The appeal of the workman is allowed. The judgment and orders of the learned single Judge and the Division Bench of the High Court are hereby set aside and the award of the Labour Court is restored in so far as the order of reinstatement is concerned; The respondent-Department is further directed to reinstate the workman in his post and pay 25% back-wages from the date of termination till the date of award passed by the Labour Court and full salary from date of award passed by the Labour Court till the date of his reinstatement by calculating his wages/salary on the basis of periodical revision of the same within six weeks from the date of the receipt of the copy of this judgment.

                         IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3701 OF 2015
                   (Arising out of SLP (c) 30561 of 2014)

GAURI SHANKER                          ............ APPELLANT
      Vs.
STATE OF RAJASTHAN                     ............ RESPONDENT

                               J U D G M E N T

V. GOPALA GOWDA, J.

    Delay condoned. Leave granted.

This appeal is directed  against  the  impugned  judgment  and  order  dated
4.4.2014 passed by the High Court  of Judicature of Rajasthan at Jodhpur  in
D.B. Civil Special Appeal (Writ) No. 54 of  2014,  wherein  the  High  Court
declined to interfere with the order dated 18.11.2013 of the learned  single
Judge passed in S.B. Civil Writ  Petition  No.  4253  of  2002  wherein  the
learned single Judge proceeded to consider the writ petition  filed  by  the
respondent-Department against  the  award  dated  28.6.2001  of  the  Labour
Court, Bikaner in Labour Dispute Case NO. 94  of  1994  whereby  the  Labour
Court  after  adjudication  of  the  points  of  dispute   held   that   the
retrenchment of the appellant-workman (for short  "the  workman")  from  his
services with effect from 1.4.1992 is improper and invalid and directed  the
employer for the reinstatement of the workman in his post.

Brief resume of facts are stated hereunder for the purpose  of  appreciating
the rival legal contentions to examine whether  the  impugned  judgment  and
orders passed by the Division Bench  of  the  High  Court  and  the  learned
single  Judge  warrant  interference  by  this  Court  in  exercise  of  its
appellate jurisdiction.

The workman was working in the  respondent-Forest  Department,  Chattargarh,
District  Bikaner  at  Rajasthan   State   (for   short   'the   respondent-
Department'). It is the case of the workman that he  was  appointed  against
the permanent and  sanctioned  post  with  effect  from  1.1.1987  till  his
services came to be retrenched, i.e. on 1.4.1992 and  has  rendered  service
of more than 240 days in every calendar year and has  received  salary  from
the respondent-Department each month. The workman aggrieved by the order  of
retrenchment passed by the respondent-Department has  raised  an  industrial
dispute questioning the correctness of the order in removing  him  from  his
service inter alia contending that the same is in violation of Sections  25F
Clauses (a) and (b), 25G and 25H of the Industrial Disputes Act, (for  short
"the Act"), therefore, the retrenchment of the workman from his  service  is
void ab initio in law and prayed for  setting  aside  the  same.  The  State
Government in exercise of its power referred the industrial dispute  between
the workman and the respondent-department to the Labour Court, Bikaner  vide
Notification No. P.1(1) [2234]Shrm Ni/93 dated  28.1.1994  for  adjudication
of the following points of dispute:-

"Whether removal of workman Gauri Shankar son  of  Bhairuan  (who  has  been
represented by the General Secretary,  Forest  Labour  Union,  Tyagi  Vatika
Jailwell,  Bikaner)  by  the  Employer,  Deputy   Conservator   of   Forest,
Chhattargarh, Bikaner is just and legal? If no, to what  relief  and  amount
the workman is entitled to?"

On receipt of the reference, both the parties filed their  respective  claim
statements in justification of their respective cases. It  is  the  case  of
the workman before the  Labour  Court  that  he  has  been  appointed  as  a
permanent workman in the permanent post  of  the  respondent-Department  and
that he has worked from 1.1.1987 till his termination from 1.4.1992  and  he
has been paid his salary on daily wage  basis  every  month  mentioning  his
name as a daily wage earner in the muster roll. The service of  the  workman
was retrenched by the respondent-Department allegedly  because  he  did  not
agree to join the new Union as per the  recommendation  of  the  respondent-
Department. It is contended on behalf of the workman that his  removal  from
service by the respondent-Department is otherwise misconduct on the part  of
the respondent-Department and  therefore,  it  amounts  to  retrenchment  as
defined under Section 2(oo) of the Act. Before  removing  the  workman  from
his services the respondent-Department neither published any seniority  list
nor followed the rule of first come last go and thereby there is  a  blatant
violation of Rules 77-78 of Rajasthan Industrial Disputes  Rules,  1958.  It
is also further stated that before  removing  him  from  the  services,  the
respondent neither issued one month's notice nor paid one month's wages  nor
obtained permission from the State  Government  to  retrench  him  from  the
services and also did not  pay  retrenchment  compensation  as  per  Section
25F(b) of the Act to the workman. Further, it is contended that the  act  of
the employer amounts to unfair labour  practice  as  defined  under  Section
2(ra) and prohibited under Section 25T of the Act for which the  respondent-
Department is liable for penal action as provided under Section 25U  of  the
Act. Therefore, the retrenchment of the workman is bad in law, as  the  same
is in blatant violation of Sections 25F, 25G, 25H, 25T and 25U  of  the  Act
and therefore, the order of retrenchment is rendered void ab initio in law.

The respondent-Department filed its reply statement denying the  claim  made
by the workman and stated that he was not appointed on any  post,  the  work
place as stated by him is at Dandi site of Sattasar Range  and  that  during
the period of last one year before the  alleged  retrenchment   he  has  not
worked even for a  day.  Further,  it  is  contended  that  the  respondent-
Department has not constituted any Union and that the  workman  was  neither
retrenched nor any provision of the Act and Rules have been  contravened  as
stated by  him  in  his  claim  petition.  Further,  it  is  stated  by  the
respondent-Department that from the perusal of  the  Government  record,  it
has been found that the workman has not worked even for  a  day  during  the
year 1991, and that he worked on casual  basis  in  November,  1988  for  26
days, in October, 1989 for 26 days, in  September,  1989  for  26  days,  in
June, 1989 for 26 days and in March, 1989 for 24 days and  that  in  between
these periods the workman was absent from work on his own  volition.  It  is
further contended by the respondent-Department that after November, 1989  up
to the date of retrenchment he has never been engaged for work and  did  not
attend for work without giving any  prior  notice/information  that  he  has
left the job on his own.  It  is  therefore  contended  by  the  respondent-
Department that it is neither an industrial dispute nor is the  appellant  a
workman and moreover, the  respondent-Department  is  not  an  industry  and
therefore, the dispute raised by the workman is not  an  industrial  dispute
and the Labour Court has no  jurisdiction  to  entertain  the  same.  It  is
further contended by  the  respondent-Department  that  there  has  been  an
extraordinary delay in raising the dispute,  without  assigning  proper  and
satisfactory explanation and the same is referred by  the  State  Government
to the  Labour  Court  for  its  adjudication.  Therefore,  the  respondent-
Department prayed for rejection of  the  order  of  reference  made  to  the
Labour Court.

Both the parties have adduced evidence before the Labour  Court  in  support
of their respective claim and counter claim. The Labour Court  has  examined
the evidence of the workman and the evidence of  Munnalal,  the  witness  of
the respondent-Department wherein, in his affidavit evidence he  has  stated
that the workman was posted as the Area Forest Officer  in  Sattasar  Forest
Division-Chattargarh from July, 1989 to May, 1991 and  further  stated  that
the contention of the workman that  he  was  removed  from  the  service  on
1.1.1991 is incorrect. It is further  elicited  in  his  evidence  by  cross
examination that there were many places of work and different  muster  rolls
were being used and maintained for each site and  he  has  further  admitted
that muster rolls of Dandi road site and Nursery (Dandi) both  are  separate
and muster rolls of Dandi road site were not produced. From the  submissions
made by the parties and perusal of the record,  the  Labour  Court  observed
that it  has  been  submitted  by  the  respondent-Department  that  in  the
reference of the industrial dispute there is  no  mention  of  the  date  on
which  the  workman's  services  were  dispensed  with  by  the  respondent-
Department and the one year prior  to  the  date  of  alleged  removal,  the
workman has not worked for a single day with the respondent-Department.  The
said contention of the respondent-Department was disbelieved by  the  Labour
Court and it has held that he has been removed  from  service  on  1.4.1992.
The Labour Court after referring to the judgments  of  this  Court  examined
the plea in the claim statements with regard to  the  date  of  removal  and
referred to the judgments of this Court in the cases of Madan Pal  Singh  v.
State of U.P. & Ors.[1], Samishta Dube v. City Board, Etawah &  Anr.[2]  and
H.D. Singh v. Reserve Bank of India & Ors.[3]  and on examining  the  muster
rolls of Dandi Nursery marked as Ext. M-1 to  25  it  was  held  to  be  not
proper.  Further,  it  has   held   that   the   respondent-Department   has
deliberately concealed the period of work of the workman in the  respondent-
Department though he has continuously worked  in  the  respondent-Department
from 1.1.1987 to March, 1992 i.e. for more  than  240  days  in  a  calendar
year. The Labour Court after hearing the parties and perusal of the  record,
adjudicated the points of dispute referred to it by answering  the  same  in
favour of the workman and holding that the respondent-Department  failed  to
comply with  the  mandatory  requirements  as  provided  under  Section  25F
clauses (a) and (b) and Sections 25G and 25H of the Act, therefore,  it  was
held by the Labour Court that the action of  the  respondent-Department  was
in contravention of the aforesaid statutory provisions of the Act and  Rules
77 and 78 of the Central Industrial Dispute Rules, 1957. Thus  it  was  held
by the Labour Court that the termination order passed  against  the  workman
is illegal and void ab initio in law and therefore, it has passed the  award
of reinstatement on 28.06.2001, but denied back-wages for  the  reason  that
he has not worked from 1.4.1992 till  passing  of  the  award.  Further,  on
account of the hardship and difficulties undergone  by  the  workman  during
the said period it has observed that he  is  entitled  for  compensation  of
Rs.2,500/- and he is also entitled for receiving salary  from  the  date  of
the award till the date of reinstatement.

