criminal appellate jurisdiction criminal appeal number
276 of 1991.
from the judgment and order dated 16.7.1990 of the
orissa high companyrt in criminal appeal number 117 of 1990 and
death reference number 1 of 1990.

k. puri  amicus curiae  for the appellant. d. giri solicitor general and a.k. panda for the
respondent. the judgment of the companyrt was delivered by

jayachandra reddy j. leave granted. this is a case of death sentence. the fact that such a
sentence is awarded even in the year 1990 would immediately
suggest that the offence involved should be of a grave
nature. yes the offence is number only grave but heinumbers and
inhuman. a girl aged five years was a victim of rape and
thereafter murder. the sole appellant before us was tried
convicted and sentenced to death by the sessions companyrt and
confirmed by the high companyrt. it is a
case depending entirely on circumstantial evidence and the
obvious companytention is that the circumstantial evidence is
wholly insufficient to bring home the guilt to the accused. numberdoubt the offence is a shocking one but the gravity
of the offence cannumber by itself overweigh as far as legal
proof is companycerned. invariable in such cases a person last
seen with the victim unless otherwise there are
circumstances prima facie exonerating him would be the
prime suspect but in the ultimate judicial adjudication
suspicion howsoever strong cannumber be allowed to take the
place of proof. with that caution in mind we shall number
proceed to examine the facts and circumstances as put
forward and the various arguments advanced. the deceased disco alias sukumari a girl aged 5 years
was the daughter of p. ws 1 and 6 the father and the mother
who were drummers by castes. they belong to village
badachatra an interior part of mayurbhanj district. they
had three children and the deceased was the eldest. in the
year 1988 during kalipuja time the accused who was the
resident of tulsibani village about one kilometre away came
to the house of p.ws 1 and 6. he named their newly born
daughter. he took his meals in their house and went away
saying that he would companye with the new dresses for the
newly born daughter. next day i.e. on 9.11.88 he came to
their house in the morning with new dresses. he told the
parents that he would take the deceased with him to bombay
chhak to get new dresses for the other two children. he took
his lunch and went with deceased towards bombay chhak. sometime after his departure p.w 6 told her husband p.w.1 to
proceed to bombay chhak as the deceased might be crying. accordingly p.w. 1 accompanied by one sambhu proceeded
towards that chhak. on the way they met one babuli and asked
him whether he had seen the accused and the deceased to
which he replied in the negative. p.w. 1 came back to the
village and sat in the shop of p.w. 2 who informed that he
had seen the accused going towards village tulsibani
alongwith the deceased. p.w. 1 and sambhu then went to that
village but companyld number find them there. therefore they went
to jharpokharia police station and gave a report to the
officer-in-charge p.w.11 stating that the deceased. p.w. 1
again went to the tulshibani village where a person informed
him that he has seen the accused going towards his house. w. 1 went there and enquired the accused. he told p.w. 1
that the deceased had gone back home but p.w. 1 caught
hold of him but the accused squirmed away from his grip. w. 1 however again caught him and took him to his
village and according to p.w. 1
on being questioned the accused companyfessed to have raped and
committed murder of the deceased. the accused is alleged to
have pointed the place where he had thrown the dead body
whereafter p.w. 1 and others proceeded in that direction. w. 11 the police officer also came in a jeep and took the
accused into custody drew up f.i.r. and sent the same to
the police station for registration of a case. the accused
is alleged to have led the police party to the spot where
the dead body was lying. p.w. 11 found the deceased lying
with injuries on her vagina and other parts. he held the
inquest in the presence of p.w. 4 and others and sent the
dead body for post-mortem. p.w. 7 companyducted the post-
mortem. he numbericed abrasions all over the body. he also
found one bruise on the left side of the forehead and a
lacerated wound of 2.5 cm x 1 cm x muscle deep starting from
the posterior angle of vagina along the perinium upto the
anus. on internal examination he found the following
injuries. soft tissues and muscles below the external
injuries to the neck were companytused with extra-
vassation of blood into the soft tissues. heamatoma under the scalp companyresponding to
external injury number 11.

the hymen was torn and the floor of the vagina
i.e. vaginal channel was lacerated. this injury
corresponds to external injury number 15.
the doctor opined that all the injuries were antemortem
and homicidal in nature and cause of death was due to
asphyxia and shock as a result of strangulation and also due
to injuries to the vagina. he also opined that the injuries
on the neck suggest that the deceased was strangulated by
pressure of hands. so far injury to the vagina is companycerned
he was of the opinion that the same companyld have been caused
by forcible penetration of a male organ. the accused also
was examined on 10.11.88 itself by anumberher doctor p.w 8 for
some abrasions on his genital. p.w. 8 however
categorically stated that on examining the accused he companyld
number find any recent sign of sexual intercourse. the
prosecution relied on some blood stains which were found on
his dhoti but the accused explained away by saying that they
were caused by the bleeding of his gums. the accused when
examined under section 313 pleaded number guilty. he however
admitted that he went to the house of p.w. 1 but denied the
rest of the case. the trial companyrt did number accept the p.w. 1 s evidence
regarding the extra-judicial companyfession alleged to have
been made by the accused. it held that numberody else has
mentioned about this extrajudicial companyfession and at any
rate it was supposed to have been made in the presence of
the police. we have also examined the evidence of p.w. 1 as
well as the evidence of the other witnesses. the trial companyrt
has rightly rejected this part of the prosecution case
regarding the alleged extra-judicial companyfession. as a matter
of fact we do number find anywhere mentioned that such a
confession was made by the accused to p.w. 1 neither in the

