vl Appeal Nos 17 and 18 of 1989
From the Judgment and Order dated 3101988 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal Nos
E2 123 of 1987 C and E2 124 of 1987 C in Order Nos 738 and 739 of 1988 C K Parasaran V Balachandran and MV Madhava Rao for the Appellant
Ashok H Desai Solicitor General Ms Indu Malhotra and P Parmeshwaran for the Respondents
These are two appeals under section 35 L of the hereinafter referred to as the Act  They arise out of the claim of Ms Rohit Pulp and Paper Mills Ltd hereinafter referred to as the assessee  for partial exemption from excise duty in respect of the art paper and chromo paper manufactured by it
The assessee is having a factory at Khadki in which different varieties of paper and paper boards are manufac tured
The factory does not have a bamboo pulp plant
It uses waste paper and cereal straw which are considered to be unconventional raw materials for the manufacture of paper and paper board
The pulp used by the assessee contains more than 50 by weight of pulp made from these unconventional raw materials Paper and paper board  are goods falling under item 171 of the first schedule to the Act
Two notifications were issued on 1st March 1984 under rule 81 of the Cen tral Excises Rules 1944 in respect of the above item
The first of them being notification No 24 of 1984 restricted the excise duty on items falling under the aforesaid item in the manner following 802 section No Description Rate 1
Printing and writing paper
Ten per cent ad valorem paper plus one thousand rupees per metric tonnes
All sorts of paper commonly Ten per cent ad valorem known as kraft paper inclu plus one thousand three ding paper and paper boards hundred and eighty five of the type known as kraft rupees per metric tonne
liner or corrugating medium of a substance equal to or exceeding 65 grammes per sq metre 3
Paper board of the following Ten per cent ad valorem varieties namely pulp board plus one thousand eight duplex board and triplex board
hundred and ten rupees per metric tonne
Paper and paper boards other Ten per cent ad valorem than those specified in SNos
plus one thousand four 1 to 3 hundred and thirty rupees per metric tonne
The second notification notification No 25 of 1984 is the one with which we are directly concerned here
It pro vides for a concession in respect of paper and paper boards falling under item 171 of the Schedule manufactured out of pulp containing not less than 50 per cent by weight of pulp made from materials other than bamboo hardwoods softwoods reeds or rags and cleared on or after the 1st day of April in any financial year
The concessional rates prescribed were as below section No Description Rate Conditions 1
i Printing and wri Rs450 per provided that the ting paper metric tonne total quantity of clearances if any of all vari ii All sorts of paper Rs450 per eties of paper and commonly known as metric tonne paper boards in the kraft paper inclu preceding financial ding paper  paper year by or on be boards of the type half of a manufac known as kraft liners turer from one or or corrugating medium more factories or of a substance equal to from a factory by or exceeding 65 grammes or on behalf of one per square metre
or more manufactu rers did not exce ed 3000 metric tonnes
803 iii Others Rs560 per metric tonne
i Printing and writing Rs730 per Provided that the writing paper metric tonne
total quantity of clearances of all varieties of paper ii All sorts of papers Rs730 per  paper boards in commonly known as metric tonne
the preceding fin kraft paper including ancial year by or paper and paper boards on behalf of a ma of the type known as nufacture from kraft liners or corru one or more facto gating medium of a ries or from a substance equal to or factory by or on exceeding 65 grammes behalf of one or per square metre
more manufacturers  exceedings 3000 metric tonnes but did not exceed 7500 metric ton nes
iii Others Rs900 per metric tonne
i Printing and Rs900 per Provided that the writing paper metric tonne
total quantity of clearances of all ii All sorts of Rs900 per varieties of paper paper common metric tonne
 paper boards in ly known as the preceding fin Kraft paper  nancial year by including pa or on behalf of a per  paper manufacturer from boards of the one or more facto type known as kraft ries or from a fa liners or corruga ctory or on behalf ting medium of a of one or more substance equal to manufacturers ex or exceeding 65 gram ceeding 7500 met mes per square metre
tric tonne but did not exceed 16500 metric tonnes iii Others Rs1120 per metric tonne
804 4
This para added by notification No 9284 dated 18484 added another concessional rate where the clearances exceed ed 10500 but did not exceed 24000 metric tonnes on the same lines as above but this does not need to be set out here The grant of the above concessional rates were however subject to certain important conditions set out in the provisoes to the notification
These provisoes read Provided that the factory does not have a plant attached thereto for making bamboo or wood pulp
Provided further that the exemption contained in this notification shall not apply to cigarette tissue glassing paper grease proof paper coated paper including waxed paper and paper of a substance not exceeding 25 grammes per square metre
 Another notification No 45 of 1985 dated 1731985 has been relied upon in support of the contention of the Union of India and hence this may also be set out here