The correctness of the award was challenged by the respondent-Department  by
filing a writ petition before the single Judge  of  the  High  Court  urging
certain legal grounds and questioned the  correctness  of  the  finding  and
reasons recorded by the Labour Court on the contentious points in the  award
holding that the workman has rendered 240 days of work in  a  calendar  year
and he has continuously worked from 1987 to  1992  and  prayed  for  setting
aside the same as it is erroneous in law by  placing  strong  reliance  upon
the Circular instructions dated 28.9.2012 and 23.10.2013 in relation to  the
industrial dispute cases for awarding compensation  of  Rs.2,500/-  for  the
hardship and difficulties suffered by the workman. The learned single  Judge
in his judgment observed that the Labour Court  arrived  at  the  conclusion
that the workman was discontinued from service from  1.4.1992,  and  further
the said finding is based on the conduct of the employer  in  not  producing
the relevant muster rolls maintained by them either before the Labour  Court
or before the learned single Judge of the High Court  or  without  assigning
any reason for non-production of the  relevant  records  which  must  be  in
possession and custody of the respondent-Department.

It was further observed by the single Judge that  the  workman  in  definite
terms has stated in his  affidavit  that  he  remained  in  service  of  the
respondent-Department till March  1992.  In  this  factual  background,  the
learned single Judge held that he did not find any fault  with  the  finding
rendered by the Labour Court that  the  workman  remained  in  service  till
March 1992 and that he was  retrenched  thereafter  from  his  service.  The
order of termination was held to be void ab intio in law  due  to  the  non-
compliance of the provisions of Sections 25F clauses (a) and  (b),  25G  and
25H of the Act and in normal course, its natural corollary is  reinstatement
in service. However, looking into the fact that the workman  was  retrenched
from his services back in March 1992 and that he was working just on  casual
basis, the learned single Judge held that the equities shall be balanced  by
awarding  compensation  of  Rs.1,50,000/-  in  lieu  of  reinstatement   and
accordingly, disposed of the case vide judgment and order dated  18.11.2013.
The correctness of the same is questioned by the workman  in  appeal  before
the Division Bench of the High Court. The Division Bench affirmed  the  said
view of the learned single Judge of  the  High  Court  vide  impugned  order
dated 04.04.2014. The correctness of the  same  is  challenged  before  this
Court urging various legal contentions.

The learned counsel for the workman  submits  that  once  the  Labour  Court
which is the fact finding court recorded the finding of fact  on  the  basis
of pleadings and evidence on record  and  answered  the  points  of  dispute
after adjudication of the same and held that the  termination  order  passed
against the workman is in violation of Sections 25F  clauses  (a)  and  (b),
25G and 25H of the Act, the High Court  has  exceeded  its  jurisdiction  in
exercise of its  Judicial  Review  power  under  Articles  226  and  227  of
Constitution of India in holding that the workman is a casual workman as  he
was intermittently working as a daily wage worker and therefore, he  is  not
entitled for reinstatement  as awarded by the Labour Court by following  the
principle of normal rule and further erroneously has  awarded  reinstatement
of  the  workman  and  compensation  of  Rs.2,500/-  for  the  hardship  and
difficulties suffered by him which is contrary  to  the  judgments  of  this
Court in a catena of cases.

It is further contended by the learned  counsel  that  the  High  Court  has
exceeded its jurisdiction in interfering with the finding of  fact  recorded
by the Labour Court on the points of dispute in  exercise  of  its  original
jurisdiction. The same  is  contrary  to  the  judgment  of  this  Court  in
Harjinder Singh v. Punjab  State  Warehousing  Corporation[4]  wherein  this
Court has referred to Syed Yakoob v. K.S. Radhakrishnan and Ors.[5].

The learned counsel for the respondent-Department has sought to justify  the
impugned judgment  contending  that  the  High  Court  in  exercise  of  its
extraordinary and supervisory jurisdiction has held that  he  was  a  casual
employee intermittently working with the  respondent-Department.  Therefore,
the compensation was awarded in lieu of  reinstatement  of  workman  in  his
post by applying the Circular instructions issued by the  State  Government;
the same need not be interfered with  by  this  Court  in  exercise  of  its
Jurisdiction as there is no mis-carriage of justice in the case on hand.

With reference to the aforesaid rival legal contentions urged on  behalf  of
the parties, we have to answer the following contentious issues  that  would
arise for our consideration :-

Whether the Labour  Court  was  justified  in  not  awarding  backwages  and
granting Rs.2,500/- as compensation in  lieu  of  backwages  though  it  has
awarded reinstatement in the absence of gainful employment of workman?

Whether the High Court in exercise of  its  supervisory  jurisdiction  under
Articles 226 and 227, is justified in interfering with the finding of  facts
recorded on the points of dispute recorded by the Labour Court in the  award
passed by it?

What award?

 The aforesaid contentious points are required to be answered in  favour  of
the workman for the following reasons:
     It is not in dispute that the workman was employed with the respondent-
Department in the year 1987 and on the basis of  material  evidence  adduced
by both the parties and in the  absence  of  the  non-production  of  muster
rolls on the ground that they are not available,  which  contention  of  the
respondent-Department is rightly not accepted by the  Labour  Court  and  it
has recorded the finding of fact holding that the workman  has  worked  from
1.1.1987 to 1.4.1992. The Labour Court  has  drawn  adverse  inference  with
regard to non-production  of  muster  rolls  maintained  by  them,  in  this
regard, it would be useful to refer to the judgment of  this  Court  in  the
case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif  &  Ors.[6]   wherein  it
was held thus:

"5. .........Even if the burden of proof does not lie on a party  the  Court
may draw an adverse inference if he withholds  important  documents  in  his
possession which can throw light on the facts at issue. It is  not,  in  our
opinion, a sound practice for those desiring to rely upon  a  certain  state
of facts to withhold from the Court the best  evidence  which  is  in  their
possession which could throw light upon the issues  in  controversy  and  to
rely upon the abstract doctrine of onus of proof.  In  Murugesam  Pillai  v.
Gnana Sambandha Pandara Sannadhi, Lord Shaw observed as follows:

"A practice has grown up in Indian  procedure  of  those  in  possession  of
important documents or  information  lying  by,  trusting  to  the  abstract
doctrine of the onus of proof, and  failing,  accordingly,  to  furnish  to,
the, Courts the best  material  for  its  decision.  With  regard  to  third
parties, this may be  right  enough-they  have  no  responsibility  for  the
conduct of the suit but with regard to the parties to the  suit  it  is,  in
their Lordships' opinion an inversion of sound practice for  those  desiring
to rely upon a certain state  of  facts  to  withhold  from  the  Court  the
written evidence in their  possession  which  would  throw  light  upon  the
proposition."

This passage was cited with approval by this Court in  a  recent  decision--
Biltu Ram & Ors. v. Jainandan Prasad &  Ors.  In  that  case,  reliance  was
placed on behalf of the defendants  upon  the  following  passage  from  the
decision of the Judicial Committee in Mt.  Bilas  Kunwar  v.  Desraj  Ranjit
Singh :-

"But it is open to a litigant to refrain from producing any  documents  that
he considers irrelevant; if the other litigant is  dissatisfied  it  is  for
him to apply for an affidavit of documents and he can obtain inspection  and
production of all that appears to him in such affidavit to be  relevant  and
proper. If he fails so to do, neither he nor the Court at his suggestion  is
entitled to draw any inference as to the contents of any such documents."

The said finding of the Labour Court is re-affirmed by  the  learned  single
Judge which also affirmed the finding that the  action  of  the  respondent-
Department in terminating the services of the workman w.e.f. 1.4.1992  is  a
case of retrenchment as defined under  Section  2(oo)  of  the  Act  as  the
termination of the services of the workman is otherwise  for  misconduct  by
the respondent-Department. Further, undisputedly the non-compliance  of  the
mandatory requirements as provided under  the  provisions  of  Sections  25F
clauses (a) and (b), 25G and 25H of the Act read with Rules  77  and  78  of
the relevant Rajasthan Industrial  Dispute  Rules,  1958  has  rendered  the
order of termination passed against the workman void ab initio in  law.  The
Labour  Court  in  the  absence  of  any  material  evidence  on  record  in
justification of the case of the respondent-Department has rightly  recorded
the finding of fact and held that the order of  termination  passed  against
the workman is bad in law, the same being void  ab  initio  in  law  it  has
passed an award for reinstatement of the workman in his post in exercise  of
its original jurisdiction under provision of Section  11  of  the  Act.  The
Labour Court has rightly followed the normal rule of  reinstatement  of  the
workman in his original post as it has found that the order  of  termination
is void ab-initio in law for non compliance with  the  mandatory  provisions
of the Act referred to supra. However, the Labour Court is  not  correct  in
denying backwages without assigning any proper and valid reasons though  the
employer did not prove either its stringent financial conditions for  denial
of back wages or that workman has been gainfully employed during the  period
from the date of order of termination till the award was  passed  in  favour
of the workman except granting Rs.2,500/- as compensation for the  suffering
caused to the workman. The same  is  erroneously  modified  by  the  learned
single Judge who recorded the finding of fact for the first time by  holding
that the  workman  is  a  casual  employee  intermittently  working  in  the
respondent-Department. The learned  single  Judge  of  the  High  Court  has
exceeded his jurisdiction under Articles 226 and 227 of the Constitution  of
India as per the legal principles laid down by this Court  in  the  case  of
Harjinder Singh (supra) wherein this Court has held thus:-
"17. Before concluding, we consider  it  necessary  to  observe  that  while
exercising jurisdiction under Articles 226 and/or 227  of  the  Constitution
in matters like the present one, the High Courts are duty bound to  keep  in
mind  that  the  Industrial  Disputes  Act  and  other  similar  legislative
instruments are social welfare legislations and the same are required to  be
interpreted keeping in view the  goals  set  out  in  the  preamble  of  the
Constitution and the provisions contained in Part IV thereof in general  and
Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that  the
State should secure a social order for  the  promotion  of  welfare  of  the
people, ensure equality between men and women and equitable distribution  of
material resources of the community to sub-serve the common  good  and  also
ensure  that  the  workers  get  their  dues.  More  than  41   years   ago,
Gajendragadkar, J, opined that "the concept of social and  economic  justice
is a living concept of revolutionary import;  it  gives  sustenance  to  the
rule of law and meaning and significance to  the  ideal  of  welfare  State"
- State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."

The said principle has been reiterated by this  Court  in  Jasmer  Singh  v.
State  Of  Haryana  &  Anr.  (Civil  Appeal  NO.  346  of  2015  decided  on
13.1.2015).

 Therefore, in view of the above said case,  the  learned  single  Judge  in
exercise of its powers under Articles 226 and 227  of  the  Constitution  of
India erroneously interfered with the  award  of  reinstatement  and  future
salary from the date of award till date of reinstatement as  rightly  passed
by the Labour Court recording valid and cogent  reasons  in  answer  to  the
points of dispute holding that the  workman  has  worked  from  1.1.1987  to
1.4.1992  and  that  non-compliance  of  the  mandatory  requirements  under
Sections 25F, 25G and 25H of the Act by the  respondent-Department  rendered
its action of termination of the services of the workman as void  ab  initio
in law and instead the High Court  erroneously  awarded  a  compensation  of
Rs.1,50,000/- in lieu of reinstatement. The learned  single  Judge  and  the
Division  Bench  under  their  supervisory  jurisdiction  should  not   have
modified the award by awarding compensation in lieu of  reinstatement  which
is contrary to the well settled principles of law laid  down  in  catena  of
cases by this Court.

