121 of 1958
Petition under Article 32 of the Constitution for enforcement of Fundamental rights
G B Pai and Sardar Bahadur for the petitioner
M C Setalvad Attorney General for India B Sen and T M Sen for the respondents
December 11
The Judgment of the Court was delivered by GAJENDRAGADKAR J
The petitioner has been doing business as an exporter of coir products to foreign countries for the last twenty years
On July 4 1958 he applied to respondent 2 the Chairman Coir Board Ernakulam requesting that he should be registered as an established exporter
This application was accompanied by an income tax clearance certificate and attested copies of bills of lading
Respondent 2 declined to register the petitioner on the ground that his application was defective inasmuch as the requisite certificate regarding his financial status bad not been produced and no evidence had been given to show that he had exported the minimum quantity required 500 Cwts
The petitioner was told that unless he complied with the requirements asked for within seven days his application would be rejected without further notice
The petitioner found that he could not comply with the directions issued by respondent 2 and so it became impossible for the petitioner to get registration and licence applied for by him
That is why he filed the present petition under article 32 of the Constitution and prayed for the issue of a writ or order in the nature of mandamus to direct the second respondent to grant the petitioner registration and licence as applied for by him and to prohibit or restrain the said respondent from acting on or implementing the rules issued under the  by issue of a writ of certiorari prohibition or such other writ or order appropriate to protect his rights
The petitioner also prayed that  if found necessary  the said 781 rules should be declared to be ultra vires the powers of the Central Government and invalid being in violation of the fundamental rights guaranteed by articles 14 and 19 of the Constitution
The Union of India has been impleaded as respondent 1 to the petition
Before dealing with the points raised by the petition it would be necessary to refer briefly to the provisions of the 45 of 1953 hereinafter called the Act and the rules framed under it in 1958
This Act was enacted by the Parliament because it was thought expedient in the public interest that the Union should take under its control the coir industry section 2
Section 4 of the Act provides for the establishment and constitution of the Coir Board and section 10 enumerates its functions and duties
Under section 101 it shall be the duty of the Board to promote by such measures as it thinks fit the development under the control of the Central Government of the coir industry
Sub section 2 enumerates the measures which the Board may take with the object of developing the coir industry without prejudice to the generality of the provisions of sub section
Amongst the measures thus enumerated sub section
2 b refers to the regulation under the supervision of the Central Government of the production of husks coir yarn and coir products by registering coir spindles and looms for manufacturing coir products as also manufacturers of coir products licensing exporters of coir yarn and coir products and taking such other appropriate steps as may be prescribed
Sub section 2g refers to the promotion of co operative Organisation among producers of husks coir fibre and coir yarn and manufacturers of coir products and sub section
21 refers to the licensing of retting places and warehouses and otherwise regulating the stocking and sale of coir fibre coir yarn and coir products both for internal market and for exports
Section 261 confers on the Central Government power to make rules for carrying out the purposes of the Act subject to the condition of previous publication
Sub section 2 enumerates the matters in res pect of which rules may be made in particular and without prejudice to the generality of the power 782 conferred by sub section
Sub section 2 k refers inter alia to the registration of manufacturers of coir products and the conditions for such registration and the grant or issue of licences under the Act and sub section
21 deals with the form of applications for registration and licences under the Act and the fee if any to be paid in respect of any such applications
Under the powers conferred by section 26 the Central Government framed rules in 1958
For the purposes of the present petition it would be relevant to refer to rr
17 to 22
Rule 17 deals with registration and licensing of exports and it provides that no person shall after the coming into force of the rule export coir fibre coir yarn or coir products unless he has been registered as an exporter and has obtained an export licence under these rules
The proviso deals with exemptions with which we are not concerned
Rule 18 lays down that any person who has in any of the three years immediately preceding the commencement of the rules exported not less than twenty five tons of coir yarn or coir products other than coir rope or exported any quantity of coir fibre or coir rope may be registered an exporter of coir yarn coir products other than coir rope or coir fibre or coir rope as the case may be
Rule 19 provides for the registration of persons other than those covered by r 18 and it lays down inter alia that such persons may be registered as exporters of coir yarn if during the period of twelve months immediately preceding the date of application a minimum quantity of twenty five tons of coir yarn had been rehanked or baled in a factory owned or otherwise possessed by the applicant and registered under the Indian  or if the applicant has had a total purchase turnover of one hundred tons of coir yarn