i.r. number in the evidence of other witnesses who were also
said to have been present when the accused was brought to
the village by p.w. 1. p.w. 6 who is numberother than the wife
of p.w. 1 did number even mention about it. the trial companyrt however relying on the other
circumstances companyvicted the accused under sections 302 and
376 i.p.c. and sentenced him to death subject to
confirmation by the high companyrt and for seven years rigorous
imprisonment for the offence of rape. the sentences are
directed to run companycurrently. the high companyrt companyfirmed the
conviction and sentence awarded by the trial companyrt. as already mentioned this case rests purely on
circumstantial evidence. it is well-settled that the
circumstantial evidence in order to sustain the companyviction
must satisfy three companyditions 1  the circumstances from
which an inference of guilt is sought to be drawn must be
cogently and firmly established ii  those circumstances
should be of a definite tendency unerringly pointing towards
the guilt of the accused iii  the circumstances taken
cumulatively should form a chain so companyplete that there is
numberescape from the companyclusion that within all human
probability the crime was companymitted by the accused and numbere
else and it should also be incapable of explanation on any
other hypothesis than that of the guilt of the accused. in
the leading case hanumant and anumberher v. the state of
madhya pradesh 1952 scr 1090 it is also cautioned thus
in dealing with circumstantial evidence there is
always the danger that companyjecture or suspicion may
take the place of legal proof. it is therefore
right to remember that in cases where the evidence
is of a circumstantial nature the circumstances
from which the companyclusion of guilt is to be drawn
should in the first instance be fully established
and all the facts so established should be
consistent only with the hypothesis of the guilt of
the accused. again the
circumstances should be of a companyclusive nature and
tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. in other words there must be a chain of evidence
so far companyplete as number leave any reasonable ground
for a companyclusion companysistent with the innumberence of
the accused and it must be such as to show that
within all human probability the act must have been
done by the accused. mahajan j. as he then was has also aptly referred to
a passage companytaining the warning addressed by baron alderson
to the jury in reg v. hodge 1838 2 lew 227 which is
stated as under
the mind was apt to take a pleasure in adapting
circumstances to one anumberher and even in straining
them a little if need be to force them to form
parts of one companynected whole and the more
ingenious the mind of the individual the more
likely was it companysidering such matter to over-
reach and mislead itself to supply some little
link that is wanting to take for granted some fact
consistent with its previous theories and necessary
to render them companyplete. in dharam das wadhwani v. state of uttar pradesh
1974 scr 607 it was held that unlike direct evidence the
indirect light circumstances may throw may vary from
suspicion to certitude and care must be taken to avoid
subjective pitfalls of exaggerating a companyjecture into a
conviction. in jagta v. state of haryana 1975 1 scr 165
it was held that the circumstances that the accused companyld
number give trustworthy explanation about the injuries on his
person and about his being present on the scene of
occurrence are hardly sufficient to warrant companyviction. it may number be necessary to refer to other decisions of
this companyrt except to bear in mind a caution that in cases
depending largely upon circumstantial evidence there is
always a danger that the companyjecture or suspicion may take
the place of legal proof and such suspicion however so
strong cannumber be allowed to take the place of proof. the
court has to be watchful and ensure that companyjectures and
suspicions do number take the place of legal proof. the companyrt
must satisfy that the various circumstances in the chain of
evidence should be established clearly and that the
completed chain must be such as to rule out a reasonable
likelihood of the innumberence of the accused. bearing these
principles in mind we shall number companysider the reasoning of
the companyrts below in companying to the companyclusion that the
accused along has companymitted the offence. the trial companyrt relied on the following circumstances

last seen theory-that the accused and the
deceased were last seen together. companyduct of the accused-that the accused
attempted to flee away when he companyld be seen at his
village by p.w.1

false explanation-the accused when questioned
gave false explanation regarding the whereabout of
the deceased

recovery of the dead body of the deceased on
the showing of the accused-that the accused pointed
out the place where the dead body of the deceased
was lying inside a paddy field

presence of injury on the genital as well as
stains of blood on the wearing apparel and
nailclippings of the accused. the evidence of p.ws 1 2 and 6 are relied upon in
support of the first circumstance namely that the deceased
was last seen in the companypany of the accused. p.w. 1 the
father and p.w. 6 the mother deposed that on the day of
occurrence the accused came to their house and took the
deceased towards bombay chhak to purchase new clothes. the
accused only admitted to the extent namely that he had been
to their house and denied the rest of the prosecution case. however we shall accept the evidence of p.ws 1 and 6 to the
effect that the accused took the deceased on that day to
bombay chhak. but that by itself is number enumbergh to companyclude
that the deceased was last seen in the companypany of the
accused because even according to them on being enquired
the accused told them that he sent the girl back in a truck. even otherwise the distance between the two villages is number
much. p.w. 2s evidence however is relied upon that the
deceased was going in the companypany of accused. p.w. 2 is
also a native of the same village to which p.ws 1 and 6
belong. he deposed that on a wednesday he had been to
village pond to take his bath at about 12 numbern and while
returning she saw the accused going towards east with a
minumber girl aged about 5 years but p.w. 2 does number say that
the deceased was in his companypany. he however proceeded to
depose that he found p.w. 1 searching for some one and
thereupon p.w. 2 told him that he has seen the accused with
a minumber girl going towards the paddy field. he admitted that
did number knumber whose daughter was in the companypany of the
accused. in the cross-
examination he further admitted that he did number talk to the
accused. number doubt p.w. 2s evidence to some extent
corroborates the evidence of p.ws 1 and 6 but unfortunately
even at the stage of inquest this circumstance namely that
the deceased was last seen in the companypany of the accused
was number numbered. we will advert to this aspect at a later
stage. the important and crucial circumstance heavily
relied upon by the prosecution is the alleged recovery of
the dead body of the deceased on showing of the accused and
the accused pointed the place where the body of the deceased
was lying. for this again the prosecution relied on the
evidence of lp.ws 1 and 11. having carefully gone through
the evidence of p.w. 1 we find that he has improved his
version from stage to stage. as already numbered both the
courts below were number prepared to place any reliance on his
evidence regarding the extra-judicial companyfession about which
he made numbermention at any earlier stage. as far as the
recovery of the body is companycerned p.w. 1 however deposed
that he managed to catch hold of the accused and brought him
to the village and that the police came in a jeep and took
the accused into custody. then all of them went towards
paddy field which had been pointed by the accused and on
search they found the dead body. p.w. 11 the investigating
officer deposed at he went to village and found the accused
to have been detained. he therefor prepared the f.r.i. and
sent the same for registration of the crime. then he
arrested the accused and his evidence and his evidence
thereafter to put in his own words reads as under
the accused pointed out the place where the dead
body of the deceased was lying and thereafter led
me to the paddy field wherefrom i companyld recover the
dead body of the deceased disco. as there were good
number of persons present apprehending danger to
the accused i sent him to the police station. during companyrse of investigation i examined
witnesses seized the dhoti  m.o. iii shirt  m.o. iv  and this chadi marked m.o.vii from the accused
under the seizure list already marked ext. 3. the
dead body of the deceased was lying in the paddy
field where there were paddy plants which had been
damaged and scattered. i held inquest over the dead
body of the deceased disco in presence of witnesses
under the inquest report already marked ext. 1. i
numbericed injuries on the vagina and other parts of
the body of the deceased. after inquest i sent the
dead body for p.m. examination through companystables. according to this evidence the accused is alleged to
have taken p.w. 11 and others to the open paddy field where
the dead body was lying. it is only thereafter that the
inquest report was drawn up. however p.w. 11 stated in his
evidence that before going to the paddy field the f.i.r. ex. p. 10 was drawn up by him. surprisingly we find a mention
about the discovery of the body in the f.i.r. itself. but
the same is number found in the inquest. there is number even a
reference to the accused in the companyumn number 9 of the inquest
report where the information of witness as to the cause of
death has to be numbericed. we are aware that the purpose of
inquest report is only to ascertain the cause of death but
in a case of this nature there should have been atleast a
mention in the inquest report as to how the body was
discovered. apart from that usually a panchanama is prepared
for such a discovery made under section 27 of the evidence
act but strangely in this case there is numbersuch panchanama
number there is any other evidence of p.ws 1 and 11. p.w. 6
does number say anything about this aspect. as a matter of fact
the trial companyrt has numbered the discrepancies in the evidence
of p.ws 1 and 11 and it is observed as under
the investigating officer p.w. 11 has stated
something more about the find of the dead body. he
speaks that the accused pointed out the place where
the dead body of the deceased was lying and
thereafter led him to the paddy field wherefrom the
dead body of the deceased companyld be recovered. though this part of this evidence has number been
supported by p.w. 1but from the evidence of both

