whether Exception 4 really applies and, if so, whether the injury was inflicted with the intention of causing death or of causing such bodily injury as is likely to cause death. The circumstances of the case to which we have referred in the earlier part of this judgment, however, leave no manner of doubt that the incident was without any pre-meditation and a sudden fight upon a sudden quarrel. The injuries upon the deceased were inflicted in the heat of passion and without the appellant taking any undue advantage or acting in a cruel or unusual manner. The fact situation of the case, therefore, attracts Exception 4 especially when in terms of explanation to Exception 4, it is immaterial in such cases which party offers the provocation or commits the first assault. That being so, the offence committed by the author of the injury is not murder but culpable homicide not amounting to murder punishable under Section 304 of the IPC. 17. Coming then to the question whether the act committed by Har Chand- appellant was with intention to cause death or of causing such bodily injury as was likely to cause death, we are of the opinion that even when the act may not have been committed with the intention of causing death, the same was intended to cause such bodily injury as was likely to cause death, within the meaning of Section 304 Part I.

                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.2279 OF 2009

Ramanlal  and Anr.                                 …Appellants

                                   Versus

State of Haryana                             …Respondent


                                    WITH

                       CRIMINAL APPEAL NO.1351 OF 2010


Bhagat Singh and Anr.                        ...Appellants

                                   Versus

State of Haryana                             ...Respondent



                               J U D G M E N T

T.S. THAKUR, J.

1.    These two appeals by special leave assail a common judgment and  order
dated 7th May, 2009 passed by a Division Bench of the High Court  of  Punjab
and Haryana at Chandigarh whereby Criminal Appeal No.631 of  2000  filed  by
the appellants challenging their conviction for  offences  punishable  under
Sections 323, 325, 302 read with Section 149 of the IPC has  been  dismissed
and the sentence of life imprisonment awarded to each one  of  them  by  the
trial Court affirmed.

2.    The prosecution case in a nutshell is that on 2nd July, 1998 at  about
10 O’ clock in the morning Ved Pal and  his  brother  Gopal,  now  deceased,
were watering their fields in village  Doongriwala,  district  Faridabad  in
the State of Haryana.  At about 12.00 noon  Jai  Pal,  son  of  Nihar  Singh
entered their field in which the two brothers had grown  their  paddy  crop.
Deceased-Gopal appears to have objected  to  Jai  Pal’s  trespass  into  the
paddy crop to which objection Jai Pal gave an abusive reply  insisting  that
he would pass through the paddy crop regardless of Gopal’s objection.  While
this altercation was going on between deceased-Gopal and Jai Pal, 10  to  12
persons appeared on the spot armed with lathis, pharsas  and  ballams.  They
included Har Chand, Digamber and Bhagat Singh sons of  Jairam;  Rajbir,  Lal
and Bhola sons of Har Chand; Jagdish  son  of  Girraj;  Rattan  Lal  son  of
Jagdish; Naresh and Rajkumar sons of Ramesh all Jats by caste and  residents
of village Doongriwala.  They  are  alleged  to  have  given  a  lalkara  to
eliminate Ved Pal and deceased Gopal and  assaulted  both  of  them  causing
several injuries including an injury on the head of the deceased-Gopal  that
felled him to the ground. The injured were removed to the hospital at  Hodal
for treatment where Ved Pal made a  statement  which  was  made  before  ASI
Narain Singh that led to the registration of  a  case  against  the  persons
aforementioned for offences punishable under Sections 148, 149, 323 and  307
of the IPC. With Gopal succumbing to the injuries in  the  Escorts  Hospital
at Faridabad, the offence under Section 307 of the IPC  was  converted  into
one of murder punishable under Section 302 of the IPC. Investigation by  the
police led to the arrest of accused Har Chand, Digambar and Jagdish  on  3rd
July, 1998. Several recoveries from the accused persons  are  said  to  have
been made in the course of investigation which culminated  in  filing  of  a
charge-sheet against ten persons in all excluding Bhagat Singh  son  of  Jai
Ram who even though named in the FIR,  was  found  innocent  while  Jai  Pal
being a juvenile was referred to the Juvenile Court at  Faridabad.  The  net
result was that nine out of those named in  the  FIR  only  were  eventually
committed to  face  the  trial  before  the  Additional  Sessions  Judge  at
Faridabad for offences under Sections  148,  323,  325  and  302  read  with
Section 149 of the IPC.  At the trial, Bhagat Singh son of Jai Ram was  also
added as an accused under Section 319 of the Cr.P.C, taking  the  number  of
those accused to face the trial to ten in all.

3.    In support of its case,  the  prosecution  examined  as  many  as  ten
witnesses. These included the first informant  Ved  Pal  examined  as  PW-1;
Prakash examined as PW-2;  Kishan  Singh  examined  as  PW-3;  Satbir  Singh
examined as PW-4 and Drs. HK Mishra, VR Gupta and SP Jayant examined as  PWs
5, 6 and 10 respectively. The remaining  witnesses  happened  to  be  police
officials including the investigating officer. The accused did not lead  any
evidence in defence. In their statements recorded under Section 313  of  the
Cr.P.C., they alleged false implication.  It was further  alleged  that  Jai
Prakash and Har Chand alone were present on the spot  at  the  time  of  the
incident and that the  remaining  nine  accused  persons  had  been  falsely
implicated.  Their further case was that on the  fateful  day  Jai  Pal  was
watering his fields when deceased Gopal tried to  commit  sodomy  upon  him.
Har Chand  noticed  this  attempt  of  the  deceased  and  objected  to  it,
whereupon deceased Gopal inflicted a lathi  blow  upon  the  person  of  Har
Chand.  Har Chand, in exercise of the right of private defence  and  with  a
view to rescuing Jai Pal, inflicted a lathi blow on  deceased  Gopal,  while
Jai Pal caused injuries to Ved Pal in the incident.

4.    The Trial Court appraised the evidence adduced by the prosecution  and
came to the conclusion that the depositions of PW1-Ved Pal  and  PW2-Prakash
were completely reliable. The Trial Court rejected the contention  urged  on
behalf of the accused persons that the delay in the lodging of the  FIR  was
not satisfactorily explained or that the  prosecution  ought  to  suffer  on
account of its failure to explain the  injuries  sustained  by  the  accused
persons. The Trial Court also rejected the  contention  that  there  was  no
motive  for  the  commission  of  the  offence  or  that   there   was   any
contradiction between the medical and ocular evidence led in the case.   The
Trial Court  on  that  reasoning  sentenced  all  the  ten  accused  persons
arraigned before it to undergo imprisonment for life under  Section  302  of
the IPC and a fine of Rs.5,000/- each.  In default of payment of fine,  they
were directed to undergo further rigorous imprisonment for a period  of  one
year each.  They were also sentenced to under rigorous  imprisonment  for  a
period of one year and a fine of  Rs.1,000/-  with  a  default  sentence  of
three months each under Section 325 of the IPC. For the offences  punishable
under Sections 323 and 148 of the IPC the accused were sentenced  to  pay  a
fine of Rs.1,000/- each. No default sentence in  regard  to  those  offences
was, however, awarded.

5.    Aggrieved  by  the  conviction  and  sentence  awarded  to  them,  the
appellants filed Criminal Appeal No.631 of 2000 before  the  High  Court  of
Punjab and Haryana at Chandigarh, which was disposed of along with  Criminal
Revision No.345 of 2001 filed by Ved Pal-the first  informant  by  a  common
judgment and order  impugned  in  these  appeals.  The  High  Court  upon  a
reappraisal of the evidence adduced at the  trial  came  to  the  conclusion
that the appeal filed by Digamber, Rajbir,  Lala,  Bhola,  Jagdish  and  Raj
Kapoor deserved to be allowed, while the same  deserved  dismissal  qua  Har
Chand, Raman Lal, Naresh and Bhagat Singh. That is  precisely  the  backdrop
in which Har Chand, Raman Lal, Naresh and Bhagat  Singh  are  before  us  in
these appeals by special leave assailing their conviction and  the  sentence
awarded to them.
6.    On behalf of the appellants it was argued that the  courts  below  had
fallen in  error  in  convicting  the  appellants  by  placing  an  implicit
reliance upon the depositions of PW1-Ved Pal  and  PW2-Prakash  and  in  the
process, ignoring the defence version about the  genesis  of  the  incident.
It was contended that the incident had occurred on account of  an  attempted
act of sodomy by the deceased upon Jaipal to which the  appellant-Har  Chand
had objected resulting in lathi blows  being  inflicted  by  the  two  sides
rivals to each other. The argument needs notice only  to  be  rejected.   We
say so because there is nothing in the evidence to  probablise  the  defence
version that the incident in question had  taken  place  on  account  of  an
attempt on the part of Gopal to sodomise Jaipal.  There  are  no  tell  tale
signs of any such attempt having been made.  Not only that, the defence  has
not taken care to examine Jaipal the alleged victim of the attempted act  as
a witness to prove that any such attempt was at all made  by  the  deceased-
Gopal. We have, therefore, no hesitation in rejecting the argument that  the
defence version was a probable version which could not  be  given  credence.
The courts below have, in our opinion, rightly rejected the defence  version
for which there was no factual foundation whatsoever in the evidence.
7.    It was next argued by learned counsel for  the  appellants  that  with
the acquittal  of  6  out  of  10  accused  persons,  the  charge  that  the
appellants constituted  an  unlawful  assembly  ought  to  fail  and  as  an
inevitable consequence thereof, the conviction of the appellants for  murder
with the help of Section 149 of  the  IPC  rendered  unsustainable.  It  was
contended that acquittal of other accused persons alleged to be  members  of
the unlawful assembly, implied  that  the  said  accused  had  been  falsely
implicated in the case or that they, even if physically present on the  spot
as alleged, did not share the common object of the convicted accused.
8.    Section 141 of the IPC defines unlawful assembly as under:
“141. Unlawful assembly.—An assembly of five or more persons  is  designated
an “unlawful assembly”, if the common object of the persons  composing  that
assembly is—

(First) — To overawe by criminal force, or show  of  criminal  force,  1[the
Central or any State Government or Parliament  or  the  Legislature  of  any
State], or any public servant in the exercise of the lawful  power  of  such
public servant; or

(Second) — To resist the execution of any law, or of any legal process; or

(Third) — To commit any mischief or criminal trespass, or other offence; or

(Fourth) — By means of criminal force, or show of  criminal  force,  to  any
person, to take or obtain possession of any  property,  or  to  deprive  any
person of the enjoyment of a right of way, or of the use of water  or  other
incorporeal right of which he is in possession or enjoyment, or  to  enforce
any right or supposed right; or

(Fifth) — By means of criminal force, or show of criminal force,  to  compel
any person to do what he is not legally bound to do, or to omit to  do  what
he is legally entitled to do.

Explanation.—An assembly which was  not  unlawful  when  it  assembled,  may
subsequently become an unlawful assembly.”



9.    In terms of Section 149  of  the  IPC  every  member  of  an  unlawful
assembly is guilty of the offence committed  by  any  other  member  of  the
assembly in prosecution of the  common  object.   Section  149  of  the  IPC
reads:

      “149. Every member of unlawful assembly guilty  of  offence  committed
in prosecution of common object.—If an offence is committed  by  any  member
of an unlawful  assembly  in  prosecution  of  the  common  object  of  that
assembly, or such as the members of that assembly knew to be  likely  to  be
committed in prosecution of that object, every person who, at  the  time  of
the committing of that offence, is a member of the same assembly, is  guilty
of that offence.”



10.   The question is whether acquittal  of  some  of  the  accused  persons
reducing the number of those convicted to less than  5  has  the  effect  of
taking the case out of the purview of Section 149 (supra).   A  Constitution
Bench of this Court has in Mohan Singh   v.   State  of  Punjab[1]  examined
that question and authoritatively answered the same. The  prosecution  story
in that case also was that on the date of the  incident  5  accused  persons
composed an unlawful assembly and that in prosecution of the  common  object
of the said  assembly,  they  committed  rioting  while  armed  with  deadly
weapons. The prosecution alleged that in pursuance of the common  object  of
the assembly Gurdip Singh was murdered and injuries caused to Harnam  Singh.
The prosecution alleged that although the  fatal  injury  was  inflicted  by
only one of the accused persons on Gurudip Singh’s head since the  same  was
in prosecution of the common object of  unlawful  assembly,  all  those  who
were members of the  assembly  were  guilty  under  Section  302  read  with
Section 149 of the IPC. On behalf of the defence  it  was  argued  that  the
constructive criminal liability under Section 149 did not arise once two  of
the accused who were alleged to be members of that assembly  were  acquitted
thereby reducing the number comprising the assembly to three  persons  only.
This Court while dealing with that contention conceived  of  three  possible
situations  and  the  legal  position  applicable  to  each  one   of   such
situations. This Court observed:
“8. The true legal position in regard to the  essential  ingredients  of  an
offence specified by s. 149 are not in doubt.  Section  149  prescribes  for
vicarious or constructive criminal liability for all members of an  unlawful
assembly where an offence is committed by any member  of  such  an  unlawful
assembly in prosecution of the common object of that  assembly  or  such  as
the members  of  that  assembly  knew  to  be  likely  to  be  committed  in
prosecution of that object. It  would  thus  be  noticed  that  one  of  the
essential ingredients of section 149 is that  the  offence  must  have  been
committed by any member of an unlawful assembly, and S.141  makes  it  clear
that it is only where five or more persons constituted an assembly  that  an
unlawful assembly is born, provided, of course; the  other  requirements  of
the said section as to the common  object  of  the  persons  composing  that
assembly are satisfied. In other words, it is an essential condition  of  an
unlawful assembly that its membership must be five or  more.  The  argument,
therefore, is that as soon as the  two  Piara  Singhs  were  acquitted,  the
membership of the assembly was reduced from five to three and that  made  S.
141 inapplicable which inevitably leads to the result that S. 149 cannot  be
invoked against the appellants. In our opinion, on the facts of  this  case,
this argument has to be upheld. We have  already  observed  that  the  point
raised by the appellants has to be dealt with on the  assumption  that  only
five persons were named in the charge  as  persons  composing  the  unlawful
assembly and evidence led in the course of the trial  is  confined  only  to
the said five persons. If that be so, as soon  as  two  of  the  five  named
persons are acquitted, the assembly must be deemed to have been composed  of
only three persons and that  clearly  cannot  be  regarded  as  an  unlawful
assembly.”

9.    In dealing with the question as to the applicability of S.149 in  such
cases it is necessary to bear in mind the several categories of cases  which
come before the Criminal Courts for their decision. If five or more  persons
are named in the charge as  composing  an  unlawful  assembly  and  evidence
adduced by the prosecution proves that charge against all of them,  that  is
a very clear case where S.149 can be invoked. It is, however, not  necessary
that five or more persons must be convicted before a charge under S.149  can
be successfully brought home to any members of  the  unlawful  assembly.  It
may be that less than five  persons  may  be  charged  and  convicted  under
S.302/149 if the charge is that the persons before  the  Court,  along  with
others named constituted an unlawful assembly; the other  persons  so  named
may not be available for trial along with their companions for  the  reason,
for instance, that they have absconded. In such a case, the fact  that  less
than  five  persons  are  before  the  Court  does  not  make  section   149
inapplicable for the simple reason that both the  charge  and  the  evidence
seek to prove that the persons before the court and others number more  than
five in all and as Such, they  together  constitute  an  unlawful  assembly.
Therefore, in order to bring home a charge under S.149 it is  not  necessary
that five or more persons must necessarily be brought before the  court  and
convicted. Similarly, less than five persons may be charged under s. 149  if
the prosecution case is  that  the  persons  before  the  Court  and  others
numbering in all more than five composed an unlawful assembly, these  others
being persons not identified and so not named. In such a case,  if  evidence
shows that the persons before the Court  along  with  unidentified  and  un-
named assailants or members composed an unlawful assembly, those before  the
Court,  can  be  convicted  under  section  149  though  the  unnamed.   and
unidentified persons are not traced and charged. Cases may also arise  where
in the charge, the prosecution names five or more persons and  alleges  that
they constituted an unlawful assembly. In such cases,  if  both  the  charge
and the evidence are confined to the persons named in the charge and out  of
the persons so named two or more are acquitted  leaving,  before  the  court
less than five persons to be tried, then s. 149 cannot be invoked.  Even  in
such cases, it is possible  that  though  the  charge  names  five  or  more
persons is composing an unlawful assembly, evidence  may  nevertheless  show
that the unlawful assembly consisted of some other persons as well who  were
not identified and so not named. In such cases, either the  trial  court  or
even the High Court in appeal may be able to come  to  the  conclusion  that
the acquittal of some of the persons named in the charge and tried will  not
necessarily displace the charge under section 149  because  along  with  the
two or three  persons  convicted  were  others  who  composed  the  unlawful
assembly but who have not been identified and so have  not  been  named.  In
such cases the acquittal of one or more persons named  in  the  charge  does
not affect the validity of the  charge  under  section  149  because-on  the
evidence the court of facts  is  able  to  reach  the  conclusion  that  the
persons composing the unlawful assembly nevertheless were five or more  than
five. It is true that in the last category of cases, the court will have  to
be very careful in reaching the said conclusion. But there is no  legal  bar
which prevents the court from reaching such a  conclusion.  The  failure  to
refer in the charge to other members of the unlawful assembly  un-named  and
unidentified may conceivably raise the point as to whether  prejudice  would
be caused to the persons before the Court by reason of  the  fact  that  the
charge did not indicate that un-named  persons  also  were  members  of  the
unlawful assembly. But apart from the question of such prejudice  which  may
have to be carefully considered, there is no legal bar preventing the  court
of facts from holding that though the charge specified  only  five  or  more
persons, the unlawful assembly in fact consisted of other persons  who  were
not named and identified. That appears to be  the  true  legal  position  in
respect of the several categories of cases which may fall to be  tried  when
a charge under section 149 is framed.”