It pre scribed rates on paper and paper board falling under item 171 in the following manner section No Description Rate 1
Printing and writing paper i coated paper Ten percent ad valorem plus one thousand five hundred and five rupees per metric tonne
ii of a substance not ex Ten percent ad valorem ceeding 25 grammes per plus one thousand five square metre hundred and five rupees per metric tonne
iii Others Ten percent ad valorem plus one thousand five hundred and five rupees per metric tonne
All sorts of paper com Ten percent ad valorem monly known as kraft plus one thousand five paper including paper hundred and eighty five and paper boards of the rupees per metric type known as kraft liner tonne
or corrugating medium of a substance equal to or exceeding 65 grammes per square metre
805 3
Coated paper including Ten percent ad valorem waxed paper and paper of plus one thousand nine a substance not exceeding hundred and thirty 25 grammes per square rupees per metric metre other than those tonne
specified in Sl
No1 4
Glassine paper cigarette Ten percent ad valorem tissue and grease proof plus one thousand nine paper
hundred and thirty rupees per metric tonne 5
Paper board of the follow Ten percent ad valorem ing varieties namely pulp plus one thousand eight board duplex board and hundred and ten rupees triplex board
per metric tonne
Paper and boards other Ten percent ad valorem than those specified in plus one thousand four Sl
No1 to 5
hundred and thirty rupees per metric tonne The assessee seems initially to have paid excise duty on the goods manufactured by it in terms of notification No 2484 but later seems to have thought of claiming the con cessional rates prescribed by notification No 2584
The company was manufacturing art paper and chromo paper
It is common ground that these two types of paper fall under category printing and writing paper
It is also common ground that these two articles also fall under the descrip tion coated paper used in the second proviso
Since coated paper is taken by the proviso out of the purview of the notification No 25 of 1984 the Excise Department refused to permit the assessee to avail of this concession in re spect of its manufactured goods
This treatment by the Excise Department has also been confirmed by the Central Excise and Gold Control Appellate Tribunal CEGAT
The Tribunal disposed of the matter very briefly
It observed 806 37
That brings us to the second question whether art paper and chromo paper were eligible for the exemption granted under notification No 25 of 1984
We have carefully consid ered arguments of the appellants
We have perused the noti fication No 24 of 1984 as amended and note that the second proviso excludes from the exemption among others coated paper including waxed paper
There is no denial that art paper and chromo paper are coated papers
It may be correct that these are not like other papers mentioned in second proviso industrial varieties of papers and are writing and printing varieties
All the same when the proviso as it is worded is clear there is no warrant for us to supply words to the proviso to the notification
We therefore find against the appellants in this regard and hold that art and chromo paper would not be eligible for exemption under notification No 25 of 1984 emphasis added The assessee is aggrieved by this order of the Tribunal and hence the present appeals
Sri K Parasaran appearing for the appellant raises an ingenious contention
He urges that though the expression coated paper  has generally a wide connotation and includes coated papers of all varieties it should be given a re stricted meaning in the context in which it appears in the proviso
It is submitted that in the paper business paper is broadly of two varieties industrial paper and cultur al paper
Paper used for printing or writing is treated as cultural paper
On the other hand industrial paper is paper which is used for various purposes which may be broadly described as industrial purposes such as wrapping packing sanitary use and the like
It is submitted that though the notification intended to grant a concession
to small facto ries manufacturing paper out of unconventional raw material
it was decided to deny the concession to certain kinds of paper
These exceptions have been set out in the proviso
They are 1 cigarette tissue 2 glassing paper 3grease proof paper 4 coated paper including waxed paper and 5 paper of substance not exceeding 25 gm
per square metre in weight which may be compendiously described as light paper
It is argued that a common strain runs through all these five categories
The first three varie ties namely cigarette tissue glassing paper and grease proof paper admittedly fall under the category of industrial paper
Likewise paper of a substance not exceeding 25 gm
per square metre in weight is invariably used for 807 industrial purposes and this is so found by the Tribunal
The word coated paper  it is urged must be read in this context
Since the other items set out in the proviso are items of industrial paper it stands to reason that though coated paper  in a wider sense may include all categories of coated paper the denial of concession by the proviso is to be restricted only to coated paper falling under the industrial variety
In other words it is submitted that the word coated paper  should be interpreted by applying the principle of Noscitur A Sociis or on the analogy of the Ejusdem generis principle
