Kishore Chandra Patel And Etc. … vs State Of Orissa And Ors. on 22 July, 1993

JUDGMENT

Hansaria, C.J.

1. Ours is a parliamentary democracy. Elections are held in normal course every five years to elect people’s representatives to sit either in the Parliament or in the State Legislