PETITIONER: THE SENIOR ELECTRIC INSPECTORAND OTHERS Vs. RESPONDENT: LAXMI NARAYAN CHOPRA AND OTHERS DATE OF JUDGMENT: 16/08/1961 BENCH: <NAME>, K. BENCH: <NAME>, K. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. CITATION: 1962 AIR 159 1962 SCR (3) 146 CITATOR INFO : APL 1963 SC 445 (4) R 1964 SC 828 (18) E&R 1978 SC 548 (8) R 1988 SC 191 (45) RF 1992 SC 573 (33) ACT: Telegraphy-Wireless-Station-Expression "Telegraph line", Meaning of-If includes electric lines used for the purpose of wireless telegraph- Indian Electricity Act , 1910 , ss.2,34(2) (b) Indian Telegraph Act , 1885 , 3(4)- Electricity (Supply) Act  Statute- Construction-Maxim Contemporanea Expositio eat optima et fortissima in lege-If applicable to Acts comparatively modern-Mode of Interpretation. HEADNOTE: Severe electrical interference was observed in a Post and Telegraphs Wireless Station which was traced to the respondent No. 1's factory where a number of motors,-were operated for the purpose of working electric drills. The Senior Electric Inspector issued a notice to the first res- pondent to show cause as to why an order under s.34(2) (b) of the Indian Electricity Act requiring discontinuance of the operation of the electric motors in the said factory should not be made. The first respondent challenged the said order by a writ petition contending inter alia that there was no "Telegraph Line" in the Posts and Telegraphs Wireless Station within the meaning of s.34(2)(b) of the Act. <ORG> held, firstly, that the word 'line' in the expression telegraph line' connotes the existence of a defined channel of communication which has got a physical existence and that wireless telegraphy is dependent upon transmission through space of electric waves and that is not a defined physical channel. Secondly, the expression "telegraph line", as used in s. 34  2 )(b) of the Indian Elec- tricity Act, has, in the absence of any new definition in that Act, to be given the same sense as the <ORG> had intended in 1885 by the definition of that expression in the earlier Act. This reason is based upon the maxim contemporaries exposition west optima et fortissima in lege (contemporaneous exposition is the best and strongest in law). The appellants contended that the definition of "telegraph line" in the Indian Telegraph Act , 1885, was wide enough to take in electric lines used for the purpose of 147 wireless telegraph and <ORG> went wrong in invoking the old maxim contemporanea expositio est optima et fortisima in lege in construing the provisions of a modern statute. Held, that the combined reading of the relevant, provisions of the Indian Electricity Act , 1910, and the Indian Telegraph Act , 1885, a "Telegraph line" is comprehensive enough and means a wire or wires used for the purpose of an appliance or apparatus for receiving telegraphic or other communications by means of electricity, and it need not be a continuous physical channel from the point of transmission to the point of reception. A wireless transmitter transmits sound as electro-magnetic waves and the said waves are detected by the aerial and fed into the receiving apparatus by wires. So the wires of the aerials well as of the apparatus are used for the purpose of the apparatus receiving communications. Thus, the receivingapparatus employs "telegraph lines" within the meaning ofs.3 (4) of the Telegraph Act , 1885. Held, further, that the maxim contemporanea expositio as laid down by <NAME> was applied to construing ancient statutes, but not to interpreting Acts which were comparatively modem: The fundamental rule of construction is the same whether the court is asked to construe a provision of an ancient statute or that of a modern one, namely what is the expressed, intention of the <ORG>. In a modern progressive society it would be unreasonable to confine the intention of a <ORG>- to the meaning attributable to the word used at the time the law was made, and unless a contrary intention appeared, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. The maxim "contemporanea expositio" could not be invoked in construing the word "telegraph line" in the Indian Electricity Act , 1910. <NAME> v. <NAME>, (1906)1 Ch. 179, Attorney- General v.. <ORG>, (1880)6 Q. B. D. 244 In re Regulation and Control of Radio Communication in Canada, (1932) A. C. 304, The King v. <NAME>.Ex parte Williams, (1935) 54 C.L.R. 262 and James v. Commonwealth ,of Austratia, (1936) A.C. 578, referred to. <CITATION> . (1959) S.C.R. 379, relied on., 148 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 328,of 1958. Appeals from the judgment and order dated September 12, 1956, of <ORG> from Original Order No. 15 of 1955.

<NAME> <NAME> and <NAME>, for the appellants. <NAME> and <NAME>, for respondent No. 2. 1961. August 16. The Judgment of the Court was delivered by <NAME> J.-This appeal raises the question of construction of the expression ,,telegraph line" in S. 34(2)(b) of the Indian Electricity Act, 1910 (Act 9 'of 1910), (hereinafter called the' Act).

The first respondent, <NAME>, carries on business, as motor coach builder;, under the name and style of "<ORG> having, his factory at 139, Regent Park, Tollygunge in the suburbs of Calcutta., In the said factory a number of "<ORG>" are operated for the purpose of working electric drills. Within a distance of 100 feet of the said factory, there is a Post and Telegraph Wireless Station, which, besides functioning as a coast station communicating with ships at sea, handles public messages in large volume from Darjeeling, Shillong, Gauhati, Agartala and New Delhi. In or about Aril, 1953 severe electrical interference was observed in the said station and experts attributed the same. to local induction from the first respondent's factory. On October 13, 1953, the Senior Electric Inspector issued a notice to the first respondent to show cause writing as to why an order under s. 34(2)(b) of the Act, read with notification No. 4193-COM, dated August 1 14, 1929 requiring discontinuation of the operation of the <ORG> in the said factory premises should' not be made. After some correspondence: on: December 1, 1953, the Senior Electric Inspector made an order under a. 34(2)(b) of the Act requiring the first respondent to remedy the injuries affecting the lines used for wireless telegraphic communications at- the Wireless Receiving Centre. On January 12, 1954, the first respondent filed a petition in <ORG> at Calcutta under Art. 226 of the Constitution pray for a writ of mandamus or any other appropriate mug writ directing the appellants to withdraw and cancel the said order and to forbear from giving effect to the same. The petition came up for hearing, in the first instance, before <NAME>, of that Court. It was contended, interalia, that there was no "telegraph line" in the Post and Telegraph Wireless Station within the meaning of s.34(2)(b) of the Act, and, therefore, the notice issued by the Senior Electric Inspector was without jurisdiction. <NAME>, rejected the contention and dismissed the petition. But on appeal, a division bench of <ORG>, consisting of <NAME>, <NAME>, and <NAME>, accepted the contention of the first respondent and issued a writ as prayed for. The present appeal is directed against the said order.

Learned counsel for the appellants contends that the definition of ",'telegraph line" in the Indian Telegraph Act , (Act 13 of 1885), which is included by reference in the Act,- is wide, enough to take in electric lines used for the purpose of wire. less telegraph and that the Appellate Bench of <ORG> went wrong in invoking the old maxim contemporanea expositio est optima et fortissima in lege in construing the provisions of a modern state. The first respondent is ex parte; but in this case hisviewpoint is forcibly expressed in the judgment of <ORG> under appeal.

To appreciate the rival contentions, it is necessary at the outset. to read I the relevant provisions of the Act and the Telegraph Act .

The Indian Electricity Act , 1910 Section 34 . (2) If at any time it is estab- lished to the satisfaction of the appropriate Government-

(b)that any electric supply lines or other works for the generation, transmission, supply or use of energy are attended with danger to the public safety or to 'human life or injuriously affect any telegraph line, the appropriate Government may, by order in writing, specify the matter complained of and require the owner or user of such electric supply-lines or other works to remedy it in such manner as shall be specified in the order, and may also in like manner forbid the use of, and the supply of energy to, any electric supply-line or works 'until the order is complied with or for such time as is speci- fied in the order.

Section 2 . In this Act, expression,.; defined in the Indian Telegraph Act , 1885, or in the Electricity (Supply) Act , 1948, have the meanings assigned to them in either of those Acts............

The Indian Telegraph Act , 1885 Section 3 . (1) "telegraph" means an electric, galvanic or magnetic telegraph, and includes appliances and apparatus for making, transmitting or receiving telegraphic telephonic or other communications means of electricity, galvanism or magnetism.

(4)"telegraph line" means a wire or wires used for the purpose of a telegraph with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus con- nected therewith the purpose of fixing or insulating the same.

A combined reading of the relevant provisions of the two Acts may-be expressed thus: "'Telegraph line" means a wire or wires used for the purpose of an appliance or apparatus for receiving telegraphic or other communications by means of electricity.

