P.C. However, he was held guilty of an offence under Section 304 Part I, IPC . He was sentenced as aforesaid. His conviction and sentence under Section 27 of the Arms Act were also maintained. That is how the appellant is before us in the present appeal.

Learned advocate appearing for the appellant contended that when <ORG> came to the conclusion that the appellant had a right of private defence of body having received number of injuries in the incident, <ORG> instead of carrying this conclusion to its logical end, wrongly assumed that the appellant had exceeded his right of private defence of body as his reasonable apprehension could be of having caused simple hurt at the hands of the complainant party and, therefore, he had a right to give only grievous hurt but could not have caused any fatal injury by the use of his firearm. It was vehemently contended that looking to the evidence on record the aforesaid finding of <ORG> is not well sustained. Learned counsel for the respondent State of Punjab on the other hand tried to support the reasoning and the final conclusion to which <ORG> reached. In our view the decision of <ORG> to the effect that the appellant had exceeded the right of private defence cannot be supported on the evidence on record. It will be profitable to extract what <ORG> has said in this connection in the penultimate paragraph of its judgment at page 15 :

"...<NAME> appellant and <NAME> had sustained as many as 12 injuries and out of them 2 injuries on the person of <NAME> and one injury on the person of <NAME> were on the vital parts of their bodies. In such a situation, the accused party could legitimately harbour the apprehension that the complainant party would cause them simple hurt. But <NAME> appellant had over stepped the legal limits of the defence of person by firing a shot from his gun which hit Smt. <NAME> and proved fatal. The occurrence appears to have taken place all of a sudden and it was not a pre- planned attack. When <NAME> appellant apprehended simple hurt at the hands of the compainant party, he had the right to give a grievous hurt but he obviously exceeded the right of private defence of his person and caused one fire arm injury, which proved fatal. Consequently <NAME> is found guilty for an offence under section 304 Part I, Indian Penal Code ..."

Now it must be noted that according to <ORG> the appellant had a right of private defence as he had sustained number of injuries in the incident. So far as his injuries are concerned, Dr. <NAME>, PW.1 has described the injuries by stating as under :

"I conducted medico legal examination on the person of <NAME> accused and found the following injuries on his person:-

1. Incised wound of the size 5.5 cm x 1 cm bone deep at the right front pariental region 9.5 cm from the right eye-brow, obliquely placed and 8 cm from the right pinna. Blood clot was present.

X-ray was advised.

2. Swelling of the size 3.5 cm x 3.5 cm on the left side of the fore-head 1.5 cm above the left eye-brow. X-ray was advised.

3. Reddish swelling of the size 5 cm x 3.5 cm with overlying abrasion 2 cm x 0.5 cm, at the back and upper part of left fore-arm.

4. Swelling of the size 2.5 cm x 2.5 cm with overlying lacerated wound 0.75 cm x 0.25 cm back and middle of left middle finger of hand. X-ray was advised.

5. Swelling 1 cm x 1.5 cm at the tip of middle finger of left hand. X-ray was advised.

6. Abrasion 0.5 cm x 0.5 cm on medical aspect and middle of left index finger.

7. Reddish contusion 5.5 cm x 2 cm at the upper and lateral aspect of right upper arm. X-ray was advised.

8. Reddish contusion 5 cm x 3 cm on the front and middle of right upper arm.

9. Abrasion 3 cm x 2 cm on front of right elbow joint.

The patient was conscious. Pulse was 72 per minute. B.P. 130/70. Nature of the injuries. Injuries nos :

1,2,3,4,5 and 7 were kept under observation for X-ray. Injuries nos:

3,6,8 and 9 were declared simple. The probable duration of the injuries was within six hours. The weapon declared for injury no.1 was sharp edged. Rest all by blunt weapon. On receiving X-ray report No.10/60, dated 13.1.1981, injuries nos : 1,2,4,5, and 7 were declared simple."

Now it becomes at once clear that the appellant had received as many as nine injuries out of which first two injuries were on a very vital part, namely, on his head and injury no.1 was an incised wound which was caused by a sharp-edged weapon. Under these circumstances if the appellant fired one shot from his gun in his self-defense it could not be said that he had exceeded the right of private defence as the nature of assault by the complainant party which left him with the aforesaid injuries certainly could be said to have caused a reasonable apprehension in his mind that grievous hurt would otherwise be the consequence of such an assault. In this connection it will be profitable to look at Section 100 of the Indian Penal Code which reads as under :

"100. When the right of private defence of the body extends to causing death.-- The right of private defence of body extends, under the restrictions mentioned in the last preceding section, to the Voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :- First:- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly:- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.- An assault with the intention of committing rape;

