Mullagiri Vajram and Others Vs. State of Andhra Pradesh - Court Judgment

Excerpt:
- [k. subba rao, c.j.,; m. hidayatullah,; r.s. bachawat,; raghuvar dayal, jj.] the mysore health cess act 1962 provided in s. 3 for the levy and collection of a health cess at the rate of nine naye paise in the rupee, inter alia, on the items of the state revenue mentioned in schedule a. item 1 of schedule a mentioned duties of excise leviable by the state under any law for the time being in force in any area of the state on alcoholic liquors for human consumption (and opium etc.) manufactured or produced in the state and for countervailing duties levied on similar goods manufactured or produced elsewhere. the mysore excise act, 1901 empowered the state government to grant exclusive or other privilege of selling by retail any country liquor or intoxicating drugs to any person or persons on such conditions and for such period as it thought fit. according to s. 18 of the act the privilege of sale in a specified shop was to be disposed of periodically by public auction held by the excise authorities. as a result of such public auctions held subject to the terms and conditions notified by the state government the appellants were granted the exclusive privilege of selling country liquor in certain arrack shops, beer taverns and toddy shops in consideration of their agreeing to pay specified 'shop rent' thereon at the rate of nine naye paise in the rupee. the appellants challenged the levy of the health cess on the shop rent in writ petition before the high court and thereafter appealed to this court with the following contentions : (1) that the mysore legislature was not competent to enact the impugned act because no entry in list it or list iii authorities a tax on tax or a health-tax and that if the intention was to levy a surcharge on existing items of revenue the state legislature could have easily used the words 'surcharge' or 'additional revenue'. (2) even if the impugned tax was valid the act did not empower the levy of health cess on shop rent because shop 'rent was not an excise duty falling within schedule a -of the impugned act or entry 51 of list ii. held:per subba rao, c. j., sikri and dayal, jj. (i) by the impugned act the state legislature was levying a health cess on a number of items of state revenue or tax and it adopted the form of calling it a cess and prescribed the rate of nine naye paise in the rupee on the state revenue or tax. section 4 of the impugned act makes it quite clear that the cess is leviable and recoverable in the same manner as items of land revenue, state revenue or tax. in the context, the word on' in s. 3 does not indicate that the subject matter of taxation is land revenue or state revenue but that 9% of the land -revenue or state revenue is to be levied and collected, the subject matter remaining the same as in the law imposing land revenue or any duty or tax. if we read ss. 3 and 4 together the fact that the words 'surcharge' or 'additional duty' halve not been mentioned does not detract from the real substance of the legislation. accordingly the mysore legislature was competent to enact the law under the various entries of list ii which enable it to levy land revenue or the duties of excise or the other taxes mentioned in s. 3(iii) of the impugned act. [560 a-c] (ii) for a duty to be a duty of excise it must be shown that the duty has been levied on goods which have been produced or manufactured, the taxable event being production or manufacture of goods. however,, it is not easy to decide in a particular case whether the particular levy is a levy in respect of manufacture or production of goods. this question has to be decided on the facts of each case but in deciding it certain principles must be borne in mind. first, one of the essential characteristics of an excise duty is uniformity of incidence. secondly, the duty must be closely related to production or manufacture of goods. it does not matter if the levy is made not at the moment of production or manufacture but at a later stage. if a duty has been levied on an excisable article but this duty is collected from a retailer it does not necessarily cease to be an excise duty. thirdly, if a levy is made for the privilege of selling an excisable article and the excisable article has already borne the duty and the duty has been paid, there must be clear terms in the charging section to indicate that what is being levied for the purpose of the privilege of sale is in fact a duty of excise. [562 e-f; 563 h] there is no presumption that if no other taxable event has intervened, the levy must be treated to be connected with production or manufacture. the levy in the present case was a payment for the exclusive privilege of selling today from certain shops. the licencee paid what he considered to be equivalent to the value of the right. secondly, it had no close relation to the production or manufacture of toddy. thirdly, the only relation it had to the production or manufacture of toddy, was that it enabled the licencee to sell it. but he might sell little, less or more than he anticipated, depending on various factors. fourthly, toddy had already paid one excise duty in the form of tree tax., but he need not tap himself. fifthly, the duty was not uniform in incidence because the amount collected had no relation to the quantity or quality of the produce but had only relation to what the petitioner thought be could recoup by the sale of the excisable articles. what be recouped would depend upon the amount of sales and the conditions prevailing during the licensing year. sixthly, there were no express words showing that what was being realised by the appellants was an excise duty. seventhly the privilege of selling was auctioned well before the goods came into existence. [564 b-e] for the above reasons the duty was not an excise duty within the meaning of item (1) of schedule a of the health cess act or entry 51 of list 11 of the constitution. the state of mysore had therefore no authority to levy and collect health cess on shop rent. [567 g-h] per bachawat j (concurring) : a charge for licence to sell an excisable article may be a fee or a tax. if it is a tax, it can satisfy the test of a duty of excise when it is so connected with the manufacture or production of an article as to be in effect a tax on the manufacture or production. otherwise such a tax does not fall within the classification of a duty of excise. in the present case the shop rent was not connected with the production or manufacture of arrack, beer or toddy and was therefore not a duty of excise. the state legislature was not competent to make a law levying a surcharge on the shop rent under entry 5 1, list h. [584 c- f] per hidayatullah, j. (dissenting) : the persons who bid at these auctions were themselves the producers or manufacturers. they bid for the exclusive privilege or selling which in so far as government was concerned was a means of collecting the anticipated excise duty at one go from a producer or manufacturer before the goods became a part of the general stock of goods in the country. in other words the person who was charged was the producer or manufacturer and the duty was levied from him before he could sell or obtain liquor which had not borne excise duty so far. the duty was therefore clearly a duty of