If it is established to the satisfaction of the appropriate Government that any works for the generation transmission supply, or use of electrical energy injuriously affects such a telegraph line the said Government is authorized to take appropriate action under.s. 34 of the Act. It is not disputed that in the said factory a number of <ORG> are operated for the purpose of working electric drills and it is also established that the interference with the reception of messages at the Telegraph Wireless Station is, attributable to local induction from the said factory. But the, dispute between the parties centers round the question whether the said interference with the reception of messages at the said Station injuriously affects any telegraph line within the meaning of s. 34 of the Act. The Telegraph Wireless Receiving Station clearly comes within the definition of "telegraph" in the Telegraph Act . The Telegraph Act was passed in 1885. "Telegraph" then meant "an electric, galvanic or magnetic telegraph and appliance, and apparatus for telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism". At that time wireless telegraphy or radio had not been developed. In the year 1914,s. 3(1) of the said Act was amended and the following words were inserted after the words "apparatus for" : "'making transmitting or receiving". With the result that, after the amendment, receiving of communications by means of electricity was included in the definition. A wireles. receiving station certainly receives communications by means of electricity, and therefore, it. is "telegraph" within the meaning of said definition. Though the., said station may be within the definition of "telegraph", the question still remains whether there is a "telegraph line", for, under the definition, to be a ',,telegraph line" there shall.be a wire or wires used for the purpose of an apparatus receiving communications by means of electricity Under the heading "wireless telegraphy" in. the Encyclopedia Britannica, Vol. 28, a brief but adequate description of a wireless telegraphy is given thus "A wireless transmitter is a device for producing rapid oscillatory motion of electri- city which is the origin of electric waves. Such electric waves are detected at a wireless receiving station b 'the effects of the rapidly varying electric and magnetic forces Which constitute the electric wave- motion."

Are any wires used for the purpose of the apparatus receiving the said communications ? In the Encyclopedia Britannica some of the receiving stations ate described and 'it shows that wires are invariably used as aerials for receiving the said communications. In the present case , the Senior Electric Inspector filed an affidavit wherein he stated "it was established to my satisfaction that the operation and use of the 'Universal drills during the working hours of the factory caused serious interference by induction to the existing lines as well as to the receiving apparatus containing wires which are/were expressly used for telegraphic communication at the said centre." It is there- fore manifest that wires are used for the purpose of the apparatus receiving communications that is, wires are used not only for the aerial but &ISO inside the apparatus. A 'wireless transmitter transmits sound as electromagnetic waves and the said waves are detected by the. aerial and fed into the receiving apparatus by wires. To put it shortly the wires of the aerial as well as of the apparatus are used for the purpose of the apparatus receiving communications.If so, it follows <NAME> the receiving appartus employs "telegraph lines" within the meaning of s. 3(4) of the Telegraph Act.

<ORG> gave two reasons for rejecting the appellants' contention. The first reason is that the word line' in the expression 'telegraph line' connotes the existence of a defined channel of communication which has got a physical existence and that wireless telegraphy is dependent upon transmission through space of electric waves and that is not a defined physical channel. We cannot accept this reasoning, for a telegraph line is not defined to mean a defined continuous physical channel from the point of transmission to the point of reception. The definition, as we have pointed out, is comprehensive enough to take in any wire used for the purpose of an apparatus for receiving communications by means of electricity. The second reason given by the learned Judges is that the expression "'telegraph line", as used in s. 34(2)(b) of the Indian Electricity Act, has, in the absence of any new definition in that Act., to be given the same sense as the <ORG> had intended in 1885 by the definition of that expression in the earlier Act. This reason is based upon the maxim contemporanea expositio est optima et fortissima in lege (contemporaneous exposition is the best and strongest in law). To state it differently, in the year 1885 the <ORG> could not have dreamt of the future discovery of wireless telegraphy and, therefore, could not have intended to use the expression "telegraph line" in a comprehensive sense so as to take in electric wires of a receiving station of wireless telegraphy. It is necessary to consider the scope of the said maxim in its application to the interpretation of modem statutes. In Craies on Statute Law, 5th edn., the said rule is explained in the words of <ORG> thus at p. 77.

"This and the like were the forms of ancient Acts and graunts, and,, the. ancient Acts and graunts must. be' 'construed and taken as the law was holden at that time when they were, made.", The discussion ended with the following words at p. 79 "In <NAME> v. Owen(1), <NAME>, L. J. said do not think that the doctrine of contenporanea exposition can be applied in construing Acts which are, comparatively modern and the <ORG> declined to apply the rule 1 to the interpretation of local Acts of 1793 and 1800."

In Halsbury's Laws of England, 2nd edn., Vol., 32, it is stated in the context of telegraph legislation thus at p. 4 The fact that new methods of telegraphy have been invented since the date of passing of the Acts containing the definition does not prevent the application of the Acts to such methods, provided that they answer the requirements and fall within the terms of the definition." In Sutherland's Statutory Construction, 3rd. edn., Vol. 2, dealing with the said maxim,-the learned author states at p. 508 as follows "As a general rule it may be stated -that legislative intent should be determined as of the time the legislation goes into effect. But surrounding circumstances and situations occurring after the enactment of the statute may be of great or even conclusive assistance in determining a meaning which was intended to be conveyed. Legislative standards are generally couched ill terms which have, considerable breadth. Therefore a. status may be interpreted to include., circumstances or (1) (1906) 1 Ch. 179, 213.

situations which were unknown or did not exist at the time of the enactment of the statute." Decided cases accepted the said liberal approach in construing modern statutes. In <NAME> v. <ORG> (1),a telephone was held to be a "telegraph" within the meaning of the Telegraphs Acts, 1863 and 1869, although the telephone was not invented or contemplated in 1869. <NAME>, T., observed at p. 254 :

"Of course no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing future discoveries as to the use of electricity for the purpose of conveying intelligence."

<ORG> ( 2) held that broadcasting fell within the m eaning of the expression in s.92 of British North America Act,1867, though at the time when that Act was made broadcasting was not in vogue. In The King V. Brislan ; ex parte Williams(3) the question was whether a law of <ORG> with respect to radio broadcasting was one with respect to "Postal, telegraphic telephonic and other like services" under s. 1(5) of the Australian Commonwealth Act, and the Court held that the words were wide enough to take in radio broadcasting. In <NAME> v. <ORG> <NAME> has state the principle in felicitous language thus (1) (1880) 6 Q. B. D. 244.. (2) (1932) A. C. 304. (3) (1935) 54 C L.R. 262. (4) (1936) A.C. 578, 641.

"...... the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning."

This Court in construing the words "sale of goods" in Entry 48, List II of the Seventh Schedule to the Government of India Act, 1935, accepted the aforesaid principle in <CITATION> . (1),and restated it at p. 416 thus "The principle of these decisions. is that when, after the enactment of a legislation, new facts and situations arise which could not have been in its contemplation, the statutory provisions could properly be applied to them if the words thereof are in a broad sense capable- of containing them."

The legal position may be summarized thus: The maxim contemporanea expositio as laid down by <NAME> was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the <ORG> is asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the <ORG>. It is perhaps difficult to attribute to a legislative body functioning in static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modem progressive society it would be unreasonable to confine the intention of a <ORG> to the meaning attributable to the word used at the time the law was made, for a modern <ORG> making laws to govern a society which is fast moving must be presumed to be aware (1) [1959] S.C. R. 379.

of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human. activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. We cannot, therefore, agree with the learned Judges of <ORG> that the maxim contemporanea expositio could be invoked in construing the word "telegraph line" in the Act.

For the said reasons, we hold that the expression "'telegraph line" is sufficiently comprehensive to take in the wires used for the purpose of the apparatus of the Post and Telegraph Wireless Station.

In the result, we set aside the order of <ORG> and dismiss the petition filed by the first respondent. The appeal is allowed, but, in the circumstances of the case, without costs.

Appeal allowed.


CASE NO.: Appeal (crl.) 217 of 1993 PETITIONER: STATE OF MADHYA PRADESH RESPONDENT: SHYAMSUNDER TRIVEDI AND ORS. DATE OF JUDGMENT: 09/05/1995 BENCH: DR. A.S, ANAND & M.K. MUKHERJEE JUDGMENT:

JUDGMENT 1995 (1) Suppl. SCR 44 The Judgment of the Court was delivered by DR. <NAME>, J. On the fateful night, intervening 13th and 14th October, 1981, the uncivilised method of interrogation of a suspect took its toll and a fatal blow was inflicted on human dignity when custodial violence claimed yet another victim - <NAME>. But for the vigilance of some members of <ORG> and the loud protestations of some of the residents of the village the crime could have gone unnoticed and unpunished.