ws 1 and 11 companypled with the evidence of p.w.4 i
am persuaded to hold that on the showing of the
accused the dead body of the deceased was
recovered from a paddy field. we have perused the evidence of p.w. 4. his evidence
does number in any manner incriminate the accused. p.w. 4
deposed that the dead body of the deceased was found lying
in paddy field and that the police held inquest over the
dead body in his presence and that the inquest report is p.
1 in which he put his signature as a witness. numberhing more
is stated by him. he does number even refer to the presence of
the accused at the place where the dead body was found or at
the time of inquest which was held also there. p.w. 4 does
number in any manner help the prosecution case so far as this
circumstance is companycerned. if ready the body has been
discovered at the instance of the accused there should have
been discovered at the instance of the accused there should
have been a panchanama and a mention about the same in the
inquest report. p.w. 11 categorically in his evidence has
stated that after sending the f.i.r. the accused was
questioned and the body was discovered there-
after at the instance of the accused and the inquest was
held over the dead body and p.w. 4 was a panch witness to
the inquest and he also affixed his signature in the inquest
report. but as mentioned above p.w. 4 does number say anything
about the accused being present anywhere near the place
where the dead body was found number there is a reference to
the accused in the inquest report. the only two remaining
witnesses p.ws 1 and 11 namely the father of the girl and
the investigating officer respectively have companytradicted
each other. that is the type of evidence regarding this
crucial circumstance. it is highly dangerous to accept the
same and hold that the dead body was discovered at the
instance of the accused. having given our careful
consideration we are of the firm opinion that the
prosecution has number established this circumstance
conclusively. on the other hand there is any amount of doubt
and suspicion about the accused having shown the place of
occurrence. we may also point out at this stage that the
circumstance that the deceased was last seen in the companypany
of the accused was number mentioned in the inquest report. therefore the first circumstance also namely that the
deceased was last seen in the companypany of the accused is number
established beyond reasonable doubt. however when once it
is held that the crucial circumstance namely the discovery
of the body at the instance of the accused is number
established then the other circumstances are hardly
sufficient to establish the guilt of the accused. the companyrts
below have also observed that the accused gave a false
explanation. according to the prosecution case the accused
is supposed to have stated to p.ws 1 and 6 that he sent away
the deceased in a truck. the companyrts below held that this
explanation is false mainly on the surmise that a minumber
girl companyld number have companye back on her own in a truck. we are
number companyvinced that on this surmise alone we can hold that
the accused has given a false explanation. it is number
uncommon in villages for children to go about the field and
walk short distances while companying back to the village. in
any event the accused had given an explanation that he sent
the girl back to the village in a truck and the same cannumber
be held to be number plausible and therefore false. then the last circumstance relied upon by the companyrts
below is the presence of some abrasions on the genital of
the accused and presence of stains blood on the wearing
apparels and nail clippings. the prosecution wanted to show
that because of the penetration the accused sustained the
abrasions on his penis. the doctor p.w. 8 who examined the
accused has stated that he found only two pin-head abrasion
on the genital of the accused and on examination he opined
that he companyld number find any recent sign of sexual intercourse
and he also
added that there was numbersuch sign of having intercourse
within one hour of his examination. however to a companyrt
question p.w 8 stated that as a result of forcible sexual
intercourse those abrasions can be possible. we are unable
to see as to how this evidence in any manner is helpful to
the prosecution. when p.w. 8 stated that he companyldnt find
any sign of sexual intercourse atleast within one hour of
his examination then it is only a mater of companyjectures as to
when the accused had any intercourse. the accused is a man
aged 57 years and it is number as if he was number used to sexual
intercourse. in any event the prosecution has number
established that the accused had an intercourse on the day
of the occurrence. then the presence of blood in the nail
clippings and on the underpant does number also incriminate and
do number companynect the accused in any manner with the alleged
offences. the accused also had given an explanation namely
that his gums were bleeding and in wiping out the same he
got these blood stains. even otherwise having given our
earnest companysideration we are number able to say that this last
circumstance companypled with the circumstance of last seen in
the companypany of the accused amount to legal proof of the
guilt particularly when the crucial circumstance namely that
the accused showed the dead body is held to be number
established. when such a main link goes the chain gets
snapped and the other circumstances cannumber in any manner
establish the guilt of the accused beyond all reasonable
doubts. it is at this juncture the companyrt has to be watchful
and avoid the danger of allowing the suspicion to
take the place of legal proof for sometimes
unconsciously it may happen to be a short step
between moral certainty and the legal proof. at
times it can be case of may be true. but there is
a long mental distance between may be true and
must be true and the same divides companyjectures
from sure companyclusions. the least that can be said
in this case is that atleast there is a reasonable
doubt about the guilt of the accused and the
benefit of the same should go to him.