                                        (emphasis supplied)


11.   To the same effect is the decision of  this  Court  in  Nagamalleswara
Rao (K) and Ors. v. State of Andhra Pradesh[2] where this Court observed:
“However, the learned Judges over-looked that  since  the  accused  who  are
convicted were only four in number and the prosecution has  not  proved  the
involvement of other persons and the courts below  have  acquitted  all  the
other accused of all  the  offences,  section  149  cannot  be  invoked  for
convicting the four appellants herein. The learned Judges were  not  correct
in stating that A1, A2, A5 and A11 "can be held to be  the  members  of  the
unlawful assembly along with some others unidentified persons’ on the  facts
and circumstances of this case. The charge was not that accused 1, 2, 5  and
11 "and others’ or "and other unidentified persons" formed into an  unlawful
assembly but it is that "you accused 1 to 15" who formed  into  an  unlawful
assembly. It is not the  prosecution  case  that  apart  from  the  said  15
persons there were other persons who were involved in the  crime.  When  the
11 other accused were acquitted it  means  that  their  involvement  in  the
offence had not been proved. It would not also be permissible to  assume  or
conclude that others named or unnamed  acted  conjointly  with  the  charged
accused in the case unless the charge itself specifically said so and  there
was evidence to  conclude  that  some  others  also  were  involved  in  the
commission  of  the  offence  conjointly  with  the   charged   accused   in
furtherance of a common object.”


12.   Applying the above principles to the case at hand, we are of the  view
that the provisions of Section 149 of the IPC are  no  longer  available  to
the prosecution for convicting the appellants whose number is reduced  to  4
consequent upon the acquittal of the remaining accused  persons.  The  facts
of the case at hand are not covered by situations one and  two  referred  to
in Mohan Singh’s case (supra). It is a case which,  in  our  opinion,  falls
more appropriately in situation three where the prosecution  had  named  all
those constituting the unlawful assembly, but,  only  four  of  those  named
were eventually convicted, thereby reducing the number to  less  than  five.
There is no evidence to suggest that any one, apart from the  persons  named
in the charge-sheet were members of the unlawful assembly, but, were  either
not available  or  remained  unidentified.  Such  being  the  position,  the
conviction of the appellants with the help of Section 149 of  the  IPC  does
not appear to be legally sustainable.
13.   The third and the only other submission made by  learned  counsel  for
the appellants related to the nature of the offence committed by Har  Chand,
the author of the fatal injury.  It was urged that the incident in  question
had taken place without any pre-meditation in a sudden fight  because  of  a
sudden quarrel following Jai Pal’s insistence  to  enter  the  crop  growing
field of the complainant.  Injuries were caused by  those  involved  in  the
fight to each other. Appellant-Har Chand had not taken any  undue  advantage
nor had he acted in a cruel or unusual manner.  The  case,  therefore,  fell
within Exception 4 to Section 300 of the IPC.  The fact that Har  Chand  had
inflicted a single injury on the head  of  the  deceased-Gopal  showed  that
there was no intention to kill deceased-Gopal, other injuries  inflicted  by
the remaining accused being only simple in nature.  The  offence,  according
to the learned counsel,  could  not,  therefore,  be  graver  than  culpable
homicide not amounting to murder punishable under  Section  304  Part-II  of
the IPC.
14.   The locus classicus on the interpretation of Sections 299 and  300  of
the IPC is the often quoted decision of this Court in Virsa Singh  v.  State
of Punjab[3] where Vivian Bose, J. speaking for  the  Court,  explained  the
ingredients that must be satisfied for a  culpable  homicide  to  amount  to
murder.  Dealing with clause ‘Thirdly’ under Section 300  of  the  IPC,  the
Court explained the essentials of that clause in the following words:
“12. To put it shortly, the  prosecution  must  prove  the  following  facts
before it can bring a case under Section 300 ‘thirdly’;

First, it must  establish,  quite  objectively,  that  a  bodily  injury  is
present.

Secondly, the nature of the injury must be proved; These are
purely objective investigations.

Thirdly, it must be proved that there  was  an  intention  to  inflict  that
particular bodily injury, that is to say, that  it  was  not  accidental  or
unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be  present,  the  enquiry  proceeds
further and,

Fourthly, it must be proved that the injury of the type just described  made
up of the three elements set out above is sufficient to cause death  in  the
ordinary course of nature. This part of the enquiry is purely objective  and
inferential and has nothing to do with the intention of the offender.”


15.   The Court then goes on to explain the  third  ingredient  referred  to
the above passage and makes the following observations which bring home  the
essence of the third ingredient in simple words:
“The question is not whether the prisoner  intended  to  inflict  a  serious
injury or a trivial one but whether he intended to inflict the  injury  that
is proved to be present. If he can show that he did not, or if the  totality
of the circumstances justify such an inference, then, of course, the  intent
that the section requires is not proved. But if there is nothing beyond  the
injury and the fact that the  appellant  inflicted  it,  the  only  possible
inference is that he  intended  to  inflict  it.  Whether  he  knew  of  its
seriousness, or intended serious consequences, is neither  here  nor  there.
The question, so far as the  intention  is  concerned,  is  not  whether  he
intended to kill, or  to  inflict  an  injury  of  a  particular  degree  of
seriousness, but whether he intended to inflict the injury in question;  and
once the existence of the injury is proved the intention to  cause  it  will
be presumed unless the evidence or the  circumstances  warrant  an  opposite
conclusion.”


16.   Applying the above to the case at  hand,  we  have  no  difficulty  in
holding that keeping in view the nature of the injury,  the  vital  part  of
the body on which the same was inflicted and the weapon used by the  accused
appellant-Har Chand, and the medical evidence,  that  the  said  injury  was
sufficient in the ordinary course to cause death, culpable  homicide  would,
in the case at hand,  tantamount  to  murder  but  for  the  application  of
Exception 4 to Section 300. The question, however, is  whether  Exception  4
really applies and, if  so,  whether  the  injury  was  inflicted  with  the
intention of causing death or of causing such bodily injury as is likely  to
cause death.  The circumstances of the case to which  we  have  referred  in
the earlier part of this judgment, however, leave no manner  of  doubt  that
the incident was without any  pre-meditation  and  a  sudden  fight  upon  a
sudden quarrel.  The injuries upon the deceased were inflicted in  the  heat
of passion and without the appellant taking any undue  advantage  or  acting
in a cruel or unusual manner.  The fact situation of  the  case,  therefore,
attracts Exception 4 especially when in terms of  explanation  to  Exception
4, it is immaterial in such cases which  party  offers  the  provocation  or
commits the first assault.  That being so,  the  offence  committed  by  the
author of the injury is not murder but culpable homicide  not  amounting  to
murder punishable under Section 304 of the IPC.
17.   Coming then to the question whether the act committed  by  Har  Chand-
appellant was with intention to  cause  death  or  of  causing  such  bodily
injury as was likely to cause death, we are of the opinion  that  even  when
the act may not have been committed with the  intention  of  causing  death,
the same was intended to cause such bodily injury as  was  likely  to  cause
death, within the meaning of Section 304 Part I.
18.   In the result, we allow these appeals in part  and  to  the  following
extent:
The conviction of the appellants under Section 302  read  with  Section  149
IPC and the sentence of imprisonment for life awarded to them is set aside.
Appellant Har Chand is, instead, convicted  under  Section  304  Part-I  and
sentenced to undergo rigorous imprisonment for a period of eight  years  and
a fine of Rs.5000/-.  In default payment of fine he  shall  undergo  further
imprisonment for a period of six months.  His conviction  and  sentence  for
offences punishable under Section 325 shall remain unaffected  and  so  also
the fine and default sentence awarded to him.
The  conviction  of  Appellants-Raman  Lal,  Naresh  and  Bhagat  Singh  for
offences punishable under Sections 325 and 323 of the IPC and  the  sentence
awarded to them  shall  stand  affirmed.  They  shall  be  set  free  unless
required in connection of any other case, as  they  have  already  undergone
the imprisonment awarded to them.