According to the prosecution case on 13th October, 1981 respondent No. 4 <NAME>, Head Constable and respondent No, 5, <NAME>, Constable brought one <NAME> of village Dhabala Deval to police station Rampura for interrogation as a suspect in a murder case. At the police station respondent No. 1 <NAME>, Sub-Inspector; respondent No. 3 <NAME>, Head Constable alongwith respondent Nos. 4 and 5 gave beating to <NAME> and tortured him with the intention of extracting a confession of guilt from him in connection with the murder of one harijan women of village Singharia Piparia. As a result of the extensive injuries caused to <NAME>, he died in police custody at the police station Rampura. At about 2.00 p.m. on 14.10.1981, the dead body of the deceased <NAME> was removed in a jeep, belonging to the fisheries department Rampura to the hospital for post-mortem examination with the ultimate object of cremating the deceased, as an 'unclaimed body', for which respondent No. 1 had already initiated some steps. Some residents of the village including some members of the <ORG> of Rampura who had come to know about the torture of <NAME> at the police station, kept a watch over the police station and on noticing the removal of the dead body of <NAME> in the jeep, they followed the jeep and reached the hospital. The dead body was removed to the mortuary. The members of the <ORG> and others requested Dr. <NAME> not to perform the autopsy till the arrival of higher authorities, <NAME> who arrived at the hospital in the meanwhile got the mortuary locked and sealed at the insistence of the protestors. On telephonic information given to the District Magistrate about the protests at the hospital and the gathering of a large crowd, the Superintendent of Police and the Additional District Magistrate PW20 reached the hospital in the evening. A written report Ex.P/1 signed by some of the residents of Rampura was given to the District Magistrate who ordered the holding of a magisterial enquiry into the matter. <NAME>, the Additional District Magistrate was appointed as the Enquiry Officer. He commenced an enquiry immediately and prepared the panchnama Ex.P/22 of the dead body and sent it for post-mortem examination vide requisition memo Ex.P/6, which was also signed by respondent No. 1 <NAME>. The post-mortem examination was conducted by Dr. <NAME>. The Doctor in the post-mortem report, Ex.P-7, noticed the following multiple injuries on the deceased:

1, Irregular reddish blue contusion of 3 cm x 2 cm on the Rt. lower eye lid Zygomatic area of Rt. side of face.

2. There are two contusions of reddish blue in (torn) oblique arid parallel form outer to inner border of middle of left scapula upper 8 cm x 4 cm, lower 6 cm x w cm.

3. There are multiple reddish blue contusions imposed on each other in all directions in the area of 5 to 8 cm on lower aspect of back of left side of chest,

4. There are multiple reddish blue contusions imposed on each other of variable shape, size and direction in the area of 7 cm x 10 cm area of middle of Rt. scapula to lower part of back of Rt. side of chest,

5. Oblique reddish blue contusion from lower part of chest to lumber on Rt. side vertical 10 x 2 cm.

6. Two cross reddish blue contusions of 4 cm x 2 cm size in the left lumber area on the back.

7. There are four reddish blue contusions of variable length from 4 to 6 cm x 2 cm size on outer aspect of left shoulder and middle and outer of left upper arm, imposed on each other.

8. There are two oblique contusions of reddish blue colour from 3 to 4 cm x 2 cm on the outer upper aspect of Rt. upper arm.

9. Redish blue two parallel contusions oblique on outer aspect of Rt, elbow 2 cm x 2 cm each,

10. Two oblique reddish blue contusions with swelling and body crepitus on dorsum of Rt. hand 3 to 4 cm x 2 cm.

11. Oblique reddish blue contusion 4 cm x 2 cm on the dorsum of left hand.

12. Multiple reddish blue contusions of variable sizes, direction, shape in the area of 10 cm x 12 cm on the back and outer aspect of left gluteal area super imposed on each other.

13. Transversely placed reddish blue contusions two in number parallel 5 cm x 2 cm each on back and middle of left eye.

14. Multiple reddish blue contusions on the right gluteal area in variable directions, sizes and shapes imposed on each other in area of 8 cm x 10 cm on the back and outer aspect of Rt. gluteal area.

The doctor opined that the cause of death was shock as a result of the extensive external injuries and that the death had taken place within 24 hours preceding the post-mortem examination, <NAME>, PW20, the Enquiry Officer during the course of inquiry examined some witnesses and seized various documents. After conclusion of the enquiry he submitted his report, Ex. P/28 on 15.10.1981. The Enquiry Officer, PW20, found that during the night intervening 13th and 14th October, 1981, deceased <NAME> died in police custody at Rampura police station due to extensive beating given to him and held respondent No. 1 <NAME>, SI and respondent No. 2 <NAME> to be directly responsible for causing those injuries. The report was sent to the Circle Inspector Narayangarh where on its basis, case FIR, Ex. P/31 was registered by Circle Inspector <NAME> on 15.10.1981. During the investigation of the case, letter Ex.P/9 written by S.I. <NAME> respondent No, 1 to <ORG> asking hint to make necessary arrangements for the cremation of a dead body of an unknown person was also seized from <NAME>, PW10. Further investigation was later on carried out by <ORG> Inspector <NAME>, PW 23, who seized some more incriminating documents and examined some of the witnesses. At the conclusion of the investigation, the respondents were arrested and a challan was filed against them. The respondents were committed to stand their trial before the Additional Sessions Judge.

Whereas 8.1. <NAME>, respondent No. 1 was charged with offences under Section 302 / 149 , 147 , 201 , 342 and 218 ; Rajaram respondent No. 2 was charged with offences under Section 147 , 302 / 149 , 201 and 342 ; respondent No. 3 <NAME>, respondent No. 4 <NAME> and respondent No. 5 <NAME> were charged with offences under Section 147 , 302 / 149 and 201 . Respondent nos. 6 & 7 <NAME> and <NAME> were charged with offences under Section 201  only. After trial of the case, the First Additional Sessions Judge, <NAME> acquitted all the respondents of all the charges vide his order dated 14,5.1983. The State of Madhya Pradesh went up in appeal against the order of acquittal dated 14.5.1983 to <ORG>, vide its judgment dated 21.1.1987, <ORG> maintained the acquittal of respondent nos. 2 to 7 but set aside the acquittal of respondent No. 1 <NAME> for offences punishable under Sections 218 , 201 and 342  and sentenced him to undergo rigorous imprisonment for 2 years on each of the two counts under Sections 218 and 201  and six months rigorous imprisonment for the offence under Section 342 . The sentences were, however, directed to run concurrently. His acquittal for the offence under Section 302 / 149 and 147  was, however, maintained. <NAME>, respondent No. 1 filed a special leave petition challenging his conviction and sentence but the same was dismissed. A review petition filed by him also failed. This appeal by special leave has been filed by the State of Madhya Pradesh questioning the acquittal of respondent No. 1 for the offences under Sections 302 / 149  and 147 IPC and of respondents 2 to 7 for the offences with which they were charged.

We have heard learned counsel for the parties and perused the record. That <NAME> deceased was brought from his village Dhabala Deval to Rampura police station by Head Constable <NAME> and Constable <NAME> on 13.10.1981 in the evening for interrogation as a suspect in a murder case has not been disputed either in the courts below or before us. From the evidence of Dr. <NAME>, PW7 who conducted the post-mortem on the dead body of <NAME> it is established that the death of <NAME> was homicidal and not natural and was as a result of extensive external injuries received by the deceased. While the prosecution case was that <NAME> died while in police custody on account of torture and excessive beating given to him at the police station, the defence set up by the respondents and particularly respondent no. 1, <NAME>, at the trial was that <NAME> had been released from police custody at about 10.30 p.m., after interrogation on 13.10.1981 itself vide entry Ex. P/22A in the Roznamcha and that at about 7.00 a.m. on 14,10.1981, a death report Ex. P/9 was recorded at the police station, Rampura at the instance of Ramesh respondent No. 6, to the effect that he had found "one unknown person" near a tree by the side of the tank riggling with pain in his chest and that as soon as respondent No. 6 reached near him, the said person died, The further case set up by <NAME>, respondent No, 1, was that after making a Roznamacha entry at 7.00 a.m, about his departure from the police station he (respondent No. 1 <NAME>) and Constable <NAME> respondent proceeded to the spot where the dead body was stated to be lying for conducting investigation under Section 174 . He summoned <NAME> and <NAME> respondents to the spot and in their presence prepared a panchnama Ex.P/27 of the dead body recording the opinion therein to the effect that no definite cause of death was known. The panchnama was signed by Respondents <NAME> and <NAME> Lal. Requisition for post-mortem examination Ex.P/6 was made by <NAME> respondent No. 1, in which again it was stated that the cause of death was not known. It was also stated in it that respondent No, 1 had examined the body of the deceased, after removing the clothes of the deceased, but had not found any injury marks on the body. The return entry Ex.P/20 was made in the roznamcha giving the time of return of respondent No. 1 and others at the police station at 12.20 p.m. After preparing the panchnama, Ex.P/27 respondent No. 1 addressed a letter Ex. P/9 to the Administrator, <ORG>, Rampura, on 14.10.81, requesting him to make immediate arrangements for the cremation of "a lavaris" person. The Administrator in turn directed the CMO to take immediate action and the CMO endorsed the communication to the Accountant directing him to grant Rs. 150 towards expenses for cremation. However, before the respondents could succeed in cremating the body, the events took a different turn as already noticed by us while narrating the prosecution case.