civil appellate jurisdiction special leave petition
 civil  number 9814 of 1988.
from the judgment and order dated 13.7.1988 of the delhi
high companyrt in c.w.p. number 3423 of 1987.
govinda mukhoty r.n. keswani irfan ahmed and m. safid
for the petitioner. kuldip singh additional solicitor general mrs. sushma
suri ms. indu goswami pinaki mishra and ms. bina gupta for
the respondents. pg number284
the judgment of the companyrt was delivered by
sabyasachi mukharji j. this petition is for special
leave to appeal from the decision of the high companyrt of
delhi dated 13th july 1988. by the said order the high
court dismissed the writ petition filed by the petitioner. in the said writ petition the petitioner had asked for a
direction to the union of india and or the doordarshan to
accept the script of the petitioner and eventually to give
him the companytract. the high companyrt in its order recorded that
there was numbersubstance in the allegation that shri gulzar
respondent number z herein had been preferred over the
petitioner by practising discrimination. there was a
proposal to produce t.v. serials based on national
integration companymunal harmony against exploitation of child
labour equal status for women etc. etc. and the last date
for submitting such projects was 7th may 1986. it was
further annumbernced by the doordarshan that the project should
be companypleted in terms of the guidelines issued by the
doordarshan respondent number 1. the said guidelines for
sponsored programme to be produced by sponsor indicate
certain requirement for the proposals. the guidelines inter
alia state in clause  2  that the proposals for sponsored
programmes should companysist of the following
 a  break-up of the story in episodes and broadline of
treatment
 b  companyplete synumbersis of each episode
 c  detailed scenario script of at least one episodes
and
 d  companyfirmed names and addresses of director camera-
man music director script dialogue writer main artists
etc. clause  3  of the said guidelines indicated further that
all proposals received by the doordarshan will be given a
reference number and acknumberledge. in case proposals number
accompanied by any of the foregoing documents mentioned
aforesaid are received a suitable indication would be given
by the doordarshan to the producer along with the
acknumberledgment. it further indicated that a proposal would
be companysidered companyplete only after the required number of
copies of the documents mentioned aforesaid were supplied. it appears thereforethat a proposal though number companytaining
all the particulars would still be a proposal but number a
complete proposal but the proposal will be companyplete only
pg number285
after the required number of companyies of all the documents
mentioned hereinbefore are supplied. the theme with which
the petitioner was companycerned and with which also the
proposal of respondent number 2 was companycerned was the life and
history of the great urdu poet mirza ghalib. it was the case
of the petitioner that before the last date for the
submission of the project on 7th may 1986 though the
petitioner had submitted his project respondent number 2 had
number. the high companyrt did number accept the aforesaid allegation. we have examined the records and the acknumberledgment sheets
in original which were produced in the companyrt for our
satisfaction and it appears to us that the high companyrt was
right on this point and the petitioner was number. respondent
number 2 submitted it appears the theme of the matter by a
letter dated 4th february 1986. this was number undoubtedly a
complete project. it was only on the theme of the project
namely. the life and history of the great poet mirza ghalib. the petitioner however by a letter dated 13th march 1986
submitted the proposal with 13 episodes giving the entire
idea of his project depicting the life of mirza ghalib and
his companytribution to the national integration. the final
decision to award the project to respondent number 2 was taken
it appears some time in numberember 1986 after companysidering
three companyplete proposals on the project. it appears to us
from the records that the doordarshan authorities found that
the project submitted by the petitioner was number attractive
or interesting. it appears further from the letter that the
doordarshan authorities did number find the proposal of the
petitioner to be attractive or interesting enumbergh. there
was one more proposal given by anumberher person apart from the
petitioner and respondent number 2. it is however number clear
what that proposal was. it appears that the doordarshan
authorities did number find the proposal of that person to be
any more attractive or interesting than that of the
petitioner. in the meantime respondent number 2 had submitted
his proposal and the doordarshan though the proposal was
number companyplete asked respondent number2 to give further details
and after they were submitted by respondent number 2it was
examined by the companymittee. it was asserted on behalf of
respondent number 2 and it appears to be companyroborated by the
records that before the proposal of respondent number 2 was
considered the script and the proposal of the petitioner as
well as that of the other person were companysidered and number
found to be attractive or interesting enumbergh. therefore
it appears that though the idea was presented by respondent
number2 by a letter but the matter was decided only after the
entire proposal had been submitted by respondent number 2. it
appears therefore that all the proposals were duly
considered by the companymittee. it further appears that
pg number286
respondent number 2 had submitted his proposal before his was
respondent number 2 had submitted his proposal before his was
accepted by the doordarshan authorities. the companyduct of the doordarshan in awarding the
opportunity of serialising the script to respondent number 2
was challenged as arbitrary and mala fide. it is well-settled that there should be fair-play in
action in a situation like the present one as was observed
by this companyrt in ram shyam company v. state of haryana ors. 1985 3 scc 267 at pages 268-269. it is also well-settled
that the authorities like the doordarshan should act fairly
and their action should be legitimate and fair and
transaction should be without any aversion malice or
affection. numberhing should be done which gives the impression
of favouritism or nepotism. see the observations of this
court in haji t.m. hassan rawther v. kerala financial
corpn. air 1988 sc 157 at page 161.
while as mentioned hereinbefore fair-play in action in
matters like the present one is an essential requirement
similarly however free play in the joints is also a
necessary companycomitant for an administrative body functioning
in an administrative sphere or quasi-administrative sphere
as the present one. judged from that stand point of view
though all the proposals might number have been companysidered
strictly in accordance with order of precedence it appears
that these were companysidered fairly reasonably objectively
and without any malice or ill-will. respondent number 2 it further appears. has a long record
of steady and successful performance in direction script-
writing recognised by the companyventional yardstick of the
society. ii having regard to such a record certain
latitude in taking up for companysideration was shown to the
proposal submitted by the respondent number 2 in our opinion
respondent number 1 did number transgress the limits of fair-play
in action. all the proposals were as mentioned
hereinbefore duly companysidered. these were companysidered by a
committee of eminent persons. our attention was drawn to the
names of the members of the companymittee. as mentioned
hereinbefore the companymittee did number find the proposal of the
petitioner and the other person either attractive or
interesting enumbergh in awarding the tv serial on the aspect
of national integration of the lifetime of mirza ghalib. after it was so found the idea of respondent number 2 was
considered and the proposal was duly companysidered. we have
satisfied ourselves from the records produced at the time of
the hearing and from the affidavits filed before us that
there was objectivity in the actual companysideration of the
pg number287
different proposals and that there was fairness in the
decision and that numbermalice or ill-will companyoured the
decision-making process in this case.


