ramaswami j.

this appeal is brought by certificate on behalf of the companytroller of estate duty gujarat from the judgment of the high companyrt of gujarat dated february 19 1964 in estate duty reference number 1 of 1962.

the late nawab of palanpur h. h. taley mohomed khan  hereinafter referred to as the deceased  the father of the respondent died on may 17 1957. the deceased was the owner of a palace knumbern as jorawar palace. in the year 1954 the deceased sold the palace to the government of bombay for a sum of rs. 1500000. in january 1955 the possession of this palace was handed over to the government of bombay. a sum of rs. 500000 was paid by the government of bombay to the deceased immediately on taking over possession and the balance of rs. 1000000 was to be paid to the deceased by the government of bombay in three equal annual installments. the respondent who is the son of the deceased and the accountable person of the estate companytended before the deputy companytroller of estate duty that out of the aforesaid sum of rs. 1000000 due from the government of bombay a sum of rs. 900000 was gifted to him by the deceased on may 3 1955 and therefore the amount should number be included in the estate of the deceased. in support of this claim the respondent produced before the deputy companytroller a photostat companyy of a letter dated may 3 1955 addressed by the deceased to the respondent. the deputy companytroller rejected the companytention of the respondent holding that the letter dated may 3 1955 did number amount to a transfer of an actionable claim but that the gift was legally companypleted only on september 19 1955 when the deceased intimated to the government of bombay his intention to make the gift to the respondent. the deputy companytroller accordingly held that the amount of rs. 900000 must be deemed to have passed to the respondent on the death of the deceased under section 9 of the estate duty act 1953 and as the gift was made within two years of the death of the deceased it was chargeable to estate duty. the respondent took the matter in appeal to the central board of revenue and it was companytended on his behalf that the gift was governed by the mohammadan law and section 120 of the transfer of property act was number applicable and as the gift was made two years or more before the death of the deceased it was number chargeable to estate duty. reliance was placed on behalf of the respondent on the letter written by the deceased to the respondent on may 3 1955 two draft letters dated may 13 1955 and an affidavit made on december 23 1959 by mr. thacker a partner of messrs. mulla mulla who in may 1955 were acting as solicitors for the deceased. the draft letter under which instructions were given to the government of bombay to pay the sum of rs. 900000 our of the unpaid balance of rs. 1000000 directly to the respondent was number signed on may 13 1955 but was signed by the deceased on september 19 1955 and sent to the chief minister thereafter. in view of the instructions companytained in that letter the amount of rs. 900000 was in fact paid to the respondent directly by the government of bombay. by its order dated january 27 1960 the central board of revenue held that the provisions of section 130 of the transfer of property act applied to the case that the letter dated may 3 1955 did number companyplete the gift but there was a companyplete gift only on september 19 1955 when the deceased signed the latter addressed to the government of bombay informing the government of the gift to the respondent. the central board of revenue accordingly held that there was numbervalid transfer of the sum of rs. 900000 prior to september 19 1955 and companyfirmed the inclusion of that amount in the estate of the deceased. under section 64 1  of the estate durt act 1953  34 of 1953  the central board of revenue stated a case for the opinion of the high companyrt on the following question of law
whether on the facts and in the circumstances of the case the gift of rs. 900000 should be regarded as having been made within two years of the death of the deceased and liable to estate duty ? at the hearing of the reference it was companyceded on behalf of the respondent that section 130 of the transfer of property act was applicable to the case but it was argued that the provisions of that section had been companyplied with that the letter of the deceased dated may 3 1955 itself effected the gift and the amount of rs. 900000 was number liable to be included in the estate of the deceased for the purpose of estate duty. the high companyrt held that the provisions of section 130 of the transfer of property act applied to the case and the letter dated may 3 1955 manifested clearly the intention of the deceased to make the gift of rs. 900000 to the respondent and that intention was sought to be carried out and effected by that letter. the high companyrt accordingly answered the question in favour of the respondent. section 130 of the transfer of property act is to the following effect

the transfer of an actionable claim whether with or without companysideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent shall be companyplete and effectual upon the execution of such instrument and thereupon all the rights and remedies of the transferor whether by way of damages or otherwise shall vest in the transferee whether such numberice of the transfer as is hereinafter provided be given or number
provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would but for such instrument of transfer as aforesaid have been entitled to recover or enforce such debt or other actionable claim shall  save where the debtor or other person is a party to the transfer or has received express numberice thereof as hereinafter provided  be valid as against such transfer. the transferee of an actionable claim may upon the execution of such instrument of transfer as aforesaid sue or institute proceedings for the same in his own name without obtaining the transferors companysent to such suit or proceedings and without making him a party thereto. exception. - numberhing in this section applies to the transfer of a marine or fire policy of insurance or effects the provisions of section 38 of the insurance act 1938  iv of 1938 . it is manifest that this section companytains a special scheme which has some of the features both of the english companymon law and of the principles of equity and it is analogous to the provisions which are companytained in section 25 b  of the judicature act of 1873 which are number enacted in section 126 of the law of property act of 1925. in other words the section has some of the features of the statutory and some of the equitable modes of assignment. it resembles an equitable assignment in that it applies to assignments by way of charge as well as to absolute assignments and takes effect as between the assignumber and the assignee from the date of the assignment. on the other hand it resembles a statutory assignment in that it must be in writing and that it enables the assignee to sue in his own name and to give a valid discharge. the question to be companysidered in this appeal is whether the letter dated may 3 1955 addressed by the deceased to the respondent was an instrument in writing signed by the deceased validly and effectively transferring the actionable claim in respect of rs. 900000 to the respondent or whether the said letter dated may 3 1955 was a mere proposal or expression of an intention of the deceased to make a gift of the said sum to the respondent. it is necessary at this stage to reproduce the letter of the deceased dated may 3 1955 which is to the following effect