<ORG> after appreciating of the ocular evidence and the other material on the record rightly observed:

"....... and there remains no doubt, on a proper appreciation of evidence of these witnesses that the dead body of the deceased <NAME> was taken out from the Police Station Rampura on 14.10.1981. The necessary inference which follows is that the deceased <NAME> Banjara died in police custody in Rampura Police Station and further that the deceased <NAME> Banjara remained at the police station right from the time he was brought there b the evening on 13.10.1981 under custody till the time his dead body came out from the Police Station. The case set up by the defence on the basis of a <ORG> (Ex. P/22-A) prepared at the Police Station is that the deceased <NAME> had been released from Police custody after interrogation at 10.30 p.m. The deceased <NAME> had admittedly been brought to Rampura Police Station in police custody by bus from his village, a distance of 100 Kms. or so and it would be normally expected that the police would arrange the facility of return to his distant village by bus which is not the case here. At any rate it is difficult in the circumstances to believe that after having been brought in police custody from a distance of 100 Kms,. he was let off that very night and left to his fate at Rampura. The <ORG> (Ex. P/22- A), in our opinion, sets up a story which is intrinsically not reliable in the circumstances. This document appears to have been prepared to conceal the truth that the deceased <NAME> died in police custody".

We are in complete agreement with <ORG> in so far as the above findings are concerned. We agree with <ORG> that <NAME> died in police custody as a result of extensive beating given to him and that the respondents had created false clues and fabricated false evidence to conceal the truth that <NAME> had died in police custody. We are of the opinion that <ORG> recorded <ORG> Ex. P/27 of the dead body, an intrinsically false document, with a view to screen the offence. The <ORG> which records that <NAME> respondent No. 1 had examined the dead body of the deceased after removing the clothes and found no injuries on the body, is totally belied by the post-mortem report Ex. p/7, which shows that there were multiple injuries on different parts of the body of the deceased. Further, the attempt of <NAME> to cremate the dead body in hot haste by addressing a letter Ex. P/9 to the Administrator, <ORG>, Rampura also unmistakably points towards his guilt. It is significant to note that <NAME>, who prepared the <ORG> Ex. P/27 allegedly after seeing the dead body near the tank described the deceased as a "lavaris", although admittedly the deceased had been brought by the police from his village for the purpose of interrogation and had been interrogated at the police station by SI <NAME> and others. It is not imaginable that SI <NAME> and others, particularly <NAME> Head Con-stable and Constable <NAME> would not have known the identity of the deceased. We are of the opinion that the death report Ex. P/21 and the <ORG> Ex. P/27 are false documents and were prepared by SI <NAME> with a view to screen the offence.

<ORG> while dealing with the case of <NAME>, SI and finding him guilty of certain offences convicted him thus:

The accused <NAME>-Inspector is, therefore found guilty being a public servant framing incorrect writing and record with intent to save persons responsible for beating the deceased <NAME> and causing his death in the Police Station, Rampura and is also found guilty of giving false information to screen offenders from legal punishment. As such, he is convicted of the offences punishable under sections 218 and 201 of the Indian Penal Code. He is sentenced to two years' rigorous imprisonment for each of the two offences. The sentences shall, however, run concurrently."

The acquittal of <NAME>, SI for offences under Section 147 and 302 / 149  was however, maintained by <ORG>.

<ORG> upheld the acquittal of respondents 6 & 7 <NAME> and <NAME> for offences under Section 201  on the ground that the incriminating material against them was not put to them during their examination under Section 313 Cr. P.C. and no opportunity had been given to them to tender and explanation in that behalf.

<ORG> acquitted the remaining accused namely, <NAME>, <NAME>, <NAME> and <NAME> respondent No. 2 to 5 observing:

As regards the remaining four accused-respondents No. 2 to 5 viz,, <NAME>, <NAME>, <NAME> and <NAME> no evidence what-so- ever has been adduced by the prosecution to show that they were the persons responsible for causing injuries to the deceased. Even the facts as to at what time the deceased was given beating in the police station and who were the police persons on duty at the police station at the time when beating was given to the deceased <NAME>, have, not been proved by the prosecution. Consequently, in the absence of evidence against the accused persons as to their presence or participation at the time injuries were caused to the deceased <NAME>, it is not possible to find the said four accused guilty of causing injuries to the deceased <NAME>. As regards the charge aforesaid four accused respondents, there is no definite evidence to show that the deceased <NAME> was detained in the Police Station, Rampura, during the night intervening 13th and 14th October, 1981 by these respondents or at their instance. The only evidence is that the accused-respondents <NAME> and <NAME> to the Police Station for interrogation. It was the responsibility of the Station House Officer to release the deceased after interrogation which was not done and for which the Head Constable or constables in the absence of any positive evidence against them, cannot be held responsible."

We are in agreement with <ORG> that since the incriminating material appearing in the prosecution evidence against respondent No. 6 & 7, who were charged for an offence under Section 201  only was not put to them in their statements recorded under Section 313 . and no opportunity was afforded to them to explain those circumstances, they had been seriously prejudiced and no conviction could therefore, be recorded against them for the offence under Section 210 . Their acquittal, in the peculiar facts and circumstances of the case, therefore does not call for any interference by us and upholding their acquittal, we dismiss the appeal against them.

We are, however, not impressed with the approach of <ORG> in dealing with the case of the other respondents as well as with the acquittal of <NAME> Respondent no. 1 for the offences under Section 147 and 302 / 149 . Having recorded a clear and conclusive Finding, and on a proper appreciation of the evidence, that the deceased <NAME> had remained in custody at the police station right from the time he was brought there in the evening on 13.10.1981 by constables <NAME> Respondent No. 4 and <NAME> Respondent No. 5 till the time his dead body was removed from the police station on the next day and that the respondent No. 1 and others had with a view to conceal the truth created false evidence and fabricated false clues, <ORG> could not have acquitted SI <NAME> respondent, whose presence at the police station was amply established by the prosecution evidence, of the offence of causing multiple external injuries to the deceased which ultimately resulted in the death of <NAME>. Similarly, the materials on the record established not only the presence of respondents 3, 4, and 5 at the police station during the period <NAME> had remained in custody but also their participation in the removal of the dead body to the hospital with a view to screen the offence.

<NAME> <NAME>, Advocate, PW 4 <NAME>, advocate, PW 8 <NAME>, Advocate and <NAME>8 <NAME>, advocate amongst others deposed at the trial that they had seen the body of the deceased being taken out of the police station and put in a jeep which had arrived at the police station Rampura and that the jeep proceeded towards the Civil hospital. From the testimony of these witnesses it clearly emerges that news that <NAME> had died in police custody at Rampura police station had already leaked out and the witnesses and some others were keeping a watch at the police station to see as to how the police would try to dispose of the dead body. These witnesses further deposed that they saw a dead body wrapped in a blanket being brought out from the police station and being placed in a jeep belonging to the fisheries department at about 2.00 p.m. on 14,10,81 <NAME>, <NAME> who was the Secretary of <ORG> at the relevant time clearly deposed that while the dead body was being put inside the jeep the face of the deceased had got uncovered and had become visible and that since he had heard about the death of <NAME>, he saw the face of the deceased whom he identified as <NAME> <NAME>. According to Advocate <NAME> <NAME>,3 persons including <NAME> Head Constable had put the dead body inside the jeep after bringing it out from the police station. He had also seen <NAME> Sub-Inspector respondent No. 1 talking to the driver of the Jeep <NAME>, PW3 and that at that time besides Respondent No. 1. <NAME> and <ORG> respondents were also present there. His testimony has been corroborated by <ORG> who named <NAME>, <NAME> and <ORG> respondents as the persons who had brought out the dead body from the police station and put it in the jeep. <ORG> further deposed that after coming to the court he had even telephoned the police station and asked <NAME> Sub-Inspector whether one <NAME> had died in the police station and <NAME> had told him that he would meet him in the court and let him know the details. Advocate <NAME>, <NAME> corroborated the testimony of <NAME> and <ORG> and deposed that he had himself seen <NAME> and <ORG> respondents alongwith one other constable bringing the dead body, wrapped in a blanket, from police station and putting it in the jeep, while <NAME> SI. Respondent No. 1 was standing there. He went on to add that respondents <NAME> and <ORG> also sat in the jeep, which left for the hospital with the dead body. This witness had also telephoned to <NAME>, Sub-Inspector at about 11.00 a.m. to confirm about the death of <NAME> inside the police station but Sub-Inspector <NAME> denied the incident. <NAME>, <ORG>, <NAME> and <NAME>8 as already noticed had followed the jeep and went to the hospital. According to <NAME> when he reached the hospital, he saw the jeep standing there and <NAME> Head Constable was also standing near the jeep. <NAME> <NAME> met Dr. <NAME> and at that time Respondent <ORG> was present with Dr. <NAME>. <NAME> deposed that he told Dr. <NAME> that since the deceased had died as a result of beating given to him at the police station in police custody, the post-mortem of the dead body be not undertaken and that the doctor should await for the higher officials. PW3 <NAME>, driver of the jeep, turned hostile at the trial but his evidence lends sufficient corroboration to the statements of <NAME>, <ORG>, <NAME> and <NAME>8 with regard to the removal of the dead body of the deceased from the police station to the hospital for post-mortem examination. The testimony of <NAME>, <ORG>, <NAME> and <NAME>8 who are independent persons and respectable members of the <ORG> at Rampura and who were subjected to searching and lengthy cross-examination has remained unshattered and has established beyond any reasonable doubt that the dead body of deceased <NAME> was taken out from the police station Rampura and transported in the jeep of the fisheries department for post-mortem to the hospital and respondents <NAME>, <ORG> and <NAME> SI definitely took part in the removal of the dead body. The evidence of these witnesses particularly <ORG> and <NAME> has impressed us. Their evidence is consistent and cogent and these witnesses had no reason to falsely implicate any of the" respondents. These witnesses truthfully disclosed what they had seen. We find these witnesses to be witnesses of truth.