Fourthly.- An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

It is not the case of the prosecution that any of the restrictions mentioned in Section 99 can be invoked by the prosecution against the appellant. Once that is so, clause `secondly' of Section 100 would squarely get attracted. It is difficult to appreciate the reasoning of <ORG> that the reasonable apprehension in the mind of the appellant who had received two injuries on his head and seven other injuries on his body would be the apprehension that only simple hurt would be caused to him and not grievous hurt. It is true that the first injury caused on his head had fortunately not resulted into a fracture but when it was caused with a sharp cutting instrument on the vital part of his body, namely, right side of head, it cannot be gainsaid that at least a reasonable apprehension would arise in his mind at the spur of the moment that if he does not retaliate by using his weapon, namely, the gun with which he was armed he would certainly suffer at least a grievous hurt as a consequence of the assault by the c party. Under these circumstances the right of private defence of body available to the appellant would extend to even causing death. It is of course true that his, gun shot unfortunately hit an innocent person like Smt. <NAME> who was present on the scene of occurrence but as at the very same time and place the appellant had suffered an assault at the hands of the assailants comprising of the complainant party, right of private defence of body which would extend to even causing death of the assailant would arise in favour of the appellant on the facts of the present case and in exercise of that right if death is caused not of the assailant but of any other person it cannot be said that the right of private defence extending up to causing death of the assailant would not be available to the accused qua even an innocent party which got fatally hurt on account of the exercise of such a right of private defence which ensured for the appellant under Section 100 clause secondly of the IPC . It is obvious that if an accused with an intention to kill his victim fires a shot at him which misses the target and hits any other innocent person fatally he would remain guilty of an offence of murder but if the accused had no such intention and was protected by right of private defence under the situation and circumstances in which it could extend to even causing death of assailant as laid down by Section 100 and if in exercise of that right of private defence the blow fatally falls on an innocent person the action would still remain protected under Section 100 of the . In this connection we may refer to Section 301 , IPC which reads as under :

"301. Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."

For applicability of that Section the act must amount to culpable homicide in the first place. If the act is not culpable at all, then even if it results into homicide of an innocent person, in view of Section 100  as in the present case, Section 301 will have no operation.

While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the court room. Such situations have to be judged in the `light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation. Such situation have to be judged from the subjective point of view of the accused concerned who is confronted with such a situation on spot and cannot be subjected to any microscopic and pedantic scrutiny. In this connection it is profitable to refer to two decisions of this Court. In the case of <CITATION> (1980 Supp. SCC 215), a Division Bench of this Court speaking through <NAME>, J. made the following pertinent observations :

"...the onus which rests on an accused person under Section 105 , Evidence Act , to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in `golden scales' the precise force needed to repel the danger. Even if he in the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it..."

In the case of <CITATION> . (1973 (1) SCC

347), this Court was concerned with a situation where the accused had received a blow on head by a `lathi' and in self-defence he had used his spear in retaliation. While holding that the accused was entitled to the right of private defence extending to even causing death, in such a case, he was acquitted of the offence under Section 302 . In this connection <NAME>, J., speaking for this Court in paragraph 5 of the Report has made these pertinent observations :

"In our opinion, <ORG> does seem to have erred in law in convicting the appellant on the ground that he had exceeded the right of private defence. What <ORG> really seems to have missed is the provision of law embodied in Section 102 , I.P.C . According to that section the right of private defence of the body commences as soon as a reasonable apprehension of dager to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self- defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the <ORG> (which has a duty to maintain law and order) and not in private individuals. . ............. the approach of <ORG> that merely because the complainat's party had used lathis, the appellant was not justified in using his spear is no less misconceived and insupportable, During the course of a marpeet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehensions that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as distinguished from the use of a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury. <ORG> seems in this connection to have overlooked the provision contained in section 100 , I.P.C . We do not have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, therefore, a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound proposition of law that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to cooly weigh, as if in golden scales, and clamly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. No doubt, <ORG> does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellant's case curiously enough <ORG> has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of <ORG> is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such case the matter cannot be weighed in scales of gold."

The facts of the present case are almost parallel to the facts of the aforesaid case. Consequently it must be held that the appellant had a right of private defence of body which extended to even causing death and in exercise of that right if he fired one gun shot which unfortunately killed an innocent person that is, Smt. <NAME>, it cannot be said that he was guilty of an offence even under Section 304 Part of the  on the ground that he had exceeded his right of private defence. Consequently the conviction of the appellant under Section 304 part I, IPC as pendered by <ORG> is quashod and set aside. <ORG> has already acquitted the appellant of charges under Sections 307 , 324 and 325 of the . So far as his conviction under Section 27 of the Arms Act is concerned even that would not survive as it could not be said that he has used his gun of any unlawful purpose, that is to commit culpable homicide of Mst. <NAME> not amounting to murder. The appeal is accordingly allowed. Accused is no bail. His bail bound shall stand discharged.


