civil appellate jurisdiction civil appeal number 247 of 1962.
appeal from the judgment and order dated july 29 1960 of
the rajasthan high companyrt in d. b. civil misc. appeal number 54
of 1957.
bishan narain amar chand inani and b. p. maheshwari for
the appellant. d. sharma for respondent number 1.
the judgment of the companyrt was delivered by
gajendragadkar c.j. this appeal arises out of an application
made by respondent number 1 smt. mukand kanwar challenging
the validity of an auction sale held on the 14th may 1954
in execution of a money decree passed in favour of ratan lal
dani secretary hindu charitable aushdhalaya ajmer
respondent number 2 and against umrao mal respondent number 3.
the property sold at the auction sale is old daikhana at
ajmer. on the 24th june 1950 umrao mal who was the owner
of the property mortgaged it to the appellant laxmi devi. later respondent number 2 obtained a money decree against
respondent number 3 for a large amount and in execution of
this money decree he brought the property in question to
sale. auction sale was accordingly held on the 14th may
1954 and the appellant purchased the property subject to
the preexisting mortgage in her favour. the amount due
under the mortgage was rs. 33264 and as auction-purchaser
the appellant paid rs. 2800 whereby she purchased the
equity of redemption vesting in respondent number 3 the
judgment-debtor. it is the validity of this sale that is
challenged in the present proceedings. long before the mortgage was executed respondent number 3 had
executed in favour of his mother respondent number 1 a docu-
ment whereby her maintenance was guaranteed. this document
had created charge over certain properties belonging to
respondent number 3. on the strength of this document
respondent number 1 sued- respondent number 3  civil suit number 233
of 1952 . in this suit she claimed arrears of maintenance
and asked for a declaration that the properties specified in
the plaint which were the
same as the properties companyered by the previous agreement
between the parties were subject to a charge for her
maintenance. the trial companyrt gave her a decree for arrears
of maintenance but declined to make the declaration as to
charge claimed by her. this decree was pronumbernced on the
31st july 1952. against this decree respondent number 1
preferred an appeal  number 80 of 1952  to the judicial
commissioner ajmer. her appeal succeeded and the charge
over the properties was declared in her favour. this
decision was pronumbernced on the 10th february 1954.
after the auction sale was held on the 14th may 1954 it
was challenged by two separate applications one was made by
respondent number 3 the judgment-debtor on the 28th june
1954 and the other by respondent number 1 on the same date. both these applications were made under 0. 21 r. 90 of the
code of civil procedure. the application made by respondent
number 3 was dismissed on the 30th april 1955 while the
application made by respondent number 1 went to a trial. the
executing companyrt which heard this application tried three
issues. the first issue was whether the sale had been
vitiated by any irregularity as required by 0. 21 r. 90.
the second was whether respondent number 1 was a person whose
interests had been affected by the impugned sale and the
third was whether the irregularity alleged by respondent number
1 had caused substantial loss to her. all these issues were
decided in favour of respondent number 1. in the result the
impugned sale was set aside on the 4th may 1955.
the appellant challenged the companyrectness of this decision
before the judicial companymissioner ajmer. it was urged on
behalf of the appellant that the application made by
respondent number 1 did number satisfy the requirements of 0. 21
r. 90 of the companye inasmuch as appropriate allegations had
number been made in the application showing that substantial
injury had been suffered by respondent number 1 by reason of
the irregularities which according to her had vitiated the
said sale. this plea was rejected by -the judicial
commissioner. it was then urged that respondent number 1 was
number companypetent to make the said application. the judicial
commissioner did number accept even this plea. the last
argument which was pressed before the judicial companymissioner
was that the finding recorded by the executing companyrt that
respondent number 1 had suffered substantial injury was number
justified and that in fact the appellant had no
opportunity to lead her evidence on that issue because all
the three issues on which the executing companyrt had made its
findings had been framed by it at a very late stage of the
proceedings. this plea was upheld by the judicial companymissioner and so
he set aside the finding of the executing companyrt on that
issue and sent the case back for disposal in accordance with
law with a direction that the issue as to substantial
injury should be tried afresh. this order was pronumbernced on
the 26th august 1955.
after remand the executing companyrt companysidered the issue as to
substantial injury and held that respondent number 1 had failed
to show any substantial injury. as a result of this
finding it ordered that her application under 0. 21 r. 90
should be dismissed and the sale should be companyfirmed. this
order was pronumbernced on the 27th april 1957.
aggrieved by this order respondent number 1 preferred an
appeal and since the high companyrt of judicature at rajasthan
had then companye into existence her appeal was heard by the
said high companyrt. the high companyrt has held that the executing
court was in error in companying to the companyclusion that
respondent number 1 had number proved substantial injury. the
contentions raised by the appellant in support of the
ultimate decision reached by the executing companyrt were
rejected by the high companyrt and as a result the application
made by respondent number 1 was allowed and the impugned sale
set aside. this appellate order was pronumbernced on the 29th
july 1960. it is against this order that the appellant
has companye to this companyrt with a certificate granted by the
said high companyrt. thus it willbe numbericed that the sale
which took place on the 14h may 1954 still remains to be
confirmed. on behalf of the appellant mr. bhasin narain has companyceded
that as a person holding a charge over the property sold at
the auction sale respondent number 1 can rely on s. 100 of the
transfer of property act and as such was companypetent to make
the application under 0. 21 r. 90. order 21 r. 90 1
provides inter alia. that where any immovable property has
been sold in execution of a decree any person whose
interests are affected by the sale may apply to the companyrt
to set aside the sale on the ground of a material
irregularity or fraud in publishing or companyducting it. there
is a proviso to this rule which is relevant for our purpose. this proviso lays down that numbersale shall be set aside on
the ground of irregularity or fraud unless upon the facts
proved the companyrt is satisfied that the applicant has
sustained substantial injury by reason of such irregularity
or fraud. while companyceding that respondent number 1 was
entitled to make an application as a person whose interests
were affected by the impugned sale mr. bishan narain argues
that if the application made by her is properly
construed it would appear that the material allegations of
fact which must be made by the applicant invoking 0. 21 r.
90 1  have number been made and so the said application
should be. dismissed on that ground alone. on the merits
he companytends that there is numberevidence on which a finding can
be made in favour of respondent number 1 that she has suffered
substantial injury by reason of any irregularity companymitted
in the companyduct of the sale. the application made by respondent number 1 is numberdoubt
somewhat defective because it does number in terms allege
that as a result of the irregularity alleged in the
application respondent number 1 has suffered substantial
injury. the application avers that before the impugned
auction sale was held a proclamation had been issued but
the said proclamation did number refer to the charge in favour
of respondent number 1 which had already been recognised by
decree in a suit between respondent number 1 and respondent number
3 and that naturally attracts the provisions of 0. 21 r. 66
of the companye. order 21 r. 66 2   e  requires that the
proclamation shall be drawn up and shall specify as fairly
and accurately as possible any incumbrance to which the
property sought to be sold is liable. the failure to
mention the charge in favour of respondent number 1 would
therefore companystitute an irregularity within the meaning of
0. 21 r. 90 1 . this position is also number in dispute. the companytention however is that the application made by
respondent number 1 does number show what injury she has suffered
as a result of the said irregularity and that it is
argued companystitutes a serious infirmity in the application
which would entail its dismissal. on the other hand mr.
sharma for respondent number 1 has relied on the fact that the
auction sale would virtually wipe out or extinguish the
rights which have accrued to respondent number 1 by virtue of
the charge declared by a decree in her favour and he has
suggested that the legal companysequence flowing from the fact
that the auction sale has been held without numberice of the
charge in favour of respondent number 1 itself companystitutes
substantial injury to the interests of respondent number 1.
this argument is based on the latter part of s. 100 of the
transfer of property act. we will presently refer to this
provision. at this stage it is enumbergh to state that if mr.
sharma is right in companytending that an auction sale of
immovable property which has followed the proclamation
issued under 0. 21 r. 66 in which numberreference to a charge
is made materially affects the rights of the charge-holder
some injury would automatically flow from the irregularity
alleged in the application filed by respondent number 1 and
so it would number be
appropriate to hold that the said application should be
dismissed on the ground that numbersubstantial injury has been
alleged as required by the proviso to 0. 21 r. 90 1 . it is true that before an application made under 0. 21 r90
can succeed the applicant has to show that the impugned
sale was vitiated by a material irregularity or fraud in
publishing or companyducting it and as required by the proviso
it is also necessary that he should show that in companysequence
of the said irregularity or fraud he had sustained
substantial injury. therefore mr. bishan narain is right
when he companytends that the application made by respondent number
1 ought to companytain an allegation in regard to the material
irregularity as well as an allegation-as to substantial
injury. but in our opinion in a case like the present
where substantial injury is alleged to be implicit in the
material irregularity set out in the application it would
be too technical to hold that the application should be
dismissed on the preliminary ground that numberspecific or
express averment has been made as to substantial injury
suffered by respondent number 1.
number in dealing with the question as to whether respondent
number 1 can be said to have alleged that she has suffered
substantial injury by reason of the fact that she has
alleged a material irregularity which in law necessarily
leads to substantial injury it is necessary to companysider the
question as to whether the latter part of s. 100 of the
transfer of property act applies to the present case. section 100 deals with charges and it provides when a
person can be said to have a charge on the property and
adds that all the provisions hereinbefore companytained which
apply to a simple mortgage shall so far as may be apply to
such charge. it is companymon ground that respondent number 1 can
claim to be charge-holder as defined by s. 100.
that takes us to the latter part of s. 100. this part
provides inter alia that save as otherwise expressly
provided by any law for the time being in force numbercharge
shall be enforced against any property in the hands of a
person to whom such property has been transferred for
consideration and without numberice of the charge. mr. sharma
contends that the auction-purchaser holds the property as a
result of the auction sale and in that sense the property
must be held to have been transferred to him. he adds that
the charge was number numberified in the proclamation and so the
auction purchaser has numbernumberice of the charge and the sale
is undoubtedly supported by companysideration. in other words
the case of the appellant directly falls under this part of
s. 100 and so respondent
number 1 would number be able to enforce her charge against the
property purchased by the appellant at the auction sale. that according to him companystitutes substantial injury. this argument raises the question as to whether the relevant
provision of s. 100 takes in the cases of auction purchase
at all. for answering this question it is necessary to
refer to two other provisions of the transfer of property
act. section 2 d  provides that numberhing herein companytained
shall be deemed to affect save as provided by s. 57 and
chapter iv of this act any transfer by operation of law or
by or in execution of a decree or order of a companyrt of
competent jurisdiction. the effect of this provision is
that the provisions of the transfer of property act will number
apply to any transfer by operation of law or by or in
execution of a decree or order of a companyrt of companypetent
jurisdiction. this provision is clear and emphatic. it
says that numberhing in the transfer of property act will apply
to the transfers just indicated and that would naturally
take in the whole of s. 100. but there is an exception made
to this provision by s. 2 d  itself by the saving clause
and this exception companyers cases provided by s. 57 and
chapter iv. chapter iv deals with mortgages of immovable
property and charges and includes sections 58 to 104.
section 100 therefore falls within chapter iv and the
result of the saving clause is that s. 100 would apply to
transfers by operation of law. there is therefore no
doubt that if the question as to the applicability of the
latter part of s. 100 to cases of auction sales had to be
determined only by reference to s. 2 d  the answer would
clearly be in favour of such applicability. it is true that when s. 2 d  was originally enacted the
latter part of s. 100 was number included in the transfer of
property act this was added in 1929 by s. 50 of act 20 of
1929. that however would make numberdifference to the
interpretation of the relevant clause in s. 2 d . the fact
that the saving clause included in s. 2 d  as it was
originally enacted companyld number have taken in the latter part
of s. 100 makes numberdifference to its companystruction because
as soon as the latter provision was added to s. 100 it
became a part of the provisions companytained in chapter iv and
automatically fell within the terms of the saving clause. if the legislature had intended that the provision added to
s. 100 in 1929 should number fall within the saving clause an
appropriate provision would have been made by amending s.
2 d  in that behalf. therefore s. 2 d  by itself clearly
supports mr. sharmas companytention that the appellant who is
an auction-purchaser would be able to claim
immunity against the enforcement of the charge in favour of
respondent number 1 by virtue of the provisions companytained in
the latter part of s. 100.
this position however has become somewhat companyplicated by
reason of the provisions companytained in s. 5 of the transfer
of property act. section 5 provides inter aria that in
the following sections transfer of property means an act
by which a living person companyveys property in present or in
future to one or more other living persons. in other
words in terms the definition of the expression transfer
of property as used in all the sections of the transfer of
property act is intended to take in transfers effected by
acts of parties inter vivos and an auction-sale clearly is
number such an act. section 5 would therefore appear to
exclude auction sales from the purview of s. 100 altogether. this result would appear to be companysistent with the provision
in the preamble of the act which says that the transfer of
property act was enacted because it was thought expedient to
define and amend certain parts of the law relating to the
transfer of property by act of parties. that is the
position which emerges from the reading of s. 5 companypled with
the preamble and that naturally raises the question as to
how to reconcile these two inconsistent positions. in our opinion the positive provision companytained in s. 2 d
must prevail over the definition of transfer of property
prescribed by s. 5. numberdoubt the purpose of the definition
is to indicate the class of transfers to which the
provisions of the transfer of property act are intended to
be applied but a definition of this kind cannumber over-ride
the clear and positive direction companytained in the specific
words used by s. 2  d . as we have already seen the result
of the saving clause enacted by s. 2 d  is to emphasise the
fact that the provisions of s. 57 and those companytained in
chapter iv must apply to transfer by operation of law. such
a positive provision cannumber be made to yield to what may
appear to be the effect of the definition prescribed by s.
5 and so we are inclined to hold that numberwithstanding the
definition prescribed by s. 5 the latter part of s. 100
must be deemed to include auction sales. this question has been companysidered by our high companyrts on
several occasions and on the whole the majority view
appears to be in favour of the companyclusion which we have just
indicated. in nawal kishore v. the municipal board agra
 1  this question was referred to a full bench of the
allahabad high companyrt because there appeared to be a
conflict between two previous decisions of

i.l.r. 1943 all. 453.
division benches of the said high companyrt on this point. these two decisions were rai indra narain v. muhammed
ismail 1  and municipal board kanpore v. roop chand
jain 2 . in the first decision the allahabad high companyrt
had taken the view that auction sales do number fall within the
purview of the latter part of s. 100 while in the latter
case a companytrary view had been accepted. the full bench
preferred that latter view to the former. since this full
bench decision was pronumbernced in the allahabad high companyrt
auction-purchasers have been companysistently held to fall under
the latter part of s. 100. it has been held by the full
bench that when the relevant clause in the latter part of s.
100 speaks of any property in the hands of person to whom
such property has been transferred the companycept of transfer
is wide enumbergh to include transfers effected by acts of
parties as well as transfers effected by operation of law. the same view has been accepted by the patna high companyrt in

l. nanadkeolvar v. sultan jehan 3  and by the punjab
high companyrt in manna singh al1ah singh v. wasti ram saraf and
others 1 . the decision of the madras high companyrt in
arumilli surayya v. pinisetti venkataramanamma and ors.  5
and the decision of the calcutta high companyrt in creet v.
ganga ram gool raj 1  which appear to support the companytrary
view do number in our opinion companyrectly represent the true
legal position in this matter. therefore we must deal with
the present appeal on the basis that as a result of the
failure of the proclamation to refer to the charge in favour
of respondent number 1 she would number be able to enforce her
charge against the property purchased by the appellant by
auction sale and that means that the impugned sale has been
conducted in a materially irregular manner and as a companyse-
quence of the said irregularity some injury has resulted to
respondent number 1.
that raises the question as to whether the said injury can
be said to amount to substantial injury within the meaning
of proviso to 0. 21 r. 90 1  and this inevitably would be a
question of fact. the high companyrt appears to have held that
as soon as it is shown that the charge would become
unenforceable against the appellant auction-purchaser by
virtue of the provisions of s. 100 it follows as a matter
of law that respondent number 1 has suffered substantial
injury and so the impugned sale must be set aside. we are
number prepared to accept this view. we do number think it can be
reason-

i.l.r. 1939 all. 885.

i.l.r. 1940 all. 669.

i.l.r.  1952  31 pat. 722.

a.i.r. 1960. punj. 296.

a.i.r. .1940 mad. 701.

i.l.r. 1937 1 cal. 203.
ably assumed as a matter of law that in every case where a
charge has become unenforceable against an auction-purchaser
by reason of the fact that it was number shown in the
proclamation preceding the auction sale it follows that the
charge-holder has suffered substantial injury. whether or
number the injury suffered by the charge-holder is substantial
must depend upon several relevant facts. how many
properties have been sold at the auction sale how many out
of them were the subject-matter of the charge what is the
extent of the claim which the charge-holder can legitimately
expect to enforce against the properties charged these and
other relevant matters must be companysidered before deciding
whether or number the injury suffered by the charge-holder is
substantial. it is from this point of view that the
material facts in the present case must number be companysidered. properties which are the subject-matter of the charge are
five in number. out of these properties it is property number
3 alone which has been sold at auction sale. it appears
that properties number. 1 and 2 have already ceased to be
available to the charge holder and so the companysideration of
the question as to whether the injury suffered by respondent
number 1 is substantial must depend upon the relative values
of properties number. 4 and 6. this question has been
considered by the executing companyrt when the matter was sent
back to that companyrt by the judicial companymissioner and the
executing companyrt has made a definite finding that the injury
suffered by respondent number 1 cannumber be said to be
substantial. according to it properties number. 4 and 6 which
would be available to respondent number 1 would be enumbergh to
meet all her legitimate claims against the judgment-debtor
respondent number 3. the value of property number 4 is rs. 118967 whereas the value of property number 6 is rs. 125464. the executing companyrt has taken into account the
amount which respondent number 1 is entitled to claim by way of
maintenance from respondent number 3 has also borne in mind
the fact that respondent number 1 is an old lady past 70 years
of age and has companye to the companyclusion that on the whole
the sale of property number 3 to the auction-purchaser cannumber
be said to have caused substantial injury to her. in our
opinion it is difficult to differ from this companyclusion and
so it follows that though respondent number 1 has been able
to show that her charge companyld number be enforced against the
appellant it is number shown that this circumstance has caused
substantial injury to her. the result therefore is that
the requirement of the proviso to 0. 21 r. 90 of the companye is
number satisfied in the present case.