Indeed, there is no evidence to show that after <NAME>, respondent No. 5, who along with <NAME> respondent No. 4 had brought the deceased to the police station for interrogation, had at any time left the police station on the fateful night. In the face of the unimpeachable evidence of PW4 and PW8, we fail to understand how the learned Judges of <ORG> could opine that there was no definite evidence to show the complicity of <NAME> respondent No. 3, <NAME> and <NAME> respondents 4 and 5 respectively in the crime alongwith SI <NAME>, respondent No. 1. The observations of <ORG> that the presence and participation of these respondents in the crime is doubtful are not borne out from the evidence on the record and appear to be an unrealistic over simplification of the tell tale circumstances established by the prosecution. The following pieces of circumstantial evidence apart from the other evidence on record, viz.; (i) that the deceased had been brought alive to the police station and was last seen alive there on 13.10.81 : (ii) that the dead body of the deceased was taken out of the police station on 14.10,81 at about 2 p.m. for being removed to the hospital; (iii) that the deceased had died as a result of the receipt of extensive injuries while he was at the police station; (iv) that SI <NAME> respondent no. 1, <NAME>, Respondent No. 3, <NAME>, respondent No, 4 and <NAME> respondent No. 5 were present at the police station and had all joined hands to dispose of the dead body of <NAME>; (v) that SI <NAME>, respondent No, 1 created false evidence and fabricate false clues in the shape of documentary evidence with a view to screen the offence and for that matter, the offender (vi) SI <NAME> respondent in connivance with some of his subordinates, respondents herein had taken steps to cremate the dead body in hot haste describing the deceased as a lavaris'; (vii) <NAME> and <NAME> respondents had brought the deceased to the police station form his village, and (viii) that police record did not show that either <NAME> or <NAME> had left the police station, till the dead body was removed to the hospital in the jeep, unerringly point towards the guilt of the deceased and the established circumstances coupled with the direct evidence of PW1, 3, 4, 8 and 18. are consistent only with the hypothesis of the guilt of the respondents and are inconsistent with their innocence. So far as respondent No. 2, <NAME> is concerned, however, no clinching or satisfactory evidence is available on the record to establish his presence at the police station when <NAME> deceased was being subjected to extensive beating or of his participation in the commission of the crime. <ORG> erroneously overlooked the ground realities that rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, when it observed that 'direct' evidence about the complicity of these respondents was not available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter.

From our independent analysis of the materials on the record, we are satisfied that respondents 1 and 3 to 5 were definitely present at the police station and were directly or indirectly involved in the torture of <NAME> and his subsequent death while the police custody as also in making attempts to screen the offence to enable the guilty to escape punishment. The trial court and <ORG>, if we may say so with respect, exhibited a total lack of sensitively and a 'could not careless' attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree methods which are still being used, at some police stations, despite being illegal. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the <ORG> because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The <ORG>, must not loose sight of the fact that death in police custody is perhaps one of the worst kind of crime in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees/under trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve otherwise the common man may loose faith in the judiciary itself, which will be a sad day.

In its 4th Report of June, 1980, <ORG> noticed the prevalence of custodial torture etc. and observed that nothing is so dehumanising as the conduct of police in practising torture of any kind on a person in their custody. The commission noticed with regret that the police image in the estimation of the public has badly suffered on account of the prevalence of this practice in varying degrees over the past several years and noted with concern the inclination of even some of the supervisory ranks in the police hierarchy to countenance this practice in a bid to achieve quick results by short-cut methods. Though Sections 330 and 331 of the Indian Penal Code make punishable those persons who cause hurt for the purpose of extorting the confession, by making the offence punishable with sentence upto 10 years of imprisonment, but the convictions, as experience shows us, have been very few because the atrocities within the precincts of the police station are often left without any ocular or other direct evidence to prove who the offenders are. Disturbed by this situation, <ORG> in its 113th Report recommended amendments to the Indian Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless, the police officer proves to the contrary. The onus to prove the contrary must be discharged by the concerned police official. The recommendation, however, we notice with concern, appears to have gone un-noticed and the crime of custodial torture etc. flourishes unabated. Keeping in view the dehumanising aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, we hope that the Government and legislature would give serious thought to the recommendation of <ORG> (supra) and bring about appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished. The Courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the Majesty of Law has prevailed.

From the evidence available on the record both documentary and oral, we are satisfied that Respondents 1 and 3 to 5 had participated in causing injuries to <NAME> while in police custody, directly or indirectly, and even if it is not possible to say that they intended to cause the death of <NAME>, and they can certainly be clothed with the knowledge that the injuries which a were being caused to the deceased at the police station were likely to cause his death though probably without any intention to cause his death or even to cause such bodily injuries to him as were likely to cause death. Their offence would, thus, squarely fall under Section 304 Part-II/34 IPC . Respondents 3 to 5 are also guilty of the offences under Sections 201 and 342  and holding them so guilty, we convict them for the said offences.

The question, however, which now arises is about the appropriate sentence that is required to be imposed upon the respondents.

Since the occurrence took place 14 years ago, the respondents have gone through the ordeal of a protracted trial and the appeals in <ORG> and in this Court. The learned counsel for the State-appellant has very fairly submitted that though an adequate and exemplary sentence of imprisonment would have been normally called for the crime committed by them the respondents. may because of the lapse of time be sentenced to some imprisonment but they be also sentenced to pay a substantial amount of fine, which if realised may go to the heirs of the deceased. Learned counsel for the respondents has also urged that sending the respondents to the prison at this distant point of time would cause great hardship to them and might make them hardened criminals. We have given our anxious consideration to the submissions made by learned counsel for the parties on the question of sentence. We are conscious that a precious human life has been lost at the hands of those who are expected to protect the life and liberty of the citizens of this country. We are also conscious of the fact that the crime is a dehumanising one and is an affront to the human dignity. The long lapse of period is indeed a consideration which may weigh in favour of the respondents for not being awarded a long sentence of imprisonment but then the interests of the victim of the crime have also be kept in view. Keeping in view the consideration of the human factor involved and particularly the interests of the heirs of <NAME> deceased to whom mere imprisonment of the respondents at this belated stage may not offer much solace, We have to strike a balance between these disparate considerations and keeping in view the fact that the respondent No. 1 has already undergone a sentence of two years rigorous imprisonment consequent upon his conviction for the various offences by <ORG> as noticed earlier we pass the following order :

Respondent No, 1 <NAME> is convicted under section 304 Part II/34 IPC and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 50,000 (Rupees fifty thousand only) and, in default of payment of fine to undergo further rigorous imprisonment for two years. The substantive sentence of 2 years R.I. under Section 304-II / 34  is in addition to the sentence which was imposed upon him by <ORG>.

Respondent Nos. 3, 4 and 5 namely, <NAME>, Head constable and <NAME>, Head Constable and <NAME> con-stables are convicted under sections 304 part II/34, 201 and 342 IPC and sentenced to suffer rigorous imprisonment for one year each and to pay a fine of Rs, 20,000 (twenty thousand only) each, and in default of payment of fine to undergo rigorous imprisonment for one year more for the offence under section 304- II/149 IPC , No separate sentence is, however, passed against them for the other convictions.

We, further direct that the entire amount of fine on realisation from respondents 1, 3 to 5 shall be paid to the heirs of the deceased, <NAME>, by way of compensation. <ORG> shall ensure, in case the fine is deposited by the accused respondents, that the payment of the same is made to the heirs of deceased, <NAME>, and the Court shall take all such precautions as are necessary to see that the money is not allowed to fall into wrong hands and is utilised for the benefit of the members of the family of the deceased, <NAME>, and if found practical by deposit in a <ORG> or post office on such terms as <ORG> may in consultation with the heirs of the deceased consider fit and proper.

The appeal, therefore, succeeds and is allowed in so far as respondents 1, 3, 4 and 5 are concerned. The appeal against the acquittal of respondent No, 2 is, however, dismissed. While the bail bond of respondent No. 2 is discharged, the bail bonds of respondent nos. 1, 3, 4 and 5 are cancelled. They shall be taken into custody to undergo the sentence imposed by us in the preceding paragraphs.

Appeal allowed.