PETITIONER: <ORG> Vs. RESPONDENT: JOINT DIRECTOR (FOOD) GOVT. OF INDIA, VIJAYAWADA DATE OF JUDGMENT: 27/01/1965 BENCH: ACT: Essential Commodities Act  s. Scope of-Published figures', meaning of-Fixation of price by <ORG>-If violative of Arts. 14, 19 and 31-Commodity procured by appellant at prevalent price-Government fixing lower price for requisition-validity. Constitution of India, 1950, Art. 226-Act providing orders to be final Effect. HEADNOTE: In exercise of the powers conferred by notifications issued under <CITATION> of the Essential Commodities Act, 1955, the concerned officer directed, on August 20, 1957, various appellants in Tadepalligudem in Andhra Pradesh, to sell to <ORG> certain quantities and kinds of rice at price calculated by him. The officer took into account the rates published in Vijayawada, about 80 miles from Tadepalligudem, which was the nearest locality where published figures were available, and made such adjustments as were necessitated by considering transport charges and the quality of rice procured which was inferior to the rice for which the published price was available in Vijayawada. On September 14, 1957 the <ORG> under <CITATION> , fixed the maximum price, and the officer made requisitions between September 14, and December 29, 1957 at that price. On December 30, 1957, after the new rice crop had come into the market, the <ORG> refixed the maximum price at less than the maximum price fixed on September 14. 1957, and Government requisitioned rice thereafter at that price. from the appellants. The appellants filed writ petitions in <ORG>, contending that, (1) for the period before September 14, 1957, the price had not been properly fixed according to the provisions of the Act; (2) the prices fixed by the <ORG> on September 14, 1957, and December 30, were bit by Arts. 14. 19 and 31 of the Constitution; and (3) the lesser price fixed on December 30, 1957, should not have been applied to the rice purchased by the appellants before that date at the higher rate fixed on September 14, 1957, and requisitioned from them after December 30. The writ petitions were dismissed. Dismissing the appeals to this Court, HELD : (1)(a) Under <CITATION> there are 3 ways in which the price has to be fixed as indicated in sub-cls. (a), (b) and (c). Sub-clauses (a) and (b) apply only to those situations where a controlled price has been fixed by the <ORG>. Since there was no controlled price before September 14, 1957 in the present case. sub-cl. (c) applied. Hence. the officer had to fix the price under <CITATION> , and the contention that he should have first tried to come to an agreement with the appellants under sub- cl. (a) has no force. [426A-E] (b) Under <CITATION> and cl. (iv), the price had to be calculated with reference to the average market rate prevailing in the locality, on the ,basis of published figures available in the locality or a neighbouring locality, during the period of 3 months immediately preceding the dates of notification of the price. [426F] 419 (c) The words 'published figures' mean that figures should be publicised in some way as in newspapers or on the radio or in any other manner which makes them known to the general public. 'the prices entered in the accounts books of the appellants, cannot. in any circumstances be called 'published figures' even if they were shown to the tax- authorities. [427D-F], (d) Admittedly the rice procured was inferior in quality to the rice for which the published price was available in Vijayawada. Hence, merely because in 1964, <ORG> issued a notification, that the difference between the two qualities is slight, would not mean that the officer was wrong in treating, in 1957 the rice procured by him as inferior. [428F-H] Therefore, it cannot be said that the officer was wrong in taking the figures published in Vijayawada and making the necessary adjustments. [429B] (2) (a) The orders passed by the <ORG> fixing the price relate only to certain districts of Andhra Pradesh. But these districts are surplus rice producing districts and form a class by themselves; and fixation of maximum price therein would subserve the purpose of <CITATION> of the Act of stabilising the prices. Hence there is no violation of Art. 14. [423D-E] (b) Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, were in terms similar to <CITATION> and 4 of the Act, and were upheld by this Court in (<NAME> Case  1 S.C.R. 380). Therefore, for the reasons given in that case, which were accepted in (<NAME> case  2 S.C.R. 627), Ss. 3 and 4 of the Act are not hit by Art. 19(1) (f) and (g). [423D-C] (c) The Act does not fix the amount of compensation, but the principles on which and the manner in which the compensation is to be determined are found in <CITATION> , which provides that the price should be fair, and that involves in it all factors which have to be taken into account in fixing a fair price. As the Act was dealing with a large number of commodities of different types in which different factors would enter in fixing fair prices, the legislature left it to the <ORG> to determine the, fair price in a just and proper manner, after indicating in sub-ss. (3) and (3A) the manner in which it should be fixed. Therefore, there-is no violation of Art. 31(2). [423G-424B] (3) The contention that the rice procured between September 14 and December 29 by the appellants should have been requisitioned at the price fixed on September 14 and not the price fixed on December 30 must also fail.[1425A] (a) The reason for reduction of prices on December 30 was that new crop came into market from November 1957, and it is a well-known economic fact that prices fall whenever the new crop comes into market and traders. who had purchased at higher prices, would have to sell at the reduced rates. Therefore, what would have happened in a free market was all that happened when the prices were reduced. [424D-F] (b) The reduction of price was not unfair and it could not be said that the loss to the appellants would not have happened even in the normal course of business. [424F] (c) If the contention of the appellants is accepted (i) the <ORG> can never reduce prices when once it had fixed them' and (ii) there would be two sets of maximum prices. But that would be against the very purpose of <CITATION> of fixing a fair price. [424F-G] (d) If the prices were raised by a subsequent notification, the appellant would not have contended that the old price should prevail in relation to the stocks purchased by them earlier. [424G-H] (4) <CITATION> provides that the rates determined shall be final and shall not be called in question in any court. These words do not take away the jurisdiction of <ORG> under Art. 226 to give relief in a ,proper case; but they certainly indicate that the rates fixed shall not be lightly interfered with unless <ORG> finds that there has been serious injustice in the fixation of rates. [428C-E] 420 JUDGMENT:

CIVIL APPELLATE JURISDICTION, :-Civil Appeals No. 1026 to 1031, 902 to 905 of 1963.

Appeals from the judgment and order dated 21st August, 1959 of <ORG> in Writ Petitions Nos. 709, 710, 721 of 1957, 466, 1160 and 1426 of 1958, 1244, 125G and 1257 of 1957 and 1205 of 1957.

<NAME>, <NAME> <NAME>, <NAME> and <NAME>, for the appellants (in C.A. Nos. 1026 to 1031 of 1963). <NAME> and <NAME> for the appellants (in C.A. No. 902 to 904 and 905 of 1963). <NAME>, <NAME>, <NAME> and <NAME>, for the respondent (in all the appeals.) The Judgment of the Court was delivered by <NAME>, J.-These ten appeals on certificates granted by <ORG> raise common questions and will be dealt with together. The brief facts necessary for present purposes are these. On June 6, 1957, a notification was issued by <ORG> under <CITATION> of the Essential Commodities Act, No. 10 of 1955, (hereinafter referred to as the Act). The notification said that in the opinion of <ORG> it was necessary to control the rise in prices and prevent the hoarding of rice and paddy in the States and Union territories. Consequently <ORG> directed by the notification that the price at which rice or paddy shall be sold in any locality in the said States and Union territories in compliance with an order made with reference to cl. (f) of sub-s. (2) of the said <CITATION> shall be regulated in accordance with the provisions of sub-s. (3A). This order applied amongst other States to the State of Andhra Pradesh and was to be in force for a period of three months. On July 31, 1957, <ORG> made another notification directing that the powers conferred on it by <CITATION> of the Act to make orders providing for the matters specified in cl. (f) and for the matters specified in cls. (h), (i) and (j), insofar as they relate to cl. (f) of sub-s. (2) of <CITATION> in relation to stocks of ,rice and paddy held in any locality in the State of Andhra Pradesh shall be exercisable also by <NAME>, Deputy Director (Food), <ORG>, Vijayawada. This order was also to be in force for three months. Further on the same day <ORG> issued another notification by which in pursuance of cl.

(iv) of sub-s. (3A) of <CITATION> of the Act, <ORG> authorised the said Shri Krishnan to determine the average market rate of rice and paddy prevailing in any locality in the State of Andhra Pradesh.

On August 20, 1957, <NAME> in exercise of the powers conferred upon him by the notifications mentioned above directed a number of rice millers in Tadepalligudem to sell to the Assistant Director (Food), <ORG>, certain quantities and kinds of rice at the price calculated in accordance with cls. (iii) and

(iv) of sub-s. (3A) of <CITATION> of the Act. In consequence of this order, such quantities of rice as were ordered to be sold were delivered to the Assistant Director (Food) on various dates upto September 13, 1957. It may be mentioned that there was no control of price upto September 13, 1957 and in consequence the price to be paid to the rice millers had to be determined under <CITATION> (3A) (iii) (c) read with <CITATION> (3A) (iv) of the Act. This is the first period with which we are concerned in the present appeals. It may be mentioned that prices are claimed to have been fixed by <NAME> for the rice procured under the orders passed on August 20, 1957 and on subsequent dates in accordance with the provisions of the Act in September 1957. The appellants dispute that the prices have been properly fixed under the provisions of the Act and that is the first matter to be considered in these appeals, the details of which we shall refer to later.