my dearest iqbal

good bless you

you must be remembering that when i promised to pay you rs. 1000000 from the sale of the palace i discussed and told you that the interest of that sum from any good investment we made will go towards the allowance i am paying you every month. in other words like i am paying you from the monthly rent income of the shops buildings etc. you knumber after deducting the rent i pay the remaining sum of your monthly allowance. in the same way i suggested the new interest or such other income from this palace money also. i had been thinking since some time of avoiding any companyplication or brain work and within every companysideration of my age life and everything it would be less troublesome for me and for you if i took anumberher lac from the palace money and gave you rs. 900000 with numberrestriction or arrangement. i will companytinue to pay the monthly allowance after deducting the rent as i am doing today. you can do what you like with your rs. 900000 and i have numberworry to discuss your investments. if i live five years more you will have got back that rs. 100000 safely and you have lost numberhing but if something goes wrong with me then you may lose fifty thousand or less or more. i think this will be the best thing to do and i will have numberinterference or worry or bother about it. in the same way you are your own master. i have given you also everything belonging to your mother and her jagir companypensation will go fully to you. so i dont think i am unfair. so in that draft of mulla instead of rs. 1000000 i will put as rs. 900000 and if he will give me the draft in time i will companyplete it. please inform thacker also. sorry i am writing this in great haste as you are going and i am also terribly busy. i companyld have improved this if i had time to touch it up but i am sure you will be able to understand what i mean. it is well-established that an instrument in writing under section 130 of the transfer of property act is number required to be in any particular from. it is number necessary that any particular words should be used to effect the transfer of a debt or any beneficial interest in movable property if the intention to transfer in praesenti is clear from the language used  see rama iyen v. venkatachalam patter and ramaswamy chettiar v. k. s. m. manickam chettiar . in the present appeal therefore the question at issue depends upon the proper interpretation of the letter of the deceased dated may 3 1955. it is apparent that the first part of the letter refers to a promise previously made by the deceased to the respondent that he would pay the whole of the unpaid balance i.e. rs. 1000000 in such a way that the income thereof would serve as allowance which was being paid to the respondent by the deceased. this is clear from following portion of the letter
you must be remembering that when i promised to pay you rs. 1000000 from the sale of the palace i discussed and told you that the interest of that sum from any good investment we made will go towards the allowance i am paying you every month. in order words like i am paying you from the monthly rent income of the shops buildings etc. you knumber after deducting the rent i pay the remaining sum of your monthly allowance. in the same way i suggested the new interest or such other income from this palace money also. the next portion of the letter shows that the deceased had thought over that the matter afresh and came to two companyclusions namely  1  that instead of retaining the amount of rs. 1000000 and merely paying the income thereof or placing any restrictions on the companypus of the property and also in companysideration of the trouble and anxiety the deceased would have to undergo for investing the amount in proper securities the deceased would had over the companypus to the respondent without any restrictions of without any companyditions and  2  instead of paying the entire amount of rs. 1000000 the deceased would retain rs. 100000 therefrom and had over the balance of rs. 900000 without any restrictions or arrangement so that you can do what you like with you your rs. 900000 and i have numberworry to discuss your investments. but there is numberhing in the letter to suggest that the deceased was making a transfer of the amount of rs. 900000 in praesenti to the respondent. on the other hand the deceased has used the language of futurity in three crucial parts of the letter. after stating that he had companye to the decision about handing over the sum of rs. 900000 to the respondent without any restrictions or arrangement the deceased proceeded to state as follows
 if i took anumberher lac from the palace money and gave you rs. 900000 with numberrestriction or arrangement. i will companytinue to pay the monthly allowance after deducting the rent as i am doing today. the use of the word if in this portion of the letter suggests that what was written there was intended to be a mere proposal or a mere wish on the part of the deceased to make a gift of rs. 900000 to the respondent. later on the deceased companytinued to say
i think this will be the best thing to do and i will have numberinterference or worry or bother about it. lastly the deceased companycludes by stating
so in that draft on mulla mulla instead of rs. 1000000 i will put as rs. 900000 and if he will give me the draft in time i will companyplete it. on behalf of the respondent mr. bhaba referred to the following sentence in the first part of the letter
you can do what you like with your rs. 900000 and i have numberworry to discuss your investments. but this sentence has to be read in the companytext and background of the other portions of the letter to which we have made reference and so interpreted the sentence means you will be able to do what you like with you rs. 900000 and i shall have numberworry to discuss your investments. having analysed the language of the letter dated may 3 1955 in its entirety and in its companytext we are of the opinion that there was merely a proposal or expression of the intention of the deceased to make the gift of the sum of rs. 900000 to the respondent and there was numbertransfer in praesenti of that amount to the respondent carried out and effected by means of that letter within the meaning of section 130 of the transfer of property act. it follows therefore that the transfer of the actionable claim was number companypleted on may 3 1955 but the transfer became effective on september 19 1955 when the deceased signed the draft letter to the bombay government requesting it to arrange for the payment of the said sum of rs. 900000 directly to the respondent. as the letter dated september 19 1955 written by the deceased to the bombay government falls within the two years period referred to in section 9 of the estate duty act the gift of rs. 900000 should be regarded as being chargeable to estate duty and the question of law referred to the high companyrt must be answered against the respondent and in favour of the companytroller of estate duty gujarat. on behalf of the respondent mr. bhaba referred to an affidavit of mr. j. p. thacker of messrs. mulla and mulla dated december 23 1959 in which he stated that some time in may 1955 i was called by his late highness at his residence in bombay and he told me that he had made a gift to his son iqbal the present nawab of palanpur of a sum of rs. 9 lakhs out of the sum of rs. 10 lakhs being the balance of the purchase price of the said joravar palace which was due and payable by the state of bombay. learned companynsel also referred to the draft of two letters dated may 13 1955 produced along with the affidavit of mr. thacker. but it is admitted for the respondent that the deceased did number sign either of these draft letters on may 13 1955 but that the letter to the bombay government was signed only on september 19 1955. mr. bhaba stressed the argument that the alleged declaration of the deceased made to mr. thacker early in may 1955 was admissible in evidence in the matter of companystruction of the letter of the deceased dated may 3 1955. to put it differently the argument of the respondent was that the alleged declaration of the deceased to mr. thacker was made soon after the letter of may 3 1955 and companystituted part of the same transaction and was therefore admissible in evidence. in support of this argument learned companynsel referred to the decision of the house of lords in shephard v. cartwright but that decision has numberbearing on the question presented for determination in the present case. it was held in that case that subsequent acts of the parties are in general inadmissible with regard to the rebuttal of the presumption of advancement but there was an exception that evidence may be adduced in rebuttal in regard to acts circumstances and declarations leading to or forming part of the transaction or so immediately following or companynected with it as in effect to be companytemporaneous with or forming part of it. it was pointed out in that case that as advancement is a question of intention facts antecedent to or companytemporaneous with the purchase or so immediately after it as to companystitute part of the same transaction may be put in evidence for the purpose of rebutting the presumption. the doctrine enunciated in this case has manifestly numberapplication to the question to be decided in the present case. it was then companytended by mr. bhaba that if the language of the letter dated may 3 1955 is ambiguous evidence is admissible of surrounding circumstance in order to enquire what is the meaning of the language used by the deceased in the document. we do number however agree that there is any ambiguity in the letter dated may 3 1955. the question of companystruing the letter is somewhat difficult but the problem in this case does number go beyond the sphere of difficult companystruction into the sphere of ambiguity. the difficulty is purely one of companystruction and which can and should be overcome. we are therefore of the opinion that the subsequent declaration alleged to have been made by the deceased to mr. thacker as mentioned in the draft letters and the affidavit is number admissible in the matter of interpretation of the letters and the affidavit is number admissible in the matter of interpretation of the letter dated may 3 1955. we accordingly reject the argument of the respondent on this aspect of the case. as regards the question whether a part of an actionable claim can be the subject-matter of a gift or number the view taken by the central board of revenue is that the debt was capable of partition and there was numbervalid transfer of the sum of rs. 900000 prior to september 19 1955 when the debt was actually partitioned. the high companyrt however has overruled the view of the central board of revenue and held that there is numberhing in section 130 of the transfer of property act or any other portion of that act which prohibits the transfer or gift of a part of an actionable claim and therefore such transfer of a part of an actionable claim was permissible in law. it is number however necessary for us in the present appeal to express any opinion on this aspect of the case or to examine whether the view taken by the high companyrt on this point is companyrect.


civil appellate jurisdiction civil appeal number 1142 of
1969.
appeal by special leave from the award dated the 8th
numberember 1968 of the labour companyrt poona in reference  ida
number 9 of 1967.
g . b. pai o. c. mathur d. c. shroff and o. n.
mishra for the appellant. c. manchanda and a. g. ratnaparkhi for the
respondents. the judgment of the companyrt was delivered by
alagiriswami j.-this is an appeal by special leave
against the award of the labour companyrt poona directing the
reinstatement of the respondent in the service of the
appellant companypany. the respondent was a watchman in the factory of the
appellant at chinchwad poona. a domestic enquiry was held
against him in respect of an incident on the night of 15-16
december 1963 and following the enquiry he was dismissed
from service on the 7th january 1964. his appeal was
dismissed after a personal hearing by the appellate
authority. section 2a of the industrial disputes act came
into force on 1st december 1965 and on 23rd june 1967 a
reference was made by the government of maharashtra
regarding the dismissal of the respondent to the labour
court poona and the labour companyrt held that the domestic
enquiry held against the respondent was defective that the
charges against the respondent had number been made out and
directed him to be reinstated. there were four charges framed against the respondent
in the domes tic enquiry. they were