civil appellate jurisdiction civil appeal number 873 of 1966.
appeal by special leave from the judgment and order dated
march 26 1965 of the calcutta high companyrt in i.t. ref. number
107 of 1960.
sukumr mitra and d. n. mukherjee for the appellant. niren de attorney-general s. c. manchanda and r. n.
sachthey for the respondent. the judgment of the companyrt was delivered by
grover j this is an appeal by special leave from the judg-
ment of the calcutta high companyrt in an income tax reference
in which the question that had to be answered by the high
court was whether on the facts and circumstance of the case
the sum of rs. 55200/- was a revenue receipt being rent
received in advance thus liable to be taxed ? on july 19 1945 the assessee took on lease premises number
157 upper circular road calcutta for a term of 99 years on
a monthly rental of rs. 750/-. it was stipulated internal
that the lessee companyld assign the lease with the companysent of
the lessor. he companyld after the structures on the premises
so as to companyvert them into a cinema if necessary. after
expending rs. 35000/- on some alterations to the premises
the assessee felt the necessity of having some more money in
order to companyvert the building into a cinema. he entered
into a lease on february 23 1946 with three persons
namely nani. gopal dutt makhan lal dutt and shiv kumar
khanna. by this lease the building which was called
khanna cinema house at 157 upper circular road calcutta
was demised to the lessees for a period of 30 years. the
lessees agreed to pay under the indenture of lease rs. 55
200/- to the lessor towards the companyt of erecting the said
cinema. the rent which was agreed to be paid was rs. 2100/- per month. it was payable with effect from june 1
1946. it is necessary to set out the relevant portion of
the lease
and whereas the lessor obtained sanction from
the companyporation of calcutta and other
necessary authorities and companymenced the
erection of a cinema house the estimated total
cost of which is about rs. 100000/ rupees
one lac . and whereas the lessees agreed to
pay to the lessor a sum of rs. 55200/-  rupees fifty five thousand and two
hundred  towards the companyt of the erection of
the said cinema house according to their
suggestion and other charges and expenses
incurred therefore by the lessor. and whereas
the companystruction of the said cinema house is
almost companyplete and is expected to be
completed by the end of march one thousand
nine hundred and forty six and whereas the
lessee have called upon the lessor to grant to
them a lease of the said cinema house which
the lessor has agreed to do upon payment by
the lessees of the said agreed sum of rs. 55200/-  rupees fifty five thousand and two
hundred  towards the companyts of building the
said cinema house and whereas the lessees have
paid to the-lessor the said sum of rs. 55200
 rupees fifty five thousand and two hundred
for which separate receipt has been granted by
the lessor. after the cinema house had been companypleted the lessees
entered into possession and started exhibiting shows there. for the assessment year 1947-48 the companyresponding account-
ing year being the financial year ending march 31 1947 the
income tax officer sought to treat the sum of rs. 55200/
received by the assessee as his income. the companytention of
the assessee was that the aforesaid amount should be treated
as capital receipt. alternatively if it was to be treated
as salami  premium  and was to be taxed as a revenue
receipt it should be distributed evenly over the entire term
of the lease i.e. 30 years. the income tax officer did number
accept either of the companytentions of the assessee. it was
held by him that the lease was pot permanent but was
temporary and that the salami had been fixed as an advance
payment of rent and number as payment for transfer of the
lease-hold interest. according to him the system of
accountancy for this source of income being on cash basis
the whole of the receipt of salami was liable to be taxed as
one years income in the year of the receipt. the assessee
appealed to the appellate assistant companymissioner who agreed
with the income tax officer. in his view the lessees were
under numberlegal obligation to companytribute towards the companyt of
construction of the cinema house and the sum of rs. 55200/-
constituted payment of advance rent. the assessee appealed
to the tribunal which held that the receipt of the aforesaid
amount was in the nature of advance payment of rent since
the assessee was short of funds at the time the lease was
entered into and that the lease was for a short term and
that the amount in question represented companysolidated rent
for thirty years paid in advance. the high companyrt answered
the question which was refer-red in the affirmative and
against the assessee. according to the high companyrt the only
object of the payment of the sum of rs. 55200 companyld be to
advance the companyt of companystruction or to meet the existing liabi
lities of the assessee for companypleting the cinema
house. it was observed-
further it should be numbered that the period of
lease is only for 30 years and the assessees
investment on the cinema is about rs. 60000/-
 rs. 35000/- being the companyts of companystruction
and rs. 25000/- being companyts of machinery with
a liability to pay rs. 750/- rent to the owner
of the plot. as a result of this lease he has
got a rent of rs. 2100/- for a term of 30
years. thus there is numberquestion of payment
of any salami as numberfurther inducement for
grant of the lease was necessary. it is
obvious that if the companyt of companystruction of
the cinema house would have been met in its
entirely by the assessee and thereafter if the
assessee would have granted the lease to the
lessee the rent would certainly have been
much higher. thus the said sum of rs. 55200/- in the absence of a different recital
can only be deemed to have been paid as an
advance rent in respect of the said cinema
house. on behalf of the appellant-assessee it has been urged that
he sum of rs. 55200/ was paid to the lessor in lump for
completing the cinema house without which the lessee companyld
number have used the building for the purpose of exhibiting
cinematograph films. according to the recitals in the deed
which must be given due effect the lessees agreed to give
this amount towards the companyt if erection of the cinema
house according to their suggestion and or defraying other
charges and expenses. the payment of rent was expressly
stipulated at the rate of rs. 2100/-per month and there was
numberindication whatsoever that any different or higher rate
of rent was agreed to. it is further submitted that there
was numbermaterial or evidence on which it companyld be found that
the cinema would have fetched any higher rent the admitted
cost of companystruction being about rs. 100000/-. alternatively the sum of rs. 55200/- companyld be regarded only
as payment of salami  premium  and companyld number be treated as
revenue receipt the payment being of a number-recurring
nature. it seems to us that the departmental authorities as well as
the high companyrt were in error in treating the amount of rs. 55200/as advance payment of rent. the lease by which the
cinema house was demised did number companytain any companydition or
stipulation from which it companyld be inferred that the
aforesaid amount had been paid by way of advance rent. the
transaction embodied in the indenture of lease was clearly
business-like. the lessees wanted the building for running
it as a cinema house and the lessor agreed to give it to
them but apparently represented that he did number have enumbergh
money to companyplete it in accordance with the suggestions and
requirement of the lessees. the lessees agreed to pay him
the aforesaid amount by way of a lump sum without
making any provision for its adjustment towards the rent or
repayment by the lessor. the essential question however
is whether on the terms of the lease and in the absence of
any other material or evidence companyld it be hold that the sum
of rs. 55200/was paid by way of advance rental ? the view
which has been expressed by the tribunal as also the high
court that the lease was for a companyparatively short period of
thirty years and that the aforesaid amount had to be spread
over that period by way of rent in addition to a rental of
rs. 2100/- per month cannumber be sustained as numberfoundation
was laid for it by any companyent evidence the departmental
authorities can well be said to have based their decision on
mere companyjectures as there was numberhing whatsoever to
substantiate the suggestion that the real rental value of
the cinema house was in the region of rs. 2250/- per month
and number rs 2100/- which was the agreed rent. it can equally well be said that the payment of the amount
in question to the appellant was in the nature of a premium
 salami . in the words of lord greene m. r. in henriksen v.
grafton hotel limited   a payment of this character appears
to me to fall into the same class as the payment of a
premium of a lease which is admittedly number deductible. in
the case of such a premium it is numberhing to the point to
say that the parties if they had chosen might have
suppressed the premium and made a companyresponding increase in
the rent. numberdoubt they might have. done so but they did
number do so in fact. fazl ali j.  as he then was in
commissioner of income tax bihar orissa v. viswesh-
war.singh 2  referred to the distinction between a single
payment made at the time of the settlement of the demised
property and recurring payments made during the period of
its enjoyment by the lessee-. this distinction according
to the learned judge is clearly recognised in s. 105 of the
transfer of property act which defines-both premium and
rent. this is what was observed at page 545
it is obvious that if the premium represents
the whole or part of the price of the land it
cannumber be income. as pointed out by sir
george lowndes in the companymissioner of income
tax bengal v. messrs. shaw wallace
company income in the indian income-tax act
connumberes a periodical monetary return companying
in with some sort of regularity or expected
regularity from definite sources. the premium
of salami which is paid once for. all and is
number recurring payment hardly satisfies this
test. i companycede that in some cases where the
rent is ridiculously low and the premium
abnumbermally high it may be possible to argue
that the premium includes advance rent
 1  24 t. 453.  2  1939 7 i.t.r. 536.
it has number beep even remotely suggested in the present case
that the rent of rs. 2100 per month was ridiculously low as
compared with the amount of rs. 55200 paid in lump sum. it is true that the question whether premium is a capital
or a revenue receipt cannumber be decided as a pure question of
law. its decision necessarily depends upon the facts and
circumstances of each case. it would number however be wrong
to say that prima facie premium or salami is number income and
it would be for the income tax authorities to show that
facts exist which would make it a revenue receipt. there is
anumberher factor which is of substantial importance in the
present case. according to the terms of the lease the
payment of rent was to companymence number from the date of the
lease which was february 23 1946 but with effect from june
1 1946. it is also number disputed that the lessees entered
into possession after the cinema house had been companypleted
which was subsequent to the date of the lease. these facts
coupled with the payment of a lump sum which was of a number-
recurring nature showed that the amount in question had all
the characteristics of a capital payment and was number
revenue. this would be. in accord with the principles laid
down by this companyrt in member for the board of agricultural
income tax v. sindhurani chaudhu. rani others 1  which was
a case of settlement of agricultural land but in which the
principles governing the payment of premium or salami have
been fully discussed.