On September 14, 1957, <ORG> issued a notification fixing the, maximum price at which rice and paddy of various kinds was to be sold in any one transaction of more than ten maunds in the districts of Krishna, West Godavari and East Godavari in the State of Andhra Pradesh under cl. (c) of sub-s. (2) of <CITATION> of the Act. Following this fixation the Deputy Director made requisitions between September 14, 1957 and December 29, 1957 of different varieties of rice from various appellants under the powers vested in him by the notifications already referred to under cl. (f) of sub-s. (2) of <CITATION> of the Act and fixed prices therefore. He claims to have fixed price therefore in accordance with <CITATION> (3 A) of the Act , though actually the maximum prices fixed by <ORG> were paid. The contention of the appellants with respect to this period is that the notification fixing price and the action taken thereunder is hit by Art. 14 , Art. 19(1) (f) and (g) and Art. 31(2) of the Constitution and therefore they are entitled to the rates prevailing in the market at the time. On December 30, 1957, after the new rice crop had come into the market, <ORG> issued another notification by which maximum prices were refixed in the districts of Krishna, West Godavari, East Godavari and Guntur in the State of Andhra Pradesh under <CITATION> (2) (c) of the Act. These prices were less than the maximum prices fixed on September 14, 1957. Thereafter there was more pro- curement of rice by the Deputy Director (food) from the various appellants and he claims to have fixed prices therefore in accordance with the provisions of <CITATION> of the Act, though actually he paid the maximum price fixed in the notification of December 30, 1957. The contention of the appellants with respect to this period also is that the prices fixed by <ORG> are hit by Art. 14 , Art. 19 (1 ) (f) and (g) and Art. 31 (2) of the Constitution. In addition, it is contended that the reduced prices fixed on December 30, 1957 could not and should not have applied to rice purchased by the appellants between September 14, 1957 and December 29, 1957, when higher market prices were prevailing under the notification of <ORG> dated September 14, 1957.

The appellants therefore along with a large number of other rice millers filed writ petitions before <ORG>. With respect to the first period, the appellants prayed that the Deputy Director be directed to fix the price of rice requisitioned from them at the rate calculated with reference to the average of the market rate prevailing at Tadepallegudem during the period of three months immediately preceding the date of the notification after giving notice and opportunity to the appellants to make their representation regarding the price to be fixed, as it was contended that the Deputy Director had fixed the price for this period arbitrarily and without regard to the provisions of the Act. As to the subsequent two periods after <ORG> had fixed the maximum price, the appellants prayed that the Deputy Director be directed to fix fair prices having regard to the prevailing market rates on the relevant dates on which the stocks of paddy and rice were requisitioned and that this should be done after giving opportunity to the appellants to make their representation in the matter. The notifications issued by <ORG> fixing maximum prices were attacked on the ground that the power vested by the Act in <ORG> to impose controls was an arbitrary power without limitation and wag therefore an unreasonable restriction and hit by Art. 19(1). It was also contended that the price fixation was hit by Art. 14 as the order of <ORG> applied to certain districts in the State of Andhra Pradesh and not to others. Reliance was also placed on Art. 31(2) of the Constitution which, it was said, was not complied with. Lastly with respect to the period after December 30, 1957, it was urged that at any rate procurement should have been at prices fixed in the notification of September 14, 1957 with respect to the stocks purchased by the appellants between that date and December 29, 1957 and not at the rate fixed by +,he notification dated December 30, 1957. These contentions were controverted on behalf of the Deputy Director (Food), <NAME> and it was claimed that the prices were fixed in accordance with the provisions of the Act. It was also contended that neither the act nor the orders passed thereunder for procurement of rice in these particular cases were hit by Art. 14 , Art. 19(1) (f) and (g) and Art 31(2). Lastly it was contended that the entire procurement during the period after December 29, 1957 was rightly made at prices fixed in the notification dated December 30, 1957.

<ORG> rejected all the contentions raised on behalf of the, appellants and dismissed the writ petitions with costs. The appellants then applied for and obtained certificates from <ORG>; and that is how the matter has come up before us.

We shall first take up the contention based on cls. (f) and

(g) of Art. 19(1). It is said that the provisions of the Act impose unreasonable restrictions on the right to acquire, hold and dispose of property, and to practice any profession, or to carry on any occupation. trade or business. We are of opinion that there is no force in this contention. It is unnecessary for us to give elaborate reasons for this conclusion, as the Act and its predecessors. namely, the Essential Supplies (Temporary Powers) Act, 1946 have already been upheld by this Court. The Essential Supplies (Temporary Powers) Act was upheld in <CITATION> (1) while the Act was upheld in <CITATION> .(2) As a matter of fact in <NAME> case(2) <CITATION> and 4 of the Act were not specifically challenged on account of the earlier deci- sion in <NAME> case.(3) It is therefore too late in the day for the appellants to challenge the validity of <CITATION> and 4 of the Act on the ground that they violate the fundamental rights guaranteed under Art. 19 (1) (f) and

(g). As already indicated, ss. 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946 were in terms similar to <CITATION> and 4 of the Act and were upheld by this Court in <NAME> scase. (1) Therefore, for the reasons given in <NAME> which were accepted in <NAME> case,(2) we hold that <CITATION> and 4 of the Act are not hit by Art. 19(1) (f) and (g) of the Constitution.