This contention it is submit ted is re inforced by two considerations
The first is that the Government must have had some idea or principle in putting together the exceptions and there is no conveivable principle other than the one enunciated
The second consid eration is the addition of the words used in parenthesis along with coated paper  viz including waxed paper
It is pointed out that waxed paper obviously means coated paper because waxed paper is nothing but paper coated with wax and would have anyhow been covered by the exception
Neverthe less it was considered necessary it is said to specifi cally include it in order to make it clear by this illustra tion that only industrial paper like waxed paper is taken out from the concession
The words in parenthesis are in other words the words illustrative of the limitation to be read into the expression coated paper 
It is finally argued that even if the words of the proviso are capable of being construed in a wider manner so as to deny exemption to all kinds of coated paper the Court should apply the well established principle of construction of taxing statutes that an ambiguous provision should be interpreted in favour of the subject
On the other hand the learned Solicitor General submits that if there are two possible views of the proviso the Court should not interfere with the conclusion reached by the Tribunal which reflects one of two possible and plausi ble views
On the interpretation of the proviso the Solici tor General submits that there is no principle of interpre tation by which the plain and natural meaning of the word coated paper  can be abridged nor he says is there any thing in the context to warrant such a limitation
He re futes the suggestion that in commercial parlance there is a clear cut distinction between industrial and cultural paper
He does not agree that light paper can only be indus trial paper and refers to the terms of the 1985 notification in support
He points out that if coated paper meant only industrial paper as contended for by the assessee the expression in parenthesis was totally unnecessary
He submits that there is a distinction between coated paper and impregnated paper
As waxed paper could fall under 808 either of these categories there was a possibility of some one contending that paper impregnated with wax is not coated paper  that is why it became necessary to add the parenthesis to clarify that both kinds will be coated paper  for the purposes of the proviso
He submits for these reasons that the view taken by the Tribunal was the correct one and that the appeals should be dismissed
We have considered the contentions urged on both sides and we have come to the conclusion that there is force in the appellant s contentions
All the three notifications we have extracted above draw a distinction between printing and writing paper on the one hand and other types of paper on the other
They also show that the duty on printing and writing paper is generally less than that on the other varieties of paper
Though paper can be classified into various varieties it does appear that one such classifica tion is between industrial paper and cultural paper
The Dictionary of Paper published by the American Paper and Pulp Association Second Edition contains the following definition Industrial Papers A very general term which is used for to indicate papers manufactured for industrial uses as opposed to those for cultural purposes
Thus building papers insulative papers matching paper etc would be considered industrial papers whereas writing and printing papers would be cultural papers
Now the proviso denies the concession extended by notifica tion No 2584 to certain types of papers
It is true that no meticulous reasons can always be made available or dis covered for variations in rates of duty as between various types of goods and the absence of some common thread in relation to a set of goods treated alike may not necessarily render the classification irrational or arbitrary
But at the same time one can legitimately postulate that the denial of a concession to a group proceeds on the basis of some aspect or feature common to all items in the group
If such a principle can be conceived of which would rationalise the inclusion of all the items it would be quite reasonable and proper to give effect to a construction of the notifica tion as will accord with that principle
It is this which the appellant has attempted to do and we are reclined to think that the ratiocination of the exceptions suggested far from being artificial or far fetched is a plausible and likely one that the Government could have had in mind and that it should be accepted
809 As mentioned earlier the concession of the notification is denied to five kinds of paper
Three of them undoubtedly and indisputably are varieties of industrial paper
This is indeed common ground and it has also been supported by reference to the definitions in the Dictionary of Paper and elsewhere which it is unnecessary to set out here
The fourth is what we have referred to as light paper  not exceeding a particular weight
On behalf of the assessee it is contended that this is also only industrial paper
In support of this contention reference is invited to the tables appended to the Dictionary of Paper which indicate that there cannot be printing and writing paper of weight less than 26 gms per sq
metre
It is also pointed out that the Tribunal has also given a finding to this effect in para 37 of its order