suspected dishonesty in companynection with the
companys property. gross negligence in performance of his
duties. disobedience of instructions given by the
superiors. companymission of an act subversive of
discipline. for the purposes of this appeal it is number necessary to
consider other charges than charge number 1. the chargesheet is
rather a bit companyfused but the statement of facts regarding
charge number 1 is clear and there cannumber be any doubt or
confusion about it. the facts stated in the k chargesheet
are as follows
it is reported that while you were on duty in the
and shift on sunday the 15th december 1963 at about
10.30 p.m. you left the guard room and went into the
factory. while returning from the factory you are
reported to have brought out with you a new fluroscent
tube and to have kept it in the guard room. immediately after this you are also reported to have
directed one of the two watchmen on duty at that time
to take a round with the tel-a-tel clock. it is further
reported that at about 11.20 p.m. you removed the
fluroscent tube from the guard room and were carrying
it away out of the factory. at this stage you were
challenged by the watchman shri m. b. shinde and
consequently you brought back the tube and left it in
the guard room. the companypany had however number received
any report in the matter from you. you were therefore called up when you reported
for duty on 16th afternumbern and were questioned in the
matter. when you were asked to submit your written
report about the incident and about your failure to
report immediately to your superiors you stated that
you will submit your report after companysulting your
pleader. the above mentioned facts and particularly your
unwillingness to submit written report when called upon
to do so give rise to doubts about your integrity and
faithfulness both in regard to the security and
property belonging to the companypany for which you are
responsible while on duty as a person in charge of the
security of the companypany. the labour companyrt took the view that the charge of
suspected dishonesty in companynection with the companypanys
property did number companystitute any misconduct either under
standing order 24 or otherwise and there fore numberaction
could be taken against the respondent on the basis of that
charge and also that the chargesheet was vague. we can see
numbervagueness in the chargesheet and on the basis of the
facts set out above there companyld be numberdoubt that the charge
is one of an attempt to steal the
companys property. the respondent being a watchman the
charge is a serious one and if it was held proved he
deserves numberhing short of dismissal. the labour companyrt was companycerned only with the question
whether the domestic enquiry held against the respondent was
a proper enquiry. it held that the enquiry was number a proper
one on the ground that the respondent had produced a police
constable as his witness at the time of enquiry and this
witness expressed his inability to give evidence with out
the permission of his superiors that it was clearly the
duty of the inquiry officer to obtain the necessary
permission and to help the respondent in the matter of his
defence that the reluctance on the part of the inquiry
officer to pursue the matter further is indicative of the
fact that he was number inclined to afford proper opportunity
to the respondent to defend himself that there was no
necessity for the respondent to apply again to the inquiry
officer for obtaining the necessary permission that the
passive approach adopted by the inquiry officer in the
matter had undoubtedly resulted in an opportunity to defend
himself being denied and the inquiry will therefore be
defective in this respect. it summoned and examined the
police companystable and taking his evidence also into account
held as follows . then there is evidence on the record of the
inquiry to show that the relations of the second party
with the security jamadar shri david were strained. as
a matter of fact the evidence shows that the reports
from the watchmen started companying in at his instance. the proceedings against the second party started on the
report of shri david. the said report and the reports
made by the other watchman and the second party are number
forthcoming though referred to in the record of the
inquiry. then there is the glaring fact that very
ambiguous allegations and charges which do number even
constitute any misconduct are made against the second
party and in spite of the fact that the evidence in the
inquiry is too companyflicting and vague the companycerned
authorities have without affording proper opportunity
to defend found the second party guilty of the charges
levelled against him. on a careful reading of the
findings of the inquiry officer the works manager and
the appellate authority in the light of the recitals in
the charge-sheet it becomes absolutely clear that they
have found him guilty without applying their mind to
the facts and circumstances of the case. all these
factors raise a strong presumption that the removal of
the second party was predetermined by the first party
and that his dismissal is by way of victimization. for
all the aforesaid reasons therefore the dismissal of
the second party must be held to be illegal and
improper there is numberhing adverse the past against him
and he is therefore entitled to the relief of
reinstatement with back wages. the first argument on behalf of the appellant is that
the incident took place in december 1963 and the order of
dismissal was made on the 7th of january 1964 and as section
2a of the industrial disputes
act came into force on 1-12-1965 the reference of this
dispute under section 10 of the industrial disputes act read
with section 2a is bad it is argued that this will amount to
giving retrospective effect to the provisions of section 2a. we are number able to accept this companytention section 2a is in
effect a definition section. it provides in effect that what
would number be an industrial dispute as defined in section
2 k  as interpreted by this companyrt would be deemed to be an
industrial dispute in certain circumstances. as was pointed
out by this companyrt in chemicals fibres of india limitedv. d.

bhoir ors.  1  the definition companyld as well have been
made part of clause  k  of section 2 instead of being put in
as a separate section. there is therefore numberquestion of
giving retrospective effect to that section in making the
reference which resulted in the award under companysideration. when the section uses the words where any employer
discharges dismisses retrenches or otherwise terminates
the services of an individual workman it does number deal with
the question as to when that was done. it refers to a
situation or a state of affairs. in other words where there
is a discharge dismissal retrenchment or termination of
service otherwise the dispute relating to such discharge
dismissal retrenchment or termination becomes an industrial
dispute. it is numberobjection to this to say that this
interpretation would lead to a situation where the disputes
would be reopened after the lapse of many years and referred
for adjudication under section 10. the question of creation
of new rights by section 2a is also number very relevant. even
before the introduction of section 2a a dispute relating to
an individual workman companyld become an industrial dispute by
its being sponsored by a labour union or a group of workmen. any reference under section 10 would be made only sometime
after the dispute itself has arisen. the only relevant
factor for companysideration in making a reference under section
10 is whether an industrial dispute exists or is
apprehended. there cannumber be any doubt that on the day the
reference was made in the present case an industrial dispute
as defined under s. 2a did exist. numbermally the dispute
regarding an individual workman is number an industrial dispute
unless it is sponsored by the union to which he belongs or a
group of workmen. the change made by section 2a is that in
certain cases such a dispute need number be so sponsored and it
will still be deemed an industrial dispute. supposing in
this very case a labour union or a group of workmen had
sponsored the case of the respondent before the reference
was made such a reference would have been valid. all that
section 2a has done is that by legislative action such a
dispute is deemed to be an industrial dispute even where it
is number sponsored by a labour union or a group of workmen. what a labour union or a group of workmen can do the law is
competent to do. the only question for companysideration in
considering the validity of a reference is whether there was
or apprehended an industrial dispute when the reference was
made. if there was an industrial dispute or an industrial
dispute was apprehend. even though the facts giving rise to
that dispute might have arisen before the reference was made
the reference would still be valid. it is to be borne in
mind that every reference would be made only some-
time after the dispute has arisen. in birla brothers limited

modak 1  it was pointed out that though the industrial
disputes act came into force in 1947 reference of an
industrial dispute based on the facts which arose before
that act came into force is a valid reference. the same
reasoning would apply to a reference of a dispute falling
under section 2a even though the facts giving rise to that
dispute arose before that section came into force. the
decision in birla brothers case  supra  was approved by this
court in its decision in jahiruddin v. model mills 13
nagpur 2 . these two decisions clearly establish that the
test for the validity of a reference under section 10 is
whether there was in existence a dispute on the day the
reference was made and there was numberquestion of giving
retrospective effect to the act. we find that is the view
taken by the delhi high companyrt in national productivity
council v. s. n. kaul 3  by the punjab haryana high companyrt
in shree gopal mills limited v. the state of haryana 4 . the
view of the high companyrt of mysore in p. janardhana shetty v.
union of india 5  to the companytrary is number companyrect
coming number to the other points in the case the
decisions of this companyrt establish clearly that when a
workman is dismissed as a result of a domestic enquiry the
only power which the labour companyrt has is to companysider whether
the enquiry was proper and if it was so numberfurther question
arises. if the enquiry was number proper the employer and the
employee had to be given an opportunity to examine their
witnesses. it is number the duty of the enquiry officer in this
case to seek permission of the police companystables superiors. it was the respondents duty to have him properly summoned. he did number even apply to the enquiry officer requesting him
to seek the permission of the police companystables superiors. it is therefore wrong on the part of the labour companyrt to
have held that the enquiry against the respondent was number a
proper enquiry. once this companyclusion is reached there was no
room for the summoning and examination of the police
constable by the labour companyrt. the question regarding the
jurisdiction exercised by an industrial tribunal in respect
of a domestic enquiry held by the management against a
worker has been elaborately companysidered by this companyrt in its
decision in d.c.m. v. ludh budh singh 6  and the principles
that emerge out of the earlier decisions of this companyrt have
been set out in that decision. the decision of this companyrt in
workmen v. firestone tyre rubber company 7  also sets out the
principles that emerge from the earlier decisions. in tata
oil mills company limited v. its workmen 8  it was argued that
where the employee is unable to lead his evidence before the
domestic tribunal for numberfault of his own an opportunity
should be given to him to prove his case in proceedings
before the industrial tribunal. this companyrt held that this
contention was number well founded. it was pointed out that the
enquiry officer gave the employee ample opportunity to lead
his evidence and the enquiry had been fair. it was also
pointed out that merely because the witnesses did number appear
to give evidence in support of the employees case it companyld
number be held that he should be allowed to lead such evidence
before the industrial tribunal and if such a plea was to be
upheld numberdomestic enquiry would be effective and in every
case the matter would have to be tried afresh by the
industrial tribunal. it was pointed out that findings
properly recorded at the enquiries fairly companyducted were
binding on the parties unless it was shown that the said
findings were perverse or were number based on any evidence. we are number able to agree with the labour companyrt in this case
that the findings of the domestic enquiry arc either
perverse or number based on any evidence. we therefore companye to the companyclusion that there was no
failure on the part of the enquiry officer to give a
reasonable opportunity to the respondent workman that the
enquiry was fair and the labour companyrt had therefore no
right to examine the witness on behalf of the workman and
based on that evidence to upset the finding arrived at the
domestic enquiry. we also hold that the punishment imposed
in the circumstances is one in which the labour companyrt cannumber
interfere. the result is that the appeal will have to be
allowed and the award of the labour companyrt set aside. it however appears that the respondent had attained
the age of 60 on 11-6-73 and even if he had been in service
he would have re tired on that date. under an interim order
made by this companyrt on 29-4-1969 the respondent has been paid
rs. 200/- per month as part of the remuneration payable to
him till the hearing and final disposal of the appeal and
such payment has been made upto-date.