PETITIONER: <ORG>. Vs. RESPONDENT: THE ASSISTANT COLLECTOR OF <ORG>,ALLAHABAD & ORS. DATE OF JUDGMENT: 08/09/1970 BENCH: <NAME>, A.N. BENCH: <NAME>, A.N. SHAH, J.C. HEGDE, K.S. CITATION: 1971 AIR 454 1971 SCR (2) 92 1970 SCC (2) 820 CITATOR INFO : D 1975 SC 17 (31) R 1979 SC 789 (8) RF 1989 SC 222 (3) RF 1989 SC 516 (49) ACT: Central Excise & Salt Act 18 of 1947-- Section 12 whether void for excessive delegation-Power under section to alter provisions of Sea Customs Act, 1878 in applying them to Act 18 of 1947 whether includes power to make changes in legislative policy. General Clauses Act , s. 8(1) -whether enables provisions of Customs Act , 1962 to be applied under s. 12 of Act 18. of 1947 in place of the provisions of Sea Customs Act, 1878. Customs Act , 1962, S. 105(1) --Conditions for issue of search warrant. HEADNOTE: The appellant company had a factory at Varanasi at which chemicals including ammonia were manufactured. It was considered by <ORG> that there had been evasion of duty on ammonia by the company. The Assistant Collector Central Excise issued a warrant for search and seizure of goods and documents, pursuant to which the premises of the aforesaid factory were raided in May, 1968 and certain documents seized. The company-filed a writ petition in <ORG> which was dismissed by the Single Judge. The <ORG> bench upheld the order of the Single Judge. In appeal to this <ORG> by special leave, the questions that fell for consideration- were (i) Whether s. 12 of the Central Excise Act was void because the powers delegated to <ORG> thereby including the power to make alterations in the Act applied were excessive; (ii) Whether the Sea Customs Act, 1875 having been re- pealed, it was open thereafter to <ORG> under s. 12 of the Excise Act to apply s. 105 of the Customs Act 1962; and (iii) Whether the Assistant Collector issued the warrants in the present case after due application of mind to relevant materials and 'facts in terms of s. 105(1) of the Customs Act , 1962. HELD : (i) In the notifications issued inter alia applying S. 105(1) and s. 1  10 of the Customs Act, 1962, no such changes had been made as could possibly fall within the meaning of the word 'alterations. The power to restrict and modify does not import the power to make essential changes. It is confined to alterations of minor character and no change in principle is involved. The word 'alteration' in s. 12 must be understood in the sense in which it was open to the legislature to employ it legitimately and in a constitutional manner. No question was thus involved of delegation either of any essential legislative functions or any change of legislative policy. [96 B-D] In re Delhi Laws Act , 1912,  S.C.R. 747, referred to. (ii)S. 8(1) of the General Clauses Act provides that where any Central Act repeals and re-enacts with or without modification any provision of the former enactment then references in any such enactment or in any instrument, to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re- 93 enacted. By virtue of this provision it could not be disputed that in s. 12 of the Central Excise and Salt Act , 1947, the Customs Act , 1962 can be read in place of the Sea Customs Act, 1878. [96 E] The contention that s. 12 of the Act empowers incorporation of the provision of the Sea Customs Act, 1878 in the Act itself and, therefore, 8(1) of the General Clauses Act , does not apply could not be accepted. Section 12 only contained a provision delegating limited powers to <ORG> to draw upon the provisions of the Sea Customs Act, 1878 for the purpose of implementing s. 3 of the Act. [96 F; 97 A] Secretary of <ORG> for India in Council v. <ORG>, 58 I.A. 259, distinguished; <CITATION> :

The extension of s. 105 could not be said to be illegal merely because under s. 172 of the Sea Customs Act it was a Magistrate who after applying judicial mind had to issue search warrant whereas under the present notification after the enactment of the Customs Act , 1962, it was the Assistant Collector of Customs performing executive functions who had been empowered to issue a search warrant. By the latter notification the previous notification applying the provisions of the Sea Customs Act was superseded and no question with regard to the validity of the notification issued in 1963 and then amended in 1965 could survive. <CITATION>  1 S.C.R. 82, distinguished [98 A-C]

(iii)On the facts of the case it could not be said that the Assistant Collectorhad no relevant material upon which the belief could be founded in termsof s. 105(1) of the Customs Act, 1962. [98 D] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 460 of 1970. Appeal by special leave from the judgment and order dated May 20, 1969 of <ORG> in Special Appeal No. 1177 of 1968.

<NAME> and <NAME>, for the appellant. <NAME>, <NAME>, <NAME> and <NAME>, for the respondents.

The Judgment of the Court was delivered by <NAME>, J. This is an appeal by special leave from a judgement of <ORG> dismissing a writ petition by which the appellant challenged the validity of a warrant issued by the Assistant Collector, Central Excise, Allahabad, authorising the Superintendent Central Excise, Varanasi, to enter certain premises, search the same and seize the documents therefrom.

The appellant, which is a public limited company having its registered office at Calcutta, owns and runs a factory known as <ORG> at Varanasi where chemicals such as ammonia and soda ash are manufactured. In February 1962 excise duty was fixed on manufacture of ammonia for the purpose of fertilisers at Rs. 25/- per metric ton, the rate being Rs. 125/- per metric ton if it was used for other purposes. The notification by which the aforesaid duty was payable was later withdrawn by means of another notification dated March 1, 1964 and thereafter no excise duty was required to be paid on the manufacture of ammonia. For the period from May 1962 to the beginning of March 1964 the appellant had paid duty at the rate of Rs. 25/- per metric ton on the ground that ammonia had been utilised for the purpose of manufacture of chemical fertiliser. The Central Excise authorities, however, had received information that part of the ammonia had been utilised for purposes other than the manufacture of fertilizers on which higher duty of Rs. 125/- per metric ton was payable. It was considered that there had been evasion of duty. On May 11, 1968, the Assistant Collector issued a warrant for the search and seizure of goods and documents pursuant to which the premises of the factory at Varanasi were searched on May 11, 12 and 13, 1968 and various documents were seized. The writ petition was heard in the first instance by the learned single judge who dismissed it. In appeal his judgment was upheld by <ORG>. Three contentions were raised before <ORG>; the first was that S. 1 .2 of the Central Excises and Salt Act , 1944, hereinafter called, the "Act" was void as the powers delegated to <ORG> by the legislature were excessive and beyond permissible limits. The second point was that the Sea Customs Act 1878 having been repealed it was not open to <ORG> under s. 12 of the Act to apply s. 105(1) of the Customs Act 1962 to the Act and the notification dated May 4, 1963 by which this was done was illegal and ultra vires. The, third was that the search and seizure made by the respondents under the impugned authorisation dated August 11, 1968 and the authorisation itself were not in accordance with the provisions of s. 105 of the Customs Act 1962.

Section 12 of the Act is in the following terms:

S. 12. Application of the provisions of Act VIII of 1878 to Central Excise Duties.-The Central Government may, by notification in the official Gazette declare that any of the provisions of the Sea Customs Act 1878 relating to the levy on and exemption from customs duties, drawback of duty, warehousing offences and penalties, confiscation, and procedure relating to offences and appeals, shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, be applicable in regard to like matters in respect of the duties imposed by section

When the Act was enacted s. 172 of the Sea Customs Act 1878 which could be applied to the Act under s. 12 provided :

S.172. "Any Magistrate may, on application by a <ORG>-Collector, stating his belief that dutiable or prohibited goods (or any documents relating to such goods) are secreted in any place within the local limits of the, jurisdiction of such Magistrate, issue a warrant to search for such goods.

Such warrant shall be executed in the same way and shall have the same effect, as a search warrant issued under the law relating to Criminal Procedure."

It may be mentioned that the words "or documents" were inserted by the Sea Customs Amendment Act 1955. After the enactment of the Customs Act 1962 by the notification dated May 4, 1963 as amended by the Notification dated February 6, 1965 amongst other provisions of the Customs Act 1962, sub- s. (1) of s. 105 and s. 1 , IO were made applicable with certain modifications of a minor nature under s. 12 of the Act. The material part of these sections are reproduced below ;-

"S. 105(1) Power to search premises.-(1) if the Assistant Collector of <ORG>, or in any area adjoining the land frontier or the coast of India an officer of <ORG> specially empowered by name in this behalf by the <ORG>, has reason to believe that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things." "S. 110(3). The proper officer may seize any document or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act."

On the first point it has been urged on behalf of the appellant that s. 12 of the Act gave unrestricted and unlimited power to <ORG> to modify or alter the provisions of the Sea Customs Act 1878 and to apply the provisions of that Act with such modifications and alterations as <ORG> might consider appropriate. Modification, it has been pointed out, may be permissible, and may not fall within the vice of excessive delegation because the basic structure is not changed but alteration, it is suggested, has a much wider connotation and it emm-

braces even the changing of the essential pattern of a thing or object. Such a power inherently involves the making of changes even in regard to matters pertaining to legislative policy.

