minal Appeal No 146 of 1954
Appeal from the judgment and order dated the 27th November 1954 of the Court of Judicial Com 683 missioner at Ajmer in Criminal Appeal No 15 of 1954 arising out of the judgment and order dated 25th August 1954 of the Court of Special Judge at Ajmer in Criminal Case No 5 of 1953
B P Maheshwari for the appellant
C K Daphtary Solicitor General for India Porus A Mehta H R Khanna and B H Dhebar for the respondent
September 21
The Judgment of the Court was delivered by BHAGWATI J
This Appeal with a certificate of fitness under article 1341c of the Constitution against the decision of the Judicial Commissioner at Ajmer raises an important question as to the connotation of the word officer contained in section 219 Indian Penal Code
The appellant was a Class III servant employed as a metal examiner also called Chaser in the Railway Carriage Workshops at Ajmer
I He was charged under section 161 Indian Penal Code with having accepted from one Nanak Singh currency notes of the value of Rs 150 as illegal gratification as a motive for securing a job for one Kallu
He was also charged under section 51d of Act II of 1947 with abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantage in the shape of Rs 150 from the said Nanak Singh
He was further charged with having committed an offence under section 420 Indian Penal Code for having induced the said Nanak Singh to deliver to him currency notes of the value of Rs 150 by dishonest representation that be could secure a job for the said Kallu
The learned Special Judge State of Ajmer who tried him in the first instance for the said offences convicted him of the offence under section 161 Indian Penal Code as also the offence under section 51 d of Act II of 1947 and sentenced him to suffer rigorous imprisonment for six months and one year respectively in regard to the same both the sentences to run concurrently
In so far 684 however as it was not proved that the appellant did not believe when he accepted the money that he could secure or would try to secure a job for Kallu it was held that no case under section 420 Indian Penal Code was made out and he was acquitted of that charge
The appeal taken to the Judicial Commissioner State of Ajmer by the appellant failed and on the 10th December 1954 the learned Judicial Commissioner granted to the appellant a certificate of fitness for appeal on two main grounds viz 1 whether the appellant was an officer within the meaning of clause 9 of section 21 Indian Penal Code and 2 whether the provisions of section 137 of the Railways Act excluded all railway servants from the definition of public servants except for purposes of Chapter  IX Indian Penal Code
Concurrent findings of fact were reached by both the Courts below on the question as to whether the appellant accepted Rs 150 from Nanak Singh as and by way of illegal gratification and these findings could not be and were not challenged before us by the learned counsel for the appellant
The only questions which were canvassed before us were the two legal points which formed the basis of the certificate of fitness for appeal granted by the learned Judicial Commissioner State of Ajmer to the appellant
The second question has now become academical in the facts of the present case by virtue of a decision of this Court in Ram Krishan vs Delhi State1 which lays down that before the amendment of section 137 of the Railways Act by Act 17 of 1955 railway servants were treated as public servants only for the purposes of Chapter IX Indian Penal Code but in any event they were public servants under the Prevention of Corruption Act Act II of 1947
In so far as the appellant has in our opinion been rightly convicted of the offense under section 51d of Act If of 1947 and awarded the sentence of rigorous imprigonment for one year the question whether he was rightly convicted of the offence under section 161 1  685
Indian Penal Code for which he was awarded the lesser sentence of six months  rigorous imprisonment has become merely academical and the only question which remains to be considered by us here is whether he was an officer within the meaning of section 21 9 Indian Penal Code
The provisions of law in regard to the first question may be conveniently set out at this stage Section 2 of the Prevention of Corruption Act II of 1947 provides for the purposes of this Act public servant means a public servant as defined in section 21 of the Indian Penal Code
Section 21 Indian Penal Code provides so far as is relevant for the purposes of the present appeal The words public servant  denote a person falling under any of the descriptions hereinafter following namely Ninth    and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty
There is no doubt that the appellant was
in the service or pay of the Government and was performing the duty of a metal examiner known as Chaser in the Railway Carriage Workshops at Ajmer and was thus performing a public duty
It was however contended that the appellant was not an officer within the meaning of that term as used in section 219 Indian Penal Code
An Officer it was contended on the authority of Reg
vs Ramajirav jivbajirav and another1 meant one to whom was delegated by the supreme authority some portion of its regulating and coercive powers and who was appointed to represent the State in its relations to individual subjects
According to the dictum of West J the word officer meant some person employed to exercise to some extent and in certain circumstances a delegated function of Government
He was either himself armed with some authority or repre 1 XII Bom
HCR 1 386 sentative character or his duties were immediately auxiliary to those of some one who was so armed