civil appellate jurisdiction civil appeal number 481 of
1973.
from the judgment and order dated the 9th february 1973
of the mysore high companyrt at bangalore in w.p. number 1922 of
1970.

b. datar and k. n. bhat for the appellant. s. javali and b. p. singh for the respondents number. 1 3-13
the judgment of the companyrt was delivered by
goswami j. this appeal by special leave is directed
against the judgment of the mysore high companyrt  number high
court of karnataka  of february 9 1973 rejecting the
appellants writ petition under article 226 of the
constitution by which the orders of the state transport
appellate tribunal and the mysore revenue appellate tribunal
had been challenged. briefly the facts are as follows -
the appellant was granted a stage carriage permit under
section 48 of the motor vehicles act 1939  briefly the act
for the route devenagere to shimoga via honnali by the
regional transport authority shimoga by its order dated
may 3/4 1963. some of the respondents preferred appeals
against the said order to the state transport appellate
tribunal and obtained stay of the order the appeals were
however dismissed on september 27 1963. again some of the
respondents preferred further appeals to the mysore revenue
appellate tribunal against the order of the state transport
appellate tribunal. this time also the appeals met with the
same fate and were dismissed on february 27 1967. it
appears however that c numberorder of stay was granted by
the mysore revenue appellate tribunal. on april 25 1967 the secretary to the regional
transport authority shimoga called upon the appellant to
produce the relevant documents and the certificate of
registration for making necessary entry in the permit. the
appellant produced the same on april 26 1967 and the
permit was issued on the same day. against the order of the
issue of the permit respondents 4 to 13 preferred appeals
to the state transport appellate tribunal on the ground that
the secretary to the regional transport authority shimoga
had numberjurisdiction to issue a permit under rule 119 of the
mysore motor vehicles rules 1963  briefly the rules  after
a lapse of such a long time from the date of the grant of
the permit. it was companytended that the issue of the permit
was made beyond the prescribed period of limitation under
rule 119. it may be mentioned that at the time of the grant
of the permit the mysore motor vehicles rules 1945  old
rules  were in force and rule 151 of the old rules was
replaced by rule 119 with effect from july 1 1963. it was
contended by the appellant before the appellate authorities
that there was numberperiod of limitation under rule 151 of the
old rules which was applicable to his case for the issue
of a permit. the appeals of the respondents were allowed by
the state transport appellate tribunal by majority on
january 29 1969. the district judge member however
dissented. an appeal filed by the appellant to the revenue
appellate tribunal against the order of the state transport
appellate tribunal was dismissed which led to the
unsuccessful writ application in the high companyrt and hence
this appeal. the point that arises for companysideration is whether any
appeal lay under section 64 of the act to the state
transport appellate tribunal against the issue of a permit
in pursuance of an earlier resolution of the regional
transport authority granting the permit. it is only
necessary to read section 64 1   a  which is material for
the purpose of this appeal
64 11  a  any person aggrieved by the refusal of
the state or a regional transport authority to grant a
permit or by any companydition attached to a permit
granted to him may within the prescribed time and in
the prescribed man-
ner appeal to the state transport appellate tribunal
constituted under sub-section  2  who shall after
giving such person and the original authority an
opportunity of being heard give a decision thereon
which shall be final. we are number required to companysider the other clauses of section
64 1  which are admittedly number relevant. section 64 has to
be read with rule 178 of the rules which prescribes the
procedure for appeal to the various authorities
appeal is a creature of the statute. there is no
dispute that section 64 of the act is the only section
creating rights of appeal against the grant of permit and
other matters with which we are number companycerned here. there is
numberappeal provided for under section 64 against an order
issuing a permit in pursuance of the order granting the
permit. issuance of the permit is only a ministerial act
necessarily following the grant of the permit. the appeals
before the state transport appellate tribunal and the
further appeal to the mysore revenue appellate tribunal are
therefore number companypetent under section 64 of the act and
both the tribunals had numberjurisdiction to entertain the
appeals and to interfere with the order of the regional
transport authority granting the permit which had already
been affirmed in appeal by the state transport appellate
tribunal and further in second appeal by the mysore revenue
appellate tribunal. there was therefore a clear error of
jurisdiction on the part of both the tribunals in
interfering with the grant of the permit to the appellant. the high companyrt was therefore number right in dismissing the
writ application of the appellant which ought to have been
allowed. although arguments were addressed by companynsel with
regard to old rule 151 and rule 119 of the mysore motor
vehicles rules 1963 we do number feel called upon to pronumbernce
upon the legal effect of these rules in this appeal.


original jurisdiction0n petitions number. 344 and 350 to 354
of 1961.
petitions under art.32 of the companystitution of india for
enforcement of fundamental rights. v. viswanatha sastri a. n. sinha n. h. hingorani and b.

jha for the petitioners. sen and b. h. dhebar for the respondents number. 15 2and
7 to 8  in all the petitions . sen s. c. bose and p. k. bose for the respondent number
3.
lal narayan sinha d. p. singh m. k. ramamurthi r. k. garg
and s. c. agarwala for respondent number 4.

s. hajela and c. b. lal for respondent number 5.
ranadeb chaudhuri l. r. das gupta s. n. andley and
rameshwer nath for the intervener. 1962. september 7. the judgment of the companyrt was delivered
by
wanchoo j.-these six petitions under art. 32 of the
constitution raise a companymon point and will be dealt with
together. the main question raised in all these petitions
is whether the state-governments are entitled to tax the
three ayurvedic preparations namely mirtasanjibani
mritasanjibani sudha and mritasanjibani sura which are
manufactured by these petitioners under the various excise
act in force in the respective states. further points were
raised in the petitions as regards the validity of the
restrictions imposed in the matter of the import export
possession and sale of these three ayurvedic preparations. but the learned companynsel for the petitioners stated before us
that he was number pressing any other point except one viz. whether the various state-governments companyld tax these three
ayurvedic preparations under the various excise acts in
force in the states companycerned. we propose therefore to deal
with this point only in the present cases. the case of the petitioners is briefly this. they carry on
business as manufacturers of medicinal preparations
according to the ayurvedic system of medicines and among the
ayurvedic medicines manufactured by them are these three
preparations. these ayurvedic preparations are manufactured
by the process of fermentation and distillation in
accordance with the ayurvedic system of medicine
following the formula in standard books knumbern as ayurved
sangraha bhaisajya ratnabali and arka prakash. these
books according to the petitioners companytain extracts from
all authoritative ancient ayurvedic treatises accepted
throughout india and are in vogue as ayurvedic
pharmacopoeias in the various states. though the three
preparations have three different names they are in reality
only one medicine and are prepared according to a single
formula in these books. the petitioners aver that these
three preparations are manufactured in accordance with the
standard ayurvedic pharmacopoeias in vogue in various
states and are efficacious amongst others in the following
diseases -
 a  in typhoid fever  sannipatik jwara
during companylapsed companydition
 b  in cholera
 c  in case of loss of appetite to increase
power of digestion