                                                    ………………….....…………….…..…J.
                                                               (T.S. THAKUR)



                                                   …………………………….....…….…..…J.
                                                     (ROHINTON FALI NARIMAN)
New Delhi
May 15, 2015
-----------------------
[1]    AIR 1963 SC 174
[2]    (1991)2 SCC532
[3]    AIR 1958 SC 465

What is important is that the appellant had been appointed as early as in the year 1988 and had by the time the decision of this Court in Umadevi’s (3) case (supra) pronounced, already completed more than 10 years service. Government has formulated rules for regularization of such daily-wagers, no matter the same are the subject matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularization of those who have served for over a decade. The rules providing for regularization are a sufficient enough indication of that fact. We do not, therefore, see any impediment in directing regularization of the service of the appellant on the analogy of his juniors with effect from the date his juniors were regularized and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the appellant to claim any amount towards arrears of salary based on such regularization.

                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.  4474 OF 2015
          (Arising out of Special Leave Petition(C) No.837 of 2012)


Prem Ram                                     …Appellant

Vs.

Managing Director, Uttarakhand Pey Jal &
Nirman Nigam, Dehradun and Ors.              …Respondents




                               J U D G M E N T

T.S. THAKUR, J.

1.       Leave granted.

2.    This appeal arises out of an order dated 30th  June,  2011  passed  by
the High Court of Uttarakhand at Nanital whereby Special  Appeal  No.128  of
2011 filed by the appellant has been dismissed and the order passed  by  the
learned Single Judge  of  that  Court  in  Writ  Petition  324(MS)  of  2004
affirmed.
3.    The appellant, it appears, was  appointed  as  a  daily-wager  in  the
erstwhile Uttar Pradesh Pey Jal & Nirman Nigam sometime in  the  year  1988.
Nine years  later  his  services  were  terminated  in  February  1997.  The
termination, when assailed by the appellant before  the  Labour  Court,  was
set aside with a direction to the  respondent  to  reinstate  the  appellant
with 50% back wages and continuity of service. The writ  petition  filed  by
the respondent-Jal Nigam who is the successor-in interest of  the  erstwhile
Uttar Pradesh Pey Jal Nigam against the  award  made  by  the  Labour  Court
succeeded only in part and to the extent that the award of  back  wages  was
deleted from the award by the  Labour  Court.   It  is  common  ground  that
pursuant to the award, the appellant was allowed to rejoin as a  daily-wager
and to serve the respondent-Jal Nigam till the date  of  his  superannuation
upon completion of 60 years of age.

4.    In the year 2008, the appellant filed Writ Petition  No.1116  of  2008
before the High Court for a mandamus  directing  respondents  to  regularise
his services w.e.f. 1st July, 2003  on  the  post  of  Jeep  Driver  and  to
release consequential benefits in his favour including arrears due  to  him.
The appellant’s case in the writ petition was that  other  daily-wagers  who
were  junior  to  him  and  appointed  after  the  year  1988  having   been
regularized in service,  the  appellant  could  not  merely  because  of  an
illegal order of termination of his services be deprived  of  that  benefit.
The appellant contended that the termination order having been set aside  by
the Labour Court which order was affirmed by the High Court with  continuity
of his service, there was no reason for denial of benefits that  would  have
flowed to him  but  for  the  order  of  termination  especially  when  such
benefits  were  extended  to  other  similarly  situate  contemporaries  and
juniors of the appellant.

5.    The writ petition coming before the Single Judge  Bench  of  the  High
Court at Uttarakhand was dismissed by an order dated 23rd May, 2011  on  the
authority of the decision of this Court in  Secretary,  State  of  Karnataka
and Ors. v. Umadevi (3) (2006) 4 SCC 1.  The High Court  at  the  same  time
allowed  the  appellant  to  move  a  representation  before  the  concerned
authorities in the light of paragraph 53 of  the  decision  in  Umadevi  (3)
case (supra).  The High  Court  observed  that  if  there  is  a  scheme  of
regularization the claim of the  appellant  should  also  be  considered  in
accordance therewith.

6.    Dissatisfied with the above order,  the  appellant  preferred  Special
Appeal No.128 of 2011 which, as noticed earlier, has been dismissed  by  the
Division Bench of the High Court. The High Court held that since  there  was
no scheme  for  regularization  of  daily-wagers  and  those  named  by  the
appellant in the writ petition had been regularized  by  the  Uttar  Pradesh
Jal Nigam at a time when Uttarakhand Pey Jal and Nirman  Nigam  was  not  in
existence, nothing further could be  done  in  the  matter  nor  any  relief
granted to the appellant.  The present appeal  assails  the  correctness  of
the said two judgments and orders of the High Court.

7.    When the matter came up for hearing before this  Court  on  8th  July,
2013, learned counsel for the respondent-Corporation  was  granted  time  to
take instructions whether any scheme within the contemplation of para 53  of
Umadevi (3) case (supra) had been formulated by  the  respondent-Corporation
and in case no such scheme has been formulated, whether the  Corporation  is
willing to formulate one.  The matter again came  up  for  hearing  on  18th
November, 2013.  It was argued by Ms. Rachana Srivastava, counsel  appearing
for the respondent-Uttarakhand Pey Jal & Nirman Nigam that while  the  Nigam
had passed  a  resolution  adopting  the  scheme  formulated  by  the  State
Government in terms of the directions of this  Court  in  Umadevi  (3)  case
(supra), the Government’s approval for such an adoption had not so far  been
received. She prayed for and was granted time to place on record a  copy  of
the Government scheme adopted by the Nigam  as  also  the  resolution  under
which the same was adopted besides, a copy of the approval, if any,  granted
by the Government to such adoption.  On 27th October, 2014, when the  matter
came-up once again for  hearing,  our  attention  was  drawn  to  additional
documents filed by the appellant from which it  appeared  that  the  persons
who figured at serials no.78 to  82  at  page  12  of  the  said  additional
documents had been regularized w.e.f. 1st July, 2003, although  their  entry
into service was shown to be 6th of June, 1989  onwards.   It  was  on  that
basis argued that persons junior to the appellant  having  been  regularized
in service, whereas the appellant could not have been deprived of a  similar
benefit simply because his services were illegally terminated. On behalf  of
the respondent-Jal Nigam it was, on the other hand, argued that there was  a
difference between cases of persons appearing at serial  nos.78  to  82  and
that of the appellant inasmuch as the  former  were  work-charged  employees
while the appellant was appointed  as  a  daily-wager.  At  the  request  of
learned counsel for the respondent-Nigam the matter was  adjourned  by  four
weeks to enable the Nigam to file an  additional  affidavit  as  to  whether
regularization had been ordered after  undertaking  any  screening/selection
process and if so, on what terms and conditions.

8.    From the affidavit filed, in compliance with the directions issued  by
this Court, it  appears  that  the  Government  of  Uttarakhand  had  framed
Regularization Rules 2011 for regularization of daily-wagers  and  temporary
employees who had been appointed on or before 1st  November,  2011  and  had
completed 10 years of continuous service by that date. The said  Rules  were
then adopted by the Board of respondent-Jal Nigam  in  terms  of  resolution
passed in its  12th  Meeting  and  approval  of  the  State  Government  for
implementation of  the  said  Rules  in  the  Nigam  sought  under  Managing
Director’s  letter  dated  3rd  March,  2012  addressed  to  the   Principal
Secretary, Peyjal Nigam, Government of Uttarakhand. While  the  approval  of
the Government was still awaited, the  Government  appears  to  have  framed
fresh Regularisation Rules in supersession  of  the  Rules  of  2011.  These
Rules are said to be under challenge before the High  Court  of  Uttarakhand
at Nanital in which the High Court appears to have  passed  certain  interim
orders also.  From the affidavits it is further evident  that  five  persons
named by the appellant appearing at serials no.78  to  82  of  the  list  of
juniors have been regularized in service. It is  not  in  dispute  that  all
these persons were appointed on dates subsequent to the date of  appointment
of the appellant. The respondent, however,  has  attempted  to  justify  the
regularization of juniors mentioned above on the ground that they  had  been
appointed in work-charge establishment whereas the appellant  herein  was  a
daily-wager.  We asked learned counsel for  the  respondent  as  to  whether
daily-wagers on the basis of their seniority or otherwise  were  brought  on
to the work-charged establishment and if  there  was  no  such  practice  or
procedure followed, what was the basis on which the department would  decide
whether the person has to be engaged on a work-charged establishment  or  as
a daily-wager. We must regretfully say that we did not  get  a  satisfactory
answer to that question nor does any of  the  several  affidavits  filed  in
these proceedings by  the  respondent-Jal  Nigam  point  out  a  qualitative
difference between daily-wager on the one hand and  a  temporary  engagement
on work-charged establishment on  the  other.   If  engagement  in  a  work-
charged establishment rest on a  criterion,  no  better  than  the  absolute
discretion of the authority engaging them or  the  fortuitous  circumstances
of a vacancy or need in a work-charged establishment, then, there is  indeed
no difference between  a  daily-wager  on  the  one  hand  and  work-charged
employees on the other. No  distinction  can  resultantly  be  made  between
these two categories of employees  for  in  essence,  the  nature  of  their
engagement remains  the  same  except  that  in  the  case  of  work-charged
employees,  the  wages/emoluments  appear  to  be  borne  from  out  of  the
allocation for the project in which they are employed  while  in  the  other
case there is no such specific allocation of funds.  The  classification  of
work-  charged  and  other  employees  to  say  the  least  remains   wholly
unsatisfactory at least for the purposes of the  case  in  hand  leaving  no
option for us but to treat the case  of  the  daily-wagers  and  work-charge
employees on the same footing when it comes to  granting  regularization  to
them.

9.    If that be so, there is no denying the fact that the persons who  were
junior to the appellant, having been engaged much later than  him,  steal  a
march over him in terms of regularization in  service  while  the  appellant
remained embroiled in litigation over what was eventually  found  to  be  an
illegal termination of his service.  It  is  true  that  the  appellant  has
already superannuated. That does not, however, make  any  difference.   What
is important is that the appellant had been appointed as  early  as  in  the
year 1988 and had by the time the decision of this Court  in  Umadevi’s  (3)
case (supra) pronounced, already  completed  more  than  10  years  service.
Government has formulated rules for regularization of such daily-wagers,  no
matter the same are the subject  matter  of  a  challenge  before  the  High
Court. What is noteworthy is that neither the State Government nor  the  Jal
Nigam has resented the idea of regularization of those who have  served  for
over a decade. The rules  providing  for  regularization  are  a  sufficient
enough indication of that fact. We do not, therefore, see any impediment  in
directing regularization of the service of the appellant on the  analogy  of
his juniors with effect from the date his juniors were regularized  and  for
the release of all retiral benefits in his favour on that basis by  treating
him to be in continuous service till the  date  of  his  superannuation.  We
make it clear that this direction will not entitle the  appellant  to  claim
any amount towards arrears of salary based on such regularization.

10.   In the result, this  appeal  succeeds  and  is  hereby  allowed.   The
orders passed by the High Court are set aside and the  writ  petition  filed
by  the  appellant  disposed  of  in  terms  of  the  directions   contained
hereinabove. The parties are directed to bear their own costs.


                                                        ………………………………….…..…J.
                                                               (T.S. THAKUR)






                                                        …………………………..……………...
                                                         (ADARSH KUMAR GOEL)
New Delhi
May 15, 2015

Sec.482 of Cr.P.C. - Sec.499, 500,501,502,503 I.P.C. - Sec.196,198,199 of Cr.P.C.- Sanction against each and every accused - Held not necessary - allegations “Police sources say Vanjara and Pandian nabbed Kousarbai in Bidar with help from S.P. Rajiv Trivedi of the Hyderabad Special Investigation Unit………Rajiv Trivedi provided cars with fake number plates in which Sohrabuddin was brought to Ahmedabad and then killed in a fake encounter.” - Quash petition was dismissed by A.P.High court - holding that the news telecast in the electronic media by CNN-IBN and other news items published in various newspapers of the appellants per se are integrally connected with the official discharge of duties of the second respondent and held that whether the same amounts to defamatory, libel or scandalous statements is a matter that has to be decided on the evidence to be adduced by the parties.- and further held that in the absence of any privilege to the broadcaster on par with Section 7 of the Press and Registration of Books Act, 1867, the appellants cannot claim to quash the criminal proceedings initiated against them and there was no merit to quash the said criminal proceedings against the appellants.- Apex court confirmed the same and dismissed the appeal - 2015 S.C.MSKLAWREPORTS

A news item on various dates in the year 2007, allegedly making  false
implication  against  the  second   respondent-Rajiv   Trivedi,   Additional
Commissioner of Police (Crimes and SIT),  Hyderabad,  Andhra  Pradesh,  with
regard to the Sohrabuddin encounter case was published by the appellants  in
the respective publications and was telecast on  CNN-IBN.
A  representation
was given by the second-respondent to the Andhra  Pradesh  State  Government
seeking previous sanction under Section 199(4)(b) of the  Code  of  Criminal
Procedure (in  short  ‘Cr.P.C.’)  for  prosecution  of  the  appellants  for
offences punishable under the provisions  referred  to  supra.
Accordingly,
the previous sanction was accorded by the State  Government  vide  G.O.  Rt.
Nos. 6581, 6582, 6583 and 6580 dated 27.10.2007  in  favour  of  the  second
respondent permitting him to file complaints against the appellants  through
the State Public Prosecutor before the appropriate court of law against  the
individuals connected with electronic and print media as hereinbelow:

Siyasat Urdu Daily: Sri Latif Mohammad Khan

CNN-IBN English News Channel

Rajasthan Patrika (Jaipur) Hindi daily

The Deccan Chronicle English Daily

The Etemaad Urdu Daily

(points (a)-(e)  are  hereinafter  referred  to  as  ‘individual  print  and
electronic media’)

One of the above mentioned news items which was telecast on CNN-IBN  English
News channel under the caption “30 minutes- Sohrabuddin  the  Inside  Story”
on 13.5.2007 at 1730 hours, which is subject matter of CC No. 1 of 2008,  is
extracted hereunder for our examination:-

“Police sources say Vanjara and Pandian nabbed Kousarbai in Bidar with  help
from S.P. Rajiv Trivedi  of  the  Hyderabad  Special  Investigation  Unit………
Rajiv Trivedi provided cars with fake number  plates  in  which  Sohrabuddin
was brought to Ahmedabad and then killed in a fake encounter.”

 sanction accorded  by  the  State  Government  of
Andhra Pradesh, the criminal proceedings were initiated by the State  Public
Prosecutor on behalf of the State of Andhra Pradesh against the  appellants.
The State of Andhra Pradesh  represented  by  the  State  Public  Prosecutor
filed  the  complaints  against  the  accused-appellants  for  the  offences
referred to supra.
The Additional Metropolitan Sessions  Judge  before  whom
complaints were instituted  by the State Public Prosecutor,  has  taken  the
cognizance of the offences alleged against the appellants and passed  orders
summoning them to appear before the Court for  further  proceedings  in  the
respective cases.

