Input:
: Criminal Appeal No, 385 of 1976.
(From the Judgment and Order dated 22 12 1975 of the Gujarat High Court in Crl.
Appeal No. 180/74) N.N. Keswani & Ramesh N. Keswani for the appellant.
K.H. Kazi & M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal, by special leave, is directed against an order passed by the High Court of Gujarat setting aside the acquittal of the appellant and directing that he, along with other accused, be retried not only for the of fence of consumption of liquor of which he was acquitted but also for the offence of possession of liquor punishable under section 66(1)(b) of the Bombay Prohibition Act, 1949.
The question arising for determination is a short one, but in order to appreciate it, it is necessary to state the. facts giving rise to the appeal.
The appellant, original accused No. 2, was at all mate rial times working as District Health Officer in District Amreli in the State of Gujarat.
He was, according to the prosecution, found of liquor and whenever he used to go out of Amreli in connection with his duties, he used to partici pate in drinking parties.
On 3rd August, 1972, he visited Kodinar, a town situate in the District of Amreli and late in the evening of that day, he attended a drinking party which was arranged by accused No. 1 in his agricultural farm situate at a place called Ghantwad about 50 Kms.
away from Kodinar.
Besides accused Nos. 1 and 2, six other persons who were arraigned as accused Nos.
3 to 8 were also present at the drinking party.
On receiving information about the drinking party, the District Magistrate and the District Superintendent of Police along with other police officers and panch witnesses raided the agricultural farm where the drinking party was in progress.
The raid was carried out at about 00.30 hrs.
after midnight and on seeing the police, the appellant and the other accused tried to run away but they were apprehended.
The raiding party, also found five glasses and two empty bottles, all smelling of liquor, twelve empty soda water bottles and one full ' bottle con taining liquor and these articles were seized by the raiding party in the presence of the panch witnesses and the panch nama was prepared.
The appellant and the other accused were thereafter taken to the Amreli hospital where their blood was taken by the Civil Surgeon for the purpose of carrying out 874 the necessary test for determining the presence of alcohol.
The analysis of the blood revealed that, in the case of the appellant, the concentration of alcohol in the blood was more than 0.05 per cent weight in volume while in the case of the other accused, it was less than 0.05 per cent.
On these facts, the appellant and the other accused were charge sheeted before the Judicial Magistrate, Kodinar.
The charge against accused No. 1 was that he possessed as well as consumed liquor in contravention of the provisions of the Act and was, therefore, guilty of offences punishable under section 66(1)(b), while the charge against the other ac cused, including the appellant, was that they were guilty of consuming liquor in contravention of the provisions of the Act and were hence liable to be punished for the offence under section 66(1) (b) of the Act.
The learned Judicial Magistrate accepted the evidence in regard to the concentra tion of alcohol in the blood of the accused, but taking the view that breaches of certain rules in the Bombay Prohibi tion (Medical Examination and Blood Test) Rules, 1959 were committed in taking the blood of the accused, the learned Judicial Magistrate acquitted the accused including the appellant of the offence of consuming liquor under section 66 (1 ) (b).
The learned Judicial Magistrate also acquitted accused No. 1 of the offence of possessing liquor under section 66(1)(b) on the ground that it was not proved by the prosecution beyond reasonable doubt that he was in posses sion of liquor.
The State preferred two appeals against the order of acquittal passed by the learned Judicial Magistrate.
Both the appeals were heard by a Single Judge of the High Court any they were disposed of by a common judgment.
The High Court did not examine whether the order passed by the learned Judicial Magistrate acquitting the appellant and the other accused of the offence of consuming liquor was right or wrong nor did it consider whether the acquittal of ac cused No. 1 for the offence of possessing liquor was correct or incorrect.
But, taking the view that there was no dis tinction between the case of accused No. 1 on the one hand and that of the appellant and accused Nos. 3 to 8 on the other so far as the charge of possession of liquor is con cerned, the High Court held that, on the material on record, the learned Judicial Magistrate should have flamed a charge against the appellant and accused Nos.
3 to 8 not only for the offence of consuming liquor but also for the offence of possession of liquor as in the case of accused No. 1.
The High Court observed: "Whenever "Drinking Parties" are detect ed by the police, it is the imperative duty of the prosecution to allege that all the partic ipants of the same are charged with the "possession" of liquor in contravention of the provisions of law contained in Sec.
66(1 )(b) of the B 'bay Prohibition Act, 1949.
It may be emphasised that in such cases, "possession" of liquor does not only necessarily mean actual, physical or conscious possession of the owner or the occupant of the premises".
In such cases of "Drinking Parties", it is always open to a participant to stretch his hand and to take the liquor in question for his own use and consumption.
But, in all such cases of 875 "Drinking Parties", the Court must be satis fied that the attendant circumstances should clearly indicate that the accused persons are the participants in a "Drinking Party".
In the case before me, why should the accused persons, during the night hours, having gath ered together go to a distant farm house ? Why should they be found with the aforesaid articles ? Why should they create a situa tion as a result of which a constable had to jump over a wall ? Why should they try to run away when they Were apprehended by the respon sible officers for Amreli ? In such circumstances, it is the duty of the prosecution to see that all the partic ipants are charged with the commission of the offence viz. of possessing liquor in contra vention of the provisions contained in Sec.
66(1)(b) of the B 'bay Prohibition Act, 1949.
" The High Court, on this view, set aside the order of acquittal in 'its entirety without examining its correctness and remanded the case to the learned Judicial Magistrate with a direction to try the appellant and the other accused not only on the charge of consuming liquor but also on the further charge of possession of liquor.
Accused Nos. 1 and 3 to 8 did not challenge the correctness of this order made by the High Court, but the appellant impugned it by prefer ring the present appeal with special leave obtained from this Court.
The impugned Order made by the High Court consists of two parts.
One part set aside the order of acquittal and directed retrial of the appellant on the charge of consuming liquor while the other directed that the appellant and accused Nos.
3 to 8 'should also be tried on the further charge of possession of liquor.
The appellant attacked both parts of the Order and the contention urged by him in sup port of the appeal was a two fold one.
The first limb of the contention was that the order setting aside the acquit tal of the appellant for the offence of consuming liquor and directing retrial of the appellant for that offence was improper, since it was not competent to the High Court in appeal to set aside the order of acquittal and direct retri al, unless it_found that the acquittal was wrong.
Here in the present case, the High Court did not even consider whether the acquittal of the appellant was correct or not and without finding that the acquittal was erroneous, pro ceeded to set aside the acquittal and direct retrial.
This, according to the appellant, was impermissible for the High Court to 'do and it was said that the order setting aside the acquittal must, therefore, be reversed and the acquittal restored.
The second limb of the contention related to that part of the impugned order which directed that the appellant and accused Nos.
3 to 8 should be retried not only on the charge of consuming liquor but also on the further charge of possession of liquor.
The argument of the appellant under this head of contention was that in the appeal, the High Court was confined merely to a consideration of the question whether the acquittal of the appellant for the offence of consuming liquor was right or wrong and it was, not compe tent to the High Court 6 1338SCI/76 876 to frame a new charge for possession of liquor and direct trial of the appellant and the other accused on such now charge.
These were the twin grounds on which the order made by the High Court was challenged on behalf of the appellant.
Now, there can be no doubt that there is great force.
in the first part of ' the contention of the appellant.
The learned Judicial Magistrate acquitted the appellant of the offence of consuming liquor.
The State preferred an appeal against the acquittal and manifestly, in this appeal, the acquittal could not be set aside unless the High Court, on a consider ation of the evidence, came to the conclusion that the acquittal was wrong.
It was not competent to the High Court to set aside the acquittal without finding that it was erroneous.
The High Court, however, did not even care to examine whether the acquittal was right or wrong, but merely because it took the view that a further charge should have been framed against the appellant and accused Nos.
3 to 8, it set aside the acquittal and directed retrial of the appellant and the other accused.
This was plainly and indubitably wrong and the: order setting aside the acquittal must, therefore, be quashed.
But from that it does not necessarily follow that the acquittal must be restored.