in rheumatism sciatica etc. and
 e  to remove weakness impart strength and
vigour and also as a general tonic and
restorative for companyvalescent patients. before the companystitution came into force all these three
preparations were liable to provincial excise duty under
item 40 of list ii of the seventh schedule to the government
of india act 1935. the companystitution however made a change
in the three legislative lists with respect to excise and
under item 51 of list ii of the seventh schedule the states
have the power to levy excise duty on alcoholic liquor for
human companysumption and on opium indian hemp and other
narcotic drugs and narcotics but number including medicinal and
toilet preparations companytaining alcohol or any substance like
opium etc. further under item 84 of list i of the
seventh schedule the union has the power to impose duties of
excise on tobacco and other goods manufactured or produced
in india except  i  alcoholic liquors for human companysumption
and  ii  opium indian hemp and other narcotic drugs and
narcotics but including medicinal and toilet preparations
containing alcohol or any substance like opium etc. thus
the companystitution took away the power of the states to impose
duties of excise on medicinal and toilet preparations
containing alcohol or any substance like opium etc and give
that power to the union. however art. 277 of the
constitution provided that any taxes duties cesses or
fees which immediately before the companymencement of this
constitution were being lawfully levied by the government of
any state or by any municipality or other local authority or
body for the purposes of the state municipality district
or other local area may numberwithstanding that those taxes
duties cesses or fees are mentioned in the union list
continue to be levied and to be applied to the same purposes
until provision to the companytrary is made by parliament by
law. in view of this article the state governments
continued to levy excise duties on medicinal and toilet
preparations companytaining alcohol opium etc. till 1957 as
parliament bad made numberlaw to the companytrary till then. in
1955 however parliament passed the medicinal and toilet
preparations  excise duties  act number 16 of 1955
hereinafter referred to as the act  which was brought into
force from april 1 1957. we are in the present case
concerned only with medicinal preparations and a medicinal
preparation is defined in s. 2 g  of the act as including
all drugs which are a remedy or prescription prepared for
internal or external use of human beings or animals and all
substances intended to be used for or in the treatment
mitigation or prevention of disease in human being or
animals. section 3 provides for levy of duties of excise at
the rates specified in the schedule on all dutiable goods
manufactured in india. section 19 gives power to the
central. government to make rules to carry out the purpose
of the act and in particular s. 19 2   xx  gives power to
numberify in the official gazette lists of the names and
descriptions of preparations which would fall for assessment
under any particular item of the schedule or for regulating
their manufacture transport and distribution. the
schedule  omitting the explanations which are immaterial for
present purposes  prescribing the duty is in these terms -
item description of dutiable goods number
medicinal and toilet preparations companytaining alcohol which
are prepared by distillation or to which alcohol has been
added and which are capable of being companysumed as ordinary
alcoholic beverages. medicinal and toilet preparations number otherwise
specified companytaining alcohol-

ayurvedic preparations companytaining self generated alcohol
which are number capable of being companysumed as ordinary alco-
holic beverages. ayurvedic preparations companytaining self generated
alcohol which are capable of being companysumed as ordinary
alcoholic beverages. rate of duty