The next attack on the orders passed under the Act is that they violate Art. 14 of the Constitution inasmuch as they relate only to certain districts in the State of Andhra Pradesh and not to others. The short answer to this contention is that the districts to which the orders applied are surplus rice producing districts in the State of Andhra Pradesh and that is why the orders were confined to those districts. It was unnecessary to apply the orders to other districts for the control of price in those districts Would economically result in stabilising prices in other districts of the State also. These districts therefore obviously form a class by themselves and fixation of maximum price in these districts would subserve the purpose of <CITATION> of the Act. The argument based on Art. 14 therefore must be repelled. The next contention is based on Art. 31(2). That article provides that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given. It is urged that the Act does not fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined, and therefore the requisitioning and acquiring of rice of the appellants under the Act was bad. It is no doubt true that the Act does not fix the amount of compensa- tion, but the principles on which and the manner in which the compensation is to be determined, are in our opinion to be found in <CITATION> of the Act. <CITATION> provides for availability of essential commodities at fair prices. So the first principle which the Act provides is that the price fixed should be fair, and that involves in it all factors which have to be taken into account in fixing a fair price. As the Act was dealing with a large number of commodities of different types in which different factors would enter in fixing fair prices it was left to <ORG> to determine the fair price in a just and proper (1)  1 S.C.R. 380.

(2)[1960] 2 S.C.R. 627.

manner. The legislature having enacted that the price fixed should be fair, there is in our opinion sufficient indication of the principle on which the price should be fixed. Further the manner in which the price should be fixed has also been indicated in sub-ss. (3) and (3A) of <CITATION> of the Act. We are therefore of opinion that the argument based on Art. 31(2) must also fail.

Then we come to the contention that the procurement which was made after December 29, 1957, when the price was reduced by the notification of December 30, 1957, as compared with the price fixed in the notification dated September 14, 1957, should have been in accordance with the notification of September 14, 1957 at any rate insofar as the rice purchased by the appellants between September 14 and December 29, 1957 was concerned. The argument is that in view of the maximum prices fixed in the notification of September 14, the appellants had to pay those prices which in such circumstances really became minimum prices for paddy and rice purchased by them during that period. The result of the notification of December 30 was that even though the appellants had purchased rice and paddy between September 14 and December 29 at higher prices in terms of the notification of September 14, they had to sell it to the <ORG> at lower rates. That may in certain cases be so. But unless it can be shown- that the reduction of price on December 30, 1957, was not fair, it cannot be said that procurement after December 30 based on the prices fixed in the notification of that date was in any manner against the provisions of the Act or was hit by Art. 19(1) (f). Now the reason for reduction of prices on December 30 was that the new crop came into the market from November 1957. It is a well-known economic fact that prices fall whenever the new crop comes into the market. There can also be no doubt that when prices fall, traders who had made purchases at higher prices have to sell at the reduced rates which are prevalent after the fall of the prices. Therefore, what would have happened if there had been a free market is all that happened when prices were reduced by the notification of December 30. It cannot therefore be said that there was any such loss to the appellants as would not have happened even in the normal course of business. Further if the argument for the appellants were to lie accepted, it would mean that it would not be possible for Central <ORG> to reduce prices once it had fixed them and that would in our opinion be against the very purpose for which <CITATION> of the Act was enacted, namely, fixation of fair prices. Again the result of acceptance of this argument would be that there would be two sets of maximum prices prevalent whenever there is a reduction in the price by a subsequent notification, even though the higher price may not be a fair price. This is in our opinion against the very purpose to be found in <CITATION> of the Act. Lastly we may refer to the converse case where prices are raised by a subsequent notification. We have no doubt that if that is so, the appellants would not come forward and say that the earlier stocks purchased by them should be sold at old prices. The present is a case completely analogous to the case of rise and fall of prices due to economic factors in a free market. As the appellants could not possibly complain against rise and fall of prices due to economic factors in an open market they cannot complain of the increase or reduction of prices by notification under <CITATION> (1), because that increase or reduction is also based on economic factors. We are therefore of opinion that the contention of the appellants that rice procured by them between September 14 and December 29 should have been requisitioned at least at prices fixed by the notification of September 14 must fail.

In this view of the matter the case of the appellants for relief in respect of the last two periods, namely, (i) from September 14 to December 29, and (ii) from December 30 onwards when the procurement was made at the maximum rates fixed by the notification of <ORG> must fail.