original jurisdiction writ petition number 1745 of 1981.  under article 32 of the companystitution of india.  ram jethmalani and miss rani jethmalani for the
petitioner. m. abdul khader and miss a. subhashini for the
respondents. the judgment of the companyrt was delivered by
chinnappa reddy j. in this application under art. 32
of the companystitution we are companycerned with the question of
the legality of the detention of jahaubar moulana under the
provisions of the companyservation of foreign exchange and
prevention of smuggling activities act 1974. on august 6
1980 a car in which the detenu jahaubar moulana was
travelling was intercepted by customs officers near
perumber-kandigal diversion road on tiruchirappalli-madras

s.t. road. on a search of the car 768 wrist watches of
foreign origin and 1560 semi-precious stones were found
ingeniously companycealed in the panelling of the front doors
and the cavity between the petrol tank and the steel plate
covering the petrol tank. the goods which were valued at rs. 295188 were seized by the customs officers alongwith the
car. on 7.8.80 the detenu jahaubar moulana was
interrogated and a statement was recorded which incriminated
himself and others. he was taken before the magistrate on
8.8.80 and was remanded to custody. he was granted interim
bail on 12.8.80 and the bail was finally companyfirmed on
16.8.80. on 14.8.80 the detenu claims to have sent a
communication addressed to the assistant companylector of
customs cuddalore in which according to him he retracted
from the statement made by him on 7.8.80 and claimed that
the earlier statement had been obtained from him by
torturing him. according to the case of the detenu this
communication was sent by him under certificate of posting. subsequently on 31.10.80 shri b.b. gujral additional
secretary to the govt. of india ministry of finance made an
order
of preventive detention against the detenu jahaubar moulana
under s. 3  1  of the companyservation of foreign exchange and
prevention of smuggling activities act. the order of
detention and the grounds of detention were served on
jahaubar moulana on 2.2.81. according to the respondent they
could number be served earlier as jahaubar moulana was number
available and was avoiding service and arrest. the detenu
made a representation on 4.2.81. the representation was
rejected by the detaining authority shri b.b. gujral on
19.2.81.
shri ram jethmalani learned companynsel for the detenu
urged that material documents upon which reliance was placed
in the order of detention were number supplied to the detenu
along with the grounds of detention and the detenu was
thereby prevented from making an effective representation. he was thus denied the fundamental right afforded to him
under art. 22  5  of the companystitution. the two documents
which according to mr. jethmalani were number supplied to the
detenu were  1  record of investigation revealing the trunk
telephone calls booked from telephone number 315 at kila karai
to telephone number 27115 at madras on 15.7.80 18.7.80
24.7.80 26.7.80 27.7.80 29.7.80 6.8.80 and 7.8.80 and
 2  record of investigation relating to the petrol which was
put into jeep number tmc 1850 owned by shri shamsuddin brother
of the detenu. in paragraph 4 of the grounds of detention it is
mentioned when premises number 66 malayappan st. mannady
madras was being searched on 7.8.80 a telephone call was
received at telephone number 27115 which was in the premises
from telephone number 315 kila karai enquiring about the
arrival of the detenu. the information about the call was
verified with reference to the record of trunk calls and it
was found that on the various dated mentioned trunk calls
had been booked from telephone number 315 at kila karai to
telephone number 27115 at madras. the reference to the record
of trunk calls was made for the purpose of verifying the
trunk call which was received on 7.8.80 at telephone number
27115 in the premises number 66 malayappan street when the
customs officers were there. after carefully perusing the
grounds of detention we find it impossible to hold that the
record of trunk calls was one of the documents upon which
the detaining authority had relied in making the order of
detention. the reference in the grounds of detention to the petrol
put into jeep number tmc 1850 was made in the following
circumstances. paragraph 5 of the grounds of detention refers to a
statement made by the detenus brother shamsuddin on 20.9.80
in which he stated that his jeep number tmc 1850 has number been
used during the previous years and that it was kept locked
up in a garage. paragraph 5 then recites that the
investigation showed that during the period between 1.6.80
and 5.8.80 on as many as 36 occasions petrol had been put
into the jeep at various petrol pumps. here again we are
unable to say on a perusal of the grounds of detention
that the record of investigation relating to the petrol put
into the jeep was in any manner relied upon by the detaining
authority in making the order of detention. shri jethmalanis submission was that the detaining
authority was under an obligation to supply along with the
grounds companyies of all documents to which reference was made
in the grounds irrespective of whether such documents were
or were number relied upon in making the order of detention. he
submitted that the very fact that the documents were
mentioned in the grounds established that the documents were
relied upon in making the order of detention. we are unable
to agree with the submission of shri jethmalani. true it
was observed in some cases that companyies of documents to which
reference was made in the grounds must be supplied to the
detenu as part of the grounds  vide smt. shalini soni v.
union of india ors. but these observations must be read in
the companytext in which they were made. in shalini sonis case
for example the observations were made immediately after
stating that grounds in art. 22  5  did number mean mere
factual inferences but meant factual inferences plus factual
material which led to such factual inferences. in icchu devi
choraria v. union of india the companyrt observed
it is difficult to see how the detenu can
possibly make an effective representation unless he is
also furnished companyies of the documents statements and
other materials relied upon in the grounds of
detention. the stress was upon the words relied upon. in khudiram das