The High Court having failed to consider the merits of the acquittal,.
the matter would have to go back to the High Court for the purpose of deciding whether on the evidence on record, the acquittal was justified or not.
The appeal being directed against the correctness of the acquittal, the High Court would have to determine whether on merits, the acquittal should be maintained or reversed.
We must, there fore, quash that part of the order of the High Court which set aside the acquittal of the appellant for the offence of consuming liquor and remand ' the case to the High Court for disposing of the appeal against the acquittal of the appel lant on merits.
That takes us to the second limb of the contention directed against the order of retrial on the further charge of possession of liquor.
It is true that originally when the case was tried before the learned Judicial Magistrate, there was no charge against the appellant and accused Nos.
3 to 8 for the offence of consuming liquor and the appeal of the State was also directed 'only against their acquittal for ,the offence of consuming liquor.
But there can be no doubt that if, while hearing the appeal, the High Court found that, on the material before .him, the learned Judicial Magistrate should have framed a further charge against the appellant and accused Nos.
3 to 8 but he failed to do so, the High Court could certainly direct the learned Judicial Magistrate to frame such further charge and try the appel lant and accused Nos. 3 to 8 on such further charge.
The High Court could legitimately in the exercise of its juris diction, set right the error committed by the learned Judi cial Magistrate in not flaming a proper charge.
Here, the High Court, on a consideration of the material which was before the learned Judicial Magistrate, came to the conclu sion that this material warranted the framing of a further charge against the appellant and accused Nos.
3 to 8 for possession of liquor and it, therefore, directed that the case should go back to the learned judicial Magistrate and he should try the appellant and accused Nos.
3 to 8 on 877 such further charge.
The High Court clearly had jurisdic tion to make such an order.
But then, the complaint made on behalf of the appellant was that the material before the learned Judicial Magistrate did not justify the framing of a charge against the appellant and accused Nos.
3 to 8 for possession of liquor and hence the order directing their trial on such further charge was not justified.
This is, however, a complaint on facts and we do not see any reason why we should, in the exercise of our extra ordinary juris diction under Article 136 of the Constitution, entertain such a complaint.
It is true that there are certain obser vations made by the High Court which are a little too wide but it cannot be gained that even a person who participates in a drinking party can in conceivable cases be guilty of the offence of possession of liquor.
Suppose a person is found at a drinking party and he has a glass with him with liquor in it at the time when the raid is carried out, would it not be correct to say that he was at the relevant time in possession of liquor ? The liquor in his glass would be liquor in his possession.
But at the same time it would not be correct to say that merely because a participant in a drinking party can stretch his hand and take liquor for his use and consumption, he can be held to be in possession of liquor.
The question is not whether a participant in a drinking party can place himself in possession of liquor by stretching his hand and taking it but whether he is actu ally in possession of it.
Possession again must be distin guished from custody and it must be conscious possession.
If, for example, a bottle liquor is kept by.
some one in the car or house of a person without his knowledge, he cannot be said to be in possession of the bottle of liquor.
It can not, therefore, be laid down as an absolute proposition that whoever is present at a drinking party must necessarily be guilty of the offence of possession of liquor and must be charged for such offence.
Whether an accused is in posses sion of liquor or not must depend on the facts and circum stances of each case.
Here in the present case, the prose cution will have to establish at the trial by leading satis factory evidence that the appellant and the other accused were in possession of liquor as else the prosecution on the charge of possession of liquor will fail.
The order direct ing trial of the appellant and the other accused for the offence of possession of liquor must, therefore, be main tained, but we think it would be desirable if this trial is taken up after the disposal of appeal by the High Court in regard to the acquittal of the appellant for the offence of consuming liquor.
We accordingly allow the appeal in part and reverse that part of the 'order of the High Court which set aside the acquittal of the appellant for the offence of consuming liquor and remand the case to the High Court for disposing of the appeal against the acquittal of the appellant on merits, but so far as the other part of the order directing trial of the appellant and the other accused on the charge of possession of liquor is concerned, we do not see any reason to interfere with the same and we accordingly reject the appeal in so far as it is directed against that part of the order.
S.R. Appeal partly allowed.

Output:
Section 66(1)(b) of the Bombay Prohibition Act 1949 makes any person liable for punishment on conviction for the offence of "consuming, using, possessing or transporting any intoxicant or hemp." Section 66(2)(b) prescribes a statutory limit of 0.05 percentage of alcohol in the veinous blood taken from the accused.
In summary case Nos. 798 and 799 of 1972 before the Judicial Magistrate 1st Class, Kodi nar, Gujarat State, the appellant/accused No. 2 along with six others was charged with consumption of liquor while accused No. 1, the owner of an agricultural farm, where a drinking party took place was charged with the offence of possessing liquor.
h spite of the fact that the percentage of alcohol present in the veinous blood taken from the body of accused No. 2 was more than the statutory limit, in view.
breaches of certain statutory rules, in Bombay Prohibi tion (Medical Examination and Blood Test) Rules, 1959, the appellant/accused No. 2 was acquitted along with accused 3 to 8 in whose cases the percentage was less than the statu tory limit.
Accused No. 1 was also acquitted for lack of evidence on the charge of possession of liquor.
In the State appeal, taking the view that in a drinking party there should always be a further charge of possession of liquor, the High Court without examining the correctness of the findings of fact leading to the acquittals, set aside the orders of acquittal in respect of all and 'ordered retrial.
On appeal by special leave, the Court, HELD: (i) In a State appeal against acquittal, the acquittal should not be set aside unless the High Court on a consideration of the evidence.
comes to the. conclusion that the acquittal was wrong.
In the instant case, the High Court did not even consider whether the acquittal of the appellant was correct or not and without finding that the acquittal was erroneous proceeded to set aside the.
acquit tal and direct retrial.
It 'was not competent to the High Court to set aside the acquittal without finding that it was erroneous.
Setting aside the acquittal order and ordering retrial merely because.
it took the view that a further charge should have been framed against the appellant and accused No. 3 to 8 was plainly and indubitably wrong.
[876 B D] (ii) If while hearing an appeal, the High Court, finds that, on the material before it, a further charge should be framed, the High Court can legitimately, the exercise of its jurisdiction set right the error committed by the trial court in not framing a proper charge.
[876 G H] 873 (iii) In the exercise of extra ordinary jurisdiction under Article 136 of the Constitution, the Supreme Court would not ordinarily entertain a complaint on facts.
[877 B] (iv) Possession is distinguishable from custody and it must be conscious possession.
Whether the accused is in possession of liquor or not must depend on the facts and circumstance of each case.
[877 D]


Input:
Appeal No. 383 of 1961.
Appeal from the judgment and order dated July 21 1959, of the Special Bench of the Calcutta High Court in Matter No. 76 of 1952.
D. R. Prem and R. L. Dhebar, for the appellant and respondents NOS.
2 and 3.
section P. Desai and B. P. Maheshwari, for respondent No. 1 565 1962.
April 30.
The brief facts necessary for present purposes are these.
The respondent had imported 2,000 drums of mineral oil.
Out of this quantity, the appellant, the Collector of Customs, Calcutta, confiscated 50 drums by order dated September 20, 1950.
He also imposed a personal penalty of Rs.61,000/on the respondent under the , No. 8 of 1878, (hereinafter referred to as the Act).
The respondent appealed to the Central Board of Revenue under section 188 of the Act, and this appeal was dismissed in April 1952.
Thereupon the respondent filed a petition under article 226 of the Constitution in the High Court.
We are in the present appeal not concerned with the merits of the case put forward by the respondent, for the matter has not yet been heard on the merits.
When the petition came up before a learned Single Judge a question was raised as to the jurisdiction of the High Court to hear the petition in view of the decision of this Court in Election Commission India vs Saka Venkata Subba Rao.(1) As the learned Single Judge considered the point important, he referred the matter to a larger bench; and eventually the question was considered by a Full Bench if the High Court.