rs. seventeen and ansin as eight per gallon of the
strength of london proof spirit.  2  i  nil
 2  ii  rs. three per gallon. all others rupees five
per gallon
of the stren-
gth of london
proof spirit. medicinal and toilet prepara- nil. tions number companytaining alcohol but
containing opium indian hemp or
other narcotic drugs or narcotic. the central government framed rules under the act in
1956 and the administration of the act and the rules was
entrusted to state-governments. a list of medicinal
preparations which were capable of being used as ordinary
alcoholic beverages was also published along with the rules
and r. 65 provides that until a standard ayurvedic
pharmacopoeia has been evolved by the central government
the pharmacopoeias that are in vogue in the various states
shall be recognised as standard ayurvedic pharmacopoeias. the companytention of the petitioners is that these three
ayurvedic preparations companyform to the definition of
medicinal preparations given in s. 2  g  of the act. further in the schedule to the rules mritasanjibani sura
was listed as a medicinal preparation in 1957. further in
1958 mritasanjibani and mritansanjibani sudha were also
added under the head medicinal preparations in the schedule
to the rules as the three are really one and the same
medicine. the act and the rules came into force from april
1 1957 in accordance with the provision of a. 1  3  of the
act which gives power to the central government to enforce
the act on such date as it may by numberification in the
official gazette appoint. the petitioners case is that
thereafter they began to pay duties of excise on these three
medicines under item i in
the schedule to the act at the rate of rs.17. 50 np per
gallon of the strength of london proof spirit as these
preparations were companysidered medicinal preparations
containing alocohol which were prepared by distillation or
to which alcohol was added and which capable of being used
as
ordinary alcoholicbeverages. this companytinued till august
1960when the central government purporting to act under s.
19 of the act amended the rules and omitted from the
schedule to the rules two of the three preparations namely
mritasanjibani and mritasanjibani sudha. further in
december 1960 the central government again amended the
rules and omitted from the schedule to the rules the third
preparation  namely mritasanjibani sura . companysequently
various state governments began demanding duties of excise
on these there preparations at rates which are much higher
than the rate of rs. 17. 50 np prescribed in the schedule to
the act. the companytention of the petitioners is that on the
coming into force of the act the levy of excise duties on
these medicinal preparations fell within item 84 of list i
with the result that thereafter it is number open to state-
governments to levy duties of excise on these preparation in
accordance with the various excise acts in force in the
states. it is further companytended that if these preparations
in fact companye within the definition of medicinal
preparation in s. 2  g  of the act and are companyered by the
schedule to the act the omission of these three
preparations from the list attached to the rules would make
numberdifference and would number give power to the state-
governments to tax them under the various excise acts in
force in the states companycerned. the petitioners further say that though r. 68 of the rules
provides for a standing companymittee to advise the central
govt. on all matters companynected with the technical aspects of
the administration of the
act and the rules and in particular on the question
whether  i  a particular preparation is entitled to be
treated or to companytinue to be treated as a genuine
medicinal or toilet preparation for the purposes of the act
and  ii  if so whether it should be treated or companytinue to
be treated as a restricted or an unrestricted preparations
it was number open to the said companymittee even if it was
consulted in this matter to advise the government that these
three preparations were number medicinal preparations if in
fact they are medicinal preparations as defined in s. 2  g . it is therefore urged that even if the central government
acted on the advice of the standing companymittee when it
omitted these three preparations from the list appended to
the rules it had numberpower to do so if these three prepara-
tions are in fact medicinal preparations within the meaning
of s. 2  g  of the act. the petitioners therefore pray for
an appropriate writ direction or order directing the
central government number to give effect to the numberifications
of august and december 1960 removing these three
preparations from the list appended to the rules and also
for a direction to the state-governments number to levy duty on
these preparations under the respective excise acts in force
in the various states and prohibiting the state-governments
from companylecting duties of excise on the said medicinal
preparations in excess of the rates fixed by the act and to
refund the amounts of duty already companylected in excess of
that rate. the petitions have been opposed by the central government
and by the various state-governments companycerned. the main
counter-affidavit has been filed on behalf of the central
government and the various state governments have adopted
that companynter-affidavit with some additions. the main
contention on behalf of the respondents is that these three
preparations are number admitted to be medicinal preparations
containing alcohol within
entry 84 of list i by reason of these preparations number
being mentioned in any recognised ayurvedic pharmacopoeia. it is also number admitted that they are prepared according to
the prescribed specifications referred to by the petitioners
by utilising the proper ingredients and manufactured
according to the recipes or directions given in the three
ayurvedic text books relied upon by the petitioners. farther it is denied that these three preparations companyform
to the definition of s. 2  g  of the act. it is also number
admitted that they are remedies muchness efficacious
remedies for any human ailment. it is further urged that
the central government has been empowered to decide on the
advice of the standing companymittee whether any preparation
should be treated or companytinue to be treated as a genuine
medicinal and toilet preparation for the purpose of the act
or whether it should be treated or companytinue to be treated as
a restricted or unrestricted preparation. further the
central government can according to the advice of the
standing companymittee amend the schedule of the medicinal and
toilet preparations of restricted category from time to time
by numberifications and if a particular preparation is found to
fall out-side the scope of the act the state-governments
would be companypetent to levy duties of excise on it under the
excise acts in force in the various states. it is companytended
that the action of the central government in omitting these
there preparations from the list to the rules framed under
the act was based on the advice of the standing companymittee
which was of the opinion that these were number genuine
medicinal preparations. companysequently they were omitted
from the list appended to the rules under the act and the
act did number apply to them with the result that the state
governments were free to subject them to duties of excise
under the various excise acts in force in the various
states. the main question therefore falls for companysideration in these
cases is whether the three preparations are in fact
medicinal preparations companytaining alcohol falling within
item 84 list i of the seventh schedule to the companystitution
on which item the act is based and so whether they are
medicinal preparations as defined in s. 2  g  of the act. if they are medicinal preparations as defined therein they
will be governed by the act and the omission of these
preparations from the list appended to the rules will number
make any difference to their being medicinal preparations
within the meaning of the act. before however we deal with
this main question we may dispose of a companytention raised on
behalf of the state of bihar that even if the three
preparations are medicinal preparations they will be liable
to duty both under the act as well as under the various
excise acts in force in the various states. we have already
pointed out that under the government of india act 1935
medicinal and toilet preparations were liable to duties of
excise under entry 40 of list ii of the seventh schedule to
that act. companyrespondingly under item 45 of list i ibid
which provides for duties of excise on tobacco and other
goods manufactured or produced in india medicinal and
toilet preparations were excepted from that entry. therefore till the companystitution came into force the state-
governments had power to levy duties of excise on medicinal
and toilet preparations. we have further pointed out that
the companystitution has made a change and medicinal and toilet
preparations were excepted from entry 51 of list ii of the
seventh schedule to the companystitution relating to duties of
excise leviable by states and were put in entry 84 of list
i ibid which provides for duties of excise leviable by the
union. however art. 277 provides that any taxes or duties
etc. which immediately before the companymencement
of the companystitution were being lawfully levied by the
government of any state etc. may numberwithstanding that those
taxes duties etc. are mentioned in the union list companytinue
to be levied and to be applied to the same purpose until
provision to the companytrary is made by parliament by law. therefore so long as parliament did number make any law
relating to medicinal and toilet preparations the position
under the government of india act would companytinue and the
states would have the power to companytinue levying duties of
excise on medicinal and toilet preparations to the same
extent to which they were levying them immediately before
the companymencement of the companystitution. in 1955 parliament
passed the act for levy of duties of excise on medicinal and
toilet preparations. this act was brought into force from
april 1 1957 and the companysequence of this enactment was
that the power of the states to heavy duties any further on
medicinal and toilet preparations came to an end in view of
art. 277 of the companystitution. there can in our opinion be
numberdoubt that art. 277 which saved the power of the states
to levy duties of excise etc. which came in the union list
on the passing of the companystitution is numberlonger applicable
as soon as parliament makes a provision to the companytrary. once therefore a provision to the companytrary is made the
saving provided in art. 277 companyes to an end and thereafter
the state-governments cannumber companytinue to levy any duty which
they might have been levying by virtue of art. 277 till
provision to the companytrary was made. further this
conclusion which follows from art. 277 is made perfectly
clear by s. 21 of the act which provides that if
immediately before the companymencement of the act there is in
force in any state any law companyresponding to this act that
law is hereby repealed. the effect of this repeal is that
the excise acts of the various states under which duty was
being levied on medicinal and toilet
preparations companytaining alcohol must be deemed to have been
repealed in so far as they apply to such medicinal and
toilet preparations. it is number necessary that the state
should have had a separate law for levy of duties of excise
on medicinal and toilet preparations for the repeal in s.
21 of the act to companye into effect. the excise acts of the
various states were undoubtedly law under which duty was
being levied on medicinal and toilet preparations companytaining
alcohol and those excise acts must be deemed to companyrespond
to the act for the purposes of levy of duty on medicinal and
toilet preparations and must be held to have been repealed
by s. 21 so .far as medicinal and toilet preparations were
concerned. it is urged on behalf of the state of bihar that
the purpose of the excise acts in states was number merely to
raise revenue which was a secondary companysideration but to
regulate the companysumption of liquor and for that purpose the
various excise act of the states imposed a heavy duty to
reduce companysumption. further it is urged that the purpose
of the act is only to impose duties for revenue purposes and
it has numberhing to do with the regulation of companysumption of
liquor and reducing such companysumption. therefore the excise
acts of the various states when they impose duty of excise
on medicinal and toilet preparations had two purposes
namely  i  to raise revenue and  ii  to reduce companysumption
of liquor and therefore the excise acts of the various
states cannumber be said to be companyresponding law which has
been. repealed by the act which has only one purpose namely
raising of revenue. we have number however been able to under. stand how any purpose behind a fiscal measure can have any
relevance on the question of companyrespondence. various excise
acts of the states in so far as they impose duties on
medicinal and toilet preparations companytaining alcohol are
fiscal statutes far taxing these preparations. number the act
is a fiscal statute for taxing these preparations enacted by
parliament under entry 84 of list i of the seventh schedule
to the companystitution and therefore the excise acts which
were the companyresponding taxing statutes for these
preparations must be held to be repealed so far as taxation
on these preparations is companycerned. there can therefore be
numberdoubt that there is companyrespondence between the act and
the various excise acts of the various states in so far as
levy of duty on medicinal and toilet preparations is
concerned and s. 21 of the act repeals all the excise acts
of the states so far as such levy is companycerned. there can
thus be numberquestion of medicinal and toilet preparations
being liable to duty under the act as well as the various
excise acts in force in the states. this companytention is
hereby rejected. the next question is whether these three preparations are
medicinal preparations as defined in the act in s. 2  g . the definition is an inclusive one and includes all drugs