The proviso to this rule authorises the Chairman by notification to exempt from the operation of this rule any co operative society the members of which are owners of industrial establishments or any Central Co operative Marketing Society
Rules 20 and 22 prescribe the mode of making an application for registration as an exporter and for licence respectively while r 21 provides for the 783 cancellation of registration
The present petition does not challenge the validity of any of the provisions of the Act
It however seeks to challenge the vires of rr 18 19 201a 21 and 22a
There is no doubt that coir and coir products play an important role in our national economy
They are commodities which earn foreign exchange the total  value of our exports in these commodities being of the order of Rupees Ten Crores per year
It was found that several malpractices had crept in the export trade of these commodities such as non fulfilment of contracts supplying goods of inferior qualities and cut throat competition and these in turn considerably affected the volume of the trade
That is why Parliament thought it necessary that the Union should take under its control the coir industry in order to regulate its export trade
It is with the object of developing the coir industry that the Coir Board has been established and the registration and licensing of exporters has been introduced
The petitioner does not dispute this position and makes no grievance or complaint against the relevant provisions in the Act
It is however urged that the relevant rules which prescribe the quantitative test for the registration of established exporters are ultra vires because the introduction of the said test is inconsistent with the provisions of the Act
In this connection Mr Pai for the petitioner sought to rely on the report submitted by the Ad Hoc Committee for external marketing which the Coir Board had appointed on August 20 1954
His grievance is that the report of the said Committee does not recommend the adoption of the quantitative test but seems to suggest that a qualitative test would be more appropriate  and that according to Mr Pai also indicates that the quantitative test had been improperly prescribed by the rules
We are not impressed by these arguments
It is clear that there is no provision in the Act which excludes or prohibits the application of the quantitative test in making rules for registration of exporters or for issuing licences for export trade
In fact the Act has deliberately left it to the rule making authority to frame rules 784 which it may regard as appropriate for regulating the trade and so it would be impossible to accept the argument that the rule making authority was bound to prescribe the qualitative rather than the quantitative test
Besides it does not appear that the report of the Committee on which Mr pai relied definitely indicated its partiality for the adoption of the qualitative test
Indeed Appx
XI to the said report would suggest that the Committee in fact was not averse to the adoption of a quantitative test but even if the Committee had expressly recommended the adoption of a qualitative not a quantitative test it would be idle to suggest that the Coir Board was bound to accept the said recommendation or that the Central Government was not competent to make rules contrary to the recommendations of the Committee
The validity of the rules can be successfully challenged if it is shown that they are inconsistent with the provisions of the Act or that they have been made in excess of the powers conferred on the rule making authority by section 26 of the Act
In our opinion no such infirmity has been established in respect of the impugned rules
It is then contended that the relevant rules would ultimately tend to establish a monopoly in the export trade of coir commodities and would thereby extinguish the trade or business of small dealers like the petitioner
It is also contended that the application of the quantitative test discriminates between persons carrying on business on a large scale and those who carry on business on a small scale
That is how articles 19 and 14 of the Constitution are invoked and the validity of the relevant rules is challenged on the ground that they violate the fundamental rights of the petitioner under the said Articles
We think there is no substance in this contention
If it is conceded that the regulation of the coir industry is in the public interest then it would be difficult to entertain the argument that the regulation or control must be introduced only on the basis of a qualitative test
It may well be that there are several difficulties in introducing and effectively enforcing the qualitative test
It is well known that granting 785 permits or licences to export or import dealers on the basis of a quantitative test is not unknown in regard to export and import of essential commodities
It would obviously be for the rule making authority to decide which test would meet the requirements of public interest and what method would be most expedient in controlling the industry for the national  good Beside even the adoption of a qualitative test may tend to extinguish the trade of those who do not satisfy the said test but such a result cannot obviously be treated as contravening the fundamental rights under article 19
Control and regulation of any trade though reasonable within the meaning of article 19 sub article
6 may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced  but once it is conceded that regulation of the trade and its control are justified in the public interest it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under article 191g and challenge the validity of the regulation or rule in question
In our opinion therefore the challenge to the validity of the rules on the ground of article 19 must fail
The challenge to the validity of the said rules on the ground of article 14 must also fail because the classification of traders made by rr 18 and 19 is clearly rational and is founded on an intelligible differentia distinguishing persons falling under one class from those falling under the other
It is also clear that the differentia has a rational relation to the object sought to be achieved by the Act
As we have already pointed out the export trade in coir com modities disclosed the existence of many malpractices which not only affected the volume of trade but also the reputation of Indian traders and one of the main reasons which led to this unfortunate result was that exporters sometimes accepted orders far beyond their capacity and that inevitably led to non fulfilment of contracts or to supply of inferior commodities
In 99 786 order to remedy this position the trade had to be regulated and so the intending exporter was required to satisfy the test of the prescribed minimum capacity and to establish the prescribed minimum status before his application for registration is granted
In this connection it may also be relevant to point out that the rules seem to contemplate the granting of exemption from the operation of some of the relevant tests to co operative societies and that shows that the intention of the Legislature is to encourage small traders to form co operative societies and carry on export trade on behalf of such societies and so it would not be possible to accept the argument that the impugned rules would lead to a monopoly in the trade
It is thus clear that the main object which the rules propose to achieve is to remove the anomalies and malpractices prevailing in the export trade of coir commodities and to put the said trade on a firm and enduring basis in the interest of national economy
We are therefore satisfied that the challenge to the impugned rules on the ground of infringement of article 14 of the Constitution must also fail
In the result we hold that there is no substance in the petition
It accordingly fails and is dismissed with costs
Petition dismissed


Summary:
The case of the prosecution was that at about 900 pm on June 41984 A 1 and A 3 came to the liquor shop of D 3 wherein PW 3 D 1 D 2 and PW 4 were also present and were vending the liquor
They sold one bottle ofliquor to A 1 and A 3 on credit
After its consumption A 1 and A 3 demanded another bottle to which D 3 refused to sell on credit
There on A 1 and A 3 abused them and a quarrel ensued
Both left the shop in anger
D 1 and D 2 slept on wooden takthposh in front of the liquor shop
PW 3 and PW 4 climbed the roof of the shop and slept there
During past mid night of June 4 5 1984 at about 1230 am PW 3 and PW 4 heard gun shot fire and got up and saw with the visibility of electric light emanating from the house of one Gurbax Singh the father of DW 2 that A 1 was firing with rifle at D 1 to D 4 and A 2 and A 3 hitting them with Gandasas sharp edged weapons
Seeing PW 3 and PW 4 on the terrace A 1 fired at them but they escaped uninjured and they jumped down
PW 3 jumped towards back side of the shop and ran towards the village and hid in the school
PW 4 jumped to the front side and ran towards 
the village A 1 fired at PW 4 257 and A 2 hit him
He received seven bullet injuries fired by A 1 on the backside of right leg thigh and left side of the abdomen while he was running
A 2 hit him on the right shoulder and had incised injury
He ran to the house of PW 3 with bleeding injuries knocked the door and fell down unconscious
On June 5 1984 at about 900 am the Chowkidar of the village reached Kotli Police Station and reported to PW 5 HOwho reduced FIR into writing
In the FIR the chowkidar stated that he had heard gun shot firing from the side of the liquor shop
Due to fear and the prevailing tense situation he did not come out
Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D 1 to D 4 and PW 4 was lying unconscious in the house of DW 3 and he was asked to report the matter accordingly
The defence consented to mark FIR the affidavits of the panch witnesses and constables the fire arms licence of A 1 under Exp 17 and also the reports of the ballistic expert and chemical examination reports without oral evidence
The lower court believed the direct evidence of PW 3 and PW 4 and the prosecution case that A 1 fired at the deceased with MO 11 rifle A 2 and A 3 also participated in the attack
The first accused was convicted under s302 read with s34 IPC for causing the deaths of D 1 D 2 D 3 and D 4 and sentenced to death subject to confirmation by this Court
He was also further convicted under s307 read with s34 IPC and sentenced to undergo rigorous imprisonment for 5 years for attempt to murder PW 4
A 2 and A 3 were convicted under s302 read with s34 IPC for causing deaths of D 1 to D 4 and sentenced to undergo imprisonment for life
A 2 and A 3 were convicted under s307 read with s34 IPC for attempt to murder of PW 4 and were sentenced to undergo rigorous imprisonment for 5 years all the sentences to run concurrently against which the accused filed appeal us141 of the Terrorist Affected Areas Special Court Act 1984