The Full Bench addressed itself two questions in that connection, namely, (i) whether any writ could issue against the Central Board of Revenue which was a party to the writ petition and which was permanently located outside the jurisdiction of the High Court, and (ii) whether if no writ could issue, against the Central Board of Revenue any writ could be issued against the appellant, which was the original authority to pass the order under challenge, when the appellate (1) ; , 566 authority (namely, the Central Board of Revenue) had merely dismissed the appeal.
The Full Bench held on the first question.
that the High Court, had no jurisdiction to issue a writ against the Central Board of Revenue in view of the Precision in the case of Sake Venkata Subba Rao.(1).
On the second question, it held that as the Central Board of Revenue had merely dis missed the appeal against the order of the Collector of Customs Calcutta, the really operative order was the order of the appellant, which was located within the jurisdiction of the High Court, and therefore it had jurisdiction to pass an order against the Collector of Customs in spite of the fact that order had been taken in appeal (which was dismissed) to the Central Board of Revenue to which no writ, could be issued.
The Full Bench further directed that the petition would be placed before the learned Single Judge for disposal in the light of its decision or, the question of jurisdiction.
Thereupon there was an application for a certificate to appeal to this Court, which was granted; and that in how the matter has come up before us.
The only question which 1ells for decision before us in the second question debated in the ' High Court,.
namely, whatever the High Court would have jurisdiction to issue a writ against the Collector of Customs Calcutta in spite of the fact that his order was taken in appeal to the Central Board of Revenue against which the High Court could not issue a writ and the appeal had been dismissed.
There seems to have been a difference of opinion amongst the High Courts in this matter.
The Rajasthan High Courts in Barkatali vs Custodian General of Evacuee Property (1) held that where the A.I.R. (1904) Raj.
567 original authority passing the order was within the jurisdiction of the High Court but the appellate authority was not within such jurisdiction, the High Court would still have jurisdiction to issue a writ to the original authority, where the appellate authority had merely dismissed the appeal and the order of the original authority stood confirmed without any modification whatsoever.
On the other hand, the PEPSU High Court in Joginder Singh Waryam Singh vs Director, Rural Rehabilitation.
Pepsu Patiala, the Nagpur High Court in Burhanpur, National Textile Workers Union, vs Labour Appellate Tribunal of India at Bombay ( 2) and the Allahabad High Court in Azmat Ullah, vs Custodian, Evacuee Property (3 ) held otherwise, taking the view that even Where the appeal was merely dismissed, the order of the original authority merged in the order of the appellate authority, and if the appellate authority was beyond the territorial jurisdiction of the High Court, no writ could issue even to the original authority.
It may be mentioned that the Rajasthan High Court had occasion to reconsider the matter after the decision of this Court in A. Thangal Kunju Mudaliar vs M. Venkita chalam Potti ( 4 ) and held that in view of that decision, itsearlier decision in Barkatali 's case (5) was no longer good law.
The High Court has however not noticed this later decision of the Rajasthan High Court to which the learned Chief Justice who was party to the earlier Rajasthan case was also a party.
The main reason which impelled the High Courts, which held otherwise, was that the order of the original authority got merged in the order of the Appellate authority when the appeal was disposed of and therefore if the High Court had no territorial jurisdiction to issue a writ against the appellate authority it could not issue a writ (1) A.I.R. (1955) Pepsu 91 (3) A. I. R. (1955) All 435.
(2) A. I. R. (4) ; (5) A.I.R. (1954) Raj.
568 against the original authority, even though the appellate authority had merely dismissed the appeal without any modification of the order passed by the original authority.
The question therefore turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority.
It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification.
It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority.
The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority.
It seems to us that on principle it is difficult to draw a distinction between the first tori kinds of orders passed by the appellate authority and the third kind of order passed by it.
In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it.
In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification.
Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to bold even in a case where the appellate 569 authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority.
In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order or the original authority even though it has DO territorial jurisdiction to issue any writ to the appellate authority.
We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it at issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.
It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision whether of reversal or modification or mere confirmation.
This matter has been considered by this Court on a number of occasions after the decision in Saka Venkata Subba Rao 's case.(1) (1) ; 570 In A. Thangal Kunju Mudaliar 's case (1), though the point was not directly in issue in that case, the Court had occasion to consider the matter (see p. 1213) and it approved of the decisions of the PEPSU, Nagpur and Allahabad High Courts, (referred to above).
Then in Commissioner of Income tax vs Messrs. Amritlal Bhogilal and Company (2), a similar question arose as to the merging of an order of the income tax officer into the order of the Appellate Assistant Commissioner passed in appeal in connection with the powers of the Commissioner of Income tax in revision.
Though in that case the order of registration by the Income tax officer was held not to have merged in the order of the Assistant Commissioner on appeal in view of the special provisions of the Income tax Act, this Court observed as follows in that connection at p. 720 : ",There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law.
If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced.
In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal.
As a result of the confirmation or affirmable of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.
The matter was considered again by this Court, in Madan Gopal Rungta vs Secretary to the Government of Orissa (3) in connection with an order of the (1) (1955)2 S.C.R.1196.
12) (1959) S.C.R. 713, (3) (1962) (Supp.) 3 S.C.R. 966.
571 Central Government in revision under the Mineral Concession Rules, 1949, framed under the Mines and Minerals (Regulation and Development) Act, (No. 53 of 1948) and it was held that when the Central Government rejected the review.
petition against the order of the State Government under the Mineral Concession Rules it was in effect rejecting the application of the appellant of that case for grant of the mining lease to him.
The question of the original order with the appellate order was also considered in that case though it was pointed out in view of r.60 of the Mineral Concession Rules that it is the Central Government 's order in review which is the effective and final order.
Learned counsel for the respondent sought to distinguish Madan Gopal Rungla 's case (1) on the ground that it was based mainly on an interpretation of r. 60 of the Mineral Concession Rules 1949, though he did not pursue this further when section 188 of the was pointed out to him.
The main reliance however of the respondent both in the High Court and before us is on the decision in the State of Uttar Pradesh vs Mohmmed Nooh (2).
That was a case where a public servant was dismissed on April 20, 1948 before the Constitu tion had come into force.
His appeal from the order of dismissal was dismissed in May 1949 which was also before the Constitution came into force.
His revision against the order in the appeal was dismissed on April 22, 1950, when the Constitution had come into force, and the question that arose in that case was whether the dismissed public servant could take advantage of the provisions of the Constitution because the revisional order had been passed after the Constitution came into force.
In that case, this Court certainly held that the order of dismissal passed on April 20, 1948 could not be said to have merged in the orders in appeal and in revision.
It (1) (1962) (Supp.) 3 S.C.R. 906.
(2) ; 572 was pointed out that the order of dismissal was operative of its own strength as from April 20, 1948 and the public servant stood dismissed as from that date and therefore it was a case of dismissal before the Constitution came into force and the.
public servant could not take advantage of the provisions of the Constitution in view of the fact that his dismissal had taken place before the Constitution had come into force.
As was pointed out in Madan Gopal Rungta 's, case(1) Mohammad Nooh 's case (2) was a special case, which stands on its own facts.
The question there was whether a writ under article 226 could be issued in respect of a dismissal which was effective from 1948.
The relief that was being sought was against an order of dismissal which came into existence before the Constitution came into force and remained effective all along even after the dismissal of the appeal and the revision from that order.
It was in those special circumstances that this Court held that the dismissal had taken place in 1948 and it could not be the subject matter of consideration under Art.226 of the constitution, for that would be giving retrospective effect to the Article.
The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, (i) that the principle of merger applicable to decrees of courts would not be applicable to departmental tribunals, and (ii) that the original order would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision.
in effect, this means that even if the principle of merger were applicable to an order of dismissed like the one in Mohammad Nooh 's case, (2) the fact would still remain that the dismissal was before the Constitution came into force and therefore the person dismiss could not take advantage of the provisions of the Constitution, so (1) (1962)(Supp.)3 S.C.R.906.
(2) ; 573 far as that dismissal was concerned.
That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing.