Challenged in High Court for Quash

 allowed only Criminal Petition  No.  7592  of  2007
(M.J. Akbar & Anr. v. The State of A.P.) and
dismissed  all  other  criminal
petitions holding that the news telecast in the electronic media by  CNN-IBN
and other news items published in various newspapers of the  appellants  per
se are integrally connected with the official discharge  of  duties  of  the
second respondent and
held that
whether  the  same  amounts  to  defamatory,
libel or scandalous statements is a matter that has to  be  decided  on  the
evidence to be adduced by the parties.
The High Court further held  that  in
the absence of any privilege to the broadcaster on par  with  Section  7  of
the Press and Registration of Books Act, 1867, the appellants  cannot  claim
to quash the criminal proceedings initiated against them and  there  was  no
merit to  quash  the  said  criminal  proceedings  against  the  appellants.

 appeals are filed

On examining the facts, circumstances and  evidence  on  record,
the previous sanction is accorded to launch  necessary  prosecution  against
the CNN-IBN channel, Siyasat Urdu Daily: Sri Latif Mohammad Khan,  Rajasthan
Patrika (Jaipur) Hindi daily, Deccan Chronicle  English  Daily  and  Etemaad
Urdu Daily.
By careful  reading  of  the  provision  under  Section  199  of
Cr.P.C., read  with  the  All  India  Services  (Conduct)  Rules,  1968,  it
provides  that  previous  sanction  must  be   accorded,   authorising   the
initiation of criminal prosecution against the accused,  however,  the  said
provisions do not state that it is necessary to mention the  names  of  each
one of the accused who are alleged to have  committed  the  offence  in  the
same alleged transaction.
Therefore, in the case on hand, when the  previous
sanction was accorded  by  the  State  Government  against  those  who  were
responsible for the telecast/publication of the news both in electronic  and
print  media  which  according  to  the  second   respondent   damaged   his
reputation, it is not necessary  for  the  State  Government  to  separately
issue sanction order against each one of the appellants, when they  are  all
responsible for telecasting  and  publishing  the  said  news  item  in  the
electronic and print media and also when the names of  the  said  electronic
and print media have already been mentioned  in  the  said  sanction  order.
Therefore, there is no merit in  the  contention  urged  on  behalf  of  the
appellants that their names have not  been  specifically  mentioned  in  the
said sanction order. The said contention is untenable in law and  therefore,
liable to be rejected. The same is accordingly rejected.

The learned senior counsel  on  behalf  of  the  appellants  has
placed reliance upon the judgments of  this  Court  in  the  cases  of  Gour
Chandra Rout & Anr. v. The Public Prosecutor,  P.C.  Joshi  &  Anr.  v.  The
State of Uttar Pradesh and Mansukhlal Vithaldas Chauhan v. State of  Gujarat
(all referred to supra). 
With regard to the above referred cases, the  first
two cases have not dealt with the exercise of power  under  Section  199  of
Cr.P.C., except stating the ministerial  exercise  of  power  by  the  State
Government while exercising its power under Section 198B (3)(a)  of  Cr.P.C,
1898. 
In so far as the third case referred to supra upon which the  reliance
placed upon by the learned senior counsel on behalf of the  appellants,  the
same is in relation to the previous sanction to be  accorded  by  the  State
Government for the purpose  of  prosecution  under  the  provisions  of  the
Prevention of Corruption Act. 
Therefore, none of the above  cases  on  which
reliance has been placed by the learned counsel on behalf of the  appellants
have any relevance to the fact situation on hand.

Having regard to the scheme of the Protection of  Civil  Rights  Act,  1955,
the complainant-second respondent during the relevant point of time was  the
Police Officer in the  services  of  the  State  Government  and  he  cannot
prosecute the appellants in  a  court  of  law  without  obtaining  previous
sanction from the State  Government  as  contemplated  under  the  aforesaid
provisions of Cr.P.C. Therefore, in order to prosecute the  appellants,  the
second respondent made a representation to the State Government  along  with
a petition with regard to initiation of  criminal  proceedings  against  the
appellants under the provisions referred to supra in  respect  of  which  he
has sought the sanction of the State  Government.  On  appreciation  of  the
same,  the  State  Government  in  exercise  of  its  administrative  powers
appreciated the facts of the matter, rightly applied its mind  and  accorded
the sanction under Section  199(4)  of  Cr.P.C.  in  favour  of  the  second
respondent to initiate criminal proceedings under  the  provisions  referred
to supra against the appellants. The  said  sanction  was  accorded  by  the
State Government after appreciating that the  statements  telecast/published
by the appellants  in  the  electronic  and  print  media  as  well  as  the
statement given by the appellant in Criminal Appeal No. 853 of 2012  in  the
Urdu Daily on the basis of which the news is published by its Editor,  which
are all statements defaming the second respondent while he  was  discharging
his public function as  a  public  servant.  Therefore,  the  contention  on
behalf of the appellants that there was no application of mind on  the  part
of the State Government in according the said sanction is  wholly  untenable
in law, liable to be rejected and the same is accordingly rejected.

By careful reading of Section 199(4) of the Cr.P.C., it  does  not  indicate
that in order to initiate criminal  proceedings  against  the  accused,  the
public servant needs  to  obtain  sanction  from  the  State  Government  in
respect of each one of the persons against  whom  the  same  transaction  of
offence is alleged  and  the  names  of  the  accused  are  required  to  be
mentioned  specifically  in  the  sanction  order  accorded  by  the   State
Government.  It is sufficient if one sanction is accorded to  prosecute  all
the concerned persons involved in that occurrence, thus, the  contention  on
behalf of the appellants in this regard is also liable to  be  rejected  and
is accordingly rejected.

In view of the aforesaid reasons, we are of the opinion  that  the  impugned
judgment passed by the  High  Court  of  Andhra  Pradesh  in  rejecting  the
petitions for quashing the initiation of criminal  proceedings  against  the
appellants under Section 482 of the Cr.P.C. is perfectly  legal  and  valid,
the same does not call for interference by this Court  in  exercise  of  its
appellate jurisdiction as there is no substantial question of law framed  in
the appeals nor is there any miscarriage of justice for  the  appellants  to
interfere with at this stage. In our considered view, having regard  to  the
nature  of  the  complaint,  the  respondents  are  required  to  prove  the
allegations against the appellants by adducing valid  and  cogent  evidence,
the same has to be considered by the trial court and accordingly record  the
findings on the merits of the  case.   The  appeals  are  devoid  of  merit,
liable to be dismissed and are accordingly dismissed.  The  orders  granting
stay of further proceedings before the trial court shall stand vacated.- 2015 S.C.MSKLAWREPORTS

Notification No.35/90 exempted coking coal having an ash content below 12% from basic customs duty that was in excess of 5%. In addition, notifications 36/90 and 23/91 exempted coking coal with ash content of less than 12% from the whole of auxiliary duty and additional duty of customs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.7439-7440 OF 2004



M/S. TATA CHEMICALS LTD.                    …APPELLANT

                                   VERSUS

COMMISSIONER OF CUSTOMS
(PREVENTIVE) JAMNAGAR                      ...RESPONDENT

                                    WITH

                     CIVIL APPEAL NOS.7628-7629 OF 2004


                               J U D G M E N T

R.F. Nariman, J.

1.    The appellants were engaged in the manufacture of soda ash  and  Coke.
For the manufacture of Coke, they require coking coal which was imported  by
them. Notification No.35/90 exempted  coking  coal  having  an  ash  content
below 12% from basic customs duty that was in excess of  5%.   In  addition,
notifications 36/90 and 23/91 exempted coking coal with ash content of  less
than 12% from the whole of auxiliary duty and  additional duty of customs.

2.    On 4.2.1991,  the  appellants  had  entered  into  an  agreement  with
Philbro Energy Company (situated in the USA)  for  supply  of  30500  metric
tons, CIF, Okha of Low Ash Metallurgical Coal produced by  M/s  Kembla  Coal
and Coke, Australia.   The  contract  specifically  provided  that  the  ash
content was not to exceed 10.3% and that the sampling and  analysis  was  to
be done  by  an  independent  inspection  agency  of  international  repute,
namely, M/s Cargo Superintendents Company (Asia) Pty.  Limited  (CASCO),  at
the loading  port  and  that  CASCO  should  give  a  certificate  regarding
analysis of the coking coal. In accordance  with  the  aforesaid  agreement,
the appellants in Civil Appeal Nos.7439-7440  of  2004,  namely,  M/s.  Tata
Chemicals Limited imported 33462 metric tons and appellants in Civil  Appeal
Nos.7628-7629 of 2004, namely, M/s. B.L.A.  Coke  Private  Limited  imported
5000 metric tons of coking coal.  Detailed sampling was done by CASCO  while
the coal was being  loaded  on  to  the  ship  and  CASCO  had  meticulously
followed British Standards equivalent to IS standards  436  and  1350.   The
two consignments were divided into samples of  3000  metric  tons  each  and
from each sample CASCO  took  samples  weighing  470  kilograms  each.   The
primary  samples  were  passed  through  secondary  sampling,  crushing  and
tertiary treatment.  13 sample units were separately tested, their  analysis
report obtained and the average furnished in  the  form  of  a  consolidated
test report.  This report stated that the moisture content was 7.2% and  the
ash content of the said coking coal was 9.8%.