excise whether the matter was considered in the light of economic theory, legislative practice or judicial authority. [572 d- e] case law considered. - it has also been found established by the learned trial court as well as by the high court that a-l inflicted injuries by an axe and a-2 by a spear and a-7 was among the other persons who inflicted injuries by a stick.ordern.m. kasliwal, j.1. twelve persons were challaned for the murder of nethala veeraswamy, a resident and sarpanch of village ramaraogudem in eluru taluq, west godavari district (a.p.) in the night of 31.12.1977. learned sessions judge, west godavari division, eluru tried the case and relying on the evidence of p.ws. 1, 2 and 7 in toto and the evidence of p.w. 3 to some extent convicted all the accused persons for the offences charged under section 302 read with section 149 i.p.c. and awarded each one of them sentence of imprisonment for life and other minor terms of imprisonment for other offences. on appeal the high court set aside the conviction and sentence of seven accused persons, namely, dasari bhaskara rao (a-4), kali china krishna (a-5), namburi lakshmana (a-8), namburi ramulu (a-9), namburi prasada rao (a-10), mada govardhana rao (a-11) and kali kamaka rao (a-12). the high court confirmed the conviction of the remaining five accused persons mullagiri vajram (a-1), mullagiri yasupadam (a-2), dasari bhima rao (a-3), mada lakshmandas (a-6) and gandi abraham (a-7) under section 302 read with section 149 i.p.c. and sentenced them to imprisonment for life. the high court further held that as these accused had been sentenced for the main offence under section 302 read with section 149 i.p.c. there was no need of separate sentence under sections 148 and 147 i.p.c.2. the five accused a-1, a-2, a-3, a-6 & a-7 have come before this court in appeal against the order of the high court by grant of special leave. mada lakshmandas (a-6) expired during the pendency of appeal before this court as such the appeal filed by him was dismissed as having abated by order dated 8.4.1992. we are now concerned in this appeal with the four accused appellants a-1, a-2, a-3 and a-7.3. we have gone through the judgment of the lower courts and have perused the record and have considered the arguments advanced by learned counsel for the parties. the high court has considered the prosecution evidence in detail and has placed reliance on the statements of p.ws. 1, 2, 3 and 4 as eye-witnesses of the incident. the high court has placed implicit reliance on the testimony of p.w. 2 and who was a clerk working in the panchayat office of ramaraogudem and had accompanied the deceased in an auto rickshaw and had seen the incident. we find no infirmity in the statement of p.w. 2 and the high court has rightly placed reliance on his evidence.4. learned counsel for the accused persons submitted that even if the statement of p.w. 2 is taken to be correct, no offence is made out so far as accused (a-3) is concerned. learned counsel in this regard submitted that p.w. 2 in the cross examination has admitted that he did not state the name of a-3 in his statement recorded under section 164 cr.p.c. it was also submitted that though p.w. 2 stated that he had given the name of a-3 in his statement recorded at the inquest but the name of a-3 does not find mention in exhibit d-7, the statement of p.w. 2 recorded at the inquest. we see force in the aforesaid contention. a perusal of the statement of p.w. 2 shows that he did not make a mention of the name of a-3 in his statement recorded under section 164 cr.p.c. and also in his statement exhibit d-7 recorded at the inquest. in view of these circumstances the accused a-3 is also entitled to the benefit of doubt.5. it was next contended by learned counsel on behalf of the accused a-2 and a-7 that p.w. 2 in the cross examination admitted that after the incident he had gone to police station seven or eight times. he had gone to the police station as he was asked by the police. he also admitted that at that time accused persons-were in police lock up. on the basis of the aforesaid statement of p.w. 2 it was contended that when p.w. 2 had gone to the police station seven or eight times after the incident the possibility of his seeing the accused (a-2) and (a-7) in the police station cannot be ruled out. it was thus contended that any identification parade held on 25.1.1978 and 26.1.1978 has no value as p.w. 2 had already seen the accused persons in the police station. we find no force in this contention. exhibits p-16 and p-17 are the proceedings of identification parade held on 25.1.1978 and 26.1.1978 respectively. a perusal of these documents shows that p.w. 2 garapati krishnavatharam had himself stated that he had prior acquaintance with mullagiri yesupadam (a-2) and gandi abraham (a-7). the high court has examined this aspect of the matter and has rightly arrived to the conclusion that p.w. 2 in his evidence has stated that he came to know the names of the accused from the children of the deceased and it was not unnatural for a person, who resides in a village for a period of two months and especially when they reside opposite to the residence of the president (deceased) in whose office he was working as a clerk to know the names of the persons residing nearby. p.w. 2 himself admitted at the time of holding the identification parade that he had prior acquaintance with a-2 and a-7. p.w. 2 is a witness of sterling worth and both the trial court and the high court have placed reliance on his testimony. he had identified a-l, a-2 and a-7 in the court. their conviction is not based on the identification parade but on the statement of p.w. 1 and p.w. 2 made during the trial as eye-witness.6. it is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the village. the accused persons belonged to the group headed by a-6, a-7 and the deceased was the leader of the other group. nethalaveeraswamy the deceased was given merciless beatings and was done to death in the midnight of 31.12.1977. he was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the doctor. it has also been found established by the learned trial court as well as by the high court that a-l inflicted injuries by an axe and a-2 by a spear and a-7 was among the other persons who inflicted injuries by a stick. it has also come in the evidence of p.w. 19, inspector of police that the accused persons had absconded and on 9.1.1978 on information by 5.00 a.m., he along with mediators visited ramaraogudem and the absconded accused were hiding in the house of a-7. he surrounded the house with his staff, guarded the house and in that house he found the twelve persons against whom the case was challaned. it has also been proved by the prosecution that a-7 was the leader of the rival faction against the deceased. thus we find that there is no infirmity at all in the reasoning and conclusion arrived at by the high court so far as accused a-1, a-2 and a-7 are concerned.7. in the result we allow the appeal so far as dasari bhima rao (a-3) is concerned and he is acquitted of all the charged levelled against him his bail bonds shall stand discharged. the appeal filed by mullagiri vajram (a-1), mullagiri yesupadam (a-2) and gandi abraham (a-7) is dismissed. they shall surrender to their bail bonds and serve out the sentence awarded to them by the high court.