In view of the foregoing reasons, the modified award passed by  the  learned
single Judge of the High Court which was affirmed by the Division  Bench  of
the High Court has rendered the impugned judgment and order bad  in  law  as
it suffers from not only erroneous reasoning  but  also  an  error  in  law.
Therefore, the same  are  liable  to  be  set  aside.  Hence,  we  pass  the
following order:-

The appeal of the workman  is  allowed.  The  judgment  and  orders  of  the
learned single Judge and the Division Bench of the  High  Court  are  hereby
set aside and the award of the Labour Court is restored in  so  far  as  the
order of reinstatement is concerned;

The respondent-Department is further directed to reinstate  the  workman  in
his post and pay 25% back-wages from the date of termination till  the  date
of award passed by the Labour Court and  full  salary  from  date  of  award
passed  by  the  Labour  Court  till  the  date  of  his  reinstatement   by
calculating his wages/salary on the basis  of  periodical  revision  of  the
same within six weeks from the date of the  receipt  of  the  copy  of  this
judgment.




        ..................................................................J.
                              [V.GOPALA GOWDA]



        ..................................................................J.
                              [C.NAGAPPAN]


  New Delhi,
  April 16, 2015.
-----------------------
[1]     (2000) 1 SCC 683
[2]     (1999) 3 SCC 14
[3]      1985 ( 4 )  SCC  201
[4]    (2010) 3 SCC 192
[5]    AIR 1964 SC 477
[6]    AIR 1968 SC 1413

-----------------------
|NON-REPORTABLE    |

However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution. We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NOs.1041-1042 of 2008


Ashwani Kumar @ Ashu & Anr.                    .... Appellants

                                   Versus

State Of Punjab                                   .... Respondent

                                    WITH

                       CRIMINAL APPEAL NO.1043 OF 2008

                                     AND

                       CRIMINAL APPEAL NO.1814 OF 2009



                               J U D G M E N T



Uday Umesh Lalit, J.


1.    These appeals by special leave challenge the judgment and order  dated
15.02.2008 passed by the High Court of Punjab and Haryana.  Criminal  Appeal
Nos.1041-1042 of 2008 are by  Ashwani  Kumar  @  Ashu  and  Joginder  Singh,
Criminal Appeal No.1043 of 2008 is  by  Anil  Kumar  while  Criminal  Appeal
No.1814 of 2009 is by Darshan Singh. The appellants  stand  convicted  under
Sections 364/302/307 read with Section 120B IPC.  Since these appeals  arise
from the same judgment, they are being  dealt  with  and  disposed  by  this
common judgment.  Initially eleven persons were sent  for  trial  while  two
absconding accused were marked as  proclaimed  offenders.  The  trial  court
convicted seven out of those eleven accused and acquitted four  accused.  In
the appeals by the convicted accused, the High Court  acquitted  three  more
accused, confirming the conviction and sentence of the  present  appellants.
Since the acquittal of others has  attained  finality,  the  facts  narrated
hereafter are confined to the appellants herein.

2.    One Jaswinder Kaur @ Jassi, normally  residing  with  her  parents  in
Canada, married PW-15 Sukhwinder Singh  resident  of  village  Kaoka  Khosa,
District Sangroor, Punjab on  15.04.1999.   It  was  a  court  marriage  and
against the wishes of her parents and her maternal uncle.  Jassi  thereafter
went to Canada on 02.05.1999 and while she was there, on the basis of a  fax
message (Ext.PAO) allegedly under her signature, FIR No.38 dated  23.02.2000
was registered with Police Station Sadar Jagraon against  PW  15  Sukhwinder
Singh under Sections 342, 467, 468, 471 and 506 of the  IPC.     When  Jassi
got to know about this, she came back  to  India  and  appeared  before  the
police.  Her statement was recorded that she had married  PW  15  Sukhwinder
Singh out of her free will, that the alleged signature on  the  fax  message
was not hers and that   the marriage was not to the liking  of  her  parents
and maternal uncle.  Her  statement  under  Section  164  Cr.P.C.  was  also
recorded and thereafter closure  in  respect  of  said  crime  was  ordered.
Jassi then started living with her husband in the house  of  PW  20  Sukhdev
Singh, maternal uncle of her husband, in village Narike.

3.    On 08.06.2000 PW 15 Sukhwinder Singh and Jassi were coming back  on  a
scooter from Malerkotla to their village and when  they had reached  village
Sykhe at about 9.30 PM, four persons armed with  hockey  sticks  and  swords
got down from a white Maruti car and attacked them.  PW 15 Sukhwinder  Singh
received number  of  injuries.  Leaving  him  in  injured  condition,  those
persons forcibly took away  Jassi  in  that  car.  PW  15  Sukhwinder  Singh
somehow managed to reach the house of  PW  20  Sukhdev  Singh  who  got  him
admitted in the Civil Hospital, Malerkotla, where PW-1 Dr. Amit  Modi  found
him to have suffered the following injuries:-
2 X 1cm incised wound over left side of face 2 cm below ear pinna.

Swelling and tenderness over left side of mandible.

10 X .5 cm wound over left side of scalp 8 cm over left pinna.

4X .5 cm incised wound over left side of scalp in temporal area 2  cm  above
ear pinna.

3 X .5cm incised wound over left side of scalp  3  cm  above  ear  pinna  in
temporal area 2 cm from injury No. 4.

4.5 X .5cm incised wound over left side of scalp 6 cm above  ear  pinna  1cm
away from injury No. 4 and 2cm away from injury No. 5

4 X 3cm lacerated wound with  this  much  of  it  hanging  and  attached  to
remaining scalp by superficial layer of skin only 1cm  from  injury  No.  6.
For injuries No. 1 to 7 X-ray was advised.

8 X 4cm incised  wound  from  web  space  between  middle  and  ring  finger
proximally towards wrist joint-cutting all  structures  from  skin  to  skin
from dorsal to ventral aspect of hand, cutting,  skin,  nerves,  tenden  and
bone.

2 x .5cm incised wound over right little finger proximal  phalanx  over  the
dorsal aspect.

 Right ring finger amputated obliquely  at  middle  phalanx.  Wound  margins
sharp clean cut.

For injuries No. 8 to 10 X-ray was  advised.  In  all  the  injuries  except
injury No. 2 fresh bleeding was present. Injuries  No.  1  to  8  were  kept
under observation, whereas injuries No. 9 and  10  were  grievous.  Probable
duration of injuries was within six hours.  The  kind  of  weapon  used  for
injuries No. 1,3,4,5,6,8,9 and 10 was sharp, whereas for injuries No. 2  and
7 was blunt."

4.    PW-1 Dr. Amit Modi sent intimation or ruqa Ext.PB to  the  police  who
recorded the statement of PW 15 Sukhwinder Singh, in which   it  was  stated
as under:-
"....I was coming back alongwith my wife  Jaswinder  Kaur  on  scooter  from
Malerkotla to Village Narike and when we reached the  Village  of  Syhke,  a
white Maruti car was parked near  the  bridge  of  the  drain  and  when  we
reached nearby, then 4 persons came out of said Maruti car  who  were  armed
with hockeys and swords and attacked us. I received many injuries and I  was
thrown and my wife was forcibly kidnapped with intention to kill her. I,  on
my scooter in  staggering  condition,  reached  the  house  of  my  maternal
parents. Sukhdev Singh, my maternal uncle  got  me  admitted  in  the  Civil
Hospital, Malerkotla. You have written my statement and  it  is  correct.  I
have doubts against Hardev Singh @ Mintu etc.  s/o  Darbara  Singh,  Village
Kaonke Khosa who have done this. I can identify others when  brought  before
me."

5.    FIR No. 48 was accordingly registered  with  police  station  Amargarh
under Sections 307, 364 and 34 IPC at about 1.50 AM  on  09.06.2000.  PW  15
Sukhwinder Singh was then referred and taken to Christian  Medical  College,
Ludhiana for further treatment where he was attended to by PW 2  Dr.  Deepak
Bansal and PW 4 Dr. Subhasish Das.  On 09.06.2000  at  about  10.00  AM  one
Bahadur Singh of Village Bolara while going to his agricultural field  found
dead body of a young lady aged about 22-23 years lying in water on the  edge
of minor canal.  He reported the matter to the  police,  pursuant  to  which
FIR No.197 dated 09.06.2000 under Section 302 IPC was  registered  with  the
police station Sadar Ludhiana.  The  body  was  identified  to  be  that  of
Jassi.  In the post  mortem  conducted  by  a  Board  of  three  doctors  on
10.06.2000 at about 4.00 PM, following injuries were noticed on the body  of
Jassi:-
An incised wound 7 inch x 2  inch into muscle deep in front of the neck.

An incised wound just below the chin 4  inch x 2   inch  was  cutting  the
skin, sub coetaneous tissue and muscles.

An incised wound 6" x   "  x  skin  deep  on  the  front  of  chest  placed
horizontally.

The post mortem further indicated:-
"..The cause of death in this case in our  opinion  was  due  to  shock  and
hemorrhage as a result of injury to the vital organs, which were  sufficient
to cause death in the ordinary course of nature. All the injuries were ante-
mortem in nature...."


6.    On 09.06.2000 itself a supplementary  statement  of  PW-15  Sukhwinder
Singh  was recorded in which he gave the number of said Maruti  car  as  DNJ
4862 and also stated his firm belief that the occurrence had been  committed
in connivance with Hardev Singh  @  Mintu,  Surjeet  Singh,  Malkiat  Singh,
Darshan Singh and Gurnek Singh @  Bhatti.   It  appears  that  despite  such
clear  assertions  no  arrests  were  effected.   The   matter   was   being
investigated by PW 38 Sub-Inspector Hardeep Singh who had gone to  the  spot
on 09.06.2000 and prepared the  site  plan  and  was  able  to  recover  one
sandal, a handle of cricket bat and upper portion of a hockey stick.   Under
the orders of the Special Superintendent of Police, investigation was  taken
up by PW 40 Inspector Swarn Singh on 20.06.2000.  Hardev  Singh  whose  name
was mentioned in the FIR as well as supplementary statement was arrested  on
21.06.2000 while Darshan Singh was arrested on 22.06.2000.    On  28.06.2000
Anil Kumar was arrested, while six others including  Ashwani  Kumar  @  Ashu
were arrested on 30.06.2000.