The learned Solicitor General on the other hand points out that section No 1 ii of the 1985 notification itself clearly shows that there can be printing and writing paper of a substance not exceeding 25 gramms per sq metre
On behalf of the assessee on instructions it is submitted that this classification proceeds on a totally unreal basis and that there is no such printing and writing paper in existence
We cannot however assume that the 1985 notifi cation proceeds on an erroneous basis
1t is sufficient for our purposes to take it on the basis of the record in this case that light paper is by and large industrial paper without altogether excluding all possibility that it is used occasionally for cultural purposes also
The classification set out in the 1985 notifications also lends some support to the contentions urged
The five varieties of paper we are concerned with are found in serial Nos 3 and 4 of this notification and serial Nos 1 and 3 reflect a contrast between coated paper and light paper used for cultural purposes item No 1 and that used for other industrial purposes item No 4
On this basis then it is clear that tour out of the five varieties of paper which are denied the benefit of the concession seem to constitute industrial paper
In fact even if as urged for the Union of India only three of  these items are of the industrial variety while the other two could be either it will not still be unreasonable though may be a little less plausible to draw an inference that only industrial paper failing in those two categories are intended to be comprehended in the classification rather than assume for no detectable reason that all paper of these two varieties alone are excluded from the concession
We think therefore that the appel lants are on firm ground in submitting that the expression coated paper  in the proviso should draw colour from the context in which it is employed and receive an interpreta tion consistent therewith than its literal one which in its widest sense may be comprehensive enough to include all coated paper industrial or otherwise
810 The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established
In the context with which we are concerned we can legitimately draw upon the nosci tur a sociis principle
This expression simply means that the meaning of a word is to be judged by the company it keeps
 Gajendragadkar J explained the scope of the rule in State vs Hospital Mazdoor Sabha  in the following words This rule according to Maxwell means that when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense
They take as it were their colour from each other that is the more general is restricted to a sense analogous to a less general
The same rule is thus inter preted in Words and Phrases Vo
XIV p 207 Associated words take their meaning from one another under the doctrine of nosciture a sociis the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it such doctrine is broader than the maxim Ejusdem Generis
 In fact the letter maxim is only an illustration or specific application of the broader maxim noscitur a sociis
The argument is that certain essential features or attributes are invariably associated with the words business and trade as understood in the popular and conventional sense and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider
We are not impressed by this argument
It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider
It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful or otherwise not clear that the present rule of construction can be usefully applied
It can also be applied where the meaning of the words of wider import is doubtful but where the object of the Legislature in using wider words is clear and free of ambiguity the rule of construc tion in question cannot be pressed into service
 811 This principle has been applied in a number of contexts in judicial decisions where the Court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used
The cases are too numerous to need discussion here
It should be sufficient to refer to one of them by way of illustration
In Rainbow Steels Ltd vs CST  this Court had to understand the meaning of the word old  in the context of an entry in a taxing tariff which read thus Old discarded unserviceable or absolute machinery stores or vehicles including waste products    Though the tariff item started with the use of the wide word old  the Court came to the conclusion that in order to fall within the expression old machinery  occurring in the entry the machinery must be old machinery in the sense that it has become non functional or nonusable
In other words not the mere age of the machinery which would be relevant in the wider sense but the condition of the machinery analogous to that indicated by the words following it was considered relevant for the purposes of the statute
The maxim of noscitur a sociis has been described by Diplock CJ as a treacherous one unless one knows the socictas to which the socii belong vide Letang vs Coopex  The learned Solicitor General also warns that one should not be carried away by labels and Latin maxims when the word to be interpreted is clear and has a wide meaning
We entirely agree that these maxims and prece dents are not to be mechanically applied they are of as sistance only in so far as they furnish guidance by compen diously summing up principles based on rules of common sense and logic
As explained in Collector of Central Excise vs Parle Exports P Ltd  at p 357 and Tata Oil Mills Co Ltd vs
CCE  at p 545 6 in interpreting the scope of any notification the Court has first to keep in mind the object and purpose of the notifi cation
All parts of it should be read harmoniously in aid of and not in derogation of that purpose
In this case the aim and object of the notification is to grant a conces sion to small scale factories which manufacture paper with unconventional raw materials
The question naturally arises Could there have been any particular object intended to be achieved by introducing the exceptions set out in the provi so Instead of proceeding on the premise that it is not necessary to look for any reason in a taxing statute it is necessary to have a closer look at the wording of the provi so
If the proviso had referred only to coated paper  no special object or 812 purpose would have been discernible and perhaps there would have been no justification to look beyond it and enter into a speculation as to why the notification should have thought of exempting only coated paper  manufactured by these factories from the purview of the exemption
But the notifi cation excepts not one but a group of items
If the items mentioned in the group were totally dissimilar and it were impossible to see any common thread running through them again it may be permissible to give the exceptions their widest latitude
But when tour of them undoubtedly at least three of them can be brought under an intelligible classification and it is also conceivable that the Govern ment might well have thought that these small scale facto ries should not be eligible for the concession contemplated by the notification where they manufacture paper catering to industrial purposes there is a purpose in the limitation prescribed and there is no reason why the rationally logical restriction should not be placed on the proviso based on this classification
In our view the only reason 
able way of interpreting the proviso is by understanding the words coated paper  in a narrower sense consistent with the other expressions used therein
In the view we have taken it is unnecessary to consider the other contentions urged before us i whether the words including waxed paper are words indicative of the limi tation sought to be placed on the words coated paper or they are only intended to make it clear that even paper impregnated with wax will not be entitled to exemption and ii whether if the notification is capable of two equally plausible interpretations the one in favour of the subject should be upheld or the one taken by the Tribunal should be confirmed
For the reasons discussed above we accept the appel lant s submission that coated paper  in the second proviso refersonly to coated paper used for industrial purposes and not to coated varieties of printing and writing paper
The Tribunal s order is set aside and the appellant held enti tled to the concessional rates specified in notification No 25184
The appeals are allowed
But we make no order as to costs


Summary:
In the 1987 election to Kerala Legislative Assembly the appellant contested against the first respondent
The appellant and respondents belonged to two different fronts each consisting of several political parties
The appellant was declared elected by a margin of 1873 votes over his nearest rival the first respondent
The first respondent filed an election petition in the High Court claiming that the appellant s election was void and that he should be declared elected in place of the appellant
In support of his contention he alleged various corrupt practices on the part of the appellant
The High Court negatived all except two of the allegations viz i printing and publication on March 22 1987 a day prior to the election pamphlets containing a news item in daily Malayala Manorama dated May 22 1983 and ii publication of a wail poster maligning the 720 personal character and conduct of the first respondent
The High Court held that both the said acts amounted to corrupt practices within the meaning of Section 1234 of the Representation of People Act 1951 and were sufficient to void the election
This appeal under section 116A of the Representation of People Act is against the High Court s judgment
Allowing the appeal this court HELD 11
As regards the pamphlets the first respond ent in his election petition had relied upon an innuendo and the innuendo was based upon the fact that firstly he was a Marxist leader and secondly he was arrested for harbouring the murderers
However in the election petition no averment was made that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the electorate was likely to construe the said two statements as accusing him as the murderer
No facts were pleaded in the Election Petition whereby the electorate would gather an impression that the first respondent was the murderer of the said four victims
733B C 746 E F 12
Barring his own testimony all other evidence led by the first respondent is also totally silent on this aspect of the matter
None of his witnesses has stated anywhere that the contents of the pamphlet had made out the first respondent as the murderer of the four victims or even that they were capable of doing so
On the other hand all his witnesses without exception are unanimous that after reading the pamphlet the impression it created on them was that it referred to an incident which had taken place on the previous day or to an earlier incident and nothing more