Judgment:
ORDER

N.M. Kasliwal, J.

1. Twelve persons were challaned for the murder of Nethala Veeraswamy, a resident and Sarpanch of village Ramaraogudem in Eluru Taluq, West Godavari District (A.P.) in the night of 31.12.1977. Learned Sessions Judge, West Godavari Division, Eluru tried the case and relying on the evidence of P.Ws. 1, 2 and 7 in toto and the evidence of P.W. 3 to some extent convicted all the accused persons for the offences charged under Section 302 read with Section 149 I.P.C. and awarded each one of them sentence of imprisonment for life and other minor terms of imprisonment for other offences. On appeal the High Court set aside the conviction and sentence of seven accused persons, namely, Dasari Bhaskara Rao (A-4), Kali China Krishna (A-5), Namburi Lakshmana (A-8), Namburi Ramulu (A-9), Namburi Prasada Rao (A-10), Mada Govardhana Rao (A-11) and Kali Kamaka Rao (A-12). The High Court confirmed the conviction of the remaining five accused persons Mullagiri Vajram (A-1), Mullagiri Yasupadam (A-2), Dasari Bhima Rao (A-3), Mada Lakshmandas (A-6) and Gandi Abraham (A-7) under Section 302 read with Section 149 I.P.C. and sentenced them to imprisonment for life. The High Court further held that as these accused had been sentenced for the main offence under Section 302 read with Section 149 I.P.C. there was no need of separate sentence under Sections 148 and 147 I.P.C.