7.    While he was in custody, statement of Anil Kumar  was  recorded  which
led to the discovery of a pistol, three live cartridges and one  Maruti  car
bearing no. DNJ 4862  from  which  a  mobile  having  No.9814011272  and  an
additional SIM having No.9814038404 were recovered.  Blood  stained  portion
of back seat of the car was cut and seized. The statement of  Ashwani  Kumar
led to the discovery of a kirpan and a photograph of Jassi  (Ext.P-38)  from
a farm named Bolara Farm.  On the back side of the photograph, in  Gurumukhi
was written her name, physical  description  including  complexion  and  the
clothes that she would normally wear.  The description was meant  to  enable
a stranger to identify with clarity the person in the photograph.  It was  a
full photograph taken out from the collection of someone  known  to  her  or
the family. From the  house  of  Ashwani  Kumar  mobiles  were  seized  with
numbers 9814014562 and 9316053404.

8.    On 05.07.2000 statement of PW 5   Jagdeep  Singh  was  recorded  under
Section 164 Cr.P.C to the effect that about one and a  half  months  before,
one Gurwinder Singh and Ashwani Kumar had taken him and  PW6  Harjeet  Singh
to the dhaba of one pahlwan in a tempo.  They were told to give  beating  to
PW 15 Sukhwinder Singh as he had contracted marriage with a girl related  to
Ashwani Kumar without the consent of her family.  Said PW  5  Jagdeep  Singh
and PW 6 Harjeet Singh not having agreed to, they left the dhaba.  Later  in
the newspaper he saw the photograph of PW 15 Sukhwinder Singh and  his  wife
and therefore had appeared before  the  Investigating  Officer  to  get  the
statement recorded before the Magistrate.  To the  similar  effect  was  the
statement of PW 6 Harjeet Singh which was also recorded  under  Section  164
Cr.P.C. on 05.07.2000.

9.    On 12.07.2000 a request was made to PW 23  Shri  B.S.  Deol,  Judicial
Magistrate, First Class, Malerkotla to conduct  Test  Identification  Parade
in respect of accused Anil Kumar, Ashwani Kumar  and  other  named  accused.
However, he received letters (Ext. PO, Ext.  PO-5  and  Ext.PO-6)  from  the
concerned Jail Superintendent that the accused were not willing  to  subject
themselves to the such test.

10.   On 18.07.2000  statement  of  PW-7  Jasbir  Singh  under  Section  164
Cr.P.C. was recorded that Anil Kumar, Ashwani Kumar, Ginder  and  Tony  were
his friends and they would often assemble on the  farm  of  Anil  Kumar  for
drinks and meals.  It was further stated that on 16.06.2000  when  they  had
so assembled, Anil Kumar asked him if he had read the newspaper of  the  day
and upon  his  answering  in  the  negative  Anil  Kumar  stated  that  news
regarding the murder of Jassi had appeared in  the  newspaper  of  that  day
which murder  was  committed  by  them.   Anil  Kumar  further  stated  that
Joginder Singh Thanedar was with them and the parents of the girl had  given
them money through  Joginder  Singh,  Thanedar  for  the  said  murder.   On
22.07.2000 PW-8 Bhagwan  Singh  produced  one  tempo  bearing  No.PB-10/9719
before the police.  This was the tempo stated to have been used  by  Ashwani
Kumar and Gurwinder Singh for taking PW-5 Jagdeep  Singh  and  PW-6  Harjeet
Singh to the dhaba of pahlwan.

11.   On 26.07.2000 Joginder Singh, serving police officer was arrested  but
was released on bail, the same day.  He was later re-arrested on  19.01.2001
after his bail was cancelled.  On 29.08.2000 an  application  was  moved  by
the police for taking specimen hand-writing of Ashwani Kumar  who  was  then
confined in District Jail, Sangroor to compare with  the  writing  found  on
the back side of the photograph of Jassi (Ext.P-38).  PW-23 Shri B.S.  Deol,
Judicial Magistrate asked the Superintendent of Jail to  take  the  specimen
hand-writing of Ashwani Kumar. However, Ashwani Kumar  vide  Ext.  DK  dated
05.09.2000 refused to submit his specimen hand-writing.

12.   After completion  of  investigation  charge-sheet  was  filed  against
eleven persons while Surjeet Singh, maternal uncle and Malkiat Kaur,  mother
of Jassi were declared  proclaimed  offenders.   It  was  the  case  of  the
prosecution that the accused  had  hatched  the  conspiracy  to  commit  the
murder of Jassi and had caused injuries to PW-15 Sukhwinder Singh  and  thus
committed the offences with which they were charged.  It  was  alleged  that
the marriage of Jassi with PW 15 Sukhwinder Singh, who was  simply  a  three
wheeler driver, was not to the liking of the mother and the  maternal  uncle
of Jassi. The prosecution in support of its case examined 45  witnesses  and
produced number of documents on record while 42 witnesses were  examined  in
defence. The gist  of  the  testimony  of  the  witnesses  examined  by  the
prosecution, inter alia, was as under:-
i)    PW-3 Dr. Jasbir Singh who was one of the doctors conducting the  post-
mortem on the body of Jassi, stated about her  injuries  and  the  cause  of
death and that kirpan Ext.P-12 recovered pursuant  to  disclosure  statement
could have caused those injuries.
ii)   PW-1 Dr. Amit Modi, PW-2 Dr. Deepak Bansal and PW-4 Dr.  Subhasis  Das
deposed about the injuries of  PW-15  Sukhwinder  Singh  and  the  treatment
given to him by them.
iii)  PW-5 Jagdeep Singh and PW-6 Harjeet Singh stated about  their  meeting
with Ashwani Kumar and Gurwinder at the dhaba of a  pahlwan  and  that  they
did not agree to the proposal  of  beating  PW-15  Sukhwinder  Singh.   They
identified the tempo and stated about having given statements under  Section
164 Cr.P.C.
iv)   PW-7 Jasbir Singh deposed that Ashwani Kumar, Anil Kumar,  Ginder  and
Tony were his friends, that they had met at a farm on 16.06.2000  when  Anil
Kumar had asked him whether he had read newspaper of the  day.   He  further
deposed that Anil Kumar stated that they had committed the murder of  Jassi,
that Joginder Singh Thanedar was with them  and  that  the  money  was  paid
through said Joginder Singh.  He  stated  about  having  given  a  statement
under Section 164 Cr.P.C.
v)    PW-8 Bhagwant Singh deposed that his tempo  PB-10/9719  was  impounded
by CIA staff of which Joginder Singh was in-charge and that  the  tempo  was
released on 07.06.2000 after he had paid money as  demanded.   This  version
was corroborated by PW-9 Jagir Singh.
vi)   PW-14 Barjinder Singh stated that on 08.06.2000 he saw a car of  white
colour with four persons standing close by.  Later he heard the voice  of  a
woman asking for help and that those persons had forcibly  taken  her  away.
Though he failed to identify the persons, his version supported the case  as
regards the location and the time of incident.
vii)  PW-15  Sukhwinder  Singh  deposed  that  he  was  married  with  Jassi
on15.03.1999, that it was against the wishes of her  parents,  that  Malkiat
Kaur and Surjeet Singh viz. mother and maternal  uncle  of  Jassi,  used  to
give him threats and stated how the incident  occurred  on  08.06.2000.   He
had shown his willingness and capacity to identify the  assailants  and  did
identify Ashwani Kumar and Anil Kumar in court.
viii) PW-20 Sukhdev Singh, uncle of PW-15 Sukhwinder  Singh  who  had  taken
him to the hospital, supported the version of PW-15 Sukhwinder Singh.

ix) PW-23 B.S. Deol, Judicial Magistrate spoke about the refusal on part  of
Anil Kumar and Ashwani Kumar to participate in  test  identification  parade
and refusal by Ashwani Kumar to give his specimen handwriting.
x) PW-24 constable Bikkar Singh deposed about the recoveries  effected  from
Bolara Farm pursuant to the disclosure statement of the accused.
xi) PW-27 Charan Preet Singh stated that he  knew  Ashwani  Kumar  and  Anil
Kumar and that they used to call from their telephone numbers.
xi) PW-32 Jaswinder Singh deposed that  at  the  request  of  ADGP,  Punjab,
Intelligence his company had supplied copies  of  print  outs  of  telephone
Nos.9814014562,   9814031374,   9814011272,   9814090919,   9814075614   and
9814036765.  PW-34 Ved Prakash  Julka  produced  the  record  pertaining  to
telephone No.605219 installed in the name of Joginder Singh.
xii)  PW-37 SI Harjinder Singh deposed about the FIR No.38 dated  23.02.2000
which was registered pursuant  to  fax  message  Ext.PAO  and  that  he  had
recorded the statement of Jassi.  He further stated about the  statement  of
Jassi under Section 164 Cr.P.C. and that  he  had  recommended  cancellation
after having found the case to be false.
xiii) PW-38 SI Hardeep Singh spoke about the  registration  of  FIR  in  the
present case and the investigation conducted by him till it was handed  over
to PW-41 Inspector Swaran Singh who in turn deposed about various stages  of
investigation including the arrests of the  accused,  disclosure  statements
made by the accused and the recoveries made  pursuant  thereto  and  various
other aspects.

 13.  The trial court after considering the material on record  and  hearing
rival submissions,  vide  its  judgment  dated  21.10.2005  found  that  the
prosecution had successfully proved its case against seven  accused  persons
including the appellants.   It found them guilty under  Section  302/364/307
read with Section 120B IPC.  Accused  Anil  Kumar,  Ashwani  Kumar  @  Ashu,
Gurwinder Singh @ Ginder and Gursharan Singh @  Tony  were  sentenced  under
Section 302 IPC to undergo life  imprisonment,  under  Section  364  IPC  to
undergo RI for 10 years and under Section 307 IPC to undergo  RI  for  seven
years with separate sentences of fine  and   sentences  in  default.   Three
other accused, namely, Joginder Singh, Hardev Singh and Darshan  Singh  were
convicted with the aid of Section 120B IPC and sentenced to  suffer  similar
imprisonment on the aforesaid three counts.  However benefit  of  doubt  was
given to other four accused, namely, Jaswant Singh @ Soni, Ravinder Singh  @
Lilu, Kamaljeet Singh @ Komal and  Gurnek  Singh  @  Bhatti  and  they  were
acquitted of all the charges.  All seven convicted  accused  filed  Criminal
Appeal Nos.836-DB/2005 and 921-DB/2005 before the High  Court,  which   gave
benefit of doubt to Hardev Singh, Gurwinder  Singh  and  Gursharan  Singh  @
Tony and acquitted them, while it confirmed the conviction and  sentence  of
the present appellants,  which  judgment  is  now  under  challenge  in  the
present appeals.