It was therefore contended that the appellant being a metal examiner known as Chaser in the Railway Carriage Workshops had not delegated to him by the supreme authority some portion of its regulating and coercive powers nor was he appointed to represent the State in its relations to individual subjects
He was neither armed with some authority or representative character nor were his duties immediately auxiliary to those of some one who was so armed
He was not employed to exercise to some extent and in certain circumstances the delegated function of Government and therefore was not an officer within the meaning of that term as used in section 219 Indian Penal Code
If he was thus not an officer of the Government he could not be a public servant within the meaning of section 21 Indian Penal Code nor could he be a public servant for the purposes of Act 11 of 1947 and could not be convicted of the offence under section 51d of Act II of 1947
It has to be noted however that the case before the learned Judges of the High Court of Bombay in 12 Bombay High Court Reports 1 concerned an Izaphatdar that is a lessee of a village who bad undertaken to keep an account of its forest revenue and pay a certain proportion to the Government keeping the remainder for himself and the question that arose for the consideration of the Court was whether such a person was an officer within the meaning of section 219 Indian Penal Code
It was in this context that the aforesaid observations were made by West J and the Court came to the conclusion that Deshmukhs and Deshpandes would be sufficiently within the meaning of the clause they being appointed to perform for the State a portion of its functions or to aid those who were its active representatives but not so an Izaphatdar or the lessee such as the accused
He was not an officer but a mere contractor bound by his engagement but not by the terms of his office or employment to pay a certain proportion to the Government
There was no delegation to him of any 687 authority for coercion or interference nor was he an assistant appointed to help any one who was vested with such authority
The duties which he performed were contractual duties frauduler deception in the discharge of which might subject him to punishment for cheating but not duties attached to any office conferred on him or his predecessor in title failure to perform which with integrity could make him liable as an officer to the special penalties prescribed for delinquent public servants
This decision in 12 Bombay High Court Reports 1 came to be considered by the Calcutta High Court in Nazamuddin vs Queen Empress1
The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under section 161 Indian Penal Code
The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of clause 9 of section 21 Indian Penal Code which declared every officer in the service or pay of Government was a public servant be cause he was not an officer
The case of Reg
vs Ramajirav Jivbajirav2 was cited in support of that contention and the learned Judges of the Calcutta High Court observed at page 346 as under The learned Judges in that case had to consider whether a lessee from Government was on the conditions of his lease a public servant and in doing so they considered generally the meaning of the term officer
It was there held that an officer means some person employed to exercise to some extent and in certain circumstances a delegated function of Government
He is either armed with some authority or representative character or his duties are immediately auxiliary to those of some person who is so armed
The meaning which we are asked to put on these words seems to us to be too narrow as applied to the present case
The peon who has been convicted as a public servant is in service and pay of the Government and he is attached to the office of the Superintendent of the Salt Department
The exact 1 ILR 2 XII Bom
HCR 1
688 nature of his duties is not stated because this objection was not taken at the trial
 but we must take it that from the nature of his appointment it was his duty to carry out the orders of his official superior who undoubtedly is a public servant and in that capacity to assist the Superintendent in the performance of the public duties of his office
In that sense he would be an officer of Government although he might not possibly exercise any delegated function of the Government
Still his duties would be immediately auxiliary to those of the Superintendent who is so armed
We think that an officer in the service or pay of Government within the terms of section 21 of the Penal Code is one who is appointed to some office for the performance of some pulice duty
In this sense the peon would come within section 21 cl 9
The true test therefore in order to determine whether a person is an officer of the Government is 1 whether he is in the service or pay of the Government and 2 whether he is entrusted with the performance of any public duty
If both these requirements are satisfied it matters not the least what is the nature of his office whether the duties he is performing are of an exalted character or very humble indeed
As has been stated in Bacon s Abridgment at Vol
6 page 2 in the article headed Of the nature of an officer and the several kinds of officers The word officium  principally implies a duty and in the next place the charge of such duty and that it is a rule that where one man bath to do with another s affairs against his will and without his leave that this is an office and he who is in it is an officer