2. The five accused A-1, A-2, A-3, A-6 & A-7 have come before this Court in appeal against the order of the High Court by grant of Special Leave. Mada Lakshmandas (A-6) expired during the pendency of appeal before this Court as such the appeal filed by him was dismissed as having abated by order dated 8.4.1992. We are now concerned in this appeal with the four accused appellants A-1, A-2, A-3 and A-7.

3. We have gone through the Judgment of the lower courts and have perused the record and have considered the arguments advanced by learned Counsel for the parties. The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws. 1, 2, 3 and 4 as eye-witnesses of the incident. The High Court has placed implicit reliance on the testimony of P.W. 2 and who was a clerk working in the panchayat office of Ramaraogudem and had accompanied the deceased in an auto rickshaw and had seen the incident. We find no infirmity in the statement of P.W. 2 and the High Court has rightly placed reliance on his evidence.

4. Learned counsel for the accused persons submitted that even if the statement of P.W. 2 is taken to be correct, no offence is made out so far as accused (A-3) is concerned. Learned counsel in this regard submitted that P.W. 2 in the cross examination has admitted that he did not state the name of A-3 in his statement recorded under Section 164 Cr.P.C. It was also submitted that though P.W. 2 stated that he had given the name of A-3 in his statement recorded at the inquest but the name of A-3 does not find mention in exhibit D-7, the statement of P.W. 2 recorded at the inquest. We see force in the aforesaid contention. A perusal of the statement of P.W. 2 shows that he did not make a mention of the name of A-3 in his statement recorded under Section 164 Cr.P.C. and also in his statement exhibit D-7 recorded at the inquest. In view of these circumstances the accused A-3 is also entitled to the benefit of doubt.

5. It was next contended by learned Counsel on behalf of the accused A-2 and A-7 that P.W. 2 in the cross examination admitted that after the incident he had gone to police station seven or eight times. He had gone to the police station as he was asked by the police. He also admitted that at that time accused persons-were in police lock up. On the basis of the aforesaid statement of P.W. 2 it was contended that when P.W. 2 had gone to the police station seven or eight times after the incident the possibility of his seeing the accused (A-2) and (A-7) in the police station cannot be ruled out. It was thus contended that any identification parade held on 25.1.1978 and 26.1.1978 has no value as P.W. 2 had already seen the accused persons in the police station. We find no force in this contention. Exhibits P-16 and P-17 are the proceedings of identification parade held on 25.1.1978 and 26.1.1978 respectively. A perusal of these documents shows that P.W. 2 Garapati Krishnavatharam had himself stated that he had prior acquaintance with Mullagiri Yesupadam (A-2) and Gandi Abraham (A-7). The High Court has examined this aspect of the matter and has rightly arrived to the conclusion that P.W. 2 in his evidence has stated that he came to know the names of the accused from the children of the deceased and it was not unnatural for a person, who resides in a village for a period of two months and especially when they reside opposite to the residence of the president (deceased) in whose office he was working as a clerk to know the names of the persons residing nearby. P.W. 2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A-2 and A-7. P.W. 2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony. He had identified A-l, A-2 and A-7 in the Court. Their conviction is not based on the identification parade but on the statement of P.W. 1 and P.W. 2 made during the trial as eye-witness.

6. It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the village. The accused persons belonged to the group headed by A-6, A-7 and the deceased was the leader of the other group. Nethalaveeraswamy the deceased was given merciless beatings and was done to death in the midnight of 31.12.1977. He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor. It has also been found established by the learned trial court as well as by the High Court that A-l inflicted injuries by an axe and A-2 by a spear and A-7 was among the other persons who inflicted injuries by a stick. It has also come in the evidence of P.W. 19, Inspector of Police that the accused persons had absconded and on 9.1.1978 on information by 5.00 A.M., he along with mediators visited Ramaraogudem and the absconded accused were hiding in the house of A-7. He surrounded the house with his staff, guarded the house and in that house he found the twelve persons against whom the case was challaned. It has also been proved by the prosecution that A-7 was the leader of the rival faction against the deceased. Thus we find that there is no infirmity at all in the reasoning and conclusion arrived at by the High Court so far as accused A-1, A-2 and A-7 are concerned.

7. In the result we allow the appeal so far as Dasari Bhima Rao (A-3) is concerned and he is acquitted of all the charged levelled against him his bail bonds shall stand discharged. The appeal filed by Mullagiri Vajram (A-1), Mullagiri Yesupadam (A-2) and Gandi Abraham (A-7) is dismissed. They shall surrender to their bail bonds and serve out the sentence awarded to them by the High Court.