14.   As regards appellants Ashwani Kumar and Anil Kumar,  the  trial  court
as well as  the  High  Court  have  principally  relied  upon  the  evidence
regarding assault on   PW-15 Sukhwinder Singh as stated by him and the  fact
that he identified them to be part of the group of  assailants.   The  extra
judicial confession, as stated by  PW-7  Jasbir  Singh  and  the  recoveries
effected pursuant to  the  disclosure  statements  were  relied  upon.   The
testimony of PW-5 Jagdeep Singh and  PW-6  Harjeet  Singh  as  well  as  the
communications between the accused soon before and  after  the  incident  of
assault on PW-15 Sukhwinder Singh and kidnapping of Jassi were  also  relied
upon.  The other two appellants were found guilty with the  aid  of  Section
120B IPC as conspirators.  The telephonic communications  between  them  and
Ashwani Kumar and Anil Kumar were relied upon as against Joginder Singh  and
Darshan Singh.

15.   Appearing for Ashwani Kumar and Anil Kumar, Mr. R.K.  Kapoor,  learned
Advocate submitted that identification by PW-15  Sukhwinder  Singh  for  the
first time in court  could  not  be  taken  as  conclusive  evidence.    The
evidence in the form of extra judicial confession was  also  not  conclusive
inasmuch as certain other accused, though  named  in  such  confession  were
acquitted by the courts below.  Shri K.T.S. Tulsi, learned  senior  Advocate
appearing for Joginder Singh submitted that in a subsequent trial  initiated
against Joginder Singh on the allegation of demand of  bribe  for  releasing
the same tempo bearing No.PB-10/9719, he was  honourably  acquitted  and  as
such said judgment would operate as issue estoppel.   Shri Ratnakar K.  Dash
learned senior Advocate appearing  for  Darshan  Singh  submitted  that  the
landline telephone number in question stated to be  that  of  Darshan  Singh
was actually in the name of his brother installed at the residence  of  said
brother and there was no evidence to suggest that it was  exclusively  under
the control of Darshan Singh.  In any case daughter  of  Darshan  Singh  was
married to the son of Surjeet Singh, maternal uncle of  Jassi  and  as  such
calls from the said landline number to the number in Canada were  completely
justified and no inference could be drawn that said Darshan  Singh  was  one
of the conspirators.

16.   Appearing for State of Punjab Shri Jayant K. Sud, Additional  Advocate
General assisted by Ms. Jasleen Chahal, Assistant Advocate General  took  us
through the entire record.   It  was  submitted  that  the  offence  in  the
present case  was an act of conspiracy which was clear from  the  fact  that
fax message Ext.PAO had originated from  the  same  number  in  Canada  with
which the accused Ashwani Kumar @ Ashu and Anil  Kumar  were  constantly  in
touch,  that  the   backside  of   the   photograph   (Ext.P-38)   and   the
conversations deposed to by PW-5 Jagdeep Singh and PW-6 Harjeet  Singh  lend
complete corroboration,  that   identification  by  PW-15  Sukhwinder  Singh
was  completely  trustworthy  and  fully  reliable,  that  the   record   of
telephonic conversations show all the four appellants  were  in  touch  with
each other as well as with the number in Canada soon before and  immediately
after the occurrence, that the  recoveries  of  kirpan,  blood-stained  seat
cover and photograph (Ext.P-38) corroborated the prosecution case  and  that
the  extra judicial confession  as  stated  by  PW-7  Jasbir  Singh  further
clinched the issue.

17.   The evidence of PW-15 Sukhwinder Singh regarding the  occurrence  that
took place on 08.06.2000 is fully  supported  by  the  medical  evidence  on
record.  He was immediately taken for medical attention and  found  to  have
suffered 10 injuries, some of which  were  by  sharp  cutting  weapon.   His
assertion regarding the place of  incident  and  the  manner  in  which  the
occurrence took place is also supported by another witness  PW-14  Berjinder
Singh.   Though said witness failed to identify the  assailants  as  he  had
watched the incident from a distance, he lends complete support to PW-15  as
regards other material particulars.   Considering  the  nature  of  injuries
suffered by  him  and  the  fact  that  Jassi  was  forcibly  taken  by  the
assailants the entire incident  could  certainly  have  afforded  sufficient
time and opportunity to PW-15 to  recollect  and  identify  the  assailants.
The law on the point is well-settled that if the witness is trustworthy  and
reliable, the mere fact that no test  identification  parade  was  conducted
would not be a reason to  discard  the  evidence  of  the  witness.  It  was
observed by this Court in Ashok Debbarma Vs. State of Tripura[1] as under:-
"21  The abovementioned decisions would indicate that while the evidence  of
identification of an accused at a trial is admissible as  substantive  piece
of evidence, it would depend on the facts of a given case as to  whether  or
not such a piece of evidence can  be  relied  upon  as  the  sole  basis  of
conviction of an accused. In Malkhansingh  V.  State  of  M.P.,  this  Court
clarified that the test identification parade is not a substantive piece  of
evidence and to hold the test identification parade is not even the rule  of
law but a rule of prudence so that the identification of accused inside  the
courtroom at the trial can be safely relied upon. We are of  the  view  that
if the witnesses are trustworthy and reliable, the mere fact  that  no  test
identification parade was conducted, itself,  would  not  be  a  reason  for
discarding the evidence of those witnesses...."


18.    The  prosecution  had   made   the   witness   available   for   test
identification but the concerned accused had refused to participate  in  the
test. Though there was no reason for  such  refusal  and  adverse  inference
could be drawn against the accused, we still looked for other  corroborating
material which is available in the form  of  extra  judicial  confession  as
deposed to by PW-7 Jasbir Singh and the incident which had happened  at  the
dhaba of pahlwan as spoken by PW-5 Jagdeep Singh  and  PW-6  Harjeet  Singh.
The fact that a photograph of Jassi (Ext.P-38)  was  recovered  pursuant  to
disclosure  statement  by  Ashwani  Kumar  is  another  circumstance.   That
photograph (Ext.P-38) was recovered from Bolara Farm  which  was  under  the
control of Anil Kumar.  The description of Jassi in Gurumukhi  on  the  back
side of the photograph is crucial.  Refusal on  part  of  Ashwani  Kumar  to
give his specimen hand writing must lead to adverse inference  against  him.
 The recovery of weapon, namely, kirpan which according to the doctor  could
have resulted in the injuries suffered by PW-15 Sukhwinder Singh  and  Jassi
and the blood-stained seat cover are other  circumstances  lending  complete
corroboration.  The communication by Ashwani Kumar and Anil Kumar  with  the
number in Canada which itself was the source for the fax-message Ext.PAO  is
another circumstance.  All these  circumstances  stand  proved  and  clearly
point in the direction of the guilt of Ashwani  Kumar  and  Anil  Kumar  and
additionally lend complete support to the testimony  of  and  identification
by PW 15  Sukhwinder  Singh.  The  courts  below  were  therefore  perfectly
justified in finding Ashwani Kumar and Anil Kumar  guilty  of  the  offences
under Sections 364/307 and 302 IPC.

19.   We now deal with the case of the  other  appellants.   The  submission
advanced by Shri Tulsi that the subsequent judgment will  operate  as  issue
estoppel is not correct.  First and foremost the offences are different  and
distinct. The rule regarding issue  estoppel  relates  to  admissibility  of
evidence in subsequent proceedings which is designed to up-set a finding  of
fact recorded on the previous occasion and  mandates  that  the  finding  so
rendered on earlier occasion must operate as issue  estoppel  in  subsequent
proceedings.   It makes it impermissible to lead  any  such  evidence  at  a
subsequent stage or occasion.  The attempt on part of Mr. Tulsi is just  the
opposite.  He seeks to rely on the finding at a subsequent stage  to  up-set
a finding of fact recorded on a previous occasion.  The  law  on  the  point
was succinctly stated by this Court in  Sangeetaben  Mahendrabhai  Patel  v.
State of Gujarat[2] in following words:
"23.    This Court has time and  again  explained  the  principle  of  issue
estoppel in a criminal trial observing that where an issue of fact has  been
tried by a competent court on an earlier occasion and  a  finding  has  been
recorded in favour of the  accused,  such  a  finding  would  constitute  an
estoppel or res judicata against the prosecution, not as a bar to the  trial
and conviction of the accused for a different or distinct  offence,  but  as
precluding the acceptance/reception of evidence to disturb  the  finding  of
fact when the accused is tried subsequently for a  different  offence.  This
rule is distinct from the  doctrine  of  double  jeopardy  as  it  does  not
prevent the trial of any offence but only precludes the evidence  being  led
to prove a fact in issue as regards which evidence has already been led  and
a specific finding has been recorded at an  earlier  criminal  trial.  Thus,
the rule relates only to the admissibility of evidence which is designed  to
upset a finding of fact recorded by a competent court in  a  previous  trial
on a factual issue..."

            We therefore reject the submission.


20.   As per deposition of PW-8 Bhagwan Singh and other material on  record,
the tempo in  question  bearing  No.PB-10/9719  was  under  the  control  of
Joginder Singh. It was this tempo which was used by Ashwani Kumar as  stated
by  PW-5  Jagdeep  Singh  and  PW  6   Harjeet   Singh.     The   telephonic
conversations between Joginder Singh, a serving police officer  and  Ashwani
Kumar and Anil Kumar just before and soon after the incident  are  extremely
crucial.  No explanation has been offered on part of  Joginder  Singh.   The
record further indicates that Joginder Singh was  also  in  touch  with  the
same number from Canada, in respect of which again there is no  explanation.
 In the extra judicial  confession  deposed  to  by  PW-7,  there  is  clear
assertion that parents of Jassi had given money through Joginder Singh.   In
the circumstances we fully agree with the  assessment  made  by  the  courts
below in finding Joginder Singh guilty of the offences under  Sections  364,
302 and 367 IPC with the aid  of  Section  120B  IPC.   His  conviction  and
sentence, in our considered view, is completely justified.

21.   However, as  regards  Darshan  Singh  all  that  the  prosecution  has
produced is the record of telephonic conversations.   No  doubt  that  there
have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh  and
the number from Canada but such communications are from  a  landline  number
which stands in the name of the brother of  Darshan  Singh.    There  is  no
evidence on record that the said landline number  was  under  the  exclusive
control of Darshan Singh.  Secondly, given the fact  that  his  daughter  is
married with the son of Surjeet Singh from Canada,  the  conversations  with
the number in Canada are explainable.   It is true  that  suspicion  against
Darshan  Singh  was  expressly  stated  in  the  first  statement  of  PW-15
Sukhwinder Singh  itself.   However,  apart  from  telephonic  conversations
nothing has been placed on record by the prosecution.  We,  therefore,  give
benefit of doubt to Darshan Singh and acquit  him  of  the  charges  leveled
against him.