We have therefore no hesitation in holding consistently with the view taken by this Court in Mudaliar 's case (1) as well as in Messrs. Amritlal Bhogilat 's (2) that the order of the origin%] authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of.
Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original autbority which is within its jurisdiction so long as it can not issue a writ to the appellate authority.
It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority.
We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition with costs.
Appeal allowed.
(1) ; (2) (1959) S.C.R. 713.

Output:
The respondent imported 2,000 drums of mineral oil and the appellant confiscated 50 drums and imposed a personal penalty.
The appeal of the respondent was dismissed by the Central Board of Revenue.
The respondent filed a petition under article 226 of the Constitution in the Calcutta High Court.
A Full Bench of the High Court held that the High Court had no jurisdiction to issue a writ against the Central Board of Revenue in view of the decision in the case of Saka Venkata Subbha Rao.
However, as the Central Board of Revenue had merely dismissed the appeal against the 564 order of the appellant, the High Court further held that it had jurisdiction to pass an order against the appellant.
The appellant came to this Court after obtaining a certificate.
Held that the appellant had merged into that of the Central Board of Revenue and hence no order could be issued against the appellant.
It is only the order of the appellate authority which is operative after the appeal is disposed of.
It is immaterial whether the appellate order reverses the original order, modifies it or confirms it.
The appellate order of confirmation is as efficacious as an operative order as an appellate order of reversal or modification.
As the appellate authority in this case was beyond the territorial jurisdiction of the High Court, it was not open to the High Court to issue a writ to the original authority which was within its jurisdiction.
Election Commission, India vs Saka Vankata Subba Rao, , A. Thangal Kunju Mudatiar vs M. Venkitachalam Poiti, ; , Commissioner of Income tax vs M/s. Amritlal Bhogilal & Co. [1959] section C. R. 713 and Madan Gopal Rungta vs Secretary to the Government of Orissa, (1962) (Supp.) 3 S.C.R. followed.
Barkatali vs Custodian General of Evacuee Property, A. 1.
R. , overruled.
Joginder Singh Waryam Singh vs Director, Rural Rehabilitation, Pepsu, Patiala, A. 1.
R. 1955 Pepsu 91, Burhanpur National Textile Workers Union vs Labour Appellate Tribunal of India at Bombay, A. I. R. , and Azmat Ullah vs Custodian, Evacuee Property, A.I.R. 1955 All 435, approved.
State of U. P. vs Mohammed Nooh, ; , distinguished.


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nch of two members in their reasoned order pointed out what they perceived to be an error of law in the earlier decision and stated the points for the President to make a, reference to a larger Bench.
Accordingly the Bench of two members acted within their power is stating the points of law which required clarification and the President acted equally within the bounds of his power in constituting a larger Bench to hear and decide those points.
[795E; 796C] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3955 of 1990.
From the Judgment and Order dated 7.12.1989 of the Delhi High Court in C.W. No. 1060 of 1987.
Dr. V. Gauri Shanker, C.V. Subba Rao, section Rajappa and M. Chandershekharan (N.P.) for the Appellants.
G.L. Sanghi.
Raju Ramachandran, Dhruv Mehta and R.K. Sanghi for the Respondent.
792 The Judgment of the Court was delivered by THOMMEN, J.
Special Leave is granted.
This appeal by the Union of India arises from the Judg ment dated 7.12.1989 of the Delhi High Court in Civil Writ No. 1060 of 1987 setting aside Orders dated 22.10.1986 and 4.3.1987.
The former order was made by a Bench of two mem bers of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter called the 'Tribunal ') and the latter order was made by the President of the Tribunal.
By their Order dated 22.10.1986, the Bench of two members of the Tribunal stated that they doubted the correctness of an earlier decision of a Bench of three members of the Tribunal in Bakelite Hylam Ltd. Bombay & Anr.
vs Collector of Cus toms, Bombay & Anr., and directed that the case of the present respondent, Paras Laminates (P) Ltd., be placed before the President of the Tribunal for referring it to a larger Bench of the Tribunal.
The President by his Order dated 4.3.
1987 referred the case to a larger Bench of five members.
These two orders were struck down by the High Court stating that the Bench of two members ought to have followed the earlier decision of the larger Bench of 3 Judges and a reference of the case to a still larger Bench was contrary to judicial precedent and judicial discipline.
In Bakelite Hylam, (supra) a Bench of three members had held that the goods in question fell under Tariff Item 84.60 as claimed by the importer in the Bills of Entry.
In the present case, the importer claimed in its Bills of Entry that the goods imported by it fell under Tariff Item 84.60.
But the customs authorities rejected the contention of the importer and classified the goods under Tariff Item 73.15(2).
The importer appealed to the Collector of Customs, but without success.
In its second appeal before the Bench of two members, the importer relied upon the earlier deci sion in Bakelite Hylam (supra) and contended that an identi cal classification ought to have been adopted by the Customs Authorities for identical goods.
The Bench of two members, however, referred the case to the President of the Tribunal for referring the same to a larger Bench.
The order of the Bench of two members and that of the President have been struck down by the High Court by the impugned judgment for the reasons stated above.
Mr. V. Gauri Shanker, appearing for the appellant Union of India, submits that section 129 C of the contains 793 express provisions enabling the President of the Tribunal to constitute larger Benches to resolve conflicts in opinion arising between members of a Bench or between Benches of the Tribunal.
The Tribunal has ample powers to regulate its own procedure, apart from the express provisions of the statute in that behalf.
Counsel contends that the Tribunal has inherent or incidental or ancillary powers to effectuate the statutory powers expressly granted to it.
Counsel submits that the statute must be so construed as to make the confer ment of power efficacious and meaningful.
To deny the power of a Bench of two members to doubt the correctness of an earlier decision and to refer the case to the President for being heard by a larger Bench is to fetter the jurisdiction expressly vested in the Tribunal and thus stifle the growth of law evolving from the decisions of the Tribunal exercis ing judicial powers like a Court, albeit within the statuto ry limits of its jurisdiction.
Mr. G.L. Sanghi, appearing for the respondent (the importer) submits that the Tribunal is a creature of the statute.
Its jurisdiction is limited to the specific powers conferred by the statute.
It has no inherent jurisdiction and its powers are not plenary and are limited to the ex press provisions contained in the statute.
While the powers of a civil court are plenary and unlimited unless expressly curtailed by statute, the powers of a tribunal are the result of express grant and cannot exceed the bounds limited by the constituting statute.
In the present case the powers of the Tribunal are expressly specified in the and those powers, counsel says, do not contain any provision enabling the President to refer a case to a larger Bench whenever a doubt about an earlier decision is ex pressed by another Bench of the same Tribunal.
According to Mr. Sanghi, the Bench should have followed the earlier decision even if the members doubted its correctness, and should have left it to this Court to correct the error, if any.
The Tribunal is constituted by the Central Government under section 129 of the Act.
One of the members of the Tribunal is appointed by the Central Government as its President.
Section 129 C says that the powers and functions of the Tribunal may be exercised and discharged by Benches constituted by the President from amongst its members.
Subject to certain exceptions, a Bench shall consist of one judicial member and one technical member [section 129c(2)].
Sub section (5) of section 129 C provides for a reference of a case by the President in the event of differences in opinion arising amongst members on any point.
This sub section reads: 794 "(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the President for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it: Provided that where the members of a Special Bench are equally divided, the point or points on which they differ shall be decided by the President.
" Sub section (6) Section 129C says that the Tribunal shall have the power to regulate its own procedure.
It reads: "(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions, including the places at which the Benches shall hold their sitting.
" Sub sections (7) and (8) of this Section provide that the Tribunal shall, for certain specific purposes, be deemed to be a civil court.
There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction.
It has all the powers conferred expressly by the statute.
Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers.
Certain powers are recog nised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised, the powers of the Tribunal are no doubt limited.
Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and im pliedly granted.
The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all 795 such acts or employing all such means as are reasonably necessary to make the grant effective.
As stated in Maxwell on Interpretation of Statutes, (eleventh edition) "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.