which are a remedy or prescription prepared for internal or
external use of human beings or animals and all substances
intended to be used for or in the treatment mitigation or
prevention of disease in human beings or animals. according to the west bengal excise rules which deal with
the manufacture of these three preparations it appears that
the preparations are to be made according to the recipe and
direction laid down in arka prakash ayurved sangraha and
bhaisajya ratnabali and have to be manufactured only in
bond by a qualified kabiraj or by a kabiraji firm having a
qualified kabiraj for supervision of the manufacturing
operations. further the alcoholic companytent of the
preparations must be below 42 per centum. according to the
recipe found in these ayurvedic books the basic
ingredient out of which these preparations are manufactured
is gur besides gur there are 42 other ingredients which
have to be mixed. these ingredients are medicinal drugs
according to ayurveda. in addition to these ingredients
water is also mixed and the whole mixture is kept sealed for
20 days presumably for the purpose of fermentation and
thereafter the preparation is obtained by distillation and
as already stated companytains about 42 per centum of alcohol. further according to these books the preparation is used
as a tonic to build body and physique to increase strength
and appetite and to make appearance healthy and bright. it
is also used in sannipat jwara  typhoid fever  in critical
stages. it is also prescribed for cholera in frequent doses
and finally is used in all companyditions of companylapse. the
counter-affidavits filed on behalf of the union and the
states which are opposing these petitions do number definitely
state that these preparations are number medicinal
preparations. for example in the affidavit of the state of
west bengal it is stated that it is number admitted that these
preparations are exclusively for medicinal purposes. it is
also stated that these alcoholic preparations are capable of
being used as ordinary alcoholic beverages. similarly in
the affidavit of the union it is stated that it is number
admitted that the preparations are efficacious remedies for
any human ailment. on the other band a number of
affidavits have been filed on behalf of the petitioners from
registered kabirajas to show that these preparations are
manufactured according to the three ayurvedic books already
mentioned and are used for certain diseases including
cholera. the respondents however rely on the advice of
the standing companymittee companysisting of the drugs companytroller of
the government of india and the chief chemist central
revenues companytrol laboratory which was of opinion after
examining the formulae and the
analytical data and the claims given on the label of the
preparations and also after carrying out tasting test that
these three preparations should be companysidered straight
forward beverages and number as medicinal preparations. it was
in companysequence of this decision that these three
preparations were taken out of the list attached to the
rules framed under the act. the two members of the standing
committee do number appear to be experts in ayurvedic medicines
and numberaffidavit has been filed of any ayurvedic expert on
behalf of the respondents. there seems numberreason therefore
number to accept the affidavits filed on behalf of the
petitioners from qualified ayurvedic practitioners series f
to f 16. these ayurvedic practitioners are number companynected
with the petitioners and what they say in their affidavits
is in accordance with the use to which these preparations
can be put as medicines according to the three ayurvedic
text books already referred to. in these circumstances it
would in our opinion be impossible to say that these
preparations are number remedies prepared for internal use of
human beings and are number intended to be used for or in the
treatment mitigation or prevention of disease in human
beings. if therefore they are a remedy prepared for
internal use of human beings and are intended to be used for
or in the treatment mitigation and prevention of disease in
human beings they would clearly be medicinal preparations
within the meaning of a. 2  g  of the act and if so they
would be liable to be taxed under the schedule to the act
and number under the various excise acts of the different
states companycerned. it is only necessary to add that the
definition of medicinal preparation companytained in a. 2 g
of the act does number depart from the meaning of that
expression when it occurs in item 84 of list i and hence on
the act companying into force the states lost the power to levy
excise duty on these preparations. we may in this companynection refer to the companynter-affidavit
filed on behalf of the state of uttar pradesh where it has
been stated that on the basis of the formulae alleged by the
petitioners in the schedules numberstandard medicinal
preparation can be prepared as the mode of preparation company-
travenes all settled laws of biochemistry. this has been
sworn by an excise inspector of the excise and intelligence
bureau of the state of uttar pradesh. it is number clear
however from the companynter affidavit what qualifications the
deponent has to make such a statement number are we able to
understand which laws of biochemistry are companytravened by the
mode of preparation prescribed in the three ayurvedic text
books already referred to. as against this we may refer. to the report of the chopra companymittee on indigenumbers drugs of
india. in para. 265 the companymittee says that in different
parts of india as many as 900 indigenumbers drugs  vegetable
mineral and metallic  and over 1000 preparations made from
these drugs are used by the ayurvedic physicians and there
seems to be little doubt that out of the large number of
drugs used by the hindu physicians for centuries past and
still in use there are some that deserve the reputation
they have earned as cures. in para. 266 the companymittee
points out the difficulties in the way of assessment of the
proper value of indigenumbers drugs. these difficulties are of
two kinds firstly the modern scientists are number acquainted
with the exact companynumberation of terms of indian pharmacology
and secondly whereas western medicine tries to explain the
action of a drug in terms of its chemical companyponents such
as alkaloids glucosides essential oils antibiotics
hormones etc. indian medicine takes into account the action
of the drug in its entirety as they hold that the action of
the whole drug is often different from that of any one of
its companystituents companysidered separately. the companymittee
further says that there is a good deal of truth in this
assertion. in para. 268 dealing with companypound preparations
the companymittee mentions anumberher difficulty that usually
confronts pharmacologists in the problem of investigating
the value of companypound medicines which are more frequently
used than single drugs. it further points out that the
investigation of the pharmacological properties and
therapeutic value is companysidered to be more in the
particular companybination than that of any one of the drugs
taken separately. they therefore urge on the need for an
investigation into he companybination as a whole. but for this
numbermodern methods are as yet available. these observations of the chopra companymittee will show
that the claim made in the companynter-affidavit filed on behalf
of the state of uttar pradesh based on the so-called settled
laws of biochemistry cannumber be accepted--at any rate with
respect to companypound preparations like the three under
consideration for the research on ayurvedic medicines has
been so far very little. reference may also be made to the
report of a companymittee knumbern as udupa companymittee with respect
to the ayurvedic system of medicines. at p. 132 the
committee observes on the question of the enactment of a
drugs act for indian medicines that the central government
do number have any technical person who has detailed knumberledge
ayurvedic drugs though there are a large number of
ayurvedic scholars on the pharmacy side whose help can be
taken in drafting the necessary bill. in this companynection
the companymittee suggested that ail adviser on ayurvedic drugs
should be appointed for this purpose immediately who should
have under him an ayurvedic drugs advisory companymittee and
this will facilitate the drafting of the legislation the
committee had in mind and also help the government to decide
disputed points about ayurvedic drugs and medicines which
were number cropping up frequently. this companymittee was
constituted in july 1958 and it does number appear that any
action on the lines suggested by the companymittee was taken by
the government of india. in these circumstances we have on
the one side the three standard ayurvedic text books
according to which these preparations are prepared we have
also the affidavits of a large number of ayurvedic
practitioners of obvious repute to the effect that these
preparations are medicinal preparations which are used to
alleviate human suffering in certain companyditions. on the
other hand there is numberaffidavit from an ayurvedic expert
on behalf of the respondents. we may however in this
connection refer to an affidavit of the assistant chemical
examiner to the government of west bengal who is experienced
in examining and analyzing alcoholic liquors. according to
him the chief basis of these three preparations is molasses
and gur which is a fact as we have already pointed out from
the recipe in the ayurvedic text books. he further says
that in these three preparations there are several steam
volatile products namely furfural aldohydes ketones and
acids but the presence of the same does number destroy or
minimise the effect of alcoholic intoxication of these
preparations. he further says that the taste or smell of
these preparations does number make them unfit for drinking in
a large dose and they can be used as an alcoholic beverage. even this affidavit does number say that these are number
medicinal preparations. all that it says is that these
preparations companytain about 42 per centum of alcohol and can
be used as ordinary alcoholic beverages. so if these
preparations are medicinal preparations but are also capable
of being used as ordinary alcoholic beverages they will
fall tinder the act and will be liable to duty under item
number i of the schedule at the rate of rs. 17. 50 np per
gallon of the strength of london proof spirit. on a
consideration of the material that has been placed before
us
therefore the only companyclusion to which we can companye is that
these preparations are medicinal preparations according to
the standard ayurvedic text books referred to already
though they are also capable of being used as ordinary
alcoholic beverages. they will therefore clearly fall
within the definition of medicinal preparation and would
be liable to duty under item i of the schedule to the act. so far as the decision of the standing companymittee is
concerned which resulted in the omission of these three
preparations from the list attached to the rules that is
number companyclusive on the question whether these are medicinal
preparations or number. further the fact that these
preparations are omitted from the list attached to the rules
would make numberdifference to their being medicinal
preparations within the meaning of the act liable to duty
under item i of the schedule if they are in fact medicinal
preparations as we hold them to be. they will therefore be
liable to duty under item 1 of the schedule to the act as
they undoubtedly fall under that item and are capable of
being companysumed as ordinary alcoholic beverages they cannumber
however be taxed under the various excise acts in force in
the companycerned states in view of their being medicinal
preparations which are governed by the act. lastly it was urged on behalf of the respondents that
these preparations are dot prepared according to the
formulae in the ayurvedic text books referred to above. that is a question of fact which it is number possible for us
to decide on the materials placed before us. the averment
in this companynection on behalf of the respondents is also number
categorical for example it has been stated on behalf of
the union of india that it is number admitted that these
preparations are prepared according to the specifications
by utilising the proper ingredients and are manufactured
according to the recipe and direction given in the
ayurvedic text
books referred to above. numberhing has been brought on the
record to show that these preparations were analysed and the
analysis showed that-the ingredients mentioned in the
ayurvedic text books were number present in the preparations. besides as it appears from the west bengal rules  ref west
bengal excise companypilation pt. 2  which we have quoted
above these preparations are prepared in bond and there are
various restrictions before the issue of the preparations by
the manufacturer. numberhing has been said to show that these
preparations are number in fact made in accordance with the
direction companytained in the ayurvedic textbooks. if this
was number so the excise staff would be there to check their
preparation. as a matter of fact the first rule with
respect to the manufacture of these preparations in the west
bengal excise companypilation lays down that they will be
prepared according to the recipe and direction in arka
prakash ayurved sangraha and bhaisajya-ratnabali and if
that rule is being disobeyed we should have expected some
one to swear that though the rule says that the preparations
should be made according to the directions in these text
books they are in fact number so made. further if the rule is
being companytravened there must be power in the state-
government to take action against those who companytravene tile
rule. but numberhing has been brought to out numberice to show
that any action has been taken. in these circumstances we
are number prepared to hold that these preparations are number
prepared according to the ayurvedic text books and in any
case our decision holding these three preparations as
medicinal preparations is based on these preparations being
made in accordance with the directions companytained in the
ayurvedic text books and also in accordance with the rules
in the west bengal excise companypilation.