The appellants contended that the evidence of PW 4 was highly artificial unbelievable and untrustworthy that barring their evidence there was no other evidence to connect the appellants with the commission of the crime that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses that the appellants were implicated by suspicion and the prosecution had not 258 established the guilt of the appellant beyond reasonable doubt that the conviction and sentence by the special court was on the same day which contravened the mandatory provision of s235 of the Code
Partly allowing the appeal this Court HELD 1
The First Information Report is not substantive evidence
It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after thought
266B C 2
Since the examination of first information was dispensed with by consent FIR became part of the prosecution evidence
266B C 3
Ocular defence evidence if it is not subjected to critical cross examination is entitled to the same weight as prosecution evidence
But merely because the prosecution as usual made insipid cross examination the defence evidence is not to be believed automatically
267A B 4
Witnesses may be prone to speak lies but circumstances will not
So even though the burden of the defence is not as heavy as of the prosecution the oral evidence tendered by the defence must also be subjected to critical scrutiny and be considered in the light of the given facts and attending circumstances of the case and human probabilities
267A C 5
Corroboration is not a rule of law but one of caution as an assurance
The conviction could be made on the basis of the testimony of a solitary witness
The occasion for the presence at the time of occurrence opportunity to witness crime the normal conduct of the witness after the incident the nearness of the witness to the victim his pre disposition towards the accused are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness
It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance
267H 268B 6
The case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation
Under Section 1722 the Court is entitled at the trial or inquiry to use the diary not as evidence in the case but as aid to it in the inquiry or trial
Neither the accused nor his agent by operation of sub section
3 shall be entitled to call the diary nor shall he be entitled to use it as evidence merely because the Court 259 referred to it
Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness by operation of s161 of the Code and s145 of the Evidence Act it shall be used for the purpose of contradicting the witness ie Investigation Officer or to explain it in re examination by the prosecution with permission of the Court
It is therefore clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s161 that too after drawing his attention thereto as is enjoined under s145 of the Evidence Act
The entries cannot be used by the accused as evidence
269C G 7
The memos sent to the Medical Officer are not evidence except as record of investigation
It is not a rule of law that the memo should bear names with cause title of accused
It is enough if the name of the injured is mentioned in the memo
269H 270A 8
Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person if known that has committed the offence
Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture
The statement made by such a person is a previous statement within the meaning of section 162 and it shall not be signed
So the statement made by such a person to police officer is in the course of the investigation and when reduced to writing it shall be used only by the accused to contradict such witness in the manner provided by section 145 of the Evidence Act or with the permission of the court the prosecution could use it for re examination only to explain the matter referred to in his cross examination270B E 9
S162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever
The obvious reason is that the previous statement under the circumstances was not made inspiring confidence
It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s145 drawing attention of the witness of that part of the statement intended to be used for contradiction
It cannot be used for corroboration of a prosecution or defence witness or even a court witness nor can it be used contradicting a 260 defence or a court witness
The investigating officer is enjoined to forward the inquest report to the Magistrate alongwith the statement recorded at the inquest so that the court would see the record at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest
270E G 10
The statement of witness PW 3 recorded during inquest is not evidence
It is a previous statement reduced to writing under s162 of the Code and enclosed to the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof or to explain the same by prosecution
270G H 11
On finding that the accused committed the charged offence s2352 of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him
Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty
Therefore sufficient time must be given to the accused or the prosecution on the question of sentence to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded as the case may be
If the accused declines to adduce oral evidence it does not prevent to show the grounds to impose lessor sentence on
273A D 12
The sentence awarded on the same day of finding guilt is not in accordance with the law273C D Allauddin vs State of MP JT1989 2 SC 171 and Anguswamy vs State of Tamilnadu JT1989 2 SC 184 referred to