" See also: Income Tax Officer, Camanore vs M.K. Mohammed Kunhi, ; , 819.
It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question.
This is particularly true when the earlier decision is rendered by a larger Bench.
The ration ale of this rule is the need for continuity, certainty and predictability in the administration of justice.
Persons affected by decisions of Tribunals or Courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters.
Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the adminis tration of justice.
It is, however, equally true that it is vital to the administration of justice that those exercising judicial power must have the necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings being to light what is perceived by them as an erroneous decision in the earlier case.
In such circum stances, it is but natural and reasonable and indeed effica cious that the case is referred to a larger Bench.
This is what was done by the Bench of two members who in their reasoned order pointed out what they perceived to be an error of law in the earlier decision and stated the points for the President to make a reference to a larger Bench.
That the President has ample power to refer a case to a larger Bench is not in doubt in view of sub section (5) of section 129 C, which we have set out above.
That provision clearly says that in the event of the members of a Bench differing in opinion on any point, and the members are equally divided, the case shall be referred to the President for hearing on any such point by one or more of the members of the Tribunal, and such point shall be decided according to the opinion of the majority of the members.
It is true that sub section (5) refers to difference of opinion arising amongst members of a Bench in a particular case, and not specifically where the members of a Bench doubt the correctness of an earlier decision.
However, section 129 C confers power of reference upon the 796 President.
That power should be construed to be wide enough to enable the President to make a reference where members of a Bench find themselves unable to decide a case according to What they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree.
In such cases, it is necessary for the healthy functioning of the Tribunal that the Presi dent should have the requisite authority to refer the case to a larger Bench.
That is a power which is implied in the express grant authorising the President to constitute Bench es of the Tribunal for effective and expeditious discharge of its functions.
In our view, the Bench of two members acted within their power in stating the points of law which required clarifica tion and the President acted equally within the bounds of his power in constituting larger Bench to hear and decide those points.
In the circumstances, we set aside the impugned judgment of the High Court.
The appeal is allowed with costs here and in the High Court.
T.N.A. Appeal allowed.

Output:
The respondent imported certain goods and claimed in its Bills of Entry that the imported goods fell under Tariff Item No. 84.60.
The Customs Authorities rejected the claim by holding that the goods were classifiable under Tariff Item No. 73.15(2).
The respondents preferred an appeal before the Collector of Customs which was also dismissed.
Thereafter, the respondent filed a second appeal before the Customs, Excise and Gold (Control) Appellate Tribunal con tending that in view of the earlier decision of a Bench of three members of the Tribunal in Bakelite Hylam Ltd. Bombay E.L.T. 240 an identical classification ought to have been adopted by the Customs authorities for identical goods.
By its order dated 22.10.1986 a Bench of two members of the Tribunal stated that they doubted the correctness of the earlier decision of a Bench of the three members of the Tribunal and they referred the case to the President of the Tribunal for constituting a larger Bench.
By its order dated 4.3.1987 the President of the Tribunal referred the case to a larger Bench of five members.
The respondent filed a writ petition in the High Court challenging the orders of the Bench of two members and that of the President of the Tribunal, which struck down both the orders by holding that the Bench of two members ought to have followed the earlier decision of the larger Bench of 3 judges and a reference of the case to a still larger Bench was contrary to judicial precedent and judicial discipline.
In appeal to this Court, it was contended on behalf of the Union of India that Section 129 C of the empowers the Presi 790 dent of the Tribunal to constitute larger Benches to resolve conflicts in opinion arising between members of a Bench or between Benches of the Tribunal.
The Tribunal has ample powers to regulate its own procedure, apart from the express provisions of the statute in that behalf.
On behalf of the respondent, it was contended that the Tribunal is a creature of the Statute.
Its jurisdiction is limited to the specific powers conferred by the statute.
It has no inherent jurisdiction and its powers are not plenary and are limited to the express provisions contained in the statute.
Allowing the appeal, this Court, HELD: 1.
There is no doubt that the Tribunal functions as a. Court within the limits of its jurisdiction.
It has all the powers conferred expressly by the statute.
Further more, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers.
Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised.
[794F G] 1.1 Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.
[795A] Maxwell on Interpretation of Statutes, Eleventh edition and Income Tax Officer, Cannanote vs M.K. Mohammad Kunhi, 15, referred to. 2.
It is true that sub section (5) refers to difference of opinion arising amongst members of a Bench in a particu lar case, and not specifically where the members of a Bench doubt the correctness of an earlier decision.
However, section 129 C confers power of reference upon the President.
That power should be construed to be wide enough to enable the President to make a reference where members of a Bench find themselves unable to decide a case according to what they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree.
In such cases, it is necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to a larger 791 Bench.
That is a power which is implied in the express grant authorising the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions.
[795H; 796A B] 2.1 It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question.
This is particularly true when the earlier decision is rendered by a larger Bench.
The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice.
Persons affected by decisions of Tribunals or Courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters.
Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the adminis tration of justice.
It is, however, equally true that it is vital to the administration of justice that those exercising judicial power must have the necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as an erroneous decision in the earlier case.
In such circum stances, it is but natural and reasonable and indeed effica cious that the case is referred to a larger Bench.
[795B E]


Input:
ON: Criminal Appeal No. 193 of 1974.
Appeal by Special Leave from the Judgment and order dated 1 3 1974 of The Delhi High Court in Criminal Appeal No. 119/72.
Frank Anthony, N. section Das Bahl and Shushil Kumar for the appellant.
E. C. Agarwala and R. M. Sachthey for the Respondent.
ii The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The appellant before us was convicted by the learned Special Judge, Delhi of an offence under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 Indian Penal Code, and sentenced to suffer rigorous imprisonment for a period of one year on each count.
He was also sentenced to pay a fine of Rs. 100/ .
The conviction and sentence were confirmed by the High Court and the appellant has come up in appeal by special leave.
The prosecution case briefly was as follows: P.W. 6 Ram Niwas Sharma, an Architect by profession prepared building plans for one M.L. Batla and submitted them to the Delhi Development Authority for sanction.
The plans were submitted on 6th May, 1969.
They were rejected on 26th May, 1969.
Revised plans were thereafter submitted on 16th June, 1969.
Certain objections were raised and in order to comply with those objections P.W.6 went to the office of the Delhi Development Authority on 11 7 1969.
He met the accused who was overseer Section officer and asked him to be permitted to make necessary corrections in the building plans.
Instead of giving the file to P.W.6 the accused demanded a sum of Rs. 30/ as bribe.
P.W.6 told him that he did not have the money with him whereupon the accused asked him to come on 14th July, 1969, in the afternoon with the money.
On 1 4th July, 1969.
P.W.6 went to the AntiCorruption office at about 12 noon and 332 gave a report exhibit P.W.1/A to P.W.9, an Inspector of the Anti Corruption Establishment.
P.W.9 sent for P.Ws. 1 and 2 from the Sales Tax office.
The report made by P.W.6 was read over to them.
Thereafter, P.W.6 produced three ten rupee notes, the numbers of which were noted by P.W.9 in the presence of the Panch witnesses P.Ws. 1 and 2.
Thereafter it was arranged that they should all proceed to the office of the Delhi Development Authority.
There P.W. 5 was to give the bribe to the accused and on his giving the bribe to the accused, P.W. l was to give a signal to P.W. 9.
As arranged P.W.6 went to the office of the Delhi Development Authority alongwith Panch witnesses.
The Inspector stopped at the door of the room.
P.W.6 went to the table of the accused and asked him for the file for the purpose of making necessary corrections in the building plans.
The accused asked him if he has brought the money.
On his saying 'yes ' the file was taken out and given to P.W. 6.
As there were a number of other files on the table the accused, P.W. 6 took the file to another table at a distance of one or two paces from the table of the accused.
After making the corrections P.W. 6 handed over the file to the accused alongwith Its. 30/ .
Instead of taking the money the accused asked P.W. 6 to place the money in the file which he accordingly did.
The accused ' then took the file and placed it under the table, putting his foot on it.
At that stage P.W. 1 gave the agreed signal.