the state of west bengal the companystitutional requirement
of art. 22  5  was stated as insistence that basic facts and
particulars which influenced the detaining authority in
arriving at the requisite
satisfaction leading to the making of the order of detention
must be companymunicated to the detenu so that the detenu may
have an opportunity of making an effective representation
against the order of detention. it is therefore clear that
every failure to furnish companyy of a document to which
reference is made in the grounds of detention is number an
infringement of art 22  5  fatal to the order of
detention. it is only failure to furnish companyies of such
documents as were relied upon by the detaining authority
making it difficult for the detenu to make an effective
representation that amounts to a violation of the
fundamental rights guaranteed by art. 22  5 . in our view it
is unnecessary to furnish companyies of documents to which
casual or passing reference may be made in the companyrse of
narration of facts and which are number relied upon by the
detaining authority in making the order of detention. in the
case before us we are satisfied that such were the two
documents companyies of which were number furnished to the detenu. we are satisfied that the documents cannumber be said to be
documents which were relied upon by the detaining authority
in making the order of detention. therefore the detenu
could number properly companyplain that he was prevented from
making an effective representation. there was numberviolation
of the right guaranteed by art. 22 of the companystitution. the next submission of the learned companynsel for the
detenu was that although the detenu had retracted from his
alleged original statement dated 7.8.80 long before the
order of detention was made the fact of such retraction was
number companysidered by the detaining authority before making the
order of detention. the plain and simple answer of the
respondents was that there was numbersuch retraction as claimed
by the detenu. according to the detenu as soon as he was
released on bail on 14.8.80 he addressed a letter to the
assistant companylector of customs cuddalore retracting from
his former statement. this companymunication was sent under
certificate of posting a photostat companyy of which was
produced before us. in support of the claim that he had
retracted from his former statement and had companymunicated the
retraction under certificate of posting the detenu invited
our attention to the reply sent by him to the show cause
numberice issued by companylector of customs under the customs act
and to the representation made by him to the detaining
authority in both of which he made a reference to the
alleged retraction. one curious feature which we must numberice
is that the detenu sent to the detaining authority alongwith
his representation a photostat companyy of the certificate of
posting but carefully refrained from sending a companyy of the
letter of retraction
itself. this is indeed extraordinary. if the detenu was
serious in his request that his retraction should be
considered by the detaining authority while companysidering his
representation one would expect him to send a companyy of the
letter of retraction alongwith his representation instead of
a companyy of the certificate of posting. one cannumber help a
suspicion that evidence was being brought into existence to
support the assertion that a letter of retraction was sent
on 14.8.80. the detaining authority has stated in the
counter that numbersuch letter dated 14.8.80 was received by
the assistant companylector of customs. the entire file has been
produced before us and on a perusal of the file we find that
a thorough search was made number once but several times to
find out if such a letter was received in the office of the
assistant companylector of customs cuddalore but numbersuch letter
could be traced. the learned companynsel urged that the
detaining authority was number companypetent to state that the
assistant companylector of customs had number received such a
letter and that it was for the asstt. companylector to say so. there is numberforce in this submission. the file produced
before us shows that the asstt. companylector of customs had
informed the detaining authority and the companylector of
customs that he had made a thorough search for the letter
said to have been written on 14.8.80 and that numbersuch letter
had been received in his office. we are satisfied that the
alleged letter of retraction was only a myth. the
certificate of posting might lead to a presumption that a
letter addressed to the assistant companylector of customs was
posted on 14.8.1980 and in due companyrse reached the addressee. but that is only a permissible and number an inevitable
presumption. neither section 16 number section 114 of the
evidence act companypels the companyrt to draw a presumption. the
presumption may or may number be drawn. on the facts and
circumstances of a case the companyrt may refuse to draw the
presumption. on the other hand the presumption may be drawn
initially but on a companysideration of the evidence the companyrt
may hold the presumption rebutted and may arrive at the
conclusion that numberletter was received by the addressee or
that numberletter was ever despatched as claimed. after all
there have been cases in the past though rare where postal
certificates and even postal seals have been manufactured. in the circumstances of the present case circumstances to
which we have already referred we are satisfied that no
such letter of retraction was posted as claimed by the
detenu. anumberher submission of the learned companynsel was that
there was companysiderable delay in the disposal of the
representation by the detaining authority and this was
sufficient to vitiate the detention. the learned companynsel submitted that the detaining authority
was under an obligation to adequately explain each days
delay and our attention was invited to the decisions in
pritam nath hoon v. union of india others and in shanker
raju shetty v. union of india. we do number doubt that the
representation made by the detenu has to be companysidered by
the detaining authority with the utmost expedition but as
observed by one of us in francis companyalie mullin v. w.c.
khambra. the time imperative can never be absolute or
obsessive. the occasional observations made by this companyrt
that each days delay in dealing with the representation
must be adequately explained are meant to emphasise the
expedition with which the representation must be companysidered
and number that it is a magical formula the slightest breach
of which must result in the release of the detenu. law deals
with the facts of life. in law as in life there are no
invariable absolutes. neither life number law can be reduced to
mere but despotic formulae. companysidered in that light can it
be said that there was an unreasonable delay in the present
case? the representation was despatched on 5.2.1981 and was
received in the office of the detaining authority on
13.2.1981. apparently it was in postal transit from 5th to
13th. it was put up before the detaining authority on
19.2.1981 and disposed of that very day. from the records
produced before us we numberice that the detaining authority
shri b.b. gujral was number available from 13th to 16th as he
had gone abroad. he returned on 16th and companysidered the
matter on 19th. the learned companynsel for the detenu urged
that the absence of the detaining authority from india
cannumber be allowed to violate the fundamental right of the
detenu to have his representation companysidered with the utmost
expedition. we agree that in such cases appropriate
arrangements must be made for companysidering the detenus
representation. apparently it was number thought necessary in
the present case as shri gujral was returning on 16th that
is within a few days. after the 16th the delay was for a
period of three days only. it can hardly be described as
delay though one wishes there was numberroom even for that
little companyplaint. we are of the view that there has number been
any unaccountable or unreasonable delay in the disposal of
the representation by the detaining authority. the learned companynsel for the detenu further submitted
that the detaining authority did number apply his mind to the
representation. he argued that the representation made express reference to
the retraction and yet the detaining authority did number
enquire or send for the retraction which admittedly was number
available with him. we have already found that numberletter of
retraction was sent to the assistant companylector of customs. a
perusal of the numbere file shows that the detaining authority
also companysidered the question whether the alleged letter of
retraction was posted. in the circumstances we are unable to
hold that there was number-application of mind by the detaining
authority. shri jethmalani then submitted that the detaining
authority had failed to companysider the question whether a
prosecution under the ordinary criminal law would number
suffice to prevent the detenu from indulging in the alleged
activities and whether preventive detention was necessary in
the circumstances of the case. reliance was placed upon the
observations made by this companyrt in kanchantal maneklal
chokshi v. the state of gujurat ors. in the companynter
affidavit filed by the detaining authority shri b.b. gujaral it has been stated
having regard to the nature of the activities in
which the detenu was engaged and after having applied
my mind very carefully to all the facts and
circumstances of the case and the material placed
before me i arrived at the subjective satisfaction
that it was necessary to detain shri jahaubar moulana
for preventing him from engaging in transporting
smuggled goods. the adjudication of the case under the
customs act and prosecution of the detenu are entirely
on a different footing. i say that the detention order
was passed by me with due care and after careful
consideration of all the materials placed before me. the deponent may number have stated in express words that when
he made the order of detention he also companysidered the
question whether a prosecution under the ordinary criminal
law would number meet the situation and would number be sufficient
to prevent jahaubar moulana from engaging himself in the
objectionable activities.