3.    When the aforesaid consignment arrived  at  Okha,  the  appellants  in
both the appeals filed bill of entry dated 15.3.1991 and  claimed  exemption
under the aforesaid  notifications.  Along  with  the  bill  of  entry,  the
appellants also submitted the certificate of  CASCO.   It  is  important  to
note that the Department at no stage stated that they have not accepted  the
CASCO report  or  that  the  CASCO  report  was  defective  in  any  manner.
However, the Customs  Inspector  at  Okha  apparently  drew  samples  of  20
kilograms each – one from the vessel and one from  the  shore  on  18.3.2001
and beat them with stones to crush them. The samples  were  then  made  into
powder form.

4.    The samples were not drawn in the presence  of  any  employee  of  the
appellants.  It was alleged by the Department that the Inspector  had  drawn
the samples in the presence of Shri K.M. Jani who was allegedly an  employee
of Bhagwati and Company, clearing agents appointed by  the  appellants.   It
is common ground that the sample so drawn had not been drawn  in  accordance
with IS 436.

5.    The samples so drawn, however, were sent to the Central Fuel  Research
Institute, Dhanbad, to be  analysed.   On  13.1.1992,  the  appellants  were
informed by the Superintendent of Customs that the test agency  stated  that
the ash content in the samples was more than 12%.  A copy of the report  was
subsequently furnished to  the  appellants  which  indicated  that  the  ash
content of  the  coal  belonging  to  Tata  Chemicals  was  13.8%  and  that
belonging to M/s. B.L.A. Coke  Private  Limited  was  12.6%.   On  objection
being made to the said report, the Superintendent Okha sent two  samples  to
the Chief Chemist, Central Revenue Control Laboratory (CRCL)  on  15.2.1992.
CRCL in turn submitted its report after  another  delay  of  10  months  and
reported that Tata Chemicals coal had an ash content of 12.21% and  that  of
B.L.A. 12.33%.

6.    As a result of the  ash  content  being  more  than  12%,  show  cause
notices dated 4.1.1993 was issued to both the  appellants  and  differential
duty was demanded from both of them.

7.    By an order dated  31.3.1995,  the  Assistant  Collector  demanded  an
amount  of  Rs.3,95,77,324/-  from  Tata  Chemicals   and   an   amount   of
Rs.59,136,771/- from M/s. B.L.A. Coke Private Limited.

8.    On an appeal  filed  to  the  Commissioner  (Appeals)  Ahmedabad,  the
Commissioner by an order dated  30.12.1997,  set  aside  the  order  of  the
Assistant Collector in the following terms:-

“10. In view of the above discussion and after going  through  the  comments
of the Assistant Commissioner, Customs, Jamnagar as discussed  in  para  5.3
supra, wherein he was asked to give his comments on the submission  made  by
the appellants during the course of personal hearing. It is  seen  that  the
Assistant Commissioner has accepted all the points raised by the  appellants
and he has not been able to controvert any of their submissions. I  come  to
the  conclusion  that  the  appellants  have  substantial  force  in   their
arguments  and  therefore  I  held  that  nothing  can  be  added  into  the
notification  and  when  notification  does  not  prescribe  the  method  of
analysis for ascertaining  the  ash  content  in  the  coal,  it  should  be
ascertained on as received basis. I rely upon the  ratio  of  the  decisions
cited by the appellants in this regard. The CFRI  and  CRCL  have  conducted
analysis to ascertain the ash content on gross air dried basis, in spite  of
clear instruction of the Asttt. Commissioner, Customs, Jamnagar to give  the
report on as received basis,  therefore,  these  reports  should  have  been
given on as received basis. I accept the plea of the appellants  that  these
results can be converted into as received basis, which fact  has  also  been
accepted by the Assistant Commissioner as discussed in para  5.3  above,  by
applying the formula  followed  internationally.  By  applying  the  formula
which is accepted all over the world and has been given  by  the  appellants
during the course of their submissions,  the  ash  content  on  as  received
basis would be 11.8% and 11.6% in the case of M/s. BLA Industries and  13.9%
and 11.4% in the case of M/s. Tata Chemicals Ltd. The  formula  for  working
out these results is as under:

100 – Mar     Mar: Moisture as received

100 – Mad    Mad: Moisture as dried.





It is seen that in case of M/s BLA Industries results of  both  laboratories
converted into as received basis gives ash content  below  12%  and  in  the
case of M/s Tata Chemicals Ltd. Though the  first  result  even  after  such
conversion crossed 12% marginally, but the  result  of  subsequent  analysis
conducted by CRCL after such conversion gives content of ash  content  below
12%. Therefore,  after  conversion  on  as  received  basis,  which  is  the
requirement of the law, the ash content in both the cases is below  12%  and
therefore both the appellants are entitled for partial concessional rate  of
Customs duty in excess of 5% as prescribed by Notification No.35/90”



 9.   Revenue appealed to CESTAT who by  the  impugned  judgment  and  order
dated 24.9.2004 allowed Revenue’s appeal and set  aside  the  order  of  the
Commissioner (Appeals) basically on the ground that even though the  samples
drawn by the Inspector were contrary to IS 436, yet since  a  representative
of the appellants was present, the  appellants  are  estopped  from  turning
around at a later stage inasmuch as they did not immediately object  to  the
drawing of samples contrary to law.

10.    Shri  S.K.  Bagaria,  learned  senior  advocate  on  behalf  of   the
appellants argued before us that the Australian  Company  from  whose  mines
the coking coal was sent, generally mined coal with an ash content  of  less
than 12%.  He referred to and relied  upon  a  great  deal  of  material  to
establish this fact.  Further, he went on to  state  that  CASCO,  the  test
agency,   was   internationally   renowned   and   had    given    a    test
report/certificate of quality which described  how  meticulously  they  have
taken samples in accordance with law and how  ultimately  the  samples  were
found to contain ash at only 9.8% following the gross air dried method.   He
also referred us to Section 18 of the Customs Act and stated that  since  no
fault had been found with CASCO’s certificate, the entire sampling  done  by
the customs authorities was invalid in law.  He further went on to refer  to
the cross-examination of the Inspector who drew the samples and stated  that
the samples were drawn in the afternoon of 18.3.1991, the  entire  operation
being completed by 1730 hours.  No panchnama was drawn.   20  kilograms  was
taken from the shore and 20 kilograms from the vessel contrary to a  minimum
of 75 kilograms for six  lots  to  be  taken  under  IS  436.   When  cross-
examined, the Inspector stated that he did not know  about  IS  436  and  he
further admitted that he put the samples in a plastic bucket which  did  not
have any lid.  He further went on  to  state  that  he  had  broken  up  the
sampled lumps with stones and then put the resultant powder  in  containers.
He further referred to the cross-examination of the Superintendent  who  had
deputed the Inspector to carry out the samples who was equally in  the  dark
about IS 436.  Above  all,  he  characterized  as  perverse  the  Tribunal’s
findings that the appellants were estopped because their representative  was
present when the sampling was done.  He stated  that  no  representative  of
either appellant was present.  One K.M. Jani alone was present who  admitted
in his cross-examination that he did not work for  the  appellants  Clearing
Agent, namely, M/s Bhagwati & Company.  Further the said Mr.  Jani  did  not
go together with the Inspector and no samples were  actually  drawn  in  his
presence.

11.   Shri Radhakrishnan, learned senior advocate  appearing  on  behalf  of
the  respondent  countered  the  submissions  of  Shri  Bagaria  by  reading
copiously from the order of the Assistant Collector and  the  order  of  the
Tribunal.  According to him, the samples taken by  the  Inspector  could  be
taken because statutory authority is given for the same  by  Section  18  of
the Customs Act. He went on to further state that even  though  the  samples
may not have been taken strictly in accordance with IS  436  nonetheless  as
Shri Jani was  present,  the  rule  of  estoppel  would  apply  against  the
appellants.