P.W. 9 came to the room, disclosed his identity to the accused and questioned him whether he had accepted Rs. 30/ from P.W. 6.
The accused was stunned and kept mum.
P.W. 9 was then informed by P.W. 6 and the two panch witness that the money was kept in the file under the foot of the accused.
P.W. 9 then took out the file and found the sum of Rs. 30/ in the file.
The numbers of the currency notes were compared with the numbers earlier noted at the Anti Corruption office.
Thereafter, r w. g sent the raid report.
On receipt of it, P.W. 7, Deputy Superintendent of Police took over the investigation.
After completing the investigation, a charge sheet was laid and the accused was duly tried, convicted and sentenced as aforesaid.
The defence of the accused was that P.W. 6 met him on 11th July, 1969 and.
wanted to make some corrections.
He told him that he should file the original sale deed.
P.W. 6 then said that he should come on Monday with the original sale deed.
On 14th July 1969, P.W. 6 came to his office and wanted the file for making the necessary.
corrections.
He took out the file and gave it to P.W 6.
P.W. 6 took the file to another table and brought it back to him after Or 3 minutes.
According to the accused, P.W. 6 must have put the money into the file when he had taken the file to the other table.
When the Police officer came in and questioned him about the receipt of the 333 bribe his straight away told him that he had not taken any money from P.W. 6.
According to the accused, P.W. 6 was annoyed with him on 11th July, 1969, as he thought that he (accused) was delaying his work.
He also stated that Mr. Batla the owner of the plot had threatened him with dire consequences because he had raised objections to the plans submitted by him.
Both the Panch witnesses examined by the prosecution did not fully support the prosecution case.
They resiled from the earlier statement made by them during the course of investigation.
P.W. 1 stated that when P.W. 6 went into the room where the accused was working there was some talk between P.W. 6 and the accused but he did not hear what it was.
He saw the accused taking out the file from the Almirah and giving it to P.W. 6.
P.W. 6 took it to another table and was writing something in the file.
Then he took back the file to the accused.
The accused was busy with his own work.
The complainant placed three ten Rupee notes in the file and handed over the file to the accused who placed it under the table near his feet.
P.W.6 signalled to him and he gave the agreed signal.
The Inspector then entered the room and questioned the accused about the receipt of the bribe.
The accused denied the charge.
He (P.W.1) then informed the Inspector that the money was in the file.
The money was recovered from the file.
The prosecution was permitted to cross examine him.
In cross examination his earlier statements to the Investigating officer were put to him.
He admitted in cross examination that when questioned by the Inspector the accused kept silent for some time as he was perplexed but thereafter told the Inspector that he had not taken any money.
The evidence of the other witness P.W. 2 was on the same lines as P.W. 1 except that he stated that when questioned by the Inspector the accused kept mum and was perplexed.
P.W. 2 was also cross examined by the prosecution and the statements made by him to the Investigating officer were put to him.
Shri Frank Anthony learned Counsel for the appellant submitted that the conviction was based on the uncorroborated testimony of P.W. 6 and that it should, therefore, be quashed.
He urged that Batla, Advocate who had employed P.W.6 as an Architect had been convicted in a Criminal case and that the present complaint was inspired by Batla who had previously threatened the accused with direct consequences.
He pointed out that P.Ws. 1 and 2 stated in their evidence that Batla was actually present in the Anti Corruption office when they were called there by the Inspector.
He invited our attention to the circumstance that some persons were standing near the table of the accused at the time when the bribe was supposed to have been given 334 and argued that it was most unlikely that the accused would have demanded and accepted the bribe when so many people were nearby. 'the learned Counsel further urged that the evidence of P.W.6 that he went to the office of the D.D.A. at 3 or 3.15 p.m.
On 11th July, 1969 could not be true as the noting on the file showed that the file was received at 4.45 p.m.
It was also contended that the lower Courts had erred in law in relying upon the statements made by P.Ws. 1 and 2 to the Police.
It was argued that the evidence of P.Ws. 1 and 2 rendered the evidence of P.W.6 entirely unacceptable.
It was further contended that the lower Courts were wrong in treating the conduct of the accused when questioned by the Police officer as a circumstance against him.
We are unable to agree with the submission of Shri Anthony that no conviction can ever be based on the uncorroborated testimony of a person in the position of P.W.6 who, for the sake of felicity may be described as a "trap witness '.
That a trap witness may perhaps be considered as a person interested in the success of the trap may entitle a Court to view his evidence as that of an interested witness.
Where the circumstances justify it, a Court may refuse to act upon the uncorroborated testimony of a trap witness.
On the other hand a Court may well be justified in acting upon the uncorroborated testimony of a trap witness if the Court is satisfied from the facts and circumstances of the case that the witness is a witness of truth.
Shri Anthony referred us to the decisions of this Court in Ram Prakash Arora vs The State of Punjab,(1) and Darshan Lal vs The Delhi Administration.(3) In the first case Grover, J., observed as follows: "It must be remembered that both Joginder Singh and Dalbir Singh P.Ws. were interested and partisan witnesses.
They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person".
All that Grover J., said was that in an appropriate case corroboration may be sought and not that corroboration should invariably be sought In the particular case it was found that the witnesses could not be implicitly relied upon and, therefore, corroboration was necessary.
In the second case a string of circumstances was noticed which made it necessary that evidence of the witnesses who had laid the trap should not be acted upon without independent corroboration.
This (1) A.I.R. 1973 S.C. 498.
(2) A.I.R. 1974 S.C. 218.
335 decision also does not lay down that the uncorroborated testimony of a trap witness can never be acted upon.
That the law did not require any such corroboration was laid down in The State of Bihar.
vs Basawan Singh(1), and Bhanuprasad Hariprasad Dave and Anr vs The State of Gujrat (2).
In Bhanuprasad 's case it was observed by Hegde J., as follows: (at p. 1326): "Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention.
The utmost that can be said against Ramanlal, the Dy.
S.P., Erulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them.
It cannot be said and it was not said that they were accomplices.
Therefore the law does not require that their evidence should be corroborated before being accepted as sufficient to found a conviction".
We have carefully gone through the evidence of P.W. 6.
After perusing the evidence of P.W. 6 we are left with the impression that P.W. 6 is a truthful witness, an impression which we share with the High Court, the final Court of fact.
He has given evidence in a straight forward manner and was unshaken in cross examination.
We are unable to discover any reason to discredit his testimony.
The suggestion which was made to him was that he was aggrieved with the accused as he thought that he was unnecessarily raising objections, That he had a hot altercation with him and that he went to the Anti Corruption office with the help of Shri Batla.
The suggestions are without substance.
P.Ws. 1 and 2 no doubt stated that Shri Batla was present in the Anti Corruption office when they were called there by P.W. 9, the Inspector.
We do not have the slightest doubt that P.Ws. 1 and 2 are not truthful witnesses and that they have given evidence in order to accommodate the accused.
Their evidence on important particulars was contradicted by their earlier statements to the Police.
Here we may refer to the grievance of Shri Anthony that the Trial Judge and the High Court treated the statements made by P.Ws. 1 and 2 to the Police as substantive evidence.
There is no justification for the grievance.
The witnesses, who were treated as hostile by the Prosecution were confronted with their earlier statements to the Police and their evidence was rejected as it was contradicated by their earlier statements.
Such use of the statements (1) ; (2) ; 336 is premissible under section 155 of the Evidence Act and the proviso to section 162(1) of the Code of Criminal Procedure read with section 145, Evidence Act.
Corroboration to the evidence of P.W. 6, if considered necessary, may be found in the following circumstances: First, his evidence is corroborated by the report Exh.
PW. 1/A which he gave to P.W. 9 that day.
Second, his evidence is corroborated by the conduct of the accused when he was questioned by P.W. 9.
P.W. 6 stated that when P.W. 9 entered the room and questioned the accused whether he had accepted Rs. 30/ from him, the accused was stunned and did not reply.
P.W. 9 also stated that the accused kept mum when challenged.