We now come to the main argument on behalf of the appellants, namely, that the prices fixed for the procurement between August 20 and September 13, 1957 was not in accordance with the provision of the Act. Now the provision which applies is sub-s. (3A) of <CITATION> of the Act, which runs as follows :

"(3-A) (i). If <ORG> is of the opinion that it is necessary so to do for controlling the rise in prices, or preventing the hoarding, of any foodstuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in sub-section (3), the price at which the foodstuff shall be sold in the locality in compliance with an order made with reference to clause (f) of subsection (2) shall be regulated in accordance with the pro- visions of this sub-section.

(ii) Any notification issued under this sub- section shall remain in force for such period not exceeding three months as may be specified in the notification.

(iii) Where, after the issue of a notification under this sub-section, any person sells foodstuff of the kind specified therein and in the locality so specified, in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to the seller as the price therefore-

(a) where the price can, consistently with the controlled price of the foodstuff, if any, fixed under this section, be agreed upon, the agreed price;

(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;

(c) where neither clause (a) nor clause (b) applies, the price calculated with reference- to the average market rate prevailing in the locality during the period of three months immediately preceding the date of the application.

(iv) For the purposes of sub-clause (c) of clause (iii), the average market rate prevailing in the locality shall be determined by an officer authorised by <ORG> in this behalf. with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighbouring locality: and the average market rate so determined shall be final and shall not be called in question in any Court."

It is not in dispute that the notification as required by cl. (i) of sub-s. (3A), was issued on June 6, 1957 and under cl. (ii) the notification was to remain in force for three months. Clause (iii) provides for the manner of fixing the price after the notification under cl. (i) has been issued. There are three ways in which the price has to be fixed, which are indicated in sub-cls. (a), (b) and (c) of cl.

(iii). The first contention of the appellants is that the Deputy Director should first have ,acted under cl. (a) and tried to come to an agreement with the appellants and that his acting under cl. (c) without first trying to come to an agreement with the appellants was against the provisions of the Act. We are of opinion that this contention has no force. Sub-clauses (a) and (b) of cl. (iii) apply only to those situation where a controlled price has been fixed by <ORG>. Sub-clause (a) envisages that the officer concerned may try by agreement to fix a price which may be even less than the maximum price notified. Sub- clause (b) lays down that where agreement cannot be reached, the price has to be fixed with reference to the controlled price. It cannot be disputed that sub-clause (b) applies only where there is a controlled or maximum price. Sub- clause (a) also in our opinion applies only where there is a controlled or maximum price, for the two sub-clauses are complementary to each other and must be read to apply to the same situation. Thus as sub clause (b) undoubtedly applies only to a 'case where there is a controlled. price, sub-cl.

(a) also applies to a case where there is a controlled price. The use of the words "if any" in both sub-clauses must have the said sense and that is that these two sub- classes apply only When there is a controlled or maximum price fixed in fact. Therefore we are of opinion that this is a case where. sub-cl. (c) applied as there was no controlled price during the relevant period. The argument that the Deputy Director in this case should have first tried to come to an agreement with the appellants, and as be did not do so his fixation of price under sub-cl. (c) was against the provisions of the Act, must, therefore, fail. The Deputy Director had thus to fix the price under sub-cl.

(c) of cl. (iii) subs. (3A). That price had to be calculated with reference to the average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification. The notification was issued in this case on June 6, 1957 and therefore the Deputy Director had to take into account the market rates prevailing in the locality between March 6 to June 5, 1957 and arrive at an average therefrom. Further cl. (iv) of sub-s. (3A) indicates how sub-cl. (c) of cl.

(iii) had to be applied for working out the average market rates in the locality, It lays down that these rates shall be determined by an officer authorised by <ORG> in this behalf. and it is not in dispute that the Deputy Director was so authorised. Further such rat(-, has to he fixed with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighbouring locality. Finally it is provided that the average market rates so determined shall be final and shall not be called in question in any court. Now what the Deputy Director did was to take into account the rates published in Vijavawada, which it is said is At a distance of 80 miles from Tadepellagudem. It is however not disputed that there is no nearer locality where published figures are available. Therefore, if the Deputy Director took into account the nearest available published figures, i.e., prices prevailing at Vijayawada, it cannot be said that he acted against the provisions of cl. (iv) of sub-s. (3A). What he did was to take into account the published figures of Vijayawada and then make adjustments taking into account the transport charges and the quality of rice procured, for in two cases the rice procured by him was not quoted in the figures available in Vijayawada. It, however, appears that these two varieties of rice procured are slightly inferior to the rice for which the prices were available in Vijayawada and what the Deputy Director did was to make adjustments in the prices after taking these factors into consideration. The result of that was that the prices, be fixed for these two kinds of rice were lower by Rs. 1.50 or so than the Vijayawada prices for the slightly superior kind of rice which were available.