In our opinion the above contention is purely of academic interest in the present case. In the notifications which were issued applying, inter alia, s. 105 (1) and S. 1  10 of the Customs Act 1962 no such changes have been made as can possibly fall within the meaning of the word "alterations". It has been pointed out in the previous decisions of this Court that the power to restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character and no change in principle is involved. See In re Delhi Laws Act , 1912.(1) It was conceded before <ORG> and has not been urged before us that the word "modifications" could not be taken as con- ferring on <ORG> any legislative power which was in excess of the permissible limits. Objection was taken only with regard to the word "alterations" but that word must be understood in the sense in which it was open to the legislature to employ it legitimately and in a constitutional manner. No question is thus involved of delegation either of any essential legislative functions or any change of legislative policy.

The second contention has hardly any merit. Section 8(1) of the General Clauses Act provides that where any Central Act repeals and re-enacts with or without modification any provision of a former enactment then references in any such enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. By virtue of this provision it cannot be disputed. that in s. 12 of the Act the Customs Act 1962 can be read in place of the Sea Customs Act 1878. An attempt has been made to argue that s. 12 of the Act empowers incorporation of the provisions of Sea Customs Act 1878 in the Act itself and whenever a notification is issued under it such provisions of the Sea Customs Act as have been applied become incorporated as in integral part of the Act. Section 8 of the General Clauses Act would not be applicable to a case of such incorporation and it can only apply if s. 12 can be regarded as containing a reference to the provisions of the Sea Customs Act. In Secretary of State for <ORG> in Council v. <ORG> (2) it was accepted as a settled rule of construction that where a statute is incorporated by reference into a second the repeal of the first statute does not affect the second. The law laid down by <ORG> can have no applicability to the present case. Section 12 of the Act did not bodily lift, as it were, certain provisions of the Sea Customs Act 1878 and incorporate (1)  S.C.R. 747.

(2) 58 I.A.259.

them as an integral part of the Act. It only empowered <ORG> to apply the provisions of the Sea Customs Act 1878 with such modifications and alterations as might be considered necessary or desirable by <ORG> for the purpose of implementation and enforcement of s. 3 of the Act. No exception could be taken to the view of <ORG> that s. 12 contained a provision delegating limited powers to <ORG> to draw upon the provisions of the Sea Customs Act 1878 for the purpose of implementing s. 3 of the Act. in <CITATION> (1) this Court examined at length the meaning and effect of incorporation by reference of one statute into another and discussed the <ORG> case referred to before in detail. Section 8(1) of the General Clauses Act, it was pointed out, 'dealt with reference or citation of one enactment in another without incorporation. The usual or recognised formulae generally employed to effect incorporation were considered; for instance the words used in s. 20 of 53 and 54 Vict. Ch. 70-Housing of the Working Classes Act, 1890, the words used were " shall, for that purpose, be deemed to form part of this Act in the same manner as if they were enacted in the body thereof."

In 54 and 55 Vict. Ch. 19, s. 1(3) , the language employed was,:

"The provisions of s. 134 of the said Act (set out in the schedule) shall apply as if they were herein enacted."

It is unnecessary to mention the other provisions because a comparison of the recognised formulae with the text of s. 12 of the Act shows that the provisions of the Sea <ORG> Act 1878 were not meant to be incorporated in the Act and were only to be applicable to the extent notified by <ORG> for the purpose of the duty leviable under s. 3 . Another aspect which has been presented under the second contention is that the impugned notification is bad and stands vitiated because under the previous notification which applies s. 172 of the Sea <ORG> Act 1878 it was a Magistrate who had to bring his judicial mind to bear on the expediency or desirability of issuing a warrant for search whereas under the present notification after the enactment of the <ORG> Act 1962 it is the Assistant Collector of <ORG> who performs executive functions and who has been empowered to issue the warrant for search and seizure. The decision of this Court in Collector of <ORG> & Excise. <CITATION> (2) has been sought to be pressed into service in support of the argument that extension of s. 105 (1), (1)  (3) S.C.R. 786.

(2) [1968] 1 S.C.R. 82.

is illegal. In that case the provisions of S. 129 of the Sea Customs Act 1878 had been applied under S. 12 of the Act. Section 129 dealt with the procedure relating to appeals and required an appellant to deposit pending the appeal the duty or penalty imposed and empowered the appellate authority, in its discretion, to dispense with such deposit pending the appeal in any particular case. There was a provision in the Act itself, s. 35 , which gave an unfettered right of appeal to a person aggrieved by any decision or order made under the Act. It was in these circumstances that it was held that s. 129 of the Sea Customs Act 1878 could not be made applicable so as to whittle down the substantive right of appeal conferred by s. 35 of the Act. The ratio of that decision can afford no assistance to the appellant in the present case. By the notification issued under s. 12 of the Act after the enactment of Customs Act 1962, the previous notification under the Sea Customs Act 1878 stood superseded and no question survives with regard to the validity of the notification issued in 1963 and amended in 1965. On the third point an attempt was made to argue that the Assistant Collector, while issuing the, warrant for search and seizure did not apply his mind to the relevant and necessary facts. Our attention has been invited to the warrant itself in which the documents have not been particularised or specified but the words certain documents" have been used. The learned single judge dealt with this matter fully and repelled the contention that there was no relevant material before the authority upon which the belief could be founded in terms of s. 105(1) of the Customs Act 1962 by the Assistant Collector. We find no merit in this contention.

The appeal fails and it is dismissed with costs.

<ORG> Appeal dismissed.


PETITIONER: COMMISSIONER OF INCOME-TAX, GUJARAT Vs. RESPONDENT: A. RAMAN & COMPANY DATE OF JUDGMENT: 18/07/1967 BENCH: <NAME>, <NAME>: <NAME>, J.C. SIKRI, S.M. RAMASWAMI, V. CITATION: 1968 AIR 49 1969 SCR (1) 10 CITATOR INFO : RF 1972 SC 29 (4) E 1973 SC2330 (13) F 1974 SC1358 (10) RF 1975 SC 703 (11) AFR 1976 SC 203 (1,4,12,15,16) F 1977 SC 757 (31) RF 1977 SC2129 (12) R 1979 SC1960 (6,14) RF 1986 SC 649 (16,47) RF 1986 SC1853 (19,21) ACT: Indian Income-tax Act , 1961, s. 147-Conditions for the exercise of power to re-open assessment. Constitution of India, 1950, Art. 226- Powers of <ORG> to issue writ when Income-tax Officer's jurisdiction to issue notice under S. 147 of the Indian Income-tax Act, 1961 is questioned-<ORG> must not re-appraise evidence. HEADNOTE: The assessee firm consisted of two partners who were managers of their respective <ORG>. The firm sold its goods to the aforesaid families and the families again sold the goods on their own account. In income-tax proceedings for the years 1959-60, 1960-61 and 1961-62 the firm and the <ORG> were separately assessed in respect of their incomes. Subsequently <ORG> took view that the sale of goods by the firm to the families was only a device to divert the profits of the firm and on this view issued notices under s. 147 of the Incometax Act, 1961 requiring the assessee to show cause why the assessments for the years 1959-60, 1960-61 and 1961-62 should not be reopened. The <ORG> of Gujarat in a petition for a writ under Art. 226 of the Constitution quashed those notices and restrained the Income-tax Officer from taking proceedings in pursuance thereof. With special leave granted by this Court, the Revenue appealed. Held:(i) The <ORG> may issue a high prerogative writ prohibiting the Income-tax Officer from proceeding with reassessment when it appears that the Income-tax Officer had no jurisdiction to commence proceedings because the conditions precedent do not exist. [12G-H; 13B- <CITATION> 1, Calcutta, & Anr. 41 I.T.R. 191, followed. It is however not open to the <ORG> exercising powers under Art. 226 to set aside or vacate the notice for reassessment by itself re-appraising the evidence. [15B] (ii)The condition which invests the Income-tax Officer with jurisdiction has two branches: (i) that the Income-tax Officer has reason to believe that income chargeable to tax has escaped assessment; and (ii) that it is in consequence of information which he has in his possession and that he has reason so to believe. The expression 'information' in the context of which it occurs must mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment. If he has such information the Income-tax Officer may commence proceedings under s. 147(1)(b) . But to commence such a proceeding it is not necessary that on the materials which came to the notice of the Income-tax Officer, the previous order of assessment was vitiated by some error of fact or law. [13C-G] (iii)In the present case however the pre-conditions for the issue of a notice of re-assessment did not exist. The law does not oblige a trader to make the maximum profit that he can out of his 11 trading transactions. Income which accrues to a trader is taxable in his hands: income which he could have, but has not earned is not made taxable as income accrued to him. Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. [15D-G] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 768 of 1966. Appeal by special leave from the judgment and order dated December 18, 1964 of <ORG> in Special Civil Application No. 332 of 1964.