None of the witnesses has stated that the said pamphlet even remotely connected the first respondent with the murders
The impression conveyed by the document that the Marxists or Communists were murderers and therefore the electorate should not vote for them and hence it was unfavourable to the first respondent was not an impression about his per sonal character conduct
It was an impression at best about his political character conduct
In particular there was no impression that he was the murderer or one of the murderers
Although the first respondent has also added at the end that many persons who gathered such an impression viz that he was meant by the publication had contacted him over phone he admitted that he did not examine anyone from among the said persons
This is a telling circumstance against him because he had 721 followed as a witness after all his witnesses were examined and he knew that none of his witnesses had stated that they had connected the imputations in the publication with him
On the other hand as stated earlier not only all his witnesses had stated that they had gathered the impression that the incident had taken place the previous day but he himself was of the view that the publication was meant to create such impression and that it did so
Hence there was no reason for the electorate to connect him with the said incident even remotely
On his own testimony as well as on the testimony of his witnesses therefore it is clear that the publication was intended to create an impression and did create an impression that the incident of murders had taken place a day previous to the election
If that is so then the publication and the two allegedly offending statements in the same did not connect him with the murders much less had they called him a murderer
Even his arrest for harbour ing the accused in the old incident of murders was not capable of identifying him as the murderer in the eyes of the people
None knew who were the accused and who were arrested in connection with the murders which were committed the previous day
The people however certainly knew that the first respondent was not arrested in connection with the said murders
Hence the extrinsic facts which the first respondent stated in his testimony for the first time even if they were given in the pleadings would not have spelt out the corrupt practice
For those facts in the face of the assertion of the first respondent himself were incapable of identifying him as the murderer in the eyes of the elector ate
For these reasons the extrinsic facts given for the first time by the first respondent in his testimony were incapable of identifying him as the hand behind the murders or as the murderer in the eyes of the people
746F H 751A B 755D H 756A B 13
In the absence of the extrinsic facts supporting the innuendo meaning of the publication the petition lacked the statement of material facts for spelling out the corrupt practice complained of
Either therefore the allegation of the corrupt practice should have been struck off or the petitioner ought not to have been allowed to lead evidence in support of it
756C 21
Where the defamatory words complained of are not defamatory in the natural or ordinary meaning or in other words they are not defamatory per se but are defamatory because of certain special or extrinsic facts which are in the knowledge of particular persons to whom they are ad dressed such innuendo meaning has to be pleaded and proved specifically by giving the particulars of the said extrinsic facts
It is immaterial in such cases as to whether the action is for 722 defamation or for corrupt practice in an election matter for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action
It is true that Section 1234 of the Act states that the statement of fact in question must be reasonably calculated to prejudice the prospects of the complaining candidate s election
However unless it is established that the words complained of were capable of being construed as referring to the personal character or conduct of the candi date because of some specific extrinsic facts or circum stances which are pleaded and proved it is not possible to hold that they were reasonably calculated to prejudice his prospects in the elections
For in the absence of the knowledge of the special facts on the part of the elector ate the words complained of cannot be held to be reasonably calculated to prejudice such prospects
Once however it is proved by laying the foundation of facts that the words in question were by virtue of the knowledge of the special facts likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate it may not further be necessary to prove that in fact the electorate had understood them to be so
That is because all that Section 1234 requires is that the person publishing the complaining words must have intended and reasonably calculated to affect the prospects of the com plaining candidate in the election
745E H 746A B 22
Whenever an innuendo is alleged a statement of material facts as required by Section 83ia of the Act is not complete without stating the extrinsic facts spelling out the innuendo meaning
It is the publication together with the extrinsic facts which in such circumstances consti tute the corrupt practice
The absence of the statement of such facts is not an absence of the particulars of corrupt practice but an absence of the averment of material facts themselves