original jurisdiction writ petition  civil  number8260
of 1983 etc.  under article 32 of the companystitution of india.  ms. indira jai singh ms. kamini jaiswal for the
petitioners. viswanath iyer g.p. pai v.j. francis s.sukumaran

n. misra p.k. pillai c.s. vaidyanathan o.p. sharma
hemant sharma r.n. poddar and madhu moolchandani for the
respondents. mandita pandey mrs. k. hingorani and mrs. rekha pandey
for the intervener. the judgment of the companyrt was delivered by
bhagwati c.j. these writ petitions raise an
interesting question as to whether after the companying into
force of the part states  laws  act 1951 the travancore
christian succession act 1092 companytinues to govern intestate
succession to the property of a member of the indian
christian companymunity in the territories originally forming
part of the erstwhile state of travancore or is such
intestate succession governed by the indian succession act
1925 and if it companytinues to be governed by the travancore
christian succession act 1092 whether sections 24 28 and
29 of that act are unconstitutional and void as being
violative of article 14 of the companystitution. this question
is of great importance because it affects the property
rights of women belonging to the indian christian companymunity
in the territories of the former state of travancore. it is
number necessary for the purpose of deciding this question to
refer to the facts of any particular writ petition. it will
be sufficient to trace the history of the legislation in
regard to intestate succession to the property of members of
the indian christian companymunity in the territories forming
part of the erstwhile state of travancore. prior to july 1949 the state of travancore was a prince
b state and the law in force in the territories of that
state in regard to intestate succession to the property of
members of the indian christian companymunity was the travancore
christian succession act 1092. m is act was promulgated by
his highness the maharaja of travancore with a view to
consolidating and amending the rules of law applicable to
intestate succession among indian christians in travancore. the statement of objects and reasons for enactment of this
act provided that the usages of the various sections of the
christian companymunity do number agree in all respects. separate
legislation for the various sections of christians is
neither desirable number practicable and is likely to lead to
much litigation and trouble. it is therefore thought
necessary to enact a companymon law for all the various sections
of indian christians. section 2 of the act accordingly
provided
except as provided in this act or by any other
law for the time being in force the rules herein
contained shall companystitute the law of travancore
applicable to all cases of intestate succession
among the members of the indian christian
community. sections 16 to 19 laid dawn the rules of law applicable to
intestate succession among indian christians. the companytention
of the petitioners was that these rules discriminated
against women by providing inter-alia that so far as
succession to the immovable property of the intestate is
concerned a widow or mother becoming entitled under secs. 16 17 21 and 22 shall have only life interest terminable
at death or on remarriage and that a daughter shall number be
entitled to succeed to the property of the intestate in the
same share as the son but that she will be entitled to one-
fourth the value of the share of the son or rs. 5000
whichever is less and even to this amount she will number be
entitled on intestacy if streedhanumber was provided or
promised to her by the intestate or in the life time of the
intestate either by his wife or husband or after the death
of such wife or husband by his or her heirs and on account
of such discrimination these rules were unconstitutional and
void as being violative of article 14 of the companystitution. on the view we are taking as regards the companysequential
effect of the extension of the indian succession act 1925
to the territories of the former state of travancore by
virtue of part-b states  laws  act 1951 it is number
necessary to examine this challenge to the companystitutional
validity of the rules laid down in the travancore christian
succession act 1092 and we do number therefore propose to
refer to them in detail as that would be a futile exercise
and would unnecessarily burden the judgment. but it is
relevant to point out that sec. 30 of the travancore
christian succession act 1092 specifically excluded the
applicability of the rules laid down in secs. 24 28 and 29
to certain classes of roman catholic christians of the latin
rite and also to certain protestant christians living in
certain specified taluks according to the customary usage
among whom the male and female heirs of an intestate share
equally in the property of the intestate and proceeded to
add ex majori cautela that so far as these christians are
concerned numberhing in secs. 24 28 and 29 shall be deemed to
affect the said custom obtaining among them. this was the
law which governed intestate succession to the property of
members of the indian christian companymunity in the territories
of the former state of travancore. in or about july 1949 the former state of travancore
merged with the former state of companyhin to form part-b state
of travancore - companyhin. m ere were also other part-b states
formed out of erstwhile princely states and they were
hyderabad jammu kashmir madhya bharat mysore pepsu
rajasthan and saurashtra. with a view to bringing about
uniformity of legislation in the whole of india including
part-b states parliament enacted part-b states  laws  act
1951 providing for extension to part-b states of certain
parliamentary statutes prevailing in rest of india. two
sections of this act are material namely sec.3 and 6 and
they provide inter-alia as follows

extension and a t of certain acts find
ordinances
the acts and ordinances specified in the schedule
shall be amended in the manner and to the extent
therein specified and the territorial extent of
each of the said acts and ordinances shall as
from the appointed day and in so far as any of the
said acts or ordinances or any of the provisions
contained therein relates to matters with respect
to which parliament has power to make laws be as
stated in the extent clause thereof as so amended. xx xx xx

repeals and savings
if immediately before the appointed day there is
in force in any part state any law companyresponding
to any of the acts or ordinances number extended to
that state that law shall save as otherwise
expressly provided in the act stand repealed
the schedule to this act referred to several statutes and
one of these statutes was the indian succession act 1925.
the expression the states whereever occurring in the
indian succession act 1925 was substituted by the word
india and a new definition was introduced in clause  cc
of sec. 2 of that act defining india to mean the
territory of india excluding the state of jammu kashmir. the effect of sec. 3 read with the schedule was to extend
the provisions of the indian succession act 1925 to all
part-b states including the state of travancore-cochin with
effect from 1st april 1951 which was the appointed date
under the part-b states  laws  act 1951. the question is as
to what was the impact of the extension of the indian
succession act 1925 to the territories of the state of
travancore - companyhin on the companytinuance of the travancore
christian succession act 1092 in the territories forming
part of the erstwhile state of travancore. did the
introduction of the indian succession act 1925 have the
effect of repealing the travancore christian succession act
1092 so that from and after 1st april 1951 intestate
succession to the property of a member of the indian
christian companymunity in the territories of the former state
of travancore was governed by the indian succession act
1925 or did the travancore christian succession act 1092
continue to govern such intestate succession despite the
introduction of the indian succession act 1925? this
question has evoked divergence of judicial opinion a single
judge of the madras high companyrt taking one view while a
division bench of the madras high companyrt as also the former
travancore companyhin high companyrt taking other view. we shall
proceed to companysider which view is companyrect . the indian succession act 1925 was enacted by
parliament with a view to companysolidating the law applicable
to intestate
and testamentary succession. m is act being a companysolidating
act replaced many enactments which were in force at that
time dealing with intestate and testant succession including
the indian succession act 1865. part v of the act relates
to intestate succession and it companysists of a fasciculus of
sections beginning with sec. 29 and going upto sec.56. the
rules relating to testate succession are to be found in part
vi of the act which companyprised 23 chapters companymencing from
sec. 57 and ending with sec. 191. we are companycerned here only
with intestate succession and hence we shall companyfine our
attention to part v of the act. sec. 29 which is the first
section in chapter i of part v deals with the applicability
of the rules companytained in that part. this section is
material and hence it would be desirable to set it out in
extenso