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

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, J.-The assessees--<ORG>-are dealers in "mill stores" in the course of their business they sell " mill stores" to other dealers including two concerns trading in the names of M/s A. M. <NAME> & Co. and <ORG>, which are owned by the Hindu undivided families, managers of which are the only partners of the assessees. For the assessment years 1959-60, 1960-61 and 1961-62 the assessees were originally assessed by the Income-tax Officer, Circle-1, Ward-A, Ahmedabad, while the partners of the assessees and the Hindu undivided families which traded in the names of M / s A. M. <NAME> & Co. and <ORG> were assessed by Income-tax Officers in other Circles. The cases of assessees, of the partners of the assessees and of the two Hindu undivided families trading in the names of A. M. <NAME> & Co. and <ORG> were later transferred to the Income-tax Officer, Group Circle-J, Ahmedabad. That Officer by letter dated March 20, 1964 informed the assessees that he was convinced from a perusal of the assessment records of the assessees, their partners and their individual Hindu undivided families, that the partners of the assessees had contrived to divert profits of the assessees to their respective Hindu undivided families and had tried to "evade proper taxation", and on that ground he called upon the assessees to submit their objections, if any, to the reopening of the assessments for the years 1959- 60, 1960-61 and 1961-62. The assessees in reply contended that the Income-tax Officer had no jurisdiction to reopen the assessments since the Hindu undivided families of the two partners and the assessees had submitted "effect and complete returns of income" supported by their books of account, "quantity details" of purchases, sales and expenses, and had given all material facts and relevant information necessary for assessment at the time of each assessment.

The Income-tax Officer issued three separate notices under s. 147 of the Income-tax Act , 1961, requiring the assessees to show cause why the assessments for the years 1959-60, 1960-61 and 1961-62 should not be reopened. <ORG> in a petition for a, writ under Art. 226 of the Constitution quashed those notices and restrained the Income-tax Officer from taking proceedings in pursuance thereof. With special leave granted by this Court, the Commissioner of Income-tax has appealed to this Court. In support of the claim of the Income-tax Officer, to reopen the assessments, reliance was placed in <ORG> on cl. (b) of s. 147 (1), of the Income-tax Act , 1961. The material part of s. 147(1)(b) may be read:

"If-

(a)

(b)notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153 , assess or reassess such income or recompute the loss or the depreciation allowance as the case may be, for the assessment year concerned.

Explanation 1-For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:-

(a) where income chargeable to tax has been underassessed; or * * * * *"

Under s. 147(1)(b) reason to believe that income chargeable to tax has escaped assessment in consequence of information in the possession of the Income-tax Officer is a condition precedent to the exercise of his jurisdiction to assess or reassess the income of the assessee. If that condition does not exist, steps taken by the Income-tax Officer to assess or reassess the income will be without jurisdiction. It was held by this <ORG> in <CITATION> (1) that <ORG> in appropriate cases has power to issue an order prohibiting the Income-tax Officer from proceeding to reassess the income when the conditions precedent do not exist. At p. 207, <NAME>, J., delivering the majority judgment of the <ORG> observed:

"It is well-settled however that though the writ of prohibition or certiorari will not issue against an executive authority, <ORG> have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an exe- cutive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, <ORG>, it is well settl- ed, will issue appropriate orders or directions to prevent such consequences".

<ORG> may, therefore, issue a high prerogative writ prohibiting the Income-tax Officer from proceeding with re- assessment when it appears that the Income-tax Officer had no jurisdiction to commence proceeding.

The condition which invests the Income-tax Officer with jurisdiction has two branches: (i) that the Income-tax Officer has reason to believe that income chargeable to tax has escaped assessment; and (ii) that it is in consequence of information which he has in his possession and that he has reason so to believe. Since the learned Judges of <ORG> have concentrated their attention upon the second branch of the condition and have reached their conclusion in favour of the assessees on that branch, it would be appropriate to deal with the correctness of that approach. The expression "information" in the context in which it occurs must, in our judgment, mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment. If as a result of information in his possession, the Income-tax Officer has reason to believe that income chargeable to tax had escaped assessment, the Income-tax Officer has jurisdiction to assess or reassess income under s. 147(1)(b) of the Income-tax Act, 1961. Information in his possession that income chargeable to tax has escaped assessment furnishes a starting point for assessing or reassessing income. If he has that information, the Income-tax Officer may commence proceedings for assessment or reassessment. To commence the proceeding for reassessment it is not necessary that on the materials which came to the notice of the Income-tax Officer, the pre- vious order of assessment was vitiated by some error of fact or law.

<ORG> exercising jurisdiction under Art. 226 of the Constitution has power to set aside a, notice issued under s. 147 of the Income-tax Act , 1961, if the condition precedent to the exercise of the jurisdiction does not exist. The <ORG> may, in exercise of its powers, ascertain whether the Income-tax Officer had in his possession any information: the <ORG> may also determine whether from that information the Income-tax Officer may have reason to believe that income chargeable to tax had escaped assessment. But the jurisdiction of the <ORG> extends no further. Whether on the information in his possession he should commence a proceeding, for assessment or reassessment, must be decided by the Income-tax Officer and not by the High <ORG>. The Incometax Officer alone is entrusted with the power to administer the Act: if he has information from which it may be said, prima facie, that lie had reason to believe that income chargeable to tax had escaped assessment, it is not open to the High <ORG>, exercising powers under Art. 226 of the Constitution, to set aside or vacate the notice for reassessment on a re-appraisal of the evidence. <ORG> in this case was apparently of the view that the information in consequence of which proceedings for reassessment were intended to be started, could have been gathered by the Income-tax Officer in charge of the assessment in the previous years from the disclosures made by the two Hindu undivided families. But that, in our judgment, is wholly irrelevant. Justification of the Income-tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information, must, it is true, have come into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected. <ORG> was also of the view that the inference raised by the Income-tax Officer that the Hindu undivided families of the assessees had made profit by sale of articles purchased from the assessees larger than the profit which the assessees had made, was not justified, since there was no evidence on the record about the price at which similar goods were sold by the assessees to other merchants and about the profit which those other merchants made by sale of those goods. But in a petition under Art. 226 of the Constitution the taxpayer may challenge the validity of a notice under s. 147 of the Income-tax Act, 1961, on the ground that either branch of the condition precedent does not exist, but an investigation whether the inferences raised by the Income-tax Officer from the information are "correct or proper" cannot be made. Counsel for the Commissioner is, therefore, right in contending that the High <ORG> entered upon an investigation of matters which were not within their competence.

But the appeal of the Commissioner must still fail. The case of the Commissioner on the materials placed before <ORG>, suffers from a serious infirmity on the first branch of the jurisdictional condition. The averments made in the affidavit filed by the Income-tax Officer in that behalf do not establish the existence of that branch of the condition. In reply to the averment by the assessees that the Income-tax Officer had no reason to believe that income had escaped assessment, the Income-tax Officer stated:

"In the course of the discussions I had at the several meetings hereinabove referred, I also learnt that in the earlier years also the petitioners (the assessees) had effected such sales to the said Hindu undivided families, and that over and above the margin of profits earned by the petitioners (the assessees) from the Hindu undivided families, the Hindu undivided families had earned substantial profits on the resale of such goods. 1, therefore, came to the conclusion that the creation of the Hindu undivided family business was merely a subterfuge or a contrivance by the partners of the petitioner firm (the assessees) to divert the huge profits made by the petitioners (the asses- sees) on imported articles".

The plea raised by the Income-tax Officer is that income which could have been earned by the assessees was not earned, and a part of that income was earned by the Hindu undivided families. That according to the Income-tax Officer was brought about by "a subterfuge or contrivance". Counsel for the Commissioner contended that if by resorting to a "device or contrivance", income which would normally have been earned by the assessee is divided between the assessee and another person, the Incometax Officer would be entitled to bring the entire income to tax as if it had been earned by him. But the law does not oblige a trader to make the maximum profit that he can out of his trading transactions. Income which accrues to a trader is taxable in his hands: income which he could have, but has not earned, is not made taxable as income accrued to him. By adopting a device, if it is made to appear that income which belonged to the assessee had been earned by some other person, that income may be brought to tax in the hands of the assessee, and if the income has escaped tax in a previous assessment a case for commencing a proceeding for reassessment under s. 147(1)(b) may be made out. Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A taxpayer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon considerations of morality, but on the operation of the Income-tax Act . Legislative injunction in taxing statutes may not. except on peril of penalty, be violated, but it may lawfully be circumvented. If the goods were nominally transferred to the Hindu undivided families the latter acting merely as benamdars for the assessees, and the profits were earning in truth by the assessees, income earned by sale of the goods by the Hindu undivided families may be held chargeable to tax as income which has escaped assessment to tax in the hands of the assessees. In the present case,, no such case was attempted to be made out in the affidavit filed by the Income-tax Officer. We hold, therefore, that on the materials on the record, the Income-tax Officer. had no reason to believe that income chargeable to tax had escaped assessment for the three years in question. The order passed by <ORG> is therefore confirmed. There will, however, be no order as to costs in this <ORG> and <ORG>.

<NAME>

Appeal dismissed.