22.   In the circumstances Criminal Appeal Nos.1041-1042 of  2008  preferred
by Ashwani Kumar @ Ashu and Joginder Singh and Criminal  Appeal  No.1043  of
2008 by Anil Kumar are dismissed affirming  the  orders  of  conviction  and
sentence recorded against them. The appeal of Darshan  Singh,  namely,  Crl.
Appeal No.1814 of 2009 is allowed and he is acquitted of  all  the  charges.
The bail bonds furnished by him stand  cancelled.   Ashwani  Kumar  @  Ashu,
Anil Kumar and Joginder Singh who were not granted bail,  must  undergo  the
sentences awarded.


                 ..............................J.
                                  (Madan B. Lokur)



            .............................J.
                                  (Uday Umesh Lalit)
New Delhi,
April 16, 2015
-----------------------
[1]    (2014) 4 SCC 747
[2]    (2012) 7 SCC 621

-----------------------
25

The conviction of the appellants under Section 326 IPC read with Section 34 IPC and Section 427 IPC read with Section 34 IPC is confirmed. Sentence of imprisonment of three months imposed on them is reduced to the period already undergone by each of them. Additionally, the fine of Rs.25,000/- is imposed on each of the appellants-accused and in default to undergo sentence of imprisonment of three months. Out of the fine amount to be deposited by the appellants-accused, the injured witnesses PWs 1, 3, 4 and 5 (Vishveshwar P. Hegde, Kiran R. Bhat, Chandranath V. Bhat and Madhukar L. Hegde) who sustained grievous injuries shall be paid compensation of Rs.17,500/- each and PW 2-Chandru V. Bhat who suffered simple injuries shall be paid compensation of Rs. 5,000/-. With the above modification, the appeal is allowed in part.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.    644/2015
                 (Arising out of S.L.P. (Crl.)No. 1550/2012)


VINAY & ORS.                                           .. Appellants
                                   Versus
STATE OF KARNATAKA & ANR.                   ..Respondents

                               J U D G M E N T

R. BANUMATHI, J.

            Leave granted.
2.          This appeal arises out of the judgment dated  30.11.2011  passed
by the High Court of Karantaka, Circuit Bench at Dharwad in Criminal  Appeal
No.515/2010 modifying the conviction of the appellants from Section 307  IPC
read with Section 34 IPC to  Section  326  IPC  read  with  Section  34  IPC
reducing the sentence of imprisonment from three years to three  months  and
confirming the conviction under         Section 427 IPC  read  with  Section
34 IPC,  thereby reducing the sentence of imprisonment imposed  on  each  of
the accused from six months to three months further directing the  sentences
to run concurrently and imposing a fine of Rs.10,000/-.

3.           The  appellants  and  the  complainant-Vishveshwar  Parameshwar
Hegde (PW-1) are the real brothers and are children of Smt. Bharati  (PW-8).
Due to quarrel with the  appellants,  PW-1  voluntarily  left  the  parental
house and started living separately. On  23.12.2001,  complainant-Visheshwar
Parameshwar Hegde (PW-1) along with  four  persons  viz.,  PW-2  Chandru  V.
Bhat, PW-3 Kiran R. Bhat, PW-4 Chandranath V. Bhat,  and  PW-5  Madhukar  L.
Hegde came in a Maruti car  to his  parental house in order to  remove   the
almirah  and  his  other  personal  belongings,  for  which  the  appellants
objected which resulted in quarrel  between the  parties.  In  the  heat  of
moment, appellant No.1 hit the complainant with  club and when PWs  2  to  5
came to PW-1's  rescue, they were also indiscriminately attacked by all  the
three appellants with chopper and sickles.  The appellants also damaged  the
car glasses and tyres,  in which PW-1 came along with  his  associates.   In
the scuffle, the appellants also received simple injuries.  PW-1  and  other
injured witnesses somehow got themselves rescued and were  admitted  in  the
Government Hospital, Sirsi.  Based on the statement of  PW-1,  on  the  same
day, F.I.R.  was registered in Crime No.  146/2001  with  the  Sirsi   Rural
Police  Station  for  the  offences  punishable  under  Sections  307,  324,
326,427, and 506 IPC read with Section 34 IPC. PW-14  Investigating  Officer
had taken up the investigation and went  to  the  place  of  occurrence  and
recovered the weapons of assault (MOs 1 to 3) and drew the  spot  panchnama,
arrested the accused-appellants and seized the blood stained clothes of  the
appellants.  After completion of investigation by PW-14, charge  sheet  came
to be filed against the appellants for the  aforesaid  offences.   Case  was
committed to the Sessions Court and charges  under  Sections  307,  427  IPC
read with Section 34 IPC were  framed  against  the  accused-appellants.  To
prove their  case,  prosecution  examined  14  witnesses  and  exhibited  26
documents and 15 material objects.

4.          Upon  appreciation  of  the  evidence  on  record,  trial  court
arrived at the conclusion that the nature of weapons and nature of  grievous
injuries caused to the injured witnesses  (PWs  1  to  5)  would  show   the
intention and knowledge of  the appellants-accused to kill  the  complainant
and his associates  and  by  its  judgment  dated  29.4.2010  convicted  the
appellants for the offences  punishable under  Sections  307  and   427  IPC
read with Section 34 IPC.  Each of the appellants were sentenced to  undergo
rigorous imprisonment for three years   with  a  fine  of   Rs.4,000/-  with
default clause for offence under Section  307 IPC read with Section 34  IPC.
 For  the conviction under  Section  427  IPC  read  with  Section  34  IPC,
appellants were sentenced to undergo rigorous imprisonment  for  six  months
with fine of Rs.5,000/- each with default clause.

5.          Appellants being aggrieved by  their  conviction  and  sentence,
filed appeal before the High Court of Karnataka, Circuit Bench  at  Dharwad.
State being aggrieved by the inadequate sentence awarded to  the  appellants
under Section 307  IPC,  preferred  cross  appeal  for  enhancement  of  the
sentence.  By the common judgment dated 30.11.2011, the  High  Court  partly
allowed the appeal of the appellants and  modified  the  conviction  of  the
appellants from Section 307 IPC read with Section 34  IPC  to   Section  326
IPC read with Section  34  IPC  and  accordingly  reduced  the  sentence  of
imprisonment  to three months and dismissed the appeal of the  State.   High
Court confirmed the conviction of the appellants under Section 427 IPC  read
with Section 34 IPC and reduced the  sentence    of  imprisonment  to  three
months.  In addition, High Court also imposed a fine of Rs.10,000/- on  each
of  the appellants  to be paid  as  compensation   to  the  injured.   Being
aggrieved, this appeal has been filed by the  appellants  challenging  their
conviction and sentence of imprisonment.

6.           Learned  counsel  for  the  appellants   submitted   that   the
complainant accompanied by his associates (PWs 2 to 5)  armed  with  weapons
trespassed into  the  house  of  the  appellants  in  breach  of  subsisting
injunction order passed against them  and  the  appellants  acted  in  their
right of self-defence in protection of their property which aspect  was  not
properly   appreciated   and  the  courts  below  erred  in  convicting  the
appellants under Sections 326 and 427 IPC read with Section 34 IPC.

7.           We have heard the learned counsel for the respondent-State  who
supported the judgment of the High Court.

8.          Admittedly, there is long  standing  dispute  between  the  real
brothers.  The presence of  the  parties  at  the  place  of  occurrence  is
admitted by both the parties.  Admittedly, on the date  of  occurrence,  the
complainant went to bring   his  Almirah  kept  in  his  parental  house  at
Padageri and was conversing with his mother (PW-8).  At that time,  accused-
appellants came armed with sickles and talwars (swords)  and  attacked  PW-1
on his head  and right hand.  When PWs 2 to 5 tried  to  rescue  PW-1,  they
were also attacked by the appellants. Complaint  and  his  associates   have
consistently deposed about the incident  and  the  attack  on  them  by  the
appellants with sickles and the injuries  sustained by them.  The  testimony
of the injured witnesses is also supported  by the  medical  evidence.   Dr.
Rama Hegde (PW-13) attached  to  Pandit  Government  Hospital,  Sirsi  where
complainant was admitted and examined has stated that Kiran R. Bhat  (PW-3),
Chandranath V. Bhat (PW-4),  Madhukar L. Hegde (PW-5),  and  Vishveshwar  P.
Hegde (PW-1) had suffered grievous injuries  and  that same could be  caused
by sharp and  blunt  objects  and  to  that  effect  he  has  issued   wound
certificates. The wound certificates show that  complainant  Vishveshwar  P.
Hegde (PW-1) and Kiran R. Bhat, Chandranath   R.  Bhat,  Madhukar  L.  Hegde
(PWs 3 to 5) have sustained one grievous injury each and other injuries  are
simple in nature. Chandru V. Bhat (PW-2) has sustained simple injuries.   As
the appellants  wielded  deadly weapons, namely, sickles  and   talwars  and
that PWs 1, 3 , 4 and 5 have sustained grievous injuries, the  courts  below
rightly convicted the appellants under Section 326 IPC read with Section  34
IPC and under Section 427 IPC read with Section 34 IPC.

9.          So far as  the  contention  regarding  quantum  of     sentence,
learned counsel for the appellants submitted that  the  appellants  and  the
complainant party are the real brothers and that  in the sudden quarrel  and
 in the heat of passion, both parties attacked  each   other  and  that  the
accused parties also sustained  injuries and therefore prayed for  reduction
of sentence, which in our  view,  merits  consideration.   On  the  date  of
occurrence,  PW-1 along with his associates went to his parental  house  and
injured witnesses were armed with  weapons  to the parental house to  remove
the Almirah  and  his  belongings.   The  appellants-accused  also  suffered
contusion  and abrasion.   Dr. Rama Hegde (PW-13) noted simple  injuries  on
the person of the accused-appellants  and issued wound certificates  Ext.P22
to P24.  In his cross-examination PW-13 also opined  that  injuries  on  the
person of the accused could be caused  by  sharp  and  blunt  objects.   The
complainant party went to the house of the accused for  removal  of  Almirah
and  certain personal belongings.  There was animosity between two  factions
which led to attack and injuries on both sides.   Nature of injuries on  the
person of complainant and  the  complainant  party  and  the  accused  party
suggested that both parties attacked each other  and the appellants seem  to
 have exceeded the right of private defence, if any. After  the  occurrence,
more than thirteen years have passed, the complainant party and the  accused
are entangled  in   litigation.   Considering  the  totality  of  facts  and
circumstances  of  the  case  and  the  relationship  between  the  parties,
interest of justice would be met  by  reducing  the  sentence  and  imposing
fine.