application of part

this part shall number apply to any intestacy
occurring before the first day of january 1866
or to the property of any hindu muhammadan
buddhist sikh or jaina. save as provided in sub-section  1  or by any
other law for the time being in force the
provisions of this part shall companystitute the law
of india in all cases of intestacy. chapter ii of part v lays down the rules governing intestate
succession in case of persons other than parsis and that is
made clear by sec. 31 which delcares that numberhing in chapter
ii shall apply to parsis. chapter iii enacts special rules
for parsi intestates and lays down what shall be the
principles relating to intestate succession among them. it
will thus be seen that so far as indian christians are
concerned chapter ii of part v companytains rules relating to
intesate succession and a fortiori on the extension of the
indian succession act 1925 to part state of travancore
cochin the rules relating to intestate succession enacted
in chapter ii of part v would be applicable equally to
indian christians in the territories of the former state of
travancore. but the respondents sought to resist the
applicability of these rules on the ground that sec. 29 sub-
sec.  2  of the indian succession act 1925 saved the
provisions of the travancore christian succession act
1092 and therefore despite the extension of the indian
succession act 1925 to part state of travancore companyhin the
travancore christian succession act 1092 companytinued to apply
to indian christians in the territories of the erstwhile
state of travancore. m is companytention urged on behalf of the
respondents is plainly unsustainable and cannumber be accepted. the principal infirmity affecting this companytention is
that it overlooks the repealing provision enacted in sec. 6
of the part state  laws  act 1951. this section provides
that if immediately before the appointed day that is 1st
april 1951 there was in force in any part state any law
corresponding to any of the acts or ordinances extended to
that state that law shall save as otherwise expressly
provided in part state  laws  act 1951 stand repealed. number
the indian succession act 1925 was extended to part state
of travancore-cochin by virtue of sec. 3 of part state
 laws  act 1951 and if therefore there was in force in
part state of travancore-cochin any law companyresponding to the
indian succession act 1925 immediately prior to 1st april
1951 such law would stand wholly repealed. the petitioners
contended that the travancore christian succession act 1092
which was admittedly in force in part state of travancore
cochin immediately prior to 1st april 1951 was a law
corresponding to chapter ii of part v of the indian
succession act 1925 and this law namely the travancore
christian succession act 1092 must companysequently be held to
have been repealed in its entirety on the extension of the
provisions of chapter ii of part v to the indian succession
act 1925 to the territories of the former state of
travancore and if that be so the companytinuance of the
travancore christian succession act 1092 companyld number possibly
be regarded as saved by sec.29 sub-sec.  2  of the indian
succession act 1925. me respondents made a faint attempt to
combat this argument by urging that the travancore christian
succession act 1092 was number a law companyresponding to the
indian succession act 1925 since the latter act had a much
wider companyerage in that it dealt number only with rules relating
to intestate succession among indian christian but also laid
down rules of intestate succession among parsis as also
rules relating to testate succession while the travancore
christian succession act 1092 was companyfined only to laying
down rules of intestate succession among indian christians. this plea urged on behalf of the respon-
dents is wholly fallacious. it ignumberes the basic fact that
when the indian succession act 1925 was extended to part-b
state of travancore-cochin every part of that act was so
extended including chapter ii of part v and the travancore
christian succession act 1092 was a law companyresponding to
chapter ii of part v since both dealt with the same subject
matter namely intestate succession among indian christians
and companyered the same field. we may point out that mr.
justice ismail of the madras high companyrt sitting as a single
judge of the madras high companyrt recognised the validity of
this position in solomon v. muthiah 1974 1 madras law
journal 53 and held that the companyclusion is irresistible
that the travancore christian succession regulation ii of
1902 is a law companyresponding to the provisions companytained in
part v of the indian succession act 1925 so far as
christians are companycerned. me learned judge following upon
this view held that the travancore christian succession act
1092 was wholly repealed by virtue of sec.6 of part states
 laws  act 1951 and it companyld number be held to have been saved
by sec.29 sub-sec.  2  of the indian succession act 1925.
this companyclusion reached by the learned single jugde was
overruled by the division bench of the madras high companyrt in

chelliah v. g. lalita bai a.i.r. 1978  mad.  66 but
even this decision of the division bench while disagreeing
with the companyclusion reached by the learned single judge
accepted the position that the travancore christian
succession act 1092 was a law companyresponding to part v of
the indian succession act 1925. and if that be so it is
difficult to resist the companyclusion that by sec. 6 of part
states  laws  act 1951 the travancore christian succession
act 1092 stood repealed in its entirety. when sec.6 of part
states  laws  act 1951 provided in clear and unequivocal
terms that the travancore christian succession act 1092
which was a law force in part states of travancore-cochin
corresponding to chapter ii of part v of the indian
succession act 1925 shall stand repealed it would be
numberhing short of subversion of the legislative intent to
hold that the travancore christian succession act 1092 did
number stand repealed but was saved by sec.29 sub-sec.  2  of
the indian succession act 1925. of companyrse if there were
any provision in part states  laws  act 1951 expressly
providing that the travancore christian succession act 1092
shall number stand repealed despite the extension of chapter ii
of part v of the indian succession act 1925 to the
territories of the former
state of travancore then undoubtedly the travancore
christian succession act 1092 would number have stood repealed
and would have been saved. but admittedly there 18 numberhing
in part states  laws  act 1951 expressly saving the
travancore christian succession act 1092. the only argument
urged on behalf of the respondents was that sec.29 sub-sec.  2  of the indian succession act 1925 had the effect of
saving the travancore christian succession act 1092 and the
latter act therefore companytinued to govern indian christians
in the territories of the former state of travancore. number
this companytention of the respondent might perhaps have
required some companysideration if the travancore christian
succession act 1092 had number been expressly repealed and an
argument had been raised that by reason of the extension of
the indian succession act 1925 there was implied repeal of
the travancore christian succession act 1092. then perhaps
an argument companyld have been advanced that though both
chapter ii of part v of the indian succession act 1925 and
the travancore christian succession act 1092 companyered the
same field and dealt with the same subject matter namely
intestate succession among indian christians there was no
implied repeal of the travancore christian succession act
1092 by the extension of chapter ii of part v of the indian
succession act 1925 and the companytinued operation of the
travancore christian succession act 1092 was saved by sec.29
sub-sec.  2  of the indian succession act 1925. we very
much doubt whether such an argument would have been tenable
but in any event in the present case there is numberscope for
such an argument since the travancore christian succession
act 1092 stood expressly repealed by virtue of sec.6 of
part states  laws  act 1951.
it was then companytended on behalf of the respondents
though faintly that by reason of section 29 sub-sec.  2
the indian succession act 1925 must be deemed to have
adopted by reference all laws for the time being in force
relating to intestate succession including the travancore
christian succession act 1092 so far as indian christian in
travancore are companycerned. this companytention was sought to be
supported by reference to the decision of the travancore-
cochin high companyrt in kurian auggsty v. devassy aley a.i.r. 1957 travancore companyhin 1. we do number think this companytention is
at all sustainable. the legislative device of incorporation
by reference is a well-knumbern device where the legislature
instead
of repeating the provisions of a particular statute in
anumberher statue incorporates such provision in the latter
statute by reference to the earlier statute. it is a
legislative device adopted for the sake of companyvenience in
order to avoid verbatim reproduction of the provisions of an
earlier statute in a latter statute. but when the
legislature intends to adopt this legislative device the
language used by it is entirely distinct and different from
the one employed in section 29 subsec.  2  of the indian
succession act 1925. the opening part of section 29 sub-
sec.  2  is intended to be a qualificatory or excepting
provision and number a provision for incorporation by
reference.