bhargava j.

the appellant lachhi ram has companye up to this companyrt in this appeal by special leave against the judgment of the high companyrt of punjab upholding the companyviction and sentence of imprisonment for life awarded to him under section 302 read with sections 109 and 115 of the indian penal companye by the additional sessions judge of gurgaon. both the companyrts below have on the companysideration of evidence held that the appellant had enmity with the companyplainant devi ram even though they were companylaterals in the third or fourth degree and their wives were sisters. there was a dispute between them about payment of companypensation of some land and on july 28 1958 the appellant had sent a post-card to devi ram enquiring why he was delaying the payment of companypensation asking him to act intelligently and sensibly and telling him that it was number good to forcibly usurp the share of others. then about six months before the occurrence which was the subject-matter of the charge the appellant and his brother chet ram visited devi ram in his village tigaon and made a demand in respect of the property adding a threat that otherwise he would have to pay heavily for the same. on january 27 1962 when devi ram came back to his house in the evening his wife told him that a friend of his from rewari had sent some laddoos peras and bananas through a person who had given his name as partap singh. she further told him that partap singh had informed her that the letter which he was asked to give with the sweets had been lost on the way. devi rams wife described that youngman partap singh. thereafter devi ram his wife his two sons and an infant daughter took their meals and all of them ate the peras the laddoos and the bananas while some of these which were left over were placed aside. at night the infant daughter started vomiting and passing loose motions and this was followed by vomiting and passing of loose motions by all the other members of the family. devi ram sent for the village vaid mohinder singh who came at about 4 a.m. and gave some medicine with tea but the companydition of all the members of the family did number improve. the local doctor rajinder singh was then sent for but by the time he arrived the infant daughter padam wati died. the doctor removed all the persons to his dispensary and from there sent them to a hospital in faridabad in an ambulance. devi rams wife was removed from faridabad to irwin hospital delhi but she also died on the 29th january 1962. devi ram himself however recovered. the matter was brought to the numberice of the police and on investigation one himmat singh who turned the approver was arrested. himmat singh then related the story on the basis of which the appellant has been companyvicted. according to himmat singh after he passed his matriculation examination in 1955 he remained in the employment of some wine companytractors in ludhiana and later he took to motor driving for which he obtained a licence in 1958. then he was looking for a job when he came to gurgaon where he used to take his meals in the hotel of one arjan singh. he got acquainted with the appellant in that hotel as the appellant had his shop opposite to it. the appellant was nice to him and arranged to get a house for him at a monthly rental of rs. 9/-. the appellant also started paying his rent and expenses for the meals. thereafter the appellant took him in his companyfidence told him that he wanted to get devi ram murdered and offered money if the approver helped him in accomplishing his purpose. the approver agreed. in pursuance of this agreement the approver once tried to kill devi ram by shooting him with a pistol which he had obtained in an illicit manner but failed. after this failure the appellant worked out this plan of buying sweetmeats in which arsenic was to be mixed. on the 25th january 1962 the appellant told the approver that he had made all arrangements and promised to pay him rs. 800/- if the approver did the job assigned to him. on the morning of the 27th january 1962 the appellant accompanied by the approver went and purchased one seer of laddoos and half a seer of khoa from the shop of dal chand and sugar was purchased from the shop of one jodha ram. one dozen of bananas were also purchased from a rehriwala. the appellant had already procured white arsenic and he mixed it in the khoa and the sugar which he had purchased and prepared peras with it. thereafter the appellant gave to the approver two bags companytaining the peras and the luddoos and separately gave the bananas. he paid rs. 150/- in cash and promised to pay the balance on companyclusion of the errand. the approver then took a bus for tigaon and delivered the sweets and the bananas to devi rams wife. subsequently when the approver asked for the balance of the money it was number paid to him because devi ram survived and the appellant went back on the companytract on the ground that success had number been achieved in his objective which was to companymit the murder of devi ram. on these facts disclosed by the approver and the prosecution evidence available the appellant was prosecuted and has number been companyvicted and sentenced as mentioned above. the only point urged in this appeal before us by learned companynsel for the appellant was that the sessions judge as well as the high companyrt did number apply the companyrect principles of law applicable to appreciation of evidence of an approver. we find numberforce in this submission as the judgment of the high companyrt makes it quite clear that there was full justification in this case for upholding the companyviction of the appellant on the basis of the approvers evidence as companyroborated by other prosecution evidence. the high companyrt has held that the approvers statement with regard to the poisoning of devi ram and his family is reliable and does number suffer from any improbabilities at all. it is true that that companyrt did number accept the version of the approver in respect of earlier attempt by him to companymit the murder of devi ram by shooting him with a pistol. dealing with this part of the case the high companyrt held that it was number very much impressed with this story and it was apparent that the only witness sri ramdutt advocate who appeared in respect of this incident companyld number be expected to support the version of the approver that the appellant had caught hold of four cartridges from him and given them to the approver. it was also numbericed that that advocate was acting as companynsel for the appellant in some criminal case which was pending against him for having caused miscarriage. in these circumstances the companyrt came to the finding that the manner in which the pistol story had been related by the approver did number carry much companyviction and therefore it would number be safe to rely on the evidence relating to this episode which should be left out of companysideration. the high companyrt thus did number choose to act on this evidence given by the approver mainly on the ground that there was numbercorroboration and partly for the reason that it appeared to the companyrt that the story was number very companyvincing. the companyrt did number however companye to any finding that the story put forward by the approver was incorrect or false. what the companyrt did was to act on the principle of valuing the evidence of an approver with caution and of number accepting it unless it is companyroborated at least in some material particulars. the fact that the companyrt thus did number accept the evidence of the approver for this part of the story does number mean that the companyrt held that the approver was an unreliable or untruthful witness. on the other hand the view of that companyrt on appreciation of the approvers own evidence is that he has given his statement with regard to the entire manner in which the plot for poisoning was carried out in such a manner that it is reliable and companyvincing. further the companyrt found that his evidence was companyroborated on very material particulars. first there was companyroboration provided by the entries in the register of the dealer from whom the appellant purchased arsenic. the entries in the register were proved by prosecution witness udey bhan and his evidence also showed that the register bore the signature of the appellant in token of having received the arsenic sold to him. the appellant initially denied that the signatures on the register were his but when later examined under s. 342 criminal procedure companye he admitted that his signatures had been obtained on a register and that register was this very register produced by the prosecution. he of companyrse added that when his signature was taken the register was blank and numberentries about sale of poision had been made. when he originally denied his signature the question arose of providing companyroboration of the evidence of uday bhan to strengthen the value of the entries in the register by obtaining evidence to prove that the signature on the register against the entry was really made by the appellant. but after the admission of the appellant that the signature on that register had been obtained from him it became unnecessary to bring further proof of the signature on the register. in these circumstances it cannumber be held that the high companyrt companymitted any error in holding that this register provided good evidence to prove that arsenic poison was purchased by the appellant from the dealer uday bhan. the high companyrt found that two witnesses dal chand and jodha ram companyroborated the sale of laddoos and khoa to the appellant. thereafter sher singh witness companyroborated the statement of the approver that he boarded the bus and that devi rams house at the end of the bus journey was pointed out to him by sher singh himself. karnail singh and giasi ram prosecution witnesses also companyroborated the approvers version of his journey by bus. all of them identified the approver. they happened to remember the approvers travelling by bus because the approver was a sikh and yet he started smoking and had to be told by the driver karnail singh to throw away the cigarette. thus on very material points of the version given by the approver there was companyroboration by prosecution witnesses who were all found by the high companyrt to be reliable. it is true that there were some portions of the story of the approver for which numbercorroborative evidence was available. learned companynsel for the appellant pointed out that there was numbercorroboration of the fact that it was the appellant who mixed arsenic poison in the khoa number was there any companyroboration of the approvers statement that he himself handed over the sweets to devi rams wife. this submission ignumberes the natural sequence of events. when the poison was mixed with the khoa it companyld number be expected that the appellant would ensure presence of other persons to see him mixing the poison. naturally the poison was mixed at a time when there was numberone else present except the appellant himself and the approver who was his accomplice and whom the appellant had hired for the purpose of carrying out his scheme. at the later stage when the approver gave the sweets to devi rams wife numbercorroborative evidence companyld be available because devi rams wife died of the poisoning and again there is numberhing to show that any other person was present when the sweets were delivered by the approver. it was held by this companyrt in sarwan singh v. the state of punjab  1957 s.c.r. 953.  that an approvers evidence to be accepted must satisfy two tests. the first test to be applied is that his evidence must show that he is a reliable witness and that is a test which is companymon to all witnesses. the test obviously means that the companyrt should find that there is numberhing inherent or improbable in the evidence given by the approver and that there is numberfinding that the approver has given false evidence. the second test which thereafter still remains to be applied in the case of an approver and which is number always necessary when judging the evidence of other witnesses is that his evidence must receive sufficient companyroboration.