It is however urged that the words "published figures" in cl. (iv) would include even the prices in the accounts books of the appellants for these prices must be taken to be published prices inasmuch as the accounts books used to be shown to sales tax and income-tax authorities and the entries therein were therefore published. So the argument runs that the prices entered in the accounts books of the appellants being "published figures" of the prevailing market rates for the very locality from which procurement was being made, the Deputy Director should have looked at their bahi Khatas and calculated the prevailing average market rate for their locality from their bahis. We are of opinion that this argument has no force. The words "published figures" must be given their ordinary meaning. That is that the figures should be publicised in some way, say, for example, in newspapers, or on the Radio or in any other manner, so that they are made known to the general public. The prices entered/in the accounts books of the appellants cannot in any circumstances be called "published figures" even if the accounts books are shown to sales-tax or income-tax authorities. Publication of figures requires that figures get generally known to the public by such means as publication in newspapers, or announcement on the Radio or such other manner as would make figures generally available to the public. The figures of price in the accounts books of the appellants cannot be said to be generally available to the public; nor can the public insist on looking into the accounts books of the appellants to find out the prices at which they had procured the rice themselves. Therefore. the Deputy Director would not have carried out the provisions of cf. (iv) of sub-s. (3A) if be had depended upon the prices in the accounts books of the appellants. As already stated Vijayawada appears to be the nearest locality where published figures were available. In these circumstances it cannot be said that the Deputy Director was wrong in taking the figures published in Vijayawada and making such adjustment-, as were proper and necessary in view of the distance of Vijayawada from Tadepallegudem. He was also entitled to make adjustments with reference to the kind of rice for which published figures were available and the kind which he was procuring. The resultant action taken by him by which the prices at Vijayawada were reduced by about Rs. 1.50 cannot therefore be said to be against the provisions of the Act. We may also here refer to the rates compiled by <ORG>, Andhra Pradesh which were placed before <ORG> on behalf of the respondents. These rates were compiled before the notification of June 6, 1957 in a free market and show that there is a difference in price between Tadepallegudem and Vijayawada and prices at Tadepallegudem arc generally lower than the prices at Vijavawada and on an average, the price at Tadepallegudem is about Rs. 1.20 less than at Vijayawada for the same quality of rice. If one remembers that the quality of rice procured from the appellants was a little inferior to the quality of rice at Vijayawada the difference of Rs. 1.50 or so in the price at Tadepallegudem cannot be said to have been arrived at without due regard to the provisions of sub-s. (3A).

We may also refer to the last part of cl. (iv) of sub-s. (3A) which says that "the average market rate so determined shall be final and shall not be called in question in any Court." The intention of the <ORG> by using these words was clearly that these rates should not be open to question. It is true that these words do not take away the jurisdiction of <ORG> under Art. 226 to give relief in a proper case; but <ORG> must keep in view these words which certainly indicate that the rates fixed should not be lightly interfered with unless <ORG> finds that there has been serious injustice in the fixation of rates due to the manner in which the officer concerned has acted without due regard to the provisions of cl. (iv). In the present case we are not prepared to say that the officer concerned has acted without due regard to the provisions of cl. (iv), when he arrived at the conclusion that the prices at Tadepallagudem should be fixed a little lower than the prices at Vijayawada. The contention that the prices fixed by the Deputy Director were not in accordance with the provisions of the law must therefore be rejected. Finally our attention is drawn to a recent notification by <ORG> dated July 31, 1964. In this notification, Nallarlu and Garikulu rice which were procured from the appellants and Akkulu rice which is the basis of price fixation by the Deputy Director have been treated as of the same quality and defined as coarse rice. The Deputy Director however fixed prices in 1957 on the basis of Akkulu rice for which Published figures were available at Vijavawada and Akkulu rice was a little superior to Nallarlu and Garikulu rice, which were procured from the appellants and therefore he reduced the price taking that factor into account. It is urged that in view of this notification the Deputy Director was certainly wrong in taking that factor into account in fixing the price. It appears however from the evidence that it is really not in dispute that Nallarlu and Garikulu rice is slightly inferior to Akkulu rice. It may be that in 1964 <ORG> may have come to the conclusion that the difference between these three varieties of rice was so slight that they should be treated as of the same kind: but that does not mean that in 1957 the Deputy Director was necessarily wrong in treating Nallarlu and Garikulu rice as slightly inferior to Akkulu. for that is what the evidence on record shows. Besides it may be added that clause 4 of the Order of 1964 leaves it to the discretion of <ORG> to fix different prices for different kinds of coarse rice within the range prescribed by <ORG> and so the order also recognizes that there may be different prices for different kinds of coarse rice. We are therefore not prepared to hold on the basis (if the notification of 1964 that the Deputy Director was wrong in making the adjustments he did in arriving at the price of Nallarlu and Garikulu rice procured from the appellants as compared to the price of Akkulu rice in Vijayawada. In this view of the matter, all the appeals fail and are hereby dismissed. We, however, direct in the circumstances that the parties will bear their own costs of this Court. Appeals dismissed.

V.P.S.