The next paragraph thereafter may also be referred to in this context There is a difference between an office and an employment every office being an employment but there are employments which do not come under the denomination of offices such as an agreement to make hay herd a flock c which differ widely from that of steward of a manor c Vide 12 Bombay High Court Reports at page 5
689 This was the sense in which the decision in 12 Bombay High Court Reports 1 was understood by the learned Judges of the Lahore High Court in Ahad Shah vs Emperor1 when they observed at page 157 But it is not enough that a person should be in the pay or service of Government to Constitute him a public servant within the meaning of section 21 ninthly IPC He must also be an Officer
That expression is not of course to be restricted to its colloquial meaning of a Commissioned or non Commissioned Officer it means a functional or holder of some officium or office
The office may be one of dignity or importance it may equally be humble
But whatever its nature it is essential that
the person holding the office should have in some degree delegated to him certain functions of Government
The question for consideration before the learned Judges of the Lahore High Court was whether a Quarter Master s clerk was a public servant within the meaning of that expression in section 21 Indian Penal Code
On the facts elicited before them the learned Judges came to the conclusion that the Quarter Master s clerk as such was just a Babu and no more an officer than a labourer or menial employed and paid by Government to do public work See Queen vs Nachimuttu2
if therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the Government but is also performing a public duty he has delegated to him the functions of the Government or is in any event performing duties immediately  auxiliary to those of some one who is an officer of the Government and is therefore an officer  of the Government within the meaning of section 219 Indian Penal Code
Applying this test to the facts of the case before us we find that the appellant was a Class III servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshop
He was working under the Works Manager who was certainly 1 AIR 1918 Lah
2 ILR 7 Madras 18 690 an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who beside being an officer of the Government was also armed with some authority or representative character qua the Government
The appellant was thus even on a narrow interpretation of the dicta of West J in 12 Bombay High Court Reports 1 an officer in the service or pay of the Government performing as such a public duty entrusted to him by the Government and was therefore a public servant within the meaning of section 21 of the Indian Penal Code
This being the true legal position this contention of the appellant also does not avail him and the first question must be answered against him
The appellant was therefore an officer within the meaning of section 219 and therefore a public servant within the meaning of section 21 Indian Penal Code and being such public servant be fell within the definition of a public servant contained in section 2 of the Prevention of Corruption Act II of 1947
He was therefore on the facts and circumstances of the case rightly convicted under section 51 d of Act II of 1947
His conviction and the sentence imposed upon him by the Courts below were therefore quite in order and this appeal must therefore stand dismissed


Summary:
The respondent company filed revised classification lists classifying all rectangular products of thickness below 30 mm manufactured by them as bars covered by Tariff Item 26AAia of the Central Excise Tariff
The Asstt
Collector Central Excise took the view that rectangular products of thickness less than 30 mm and of width less than 75 mm fell under the definition of Hoops  and merit classification under Tariff Item 26AAii and exigible to the appropriate duty
The respondent preferred an appeal before the Collector of Central Excise who held that the product fell within the definition of Hoops  and upheld the order of the Asstt
Collector
The respondent appealed to the Tribunal which held that the flat product of thickness less than 30 mm and a width of less than 75 mm was classifiable as bars  as claimed by the respondent company and not as Hoops  and allowed the appeals
The Department therefore filed the appeals under Section 35Lb of the Central Excises  Salt Act 1944 before this Court
Dismissing the appeals this Court HELD If the revenue wants to tax a particular goods known as such then the onus is on the Revenue
600F Hoop  is made either by slitting coiled strip rolled in multiple width into narrow coiled strip of the desired width or from narrow coiled strip with a hot rolled or mill edge and the type and width of hoop being produced influences the choice of the method used
599B Curled hoop is made by a pinch roll and curved guide shoe arrangement that permits the hoop to take a circular form
A straight length hoop is produced merely by removing the curved guide shoe1599D PG NO 597 PG NO 598 Straight length is not a short length it is long
599E The fact is that they were produced in a mill that could produce hoops and strips
Their lengths are not such as to place them in the same class as hoops
Having therefore regard to this and the relevant tariff item the Tribunal came to the conclusion that it will be more appropriate to assess them under Item 26AAia than Item 26AAii
599G H 600A South Bihar Sugar Mills Ltd vs Union of India  Ors   referred to
In an appeal under Section 35Lb this Court has to see the propriety and the correctness of adjudication
There was no misdirection in law nor any non consideration of facts
There is no exclusion from consideration of legitimate proper materials
600F G