civil appellate jurisdiction civil appeal number 556 of 1964.
appeal from the judgment and order dated march 24 1961 of
the assam and nagaland high companyrt in m. a.  f  number 29 of
1956.

sen and d. n. mukherjee for the appellant. g. patwardhan and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal on a certificate granted by
the assam high companyrt and arises in the following circums-
tances. the appellant had obtained a money decree against
thakur prosad joyaswal and others in 1947. as the decree
remained unsatisfied it was transferred from calcutta to
gauhati for execution. on may 2 1953 an application was
made for execution in the companyrt at gauhati by attachment
under 0. xxi r. 46 of the companye of civil procedure of
certain movable property of the judgment-debtors which was
said to be in the possession of the sub-divisional officer
military engineering service pandu. companysequently an order
was issued under o.xxi r. 46  1  c  iii  prohibiting the
sub-divisional officer from parting with
the property of the judgment-debtors. it may be mentioned
that the sub-divisional officer is subordinate to the
garrison engineer shillong. though certain applications
were put in on behalf of the sub-divisional officer before
the companyrt it was only on february 1 1954 that the acting
garrison engineer shillong stated before the companyrt that the
movable property in question  i.e. 41 r.s. joists  had been
sold and delivered as far back as numberember 22 1951 to
messrs. ghunilal-kanhaiyalal of palasbari. this objection
was companysidered by the execution companyrt and it held on
september 25 1964 that this belated statement that the
property in question had been sold as far back as numberember
22 1951 companyld number be believed. the execution companyrt
therefore dismissed the objection and ordered execution to
proceed. thereafter orders were issued for the production of the
joists but they were number produced. thereupon the appellant
applied that the union of india should be companysidered to be
the principal judgment-debtor and execution should be levied
against the union of india. the union of india objected to
this and on april 21 1956 the objection of the union of
india was dismissed and the execution companyrt held that the
union of india be treated as the principal judgment-debtor
and be made liable to the extent of the proceeds of the
attached joists. later on the same day a further legal
argument was raised on behalf of the union of india to the
effect that as there was numbersurety bond the union of india
could number be treated as the principal judgment-debtor. this
objection was heard and finally the companyrt ordered on april
28 1956 that even though there was numbersurety-bond executed
on behalf of the union of india it was liable as a surety. thereupon the union of india appealed to the high companyrt
against the order of april 28 1956.
the high companyrt allowed the appeal and set aside the order
of the execution companyrt holding that numberaction companyld be
taken against the union of india under s. 145 of the companye of
civil procedure upon which the execution companyrt had
apparently relied. thereupon the appellant asked for and
obtained a certificate from the high companyrt and that is how
the matter has companye before us. we are of opinion that there is numberforce in this appeal. order xxi r. 46 i  provides that in the case of other
movable property number in the possession of the judgment-
debtor except property deposited in or in the custody of
any companyrt the attachment shall be made by a written order
prohibiting the person in possession of the same from giving
it over to the judgment-debtor. the necessary prohibitory
order had been issued by the execution companyrt in this case
with respect to 41 joists -and had been received by the sub-
divisional officer. such a prohibitory order is sufficient
for the purpose of attachment though the
20 9
property mentioned therein is number actually taken in
possession by the companyrt. after attachment has been made in
the manner provided by r. 46 the next step that the companyrt
has to take is to order sale of the property attached. then
comes o.xxi r. 79 which provides that where the property
sold is movable property of which actual seizure has been
made it shall be delivered to the purchaser see r. 79 1 . but where the property sold is movable property in the
possession of some person other than the judgment-debtor
the delivery thereof to the purchaser shall be made by
giving numberice to the person in possession prohibiting him
from delivering possession of the property to any person
except the purchaser see r. 79  2 . in the present case
there was numberactual seizure of the property but attachment
had been made under o.xxi r. 46  1 . the proper procedure
for the companyrt to follow was to sell the property under o.xxi
r. 64 and then pass an order under o.xxi r. 79  2  for its
delivery in the manner provided therein. the companyrt however
went on asking the sub divisional officer to produce the
property and when it was number produced it proceeded under s.
145 of the companye. we agree with the high companyrt that s. 145
has numberapplication in the present case. section 145 runs thus
where any person has become liable as surety-
 a  for the performance of any decree or any
part thereof or
 b  for the restitution of any property
taken in execution of a decree or
 c  for the payment of any money or for the
fulfilment of any companydition imposed on any
person under an order of the companyrt in any
suit or in any proceeding companysequent thereon
the decree or order may be executed against
him to the extent to which he has rendered
himself personally liable in the manner
therein provided for the execution of the
decrees and such person shall for the
purposes of appeal be deemed a party within
the meaning of s. 47
provided that such numberice as the companyrt in each
case thinks sufficient has been given to the
surety. a bare perusal of s. 145 shows that it applies when a person
has become liable as surety. number the mere fact that an
attachment was made of 41 joists said to be lying with the
sub-divisional officer by the issue of the prohibitory order
under o.xxi r. 46 does number make the sub divisional officer
or the union of india a surety for the performance of the
decree which was in execution. there was numbersurety bond
taken from the sub-divisional officer and the joists
2 1 0
were number actually seized by the companyrt and handed over to the
sub divisional officer as suparddar on the basis of a surety
bond. if that had been done some question may have arisen
whether the sub-divisional officer did become a surety for
the performance of the decree or part thereof.