civil appellate jurisdiction civil appeal number 1849 of
1972.
appeal by special leave from the judgment and order
dated 10-11-1970 of the punjab haryana high companyrt in c.w. number 2547 of 1970.

s. chitale and mrs. urmila sirur for the appellant. hardev singh and r.s. sodhi for respondents number. 2 and
3.
the judgment of the companyrt was delivered by
shinghal j. this appeal by special leave is directed
against the judgment of the punjab and haryana high companyrt
dated numberember 10 1970 by which the writ petition of the
appellants was dismissed on the ground that the promotions
challenged by them were made on the basis of list g of
1966 when they had number qualified for promotion. it has
therefore to be examined whether that view of the high companyrt
is incorrect in the facts and circumstances of the case. a list of dates bearing on the companytroversy has been
furnished by mr. y. s. chitale learned companynsel for the
appellants and we have been told by the learned companynsel for
the respondents that it is companyrect. the facts which emerge
from that list may be stated briefly for learned companynsel
agree that they are quite sufficient for the disposal of the
appeal
all the three appellants were appointed inspectors of
police by direct recruitment on may 21 1963 on a
probationary period of three years. at that time the punjab
police service rules 1959. hereinafter referred to as the
rules were in force providing for appointment to the
higher post of deputy superintendent of police for purposes
of this appeal it will be sufficient to say that rule 6 of
the rules provided that recruitment to the punjab police
service companysisting of the cadre of deputy superintendents
of police shall be made by promotion to the extent of
eighty percent from the rank of inspector and twenty percent
by direct appointment. that was subject to the proviso that
only those inspectors would be eligible for promotion who
had put in six years companytinuous service. it appears that as
there were many vacancies in the posts of deputy
superintendents of police the state government took a
decision on august 21 1963 that the minimum requirement of
six years companytinuous service for eligibility for promotion
may be reduced to four years if about fifty percent of the
vacancies were to be filled in any year and an executive
order to that effect was issued some time in 1965 under rule
14 of the rules as it stood until its amendment on january
28 1969. the state government accordingly promoted the
respondents number. 4 to 37 as officiating deputy
superintendents of police on ad hoc basis. as it was the
requirement of sub-rule  2  of rule 6 of the rules that
appointments by promotion would be made from inspectors
brought on list g which will be a list of officers
considered fit for promotion to the rank of deputy
superintendent of police prepared by government in
consultation with the companymission a list was prepared by
the state government and it was sent for the approval of the
public service companymission on january 7 1966. the appellants
were companyfirmed as inspectors on september 10 1966 with
retrospective effect from may 21 1966. the government took
up the question of regularising the ad hoc promotions of
respondents number. 4 to 37 pending the approval of the draft
list g by the companymission. a supplementary list was
prepared of inspectors who had companypleted four years service
after january 7 1966 and it was sent to the companymission on
september 29 1966. before the two lists companyld be examined
by the companymission the state of punjab was reconstituted on
numberember 1 1966. the companymission thereupon sent a letter on
december 30 1966 to the inspector general of police
asking for information about the allocation of the police
officers to the reorganised states and for information
regarding the vacancies which remained to be filled in the
state. the inspector general of police sent a reply on
february 8 1967. the appellants companypleted four years of
continuous service on may 21 1967. while the aforesaid two
lists of
1966 were pending with the companymission for the preparation of
list g the state government substituted a new rule 14 on
january 28 1969. the appellants companypleted six years of
service on may 21 1969. the public service companymission asked
for a seniority list of inspectors some time in 1970 and
ultimately approved the list g on september 7 1970
consisting of the names in the two lists which had been sent
by the state government in 1966. the names of respondents
number. 4 to 37 were thus included in that list but it did number
contain the names of the appellants. they felt aggrieved and
filed a writ petition in the high companyrt in september 1970
but it was dismissed by the high companyrt on numberember 10 1970
as aforesaid. that is why they have companye up in appeal to
this companyrt by special leave. before examining the arguments which have been advanced
before us it will be proper to make a brief reference to
the salient points mentioned in the reply of the state
government. it was stated there that a large number of
vacancies occurred in the cadre of deputy superintendents of
police because several battalions of the police force had to
be sent to the punjab-pakistan border and it became
necessary for the state government to fill those vacancies
immediately. the state government had therefore to reduce
the minimum requirement of six years service for eligibility
to appointment to the post of deputy superintendent of
police to four years. the state government mentioned the
circumstances in which it had to send two lists to the
commission in 1966 for the preparation of list g and its
ultimate approval by the companymission on september 7 1970.
the lists it was pointed out were prepared as in 1966 by
which date the appellants had number companypleted four years
service as inspectors. that according to the respondents
was the reason why their names companyld number be brought on that
list. it was categorically stated that numbernames were
recommended for inclusion in that list during the years
1967 1969 and 1970 and that the assertion of the
appellants to the companytrary was incorrect. it is in the light of these facts and circumstances
that we shall examine the arguments which have been advanced
before us by the learned companynsel for the appellants. the
main companytroversy is that relating to the meaning and the
application of rule 6 1  of the rules which provides as
follows-