12.   Having heard learned counsel for  the  parties,  it  is  important  to
first extract Section 18 of the Customs  Act.  Section  18  of  the  Customs
reads as under:-

“Section 18. Provisional assessment of duty

(1) Notwithstanding anything contained in this Act but without prejudice  to
the provisions contained in section 46-

(a) where the proper officer is satisfied that an importer  or  exporter  is
unable to produce any document or furnish any information necessary for  the
assessment of duty on the imported goods or the export goods,  as  tie  case
may be; or

(b) where the proper officer deems it  necessary  to  subject  any  imported
goods or export goods to any chemical or  other  test  for  the  purpose  of
assessment of duty thereon ; or

(c) where the importer or  the  exporter  has  produced  all  the  necessary
documents and furnished full information for the assessment of duty but  the
proper officer deems it necessary to make further enquiry for assessing  the
duty, the proper officer may direct that the duty  leviable  on  such  goods
may, pending  the  production  of  such  documents  or  furnishing  of  such
information  or  completion  of  such   test   or   enquiry,   be   assessed
provisionally if  the  importer  or  the  exporter,  as  the  case  may  be,
furnishes such security as the proper officer deems fit for the  payment  of
the deficiency, if any, between the  duty  finally  assessed  and  the  duty
provisionally assessed.

(2) When the duty leviable on such goods is assessed finally  in  accordance
with the provisions of this Act, then-

(a) in the case of goods cleared for home consumption  or  exportation,  the
amount paid shall be adjusted against the duty finally assessed and  if  the
amount so paid falls short of, or  is  in  excess  of  20[the  duty  finally
assessed,] the  importer  or  the  exporter  of  the  goods  shall  pay  the
deficiency or be entitled to a refund, as the case may be;

(b) in the case of warehoused goods, the proper officer may, where the  duty
finally assessed is in excess of the duty  provisionally  assessed,  require
the importer to execute a bond, binding himself in a sum equal to twice  the
amount of the excess duty.”



13.   The Revenue has grounded its case  in  Section  18(b)  which  provides
that imported goods can be subjected to chemical  or  other  tests  for  the
purpose of assessment of duty thereon where  the  proper  officer  deems  it
necessary to so subject the imported goods.

14.   In our opinion, the expression “deems it  necessary”  obviously  means
that the proper officer must have good reason to subject imported  goods  to
a chemical or other tests. And, on the facts of  the  present  case,  it  is
clear that where the importer has furnished all the necessary  documents  to
support the fact that the ash content in the coking coal  imported  is  less
than 12%, the proper officer must, when questioned, state that, at the  very
least, the documents produced do not inspire confidence for some good  prima
facie reason.  In the present case, as has been  noted  above,  the  Revenue
has never stated that CASCO’s certificate of quality ought  to  be  rejected
or is defective in any manner.  This being the case, it is  clear  that  the
entire chemical analysis of the imported goods done by  the  Department  was
ultra vires Section 18(b) of the Customs Act.

15.   Statutes often use expressions such as “deems it  necessary”,  “reason
to believe” etc. Suffice it to say that these  expressions  have  been  held
not to mean the subjective satisfaction  of  the  officer  concerned.   Such
power given to the concerned officer is not an arbitrary power  and  has  to
be exercised in accordance with the restraints imposed by law. That this  is
a well settled position of law is clear from the following judgments.   See:
 Rohtas Industries Ltd. v. S.D. Agarwal, (1969) 3 S.C.R.  108  at  129.   To
similar effect is the judgment in Sheo Nath  Singh  v.  Appellate  Assistant
Commissioner of Income Tax, Calcutta, (1972) 1 SCR  175  at  182.   In  that
case it was held as under:

“…There can be no manner  of  doubt  that  the  words  “reason  to  believe”
suggest that the belief must be that of  an  honest  and  reasonable  person
based upon reasonable grounds and that the Income Tax  Officer  may  act  on
direct or circumstantial evidence but  not  on  mere  suspicion,  gossip  or
rumour. The Income Tax Officer would be acting without jurisdiction  if  the
reason for his belief that the conditions are satisfied does  not  exist  or
is not material or relevant to the  belief  required  by  the  section.  The
Court can always examine this aspect though the declaration  or  sufficiency
of the reasons for the belief cannot be investigated by the Court.”



See also Bar Council of Maharashtra v. M.V. Dabholkar, [1976]  2  S.C.R.  48
at 51. N. Nagendra Rao & Co. v. State of A.P. (1994) 6 SCC 205 at 216.

16.   The admitted position on record is that the  samples  drawn  were  not
drawn in accordance with law and were drawn with no regard whatsoever to  IS
436.  That IS 436 would apply to the facts  of  the  present  case  is  made
clear by our judgment reported in Bombay Oil Industries (P)  Ltd.  v.  Union
of India, 1995 (77) E.L.T. 32 (S.C.), where this Court held following  Union
of India v. Delhi Cloth & General Mills Co. Ltd., 1963 Suppl. (1)  SCR  586,
that if the method of testing of any item of Central Excise  tariff  is  not
mentioned, then the Indian Standard Institution’s method should be  applied.
 That this would apply to the Customs Act as well.  IS 436 lays down:-

““5. SAMPLING FROM SHIPS DURING LOADING OR UNLOADING



5.1 Sub-lots – For the purpose of sampling, the entire quantity of  coal  in
a ship shall be divided into a suitable number of sub-lots of  approximately
equal weight as specified in       Table 1.

5.1.1  A gross sample shall be drawn from each of the sub-lots and shall  be
kept separately so that there will be as many gross samples  as  the  number
of sub-lots into which the lot has been divided.



5.2.  Sampling  of  coal  from  ships  shall  be  carried  out,  as  far  as
practicable, when coal is in motion. If it  is  taken  on  a  conveyer,  the
gross sample shall be collected as per the procedure laid down in  Table  3.
If not, the gross samples may be drawn during loading or  unloading  of  the
ship. For this purpose, the number  of  increments  to  be  taken  shall  be
governed by the weight of the gross sample and the weight  of  increment  as
specified in Table 3 for various size groups of coal.”

TABLE 1 NUMBER OF SUB-LOTS/GROSS SAMPLES

                         ( Clauses 0.3.4.1 and 3.1 )





Weight of the Lot            No. of sub-Lots/Gross Samples

(Metric Tonnes)



Upto 500                                                         2



501 to 1000                                                    3



1001 to 2000                                                  4



2001 to 3000                                                  5



Over 3000                                                       6.”



Then the IS 436 goes on to describe the procedure to reduce a  gross  sample
into a sample for a lab test etc. in great  detail,  and  speaks  about  the
minimum weight of a gross sample being 75 Kg so  far  as  “Coal,  small”  is
concerned.



17.   Clearly the samples drawn by the Inspector in the present  case,  have
been drawn contrary to the express provisions of  IS  436.   On  this  count
also, the samples being drawn not  in  accordance  with  law,  test  reports
based on the same cannot be looked at.

The Tribunal’s judgment has proceeded on the  basis  that  even  though  the
samples were drawn  contrary  to  law,  the  appellants  would  be  estopped
because their representative was present when the  samples  were  drawn  and
they did not object immediately.  This  is  a  completely  perverse  finding
both on fact and law.  On fact, it has been more than amply proved  that  no
representative of the appellant was,  in  fact,  present  at  the  time  the
Customs Inspector took the  samples.   Shri  K.M.  Jani  who  was  allegedly
present not only stated that he did not represent the Clearing Agent of  the
appellants in that he was not their employee but also  stated  that  he  was
not present when the samples were taken.  In fact, therefore, there  was  no
representative of the appellants  when  the  samples  were  taken.   In  law
equally the Tribunal ought to have realized that there can  be  no  estoppel
against law.  If the law requires that something be  done  in  a  particular
manner, it must be done in that manner, and if not done in that  manner  has
no existence in the eye of law at all.   The  Customs  Authorities  are  not
absolved from following the law depending upon  the  acts  of  a  particular
assessee.  Something that is illegal cannot convert  itself  into  something
legal by the act of a third person.

18.   It is clear therefore that the Tribunal judgment has to be  set  aside
on all these counts. The appeals are, therefore, allowed with  no  order  as
to costs.





                                  ……………………….J.
                                  (A.K. Sikri)


                                  ……………………….J.
                                  (R.F. Nariman)
New Delhi;
May 14, 2015