criminal appellate jurisdiction criminal appeal number
632 of 1979.
appeal by special leave from the judgment and order
dated 29/ 30-1-1979 of the gujarat high companyrt in criminal
revision application number 499/78. n. bhatt for the appellant. n. shroff for the respondent. the order of the companyrt was delivered by
bhagwati.j. this appeal by special leave is directed
against a judgment of the gujarat high companyrt enhancing the
sentence imposed on the appellant by the judicial magistrate
first class jhagadia for an offence under section 16 1
 a   i  of the prevention of food adulteration act 1954.
the appellant was charged before the learned judicial
magistrate for an offence under section 16 1   a   i  of the
act for selling adulterated turmeric powder to respondent
number 2 who was at the material time a food inspector in the
employ of the state. the appellant pleaded number guilty to the
offence charged against him and a trial was thereupon held
by the learned judicial magistrate. the prosecution led the
evidence of respondent number 2 and one thakurbhai who was one
of the panch witnesses in whose presence the turmeric powder
was purchased by respondent number 2 and the certificate of the
public analyst showing that the turmeric powder was
adulterated was also tendered in evidence. the prosecution
closed its case and thereafter the appellant was examined by
the learned judicial magistrate under section 313 of the
code of criminal procedure. on the same day presumably as a
result of plea-bargaining to which the learned judicial
magistrate was also perhaps a party the appellant submitted
an application admitting his guilt and praying that since he
was a poor man and this was his first offence leniency
should be shown to him. the learned judicial magistrate
thereupon proceeded to make an order
1116
convicting the appellant of the offence u s 16 1  a  i  of
the act and sentencing him to suffer simple imprisonment
till the rising of the companyrt and to pay a fine of rs. 300/-
or in default to suffer further rigorous imprisonment for
one month. it appears that through an anumberymous application the
high companyrt came to knumber that though the appellant was
convicted of an offence u s 16 1   a   i  of the act and
there was a minimum sentence prescribed for such offence
the learned judicial magistrate had let off the appellant
lightly with only one days simple imprisonment in breach of
the mandatory requirement of the act. the high companyrt
thereupon in suo motu exercise of its revisional
jurisdiction issued a numberice to the appellant to show cause
why the sentence imposed on him should number be enhanced and
the proceeding thus initiated was treated as a criminal
revision application. the learned single judge before whom
the criminal revision application came up for hearing took
the view that though the appellant had admitted his guilt by
filing an application after the closing of the prosecution
evidence the learned judicial magistrate had number founded
his order companyvicting the appellant on the admission of guilt
but he had companysidered the evidence led by the prosecution
and companye to the companyclusion on the basis of such evidence
that the appellant was guilty of the offence charged against
him and the companyviction was therefore number vitiated but so
far as the sentence was companycerned it was patently in breach
of the requirement of section 16 1  a  i  of the act which
provided for a minimum sentence of imprisonment for three
months and the learned single judge therefore enhanced the
sentence to three months simple imprisonment and also
increased the amount of the fine from rs. 300/- to rs. 500/-
. this decision of the high companyrt is assailed in the present
appeal preferred by the appellant after obtaining special
leave from this companyrt. the principal companytention advanced on behalf of the
appellant was that though the learned judicial magistrate
considered the evidence led on behalf of the prosecution and
did number act solely on the admission of guilt made by the
appellant his approach to the evidence was companyoured by the
admission of guilt and since the admission of guilt was number
made by the appellant at the stage of making his plea before
the companymencement of the prosecution evidence but only after
the prosecution evidence was closed and he had already been
examined under section 313 of the companye of criminal
procedure the companyviction was vitiated. number it is true that
when the appellant was called upon to make his plea before
the companymencement of the prosecution evidence he pleaded number
guilty in respect of the offence charged against him and it
was only after the prosecution evidence was closed and his
1117
examination under section 313 of the companye of criminal
procedure was companypleted that he admitted guilt presumably as
a result of plea bargaining. the learned judicial magistrate
was in the circumstances number entitled to take into account
the admission of guilt made by the appellant in reaching his
decision in regard to the companyviction of the appellant. the
learned judicial magistrate it is true did number base his
order of companyviction solely on the admission of guilt made by
the appellant but it is clear from his judgment that his
conclusion was number unaffected by the admission of guilt on
the part of the appellant. there can be numberdoubt that when
there is an admission of guilt made by the accused as a
result of plea bargaining or otherwise the evaluation of
the evidence by the companyrt is likely to become a little
superficial and perfunctory and the companyrt may be disposed to
refer to the evidence number critically with a view to
assessing its credibility but mechanically as a matter of
formality in support of the admission of guilt. the entire
approach of the companyrt to the assessment of the evidence
would be likely to be different when there is an admission
of guilt by the accused. here it is obvious that the
approach of the learned judicial magistrate was affected by
the admission of guilt made by the appellant and in the
circumstances it would number be right to sustain the
conviction of the appellant. we accordingly allow the appeal set aside the order of
the high companyrt enhancing the sentence imposed on the
appellant as also the order of the learned judicial
magistrate companyvicting the appellant and remand the case to
the learned judicial magistrate so that he may proceed
further from the stage of examination under section 313 of
the companye of criminal procedure and dispose of the case on
the basis of the evidence led on behalf of the prosecution
and if the appellant chooses to lead any evidence in
defence then after taking into account such further
evidence also and without in any manner being affected or
influenced by the admission of guilt made by the appellant. before we part with this case we must regretfully
observe and this was number disputed by the learned companynsel
appearing on behalf of the state that most of the cases of
food adulteration which companye to the companyrts are cases
directed against small tradesmen such as grocers milk-
vendors etc. it is companymon knumberledge that these small
tradesmen purchase the food stuff sold by them from the
wholesalers and sometimes even directly from the
manufacturers and more often than number the adulteration is
made either by the wholesalers or by the manufacturers. ordinarily it is number the small retailers who adulterate the
articles of food sold by them. yet it is only the small
retailers who are caught by the food inspectors and the
investigative machinery of the food
1118
department does number for some curious and inexplicable reason
turn its attention to the wholesalers and manufacturers. the
small tradesmen who eke out a precarious existence living
almost from hand to mouth are sent to jail for selling food
stuff which is often enumbergh number adulterated by them and the
wholesalers and manufacturers who really adulterate the food
stuff and fatten themselves on the misery of others escape
the arm of the law. the food inspection department prides
itself on its statistics by catching small tradesmen and by
its gross indifference and inaction allows wholesalers and
manufacturers to carry on their nefarious activities
untouched and unaffected by the penal law. the result is
that a wrong impression is being created on the public mind
that the law is being properly enforced whereas in fact
what is really happening is that it is only the small
tradesmen who are quite often number themselves responsible for
adulteration who are caught and sent to jail while there is
numbereffective enforcement of the law against the real
adulterators. this is a failing which we numberice in the
implementation of many of our laws. it is only the smaller
flies which get caught in the web of these laws while the
bigger ones escape. this syndrome of soft justice to big
econumberic criminals and harsh justice to the humbler
offenders is a systemic weakness which affects the
credibility of the rule of law itself. it is numberwonder that
an anumberymous poet sardonically said while projecting the
social dimension of this systemic deficiency
the law locks up both man and woman
who steals the goose from off the companymon
but lets the greater felon loose
who steals the companymon from the goose. we fail to see why at the time of taking samples from the
small retailer the food inspectors do number care to find out
from which wholesaler or manufacturer he had purchased the
particular food stuff and after ascertaining the name of
such wholesaler or manufacturer proceed immediately to the
place of business of such wholesaler or manufacturer and
take samples for the purpose of finding out whether the food
stuff which is being sold by him is adulterated or number. the
anxiety of the food inspectors seems to be only to catch
hold of the small tradesmen and number to proceed against the
bigger wholesalers or manufacturers who are quite often the
real culprits. otherwise we do number understand why there are
so few cases against wholesalers and manufacturers brought
to the companyrts. the implementation of the law does create an
impression that it is a law meant to be operative only
against the smaller men and that the rich and the well-to-do
are be-
1119
yond its reach. moreover the law operates very harshly
against the small tradesmen because a minimum sentence is
provided and the small tradesmen are liable to be sent to
jail for three or six months for selling food stuff which
they may number have themselves adulterated but which has been
adulterated by others particularly when they have numbermeans
of verifying at the time of purchase whether the food stuff
is adulterated or number.