Sheopat Singh vs Ram Pratap   Kumara Nand vs Brijmohan Lal Sharma   Habib Bhai vs Pyarelal  Ors AIR 1964 MP 62 Manmohan Kalia vs Yash  Ors
   W Hay  Ors
vs Aswini Kumar Saman ta AIR 1958 Cal 269 Hough vs London Express Newspaper Ltd  Fullam vs Newscastle Chronicle and Journal Ltd  Anr  Cassidy vs Daily Mirror Newspapers  Nevill vs Fine Art and General Insurance Co Ltd and Capital and Counties Bank Ltd vs George Henty  Sons  referred to
Halsbury s Laws of England Vol 28 4th Edn paras 174 178 Gatley on Libel and Slander 8th Edn
paragraph 95 Street on Torts 723 6th Edn p 294 and Duncan  Neil on Defamation 1978 Edn p 17 referred to
Both for libel action as well as for an allegation of corrupt practice in an election petition it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of
Howev er whereas in a libel action it may further be necessary to prove that those with special knowledge of the extrinsic facts were likely to interpret or understand the words complained of in a defamatory sense in an election action it may not be necessary to do so and all that is necessary is to prove that the words complained of were reasonably calculated to prejudice the prospects of the defamed candi date s election
However this latter distinction does not obliterate the similarity between the two actions viz that in each case in the first instance the defamation is to be spelt out by pleading the necessary extrinsic facts
In a libel action the extrinsic facts constitute a cause of action whereas in the election action they constitute the corrupt practice
In other words without them there is no cause of action in the libel suit and no allegation of corrupt practice in an election petition
756F H 757A 41
As regards the wail posters in which the first respondent was described as a murderer and it is stated that hence he should be defeated the first respondent in his petition has stated generally that it was the appellant his agents and his workers who had pasted the wallposters
He has not specified any wail or wails on which the poster was pasted
He has not mentioned either the agent or the elec tion agent nor did he state that the pasting was done with the knowledge and consent of the election agent
It is important to note that he mentioned the pasting of the poster only on one wail though there was a vague reference to walls
761F H 765B 42
Time and again the courts have uttered a warning against the acceptance of a non corroborted oral testimony in an election matter because it is not only difficult to get a non partisan witness but is also easy to procure partisan witnesses in such disputes
The courts have there fore insisted upon some contemporaneous documentary evi dence to corroborate the oral testimony when in particular such evidence could have been maintained
Such a danger is illustrated by the testimony of PW 25 in the instant case
It is not only contradictory and fails to impress this court but also leads to the belief that there is much force in the contention of the appellant that the poster in ques tion was concocted at a later day
It is difficult to ex plain as to why the witness a 724 professional photographer who in the ordinary course should maintain his accounts and other documents should keep them off from the court on pretexts which are not only far from convincing but positively doubtful
Although he stated that he was paid Rs800 for the photographs and Rs1000 for copies thereof he did not enter the amounts in his ac counts
He stated that he had a Bank account but he did not remit the amount to the Bank
He then stated that in his studio there would be no record to show that the photographs were taken
He also stated that he had not given any receipt for receiving the payment
764G H 767A D 43 Election agent as defined in Section 40 of the Act is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the elec tion agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate s consent or not
He is empowered to discharge almost all the functions that a Candidate can himself perform
1729E FI 44
It was alleged that the wall poster was written at the specific instructions of the Chief Agent and the Conven or
It was not specified who the Chief Agent and the Conven or of the Election Committee were
The argument that the expression Chief Agent should be construed to mean elec tion agent cannot be accepted since the pleadings with regard to corrupt practice have to be specific since every one who is guilty of the corrupt practice is liable to be prosecuted for the offence
And except in one place there is no reference to any such person as Chief Agent
Wherever the first respondent wanted to refer to the election agent he has done so
It cannot therefore be said that he did not know the difference between the election agent and the Chief Agent
762B E 45
The first respondent has come to the court with a version that the wail poster and such other posters were pasted on wails in the different parts of the constituency at least a week prior to the election
Admittedly such false propaganda is an electoral offence punishable both under Section 127A of the Act and Section 171 C of the Indian Penal Code
The first respondent or his agents and workers could have made complaints both to the Election Officer as well as to the police in that connection immedi ately and a regular panchnama of the same could also have been made at the time
That would have been the best evi dence of the said allegation
The first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them
767E F 725