P.W. 2 stated that the accused did not reply and kept mum but added that the accused was perplexed.
Though P.W. 1 first stated in his chief examination that the accused, when questioned denied having received any bribe, later he reluctantly admitted ill cross examination that the accused kept silent for some time as he was perplexed and then denied that he had received any bribe.
The immediate reaction of the accused on being questioned by P.W. 9 is a circumstance which corroborates the testimony of P.W. 6.
another a circumstance which corroborates the testimony of P.W. 6 is that the accused was ready with the file and handed it over to P.W. 6 as soon as he asked for it, indicating thereby that the statement of P.W. 6 that the accused had asked him to come on the afternoon of 14th July, 1969, was true.
Yet another important circumstance which corroborates the evidence of P.W. 6 is that after P.W. 6 handed over the file to the accused he kept it under the table.
It was contended by the learned Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by Section 167 Criminal Procedure Code.
He relied on a decision of the Andhra Pradesh High Court in D. V. Narasimhan vs State.(1) We do not agree with the submissions of Shri Anthony.
There is a clear distinction between The conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police officer in the course of an investigating which is hit by Section 162 Criminal Procedure Code.
What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police officer during (1) A.I.R. 1969 A.P. 271.
337 the course of an investigation.
For example, the evidence of the circumstance, simpliciter, that an accused person led a Police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act [vide Himachal Pradesh Administration vs Om Prakash(1).
The decision of the Andhra Pradesh High Court on which Shri Anthony placed reliance does not support his contention. 'where the learned Judges were not prepared to go into the question whether the evidence relating to the conduct of the accused was admissible as that question did not directly arise for consideration.
On the other hand in Zwinglee Ariel vs State of Madhya Pradesh(2), this Court appeared to be inclined to hold that evidence to the effect that the accused started trembling and showed signs of being frightened on being;, questioned by the Police officer, if proved, was admissible, and, in Rao Shiv Bahadur Singh and Anr.
vs State of Vindhya Pradesh(3), and, State of Madras vs A. Vaidyanatha Iyer(4), this Court actually relied on evidence relating to the conduct on the accused on being confronted by the Police officer with the allegation that he 'had received a bribe.
In Rao Shiv Bahadur Singh case the evidence relating to conduct on which reliance was placed was to the effect that the accused was confused and could furnish no explanation when questioned by the Police officer.
In Vaidyanatha Iyer 's case also evidence to the effect that the accused was seen trembling and that he silently produced the notes from the folds of his dhoti was acted upon.
We, therefore, do not see any reason to rule out the evidence relating to the conduct of the accused, which lends circumstantial assurance to the testimony of P.W. 6.
On a consideration of the entire evidence we arc satisfied that the appellant was rightly convicted.
The other points mentioned by Shri Anthony are of a minor character and do not warrant any interference under Article 136 of the Constitution.
The appeal is accordingly dismissed.
M.R. Appeal dismissed.
(1) ; (2) A.I.R. 1954 S.C. 15.

Output:
Prakash Chand an overseer Section officer in the Delhi Development Authority office, was charged under section 5(1)(d) read with 8.
5(2) of the Prevention of Corruptions Act and section 161 IPC, for demanding and accepting Rs. 30/ bribe from the trap witness Ram Niwas Sharma.
an architect, for permitting him to make some necessary corrections in the building plans submitted by him to comply with certain objections raised by the D.D.A. On a report by Shri Sharma, an Inspector of Anti Corruption Establishment, accompanied him to the D.D.A office, with two panch witnesses and on receiving a pre arranged signal, entered the room and challenged the accused who was stunned and kept mum.
Then three pre marked ten rupees notes were found in the file dealing with Sharma 's matter, the file was found under the table and the accused had his foot on it.
The panch witnesses did not fully support the prosecution csse.
They resiled from their earlier statements made in the course of investigation were treated as hostile by the prosecution, and were disbelieved by the Court.
The accused was duly tried, convicted and sentenced, and the conviction was upheld by the High Court.
It was contended that the uncorroborated testimony of a trap witness was not sufficient to found the conviction? and also that the evidence relating to the conduct of the accused when challanged by the police inspector was excluded by.
section and was inadmissible in evidence.
Dismissing the appeal, the Court ^ HELD: (1) We are unable to agree that no conviction can ever be based on the uncorroborated testimony of a "trap witness".
Where the circumtance justify it, a court may refuse to act upon the uncorroborated testimony of a. trap witness.
On the other hand a court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the court is satisfied from the facts and circumstances of the case that the trap witness is a witness of truth.
[334C E] The State of Bihar vs Basawan Singh, ; , and Bhanuprasad Hariprasad Dave & Anr.
vs The State of Gujarat, ; , applied.
Ram Prakash Arora vs The State of Punjab, AIR 1973 SC 498 and Darshan Lal vs The Delhi Administration, AIR 1974 SC, 218; differentiated.
The conduct of a person against whom an offence is alleged, is admissible under s.8 of the Evidence Act.
What is excluded by s.162 Cr.
P.C is the 331 Statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer, during she course of an investigation.
[336G H, 337A] D. V. Narasimluan vs State, AIR 1969 A.P. 271, held inapplicable.
Himachal Pradesh Administration vs Om Prakash, ; and Zwinglee Ariel vs State of M.P., AIR 1954 SC 15; reaffirmed.
Rao Shiv Bahadur Singh & Anr.
vs State of Vindhya Pradesh, ; and State of Madras v.A. Vaidyanatha Iyer; , , applied.


Input:
Appeal No. 229 of 1953.
Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated the 16th December 1952 of the Bombay High Court in Appeal No. 110 of 1952.
M. C. Setalvad, Attorney General of India (Porus 110 868 A. Mehta and R. H. Dhebar, with him) for the appellant.
Rajinder Narain for the respondent.
October 4.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
Was the Government of Bombay entitled, under ' clause (a) of sub section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948), to requisition , as for a public purpose, certain premises for "housing a member of the staff of a foreign consulate"?, is the question we have to consider in this appeal, which has arisen out of a writ petition filed under article 226 of the Constitution by the respondent in the Bombay High Court to restrain the State of Bombay from taking such action.
On the bearing of the petition before Tendolkar, J. the State succeeded on the ground that the purpose for which the requisition was made was a "public purpose" within, the meaning of the Act.
But, on appeal, it was held that though the requisition was for a public purpose, the requisition order was invalid, 'as the public purpose must be either a purpose of the Union, or a purpose of the State and in this particular case the accommodation being required for housing a member of a foreign Consular staff was a Union purpose, which was outside the scope of the powers of the State.
Clause (a) of sub section (4) of section 6, omitting portions unnecessary for our present purposes, runs, in these terms: "The State Government may, by order in writing, requistition the premises for the purpose of a State or any other public purpose, and may use or deal with the premises for any such purpose in such manner as may appear to it to be expedient".
The validity of the Act is not questioned as un constitutional or as beyond the scope of the legislative competence of the State.
As the premises were required for housing a member of the staff of a Con 869 sulate, there can be no doubt that it was wanted for a public purpose.
The ultimate source of authority to requisition or acquire property is be found in arcticle 31 of the Constitution.
The requisition or acquisition must be for a public purpose and there must be compensation.
This article applies with equal force to Union legislation and State legislation.
Items 33 and 36 of List I & List II of the Seventh Schedule to the Constitution empower respectively Parliament and the State Legislatures to enact laws with respect to them.
The reasoning by which the learned appellate Judges of the Bombay High Court reached their conclusion is shortly this There can be no public purpose, which is not a purpose of the Union or a purpose of the State.
There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the State".
The provision of accommodation for a member of the foreian consulate staff is a "purpose of the Union" and not a "purpose of the State".
We are unable to uphold this view as regards both the standpoints.
Item 33 in the Union Legislative List (List I)refers to "acquisition or requisitioning of property for the purposes of the Union".
Item 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III".
Item 42 of the Concurrent Legislative List (List III) speaks of "the purpose of the Union or of a State or for any other public purpose".
Reading the three items together, it is fairly obvious that the categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose.