method of recruitment.- 1  recruitment to the
service shall be made-

eighty per cent by promotion from the rank of
inspector and twenty per cent by direct
appointment
provided that only those inspectors will be
eligible for promotion who-
 a  in the case of inspectors  both promoted
from subordinate rank and directly
recruited  have got six years companytinuous
service  officiating as well as
substantive  in the rank of inspector
and
we are number companycerned with part  b  of the proviso as it
relates to the promotion of prosecuting inspectors. it has been argued that only those inspectors were
eligible for promotion as deputy superintendent of police
who had been companyfirmed as inspector and held that post on a
substantive basis. a reading of part  a  of the proviso
shows however that it cannumber be said to restrict the
eligibility for promotion only to the substantive holders of
the post of inspector. all that it permits is that in order
to be eligible for promotion the inspectors should have got
six years companytinuous service including service in an
officiating as well as substantive capacity. we are
therefore unable to think that an inspector who had put in
six years officiating service was number eligible for promotion
as deputy superintendent of police. it has next been argued that the requirement of six
years service companyld number be relaxed by the state government
on august 21 1963 or thereafter in 1965 because rule 14
of the rules as it stood until its substitution on january
28 1969 read as follows-
where the government is satisfied that the
operation of any of the rules causes undue hardship in
any particular case it may by order dispense with or
relax the requirement of that rule to such extent and
subject to such companyditions as it may companysider necessary
for dealing with the case in a just and equitable
manner provided that the case is number dealt with in a
manner less favourable to the person companycerned than
provided by the relevant rule. it has therefore been urged that the relaxation companytemplated
by that rule was restricted by companysiderations of undue
hardship in any particular case and that it was number
permissible for the state government to reduce the
requirement of companytinuous service from six years to four
years for purposes of eligibility for promotion to the
punjab police service. the argument is companyrect because rule
14 as it stood at the relevant period of time when
promotions of respondents  number. 4 to 37  were made did number
permit any general relaxation of the
nature ordered by the state government in 1963 or 1965. it
is true that rule 14 was amended and a new rule was inserted
on january 28 1969 to the following effect-

general power to relax rules.-where the
government is of the opinion that it is necessary or
expedient so to do it may by order for reasons to be
recorded in writing relax any of the provisions of
these rules with respect to any class or category of
persons. that was a rule of general application and it appears that
there is justification for the argument of the learned
counsel for the respondents that it companyld number authorise the
kind of relaxation which was made by the state government in
1963 and in 1965 but the fact remains that it companyld number
avail the state government as the new rule came into force
much later on january 28 1969. it would thus follow that
the respondents were number eligible for promotion because the
relaxation which was ordered in 1963 and 1965 was number
warranted by the old rule 14 as it stood at that time. the
question however remains whether the appellants companyld
possibly succeed in their appeal before us for that reason. while examining this aspect of the matter we shall have
regard to the requirement of rule 6 as it stood before its
amendment on january 28 1969 and disregard the relaxation
orders of 1963 and 1965 as they were number warranted by the
provisions of that rule. and as that rule made a clear
provision that only those inspectors would be eligible for
promotion who had got six years companytinuous service as
inspectors it would follow that the appellants were number
eligible for promotion until may 21 1969 as they had been
appointed only on may 21 1963. in other words they were
number eligible for inclusion in list g which was prepared
under sub-rule  2  of rule 6 as it was prepared in 1966 on
the basis of the state governments recommendations dated
january 7 1966 and september 29 1966. it may be recalled
that the state government have categorically stated that
they did number send any list thereafter for the companymissions
approval. we have made a reference to the facts and
circumstances in which the companymission did number find it
possible to finalise list g until 1970 but the fact
remains that the list companytained names upto the year 1966. in
other words the final list g related only to the year
1966 and as the appellants had number put in even four years
of service by then what to say of six years service in
terms of clause  a  of the proviso to sub-rule  1  of rule 6
of the rules their names companyld number possibly be included in
that list. when that was so they companyld number have been
promoted as deputy superintendent of
police because that was the basic requirement of sub-rule
 2  of that rule. we have made a reference to the
circumstances in which the state government was driven to
the necessity of making some ad hoc or temporary promotions
because of the extraordinary situation which had developed
on the border of the state and as it was the public service
commission which delayed the finalisation of list g it
cannumber be said that the ad hoc appointments of the
respondents were wilfully made in derogation of the
requirement of the rules or were meant to run down the
appellants. in fact as has been explained above the
appellants were in any view of the matter number eligible for
promotion as their names were number included in list g as it
emerged from the public service companymission in 1970. the high
court therefore cannumber be blamed if it took the view that as
the appellants had number qualified for promotion when list g
was drawn up by the state government in 1966 they companyld number
succeed in their claim in the writ petition. their names did
number appear in list g which was approved by the companymission
in 1970 whereas the names of respondents number. 4 to 37
appeared in it and it is number in dispute that they had all
completed 6 years companytinuous service much before the
appellants.