10.          Sub-section  (1)  of  Section  357  provides  power  to   award
compensation to victims of the offence out of the sentence of  fine  imposed
on accused.   After referring to Hari Singh v. Sukhbir Singh & Ors.,  (1988)
4 SCC 551 and other  decisions  in  Ankush  Shivaji  Gaikwad  vs.  State  of
Maharashtra, (2013) 6 SCC 770, this Court held as under:

"30.  In Hari Singh v. Sukhbir Singh, ((1988) 4 SCC 551 this Court  lamented
the failure of the courts in awarding compensation to the victims  in  terms
of Section 357(1) CrPC.  The Court recommended to  all  courts  to  exercise
the power available under Section 357 Cr PC liberally  so  as  to  meet  the
ends of justice.  The Court said: (SCC PP.557-58, para 10)

"10. ...Sub-section (1) of Section 357 provides power to award  compensation
to victims of the offence out of the sentence of fine  imposed  on  accused.
....It is  an  important  provision  but  courts  have  seldom  invoked  it.
Perhaps due to ignorance of the object of it.   It  empowers  the  court  to
award compensation to victims while  passing  judgment  of  conviction.   In
addition to conviction, the court may order the accused to pay  some  amount
by way of compensation to victim who has suffered by the action of  accused.
 It may be noted that this power of courts  to  award  compensation  is  not
ancillary to other sentences but it is in addition thereto.  This power  was
intended to do something to reassure the  victim  that  he  or  she  is  not
forgotten in the criminal justice system.  It is  a  measure  of  responding
appropriately  to  crime  as  well  of  reconciling   the  victim  with  the
offender.  It is, to some extent, a constructive approach to crimes.  It  is
indeed a step forward  in  our  criminal  justice  system.   We,  therefore,
recommend to all courts to exercise this power liberally so as to  meet  the
ends of justice in a better way. (emphasis supplied)
..............
32.   In Sarwan Singh v. State of Punjab, (1978) 4 SCC 111, Balraj v.  State
of U.P., (1994) 4 SCC 29, Baldev Sigh v. State of Punjab, (1995) 6 SCC  593,
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528  this  Court
held that the power of the courts to award  compensation  to  victims  under
Section 357 is not ancillary to other sentences but in addition thereto  and
that imposition of fine and/or grant of compensation to a great extent  must
depend upon the relevant factors apart from such fine or compensation  being
just and reasonable.  In Dilip S. Dahanukar case this  Court  even  favoured
an inquiry albeit summary in nature to determine the paying capacity of  the
offender.  The Court said: (SCC p.545, para 38)

'38.  The purpose of imposition of fine and/or grant of  compensation  to  a
great extent must be considered having the  relevant  factors  therefore  in
mind.  It may be compensating the person  in  one  way  or  the  other.  The
amount of compensation sought to be imposed, thus, must  be  reasonable  and
not  arbitrary.   Before  issuing  a  direction  to  pay  compensation,  the
capacity of the accused to pay the same must  be  judged.   A  fortiori,  an
enquiry in this behalf even in  a  summary  way,  may  be  necessary.   Some
reasons, which may not be very elaborate, may also have to be assigned;  the
purpose being  that  whereas  the  power  to  impose  fine  is  limited  and
direction to pay compensation can be made  for  one  or  the  other  factors
enumerated out of the same; but sub-section (3)  of  Section  357  does  not
impose any such limitation and thus, power thereunder  should  be  exercised
only in appropriate cases.  Such a jurisdiction cannot be exercised  at  the
whims and caprice of a Judge."



The amount of compensation is to be determined by the courts depending  upon
the facts and circumstances of each case, nature  of  the  offence  and  the
capacity of the accused to pay.  Considering the facts and circumstances  of
the present case and the nature of the offence, sentence of imprisonment  of
three months imposed on the appellants is  reduced  to  the  period  already
undergone by them  and  also  imposing  a  fine  of  Rs.25,000/-  so  as  to
compensate the injured witnesses in addition to the compensation awarded  by
the High Court.w

11.         The conviction   of the appellants under Section  326  IPC  read
with Section 34 IPC and Section 427 IPC read  with      Section  34  IPC  is
confirmed. Sentence of imprisonment of  three  months  imposed  on  them  is
reduced to the period already undergone by each of them.  Additionally,  the
fine of Rs.25,000/- is imposed on each of  the  appellants-accused   and  in
default to undergo sentence of imprisonment of three  months.   Out  of  the
fine  amount  to  be  deposited  by  the  appellants-accused,  the   injured
witnesses PWs 1,  3,  4  and  5  (Vishveshwar   P.  Hegde,  Kiran  R.  Bhat,
Chandranath V. Bhat and  Madhukar L. Hegde) who sustained grievous  injuries
shall be paid compensation of Rs.17,500/- each and PW 2-Chandru V. Bhat  who
suffered simple injuries shall be paid compensation  of Rs.  5,000/-.   With
the above modification, the appeal is allowed in part.


                                                     .....................J.
                                 (T.S. Thakur)


                                                     .....................J.
                                  (R. Banumathi)


New Delhi;
April 16, 2015

Liability of the financer, in the cases of accident occurred, after the vehicle is purchased with loan sanctioned to the owner of the vehicle - District forum - State Forum held that in terms of loan agreement the Bank has a right to recover insurance premium, held that the Bank cannot escape its liability - NCDRC dismissed the revision - Apex court held that the liability of such bank to get the vehicle insured is only till the vehicle comes out on the road. In other words, the creditor bank is not liable to get renewed the insurance policy on behalf of the owner of the vehicle from time to time.On a careful analysis of the principles stated in the forgoing cases, it is found that there is a common thread that the person in possession of the vehicle under the hypothecation agreement has been treated as the owner. Needless to emphasise, if the vehicle is insured, the insurer is bound to indemnify unless there is violation of the terms of the policy under which the insurer can seek exoneration.respondent Jagbir Singh purchased a tractor bearing registration No.HR-14B-3913, after getting loan sanctioned from the appellant-Bank - 2015 SC MSK LAWREPORTS

 On 24.9.2007 at about 11.50 a.m., an  accident  occurred  between  the
      above vehicle and motorcycle bearing registration  No.  DL-3S-AY-0421,
      in which Pankaj son of Babu Ram Garg, died due to rash  and  negligent
      driving on the part of Diwan Singh, driver of  the  tractor  owned  by
      respondent Jagbir Singh.
The parents  of  the  deceased  filed  claim
      petition No. 208/11/2007 before  Motor  Accident  Claims  Tribunal-II,
      Dwarka Courts, New Delhi, which was allowed by said Tribunal, vide its
      order  dated  17.11.2012  awarding  compensation  to   the   tune   of
      Rs.4,01,460/- with 7.5% interest per annum, against driver  and  owner
      of the vehicle.
It has not been disputed between the parties that  on
      the date of accident the vehicle No. HR-14B-3913 was not insured  with
      any of the insurance companies, as required under Section 146  of  the
      Motor Vehicles Act, 1988.

The respondent filed  complaint  (No.  157  of  208)  before  District
      Consumer Disputes Redressal Forum, Jhajjar, praying that  the  Central
      Bank of India (appellant), i.e., the  creditor  bank  should  be  made
      liable to pay the compensation, awarded against him by  the  Tribunal.
The District Consumer Disputes Redressal Forum, vide its  order  dated
      11.11.2009, held that the Bank (present appellant) is liable  for  the
      legal consequences for not getting the insurance renewed.
dismissing the appeal  on
      the ground that in terms of loan agreement the Bank  has  a  right  to
      recover insurance premium,  held  that  the  Bank  cannot  escape  its
      liability.
 NCDRC  in  its  wisdom  did  not  find  the
      explanation advanced for condonation of delay as sufficient, as  such,
      the revision petition was dismissed as barred by  limitation.   Hence,
      this appeal through special leave.

Apex court held that

liability  of  the
      financer, in the cases of accident  occurred,  after  the  vehicle  is
      purchased with loan sanctioned  to  the  owner  of  the  vehicle.

Under Section 146 of the Act there is an obligation  on  the
           owner of a vehicle to take out an insurance policy  as  provided
           under Chapter XI of the Act. If any vehicle  is  driven  without
           obtaining such  an  insurance  policy  it  is  punishable  under
           Section 196 of the Act.
Thus  when
           the obligation was upon the appellant to obtain such  a  policy,
           merely by passing of a  cheque  to  be  sent  to  the  insurance
           company would not obviate his liability to obtain  such  policy.

A Three-Judge Bench of this Court,  

has further explained the law relating to liability  of
      the creditor bank, and it has been held that  the  liability  of  such
      bank to get the vehicle insured is only till the vehicle comes out  on
      the road.  In other words, the creditor bank  is  not  liable  to  get
      renewed the insurance policy on behalf of the  owner  of  the  vehicle
      from time to time.
 On a careful  analysis  of  the  principles  stated  in  the
          forgoing cases, it is found that there is a common thread  that
           the person in possession of the vehicle under the  hypothecation
           agreement has been treated as the owner.
Needless to  emphasise,
           if the vehicle is insured, the insurer  is  bound  to  indemnify
           unless there is violation of the terms of the policy under which
           the insurer can seek exoneration.
 a three-Judge Bench has categorically held that the person
           in control and possession of the vehicle under an  agreement  of
           hypothecation should be construed as the owner and not alone the
           registered owner and thereafter the Court has  adverted  to  the
           legislative intention, and ruled that the  registered  owner  of
           the vehicle should not be held liable if the vehicle is  not  in
           his possession and control........"
 In view of the above discussion and the principle of law laid down  by
      this Court, the impugned order passed by  the  NCDRC  and  the  orders
      passed by the State Consumer Disputes  Redressal  Commission,  Haryana
      and the District  Consumer  Disputes  Redressal  Forum,  Jhajjar,  are
      liable to be set aside. Accordingly the appeal is allowed -2015 S.C.MSKLAWREPORTS

On 17.01.2014 the goods were seized at the instance of the Narcotics Commissioner apparently on the ground that the same have been imported without proper NoC and a FIR was also lodged. It is in these circumstances that the petitioners had instituted the writ proceeding (Writ Petition No. 900 of 2014) before the Bombay High Court out of which the present special leave petition has arisen. While the writ petition remained pending a letter dated 14.03.2014 from the Central Bureau of Narcotics was received by the petitioner communicating the following decision: "2. In this context, it is to inform you that you have imported 79.20 MT Methyl Ethyl Ketone into India without a No Objection Certificate from the Narcotics Commissioner. This is in violation of Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substances) Order, 2013. 3. Hence No Objection Certificate for import of 79.20 MT Methyl Ethyl Ketone from Taiwan against your letter dated 18/10/2013, received in this office on 30/10/2013 cannot be issued as the said material was already imported into India by your firm on 12/08/2013."