Though every state purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquesition or requisition, is neither the one nor the other but a public purpose.
Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a 'Public purpose, 870 though it will not strictly be a State or Union purpose.
When we speak of a State purpose or a Union purpose, we think of duties and obligations cast on the State or the Union to do particular things for the benefit of the public or a section of the public.
Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at 'heart, will fall within the third category above.mentioned.
With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the court below for reaching the result that the words "any other public purpose" 'are restricted to a public purpose which is also a purpose of the State., has scarcely any application.
A part from the fact that the rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applie If the words "any other public purpose" in the Statute in question have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.
Even if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a Union purpose and not a State purpose.
Item I 1 in the Union list specifies "diplomatic, consular and trade representation" as one of the subjects within the legislative competence of Parliament, and under article 73 of the Constitution, the executive power of the Union shall extend to all such matters.
It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate.
It was conceded by Mr. Rajinder Narain, Counsel for 871 the Respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador.
The trade and commerce of the State which appoints him with the State in which he is located are his primary concern.
The State of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.
We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.
In any event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.
There is another way of looking at the question involved.
An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a gene ral public purpose.
In this view also, the requisition in this case must be held to have been validly made.
For the reasons given above, the appeal is allowed and the order of Tendolkar J. is restored with costs payable to the appellant by the respondent throughout.

Output:
Held, that the Government of Bombay was entitled, under clause (a) of sub section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948) to requisition as for a public purpose, certain premises for 'housing a member of the staff of a foreign consulate '.
The purpose for which the requisition was made was a "public purpose" within the meaning of the Act; and the requisition was made in this case more as a State purpose than as a Union purpose.
In any event "other public purpose", is a category distinct from "Union purpose" and "State purpose" and the acquisition or requisitioning of property by the State except for the purpose of the Union, is within its competence under item 36 of the State List.
An undertaking may have three different facets or aspects and may serve the purpose of a State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the accommodation of a member of a consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose.
Therefore on this view also, the requisition in the present case must be held to have been validly made.
Courts should lean against a construction which would render words in a statute mere surplusage.


Input:
Appeal No. 2177 of1966.
Appeal by special leave from the judgment and order dated July 12, 1963 of the Mysore High Court in Writ Petition No. 1076 of 1962.
Veda Vyasa, R. Ganapathy Iyer, R. N. Sachthey and section P. Nayar, for the appellant.
R. Gopalakrishnan, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The respondents a Hindu undivided family were assessed for the assessment year 1949 50 to tax under s ' 23 of the Mysore Income tax Act on a total income of Rs. 10,100/ The Second Additional Income tax Officer (Urban Circle), Bangalore, commenced a proceeding under section 34 of the Mysore Income tax Act for re assessment of the income of the respondents for the 7 assessment year 1949 50, and served a notice in that behalf on March 6, 1951.
On May 21, 1954 the Income tax Officer determined the respondents ' total income at Rs. 75,957/ .
In appeal against the order, the Appellate Assistant Commissioner of Income tax. 'A ' Range, Bangalore, by order dated November 4, 1961, set aside the order and directed the Income tax Officer to make a fresh assessment after making inquiries on certain matters specified in the order.
At the request of the respondents under section 66(2) of the Mysore Income tax Act, the Commissioner of Income tax, Mysore, referred the following questions to the High Court of Mysore: "1.
On the facts and in the circumstances of the assessee 's case whether within the meaning of section 34 of the Mysore Income tax Act, if a notice under that section is issued within the prescribed period, whether the Income tax Officer can proceed to assess or re assess such escaped income after four years from the close of the assessment year? 2.
On the facts and in the circumstances of the case, whether the Appellate Assistant Commissioner of Incometax is competent to set aside and give directions to the Income tax Officer to re do the assessment in the manner the Appellate Assistant Commissioner of Income tax has done?" At the hearing of the reference, the respondents did not press the first question, and the High Court answered the second question in the affirmative.
The Income tax Officer commenced inquiry directed by the Appellate Assistant Commissioner.
The respondent , then applied to the High Court of Mysore for issue of a writ of prohibition restraining the Income tax Officer from continuing the assessment proceeding for the year 1949 50 on the plea that the proceeding was because of expiry of the period of limitation barred.
The High Court of Mysore upheld the contention of the respondents and allowed the petition.
In the view of the High Court the provisions of section 34 of the Mysore Income tax Act were "more or less similar to Rule 34 of the Mysore Sales Tax Act, 1948.
Hence the present case clearly comes within the rule laid down by this Court in M/s K. section Subbarayappa and Sons vs State of Mysore [(1952)] Mysore L. J. 2341 which means that the present proceedings are barred".
The Commissioner of Income tax has appealed to this Court with special leave.
The question arising in this appeal must, it is common ground, be determined in the light of the provisions of the Mysore Incometax Act, 1923.
Even after the merger of the State of Mysore with 8 the Union of India a proceeding for assessment of income tax relating to the assessment year 1949 50 has to be heard and disposed of under the Mysore Act.
Section 34 of the Mysore Incometax Act reads as follows "If for any reason, profits or gains chargeable to income tax have escaped assessment in any year, or have been assessed at too low a rate, the Income tax Officer may, at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or in the case of a company, on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22, and may proceed to assess or re assess such income, profits or gains and the provision of this Act shall, so far as may be, apply according as if the notice were a notice issued under that sub section".
A proceeding for re assessment under section 34 of the Mysore Act may be commenced if two conditions co exist: (i)that the profits and gains chargeable to income tax have escaped assessment or have been assessed at too low a rate, and (ii) the notice is served within four years of the end of the year of assessment.
But if a proper notice is served within the period provided by the section, the proceeding may be completed even after the expiry of four years from the close of the assessment year, for the Act prescribes no period for completion of the proceeding.
A notice for re assessment was in fact served on the respon dents on March 6, 1951 under section 34 of the Mysore Act.
That notice was served within four years of the end of the year of assessment 1949 50, and the Income tax Officer was of the view that tie profits or gains chargeable to income tax had escaped assessment in the year 1949 50.
It is true that the Appellate Assistant Commissioner vacated the order of assessment dated May 21, 1954, but he did not set aside the notice served upon the respondents.
He merely remanded the case for further inquiry to be made in the light of the directions given by him.
It is difficult to appreciate the grounds on which it could be held that the proceeding for re assessment to tax the income which had escaped assessment in the year 1949 50 commenced after due notice served on March 1951 was barred.
The High Court was, in our judgment, plainly in error in holding that the proceeding for re assessment was barred.
It must also be remembered that the respondents had under an order of the Commissioner obtained a reference on the first question set out hereinbefore.
That question was not pressed before the High Court, and it must be deemed to have been answered 9 against the respondents.
That question could not thereafter be reagitated by the respondents in a petition for the issue of a writ under article 226 of the Constitution.
The appeal is allowed.
The order passed by the High Court is set aside.
The respondents will pay the costs of the Commissioner in this Court and in the High Court.
Appeal dismissed.

Output:
The Income tax Officer, Bangalore commenced a proceeding under section 34 of the Mysore Income tax Act for reassessment of the income of the respondents for the assessment year 1949 50 and served a notice in that behalf in March 1951, on the respondents.
The Income tax Officer determined the total income of the respondents in May 1954, but the order was set aside by the Appellate Assistant Commissioner in November 1961, and the Income tax Officer was directed to make a fresh inquiry, When the Income tax Officer commenced inquiry, the respondents applied to the High Court for a writ of prohibition and the High Court passed an order restraining the Income tax Officer on the ground that the assessment proceeding was barred because of the expiry of the period of limitation.
In appeal to this Court, Held: The High Court was in error, because, though the Appellate Assistant Commissioner vacated the Income tax Officer 's assessment order of 1954 and remanded the case for further inquiry, the Appellate Assistant Commissioner did not set aside the notice of March 1951 served on the respondents, If a proper notice was served within the period provided by the section (four years from the close of the assessment year) the proceeding could be completed even after the expiry of four years for the Act prescribes no period for completion of the proceeding.
[8E G]