                               NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                SPECIAL LEAVE PETITION (C) NO. 15814 OF 2014


CONTROL PRINT LIMITED & ANR.            ...    PETITIONER(S)

                                   VERSUS

NARCOTICS CONTROL BUREAU & ORS.         ...  RESPONDENT (S)




                               J U D G M E N T


RANJAN GOGOI, J.

1.     The first petitioner is a  company  registered  under  the  Companies
Act, 1956.  It is, inter alia, engaged in the  business  of  manufacture  of
coding and marking machines and  consumables  like  inks  and  solvents  for
inkjet printing machines.  Amongst others, Methyl Ethyl Ketone (MEK) is  one
of the raw materials used by  the  first  petitioner  in  its  manufacturing
process.

2.     Under  the  provisions  of  the  Narcotic  Drugs   and   Psychotropic
Substances (Regulation of Controlled Substances)  Order,  2013  (hereinafter
referred  to  as  'the  Regulations')  the  petitioners  had  submitted   an
application in form 'K' for grant of  No  Objection  Certificate  (NoC)  for
import of 79.2 metric tonnes of MEK.  The said application  dated  27.7.2013
was submitted to the Narcotics Commissioner,  Gwalior  on  07.08.2013.   The
goods i.e. MEK in 480 drums were dispatched from  Taiwan  on  27.07.2013  by
vessel Zimdjibouti with the port of destination shown as  Nhava  Sheva  Port
India.  The ship  arrived  at  Nhava  Sheva  Port,  Thane,  Navi  Mumbai  on
12.08.2013. At the  request  of  the  petitioners  the  Customs  authorities
permitted lodgment of the goods in  the  customs  bonded  warehouse.   By  a
letter dated 23.8.2013 of the Central Bureau  of  Narcotics  issued  to  the
petitioners (dispatched on 26.9.2013 according to the  petitioners)  further
information/clarification from the petitioners was sought in the matter  for
grant of NoC.  According to the petitioners, it received the said letter  on
08.10.2013 and by reply  dated  18.10.2013  the  requisite  information  was
supplied alongwith the further information that the goods had  been  shipped
on 27.07.2013 and had landed at the   Jawaharlal  Nehru  Port  Trust  -Nhava
Sheva Port, Thane, Navi Mumbai on 12.08.2013 and were "awaiting for  customs
clearance purposes."   Thereafter,  on  29.11.2013  the  Central  Bureau  of
Narcotics informed the petitioners that "the matter has been taken  up  with
the Commissioner of Customs (Import), Nhava Sheva to  ascertain  the  status
of the material."  Eventually, on 11.12.2013  the  Commissioner  of  Customs
(Import) informed the office of the  Narcotics  Commissioner,  Gwalior  that
the  goods  have  been  lodged  in  the  customs  bonded  warehouse  pending
clearance from the Central Bureau of Narcotics.   On  17.01.2014  the  goods
were seized at the instance of the Narcotics Commissioner apparently on  the
ground that the same have been imported without proper NoC  and  a  FIR  was
also lodged.   It  is  in  these  circumstances  that  the  petitioners  had
instituted the writ proceeding (Writ Petition No. 900 of  2014)  before  the
Bombay High Court out of  which  the  present  special  leave  petition  has
arisen.  While the writ petition remained pending a letter dated  14.03.2014
from the  Central  Bureau  of  Narcotics  was  received  by  the  petitioner
communicating the following decision:

"2.   In this context, it is to inform you that you have imported  79.20  MT
Methyl Ethyl Ketone into India without a No Objection Certificate  from  the
Narcotics  Commissioner.   This  is  in  violation  of  Narcotic  Drugs  and
Psychotropic Substances (Regulation of Controlled Substances) Order, 2013.

3.    Hence No Objection Certificate for import of  79.20  MT  Methyl  Ethyl
Ketone from Taiwan against your letter dated 18/10/2013,  received  in  this
office on 30/10/2013 cannot be issued  as  the  said  material  was  already
imported into India by your firm on 12/08/2013."


 3.   The petitioner sought an amendment to the writ petition  to  challenge
the said decision contained in the letter dated  14.03.2014.  The  amendment
sought was allowed.   By the impugned order dated 30.04.2014 the High  Court
has dismissed the writ petition on the ground that  the  petitioner,  though
aware of the Notification dated 26.03.2013 promulgating the  Regulations  in
question, had imported the goods into India without the requisite NoC.   The
additional ground on which the High Court thought it proper  to  reject  the
writ petition was that a FIR has been filed and  under  Section  63  of  the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for  short
'the Act') it is the criminal court which should be  moved  for  release  of
the goods seized under the Act.

4.    We have heard Shri  F.S.  Nariman,  learned  senior  counsel  for  the
petitioners and Shri Ranjit Kumar, learned Solicitor General  appearing  for
the respondents.

5.    Shri Nariman has urged that Clause 11 of the Regulations in  question,
particularly, sub-clauses (1) to (3) read  together  does  not  contain  any
express prohibition on import of a controlled  substance  pending  grant  of
NoC by the competent authority.  It is further urged that  under  sub-clause
(3) of Clause 11 of the Regulations if NoC is not  granted  within  21  days
from the date of application such grant may be deemed  to  have  been  made.
According to Shri Nariman, the application in  Form  K  is  required  to  be
accompanied by any document of the description mentioned  therein  in  order
to show that there is a prior commitment of availability of  the  controlled
substance for import into  India.  It  is  further  urged  that  though  the
respondents were made aware of the fact that the goods have  landed  in  the
port of destination within India on 12.08.2013 and at  that  point  of  time
the application for NoC was still under consideration, the  respondents  did
not  take  any  coercive  action  and  instead  continued  to  process   the
application filed by the petitioners for grant of  NoC.   Shri  Nariman  has
also urged that the respondents had seized the goods on 17.01.2014 at  which
point of time no decision on the grant or refusal of NoC had been made.  The
rejection/refusal came subsequently i.e. on 14.03.2014.   According to  Shri
Nariman, the goods having been seized on 17.01.2014  the  rejection  of  the
application for NoC was a fait accompli. There was no option but to  reject.
Hence the rejection is not a fair action on the part of the State.

6.    In reply Shri Ranjit Kumar, learned Solicitor General has  urged  that
under  the  Regulations  in  force  import  into  India  of  any  controlled
substance requires grant of prior NoC  by  the  competent  authority  which,
admittedly, was not granted in the  present  case.  In  such  circumstances,
violation of the Regulations and consequential infringement of the  relevant
provisions of the Act is ex facie apparent.   The order of the  High  Court,
therefore, according to the learned Solicitor General, would  not  call  for
any interference.

7.    Whether under Clause 11 of the Regulations no import of
a controlled substance is permissible without a NoC being granted;

Whether absence of refusal to grant the NoC would amount to a  deemed  grant
on the expiry of 21 days of the making of the application in Form K;

Whether the failure  of  the  respondents  to  take  timely  coercive  steps
(seizure etc.) despite knowledge of  the  landing  of  the  goods  in  India
though the NoC was yet to be granted  reflect  their  understanding  of  the
purport and effect of Clause 11 of the Regulations;

Whether the above should lead to grant of post import  NoC  in  the  present
case and whether grant of such NoC is consistent with the Regulations;

Whether the seizure of the goods made on 17.1.2014 when the application  for
grant of NoC was yet to be finalized is contrary to the  provisions  of  the
NDPS Act read with the Regulations in force;

Whether   the  rejection of the application for grant of  NOC     on    14th
March,  2014 was  a    fait   accompli     in view of  the seizure   already
made and therefore an unacceptable exercise  of  State power;

are the multi faceted issues that arise for  consideration  in  the  present
case.

8.     Should we answer the  questions  indicated  above.   Though  we  feel
tempted we must refrain. Legal issues need not, nay, should not be  answered
merely because they have arisen in a given case. The cognate facts must  not
be ignored. In the present case, as found  by  the  High  Court,  a  FIR  in
respect of the import made by the petitioners without grant of the  NOC  had
been lodged and was pending. What had really happened is that on  17.1.2014,
after the seizure was made,  the  officer  who  had  seized  the  controlled
substance in question  submitted  a  report  to  his  superior  officer,  as
required under Section 57 of the NDPS Act. On 18.1.2014,  after  receipt  of
the report of the seizing  officer,  the  Assistant  Narcotics  Commissioner
(Prevention) Gwalior appended on the said report a note to the  effect  that
Crime Case No.1/2014 is registered in the Headquarter  Office,  Gwalior  and
the Seizing Officer was authorized to investigate  the  matter  and  file  a
complaint before the Competent Court, after completion of investigation,  if
required. Thereafter it appears, an investigation was  carried  out  and  on
14.8.2014 a complaint under Section 36A(1)(d) of  the  NDPS  Act  was  filed
before the Special Judge  (NDPS  Act  cases),  Ali  Baug,  District  Raigad,
Maharashtra for alleged violation of Sections 25A and 38 of the NDPS Act  by
one Basant Kalra, Managing Director of  the  First  petitioner  Company  for
importing the controlled substance in question  without  obtaining  the  NOC
required under the Regulations  in  force.  By  order  dated  22.8.2014  the
learned Special Judge has taken cognizance of the offence  alleged  and  has
issued process. The said proceeding  must  be  understood  to  be  presently
pending before the trial court in the absence of any  contrary  material  or
submission on the part of the petitioners.

9.    The issues raised by the petitioners are not merely  related  but  are
directly in question in the criminal proceeding pending in  respect  of  the
same subject matter. If that is so, this Court must not answer  any  of  the
said questions, particularly,  in  the  absence  of  any  challenge  to  the
legality and validity of the criminal proceeding  before  this  Court  which
can arise only out of an order of the forum competent in  law  to  hear  and
consider such a challenge.  From the materials on record it does not  appear
that any such challenge has been made till date by the petitioners.

10.   In the above circumstances, we are  of  the  view  that  it  would  be
appropriate for us to refrain from addressing any of the  issues  raised  by
and on behalf of the rival parties and instead leave  the  petitioners  with
the remedy of taking such appropriate  steps  in  the  criminal  proceeding,
including release of the goods pending trial, as it may be advised.

11.   The special leave petition is consequently disposed of  in  the  above
terms.

                         .....................................J.
                                              [RANJAN GOGOI]



                                     .....................................J.
                                              [N.V. RAMANA]

NEW DELHI,
APRIL 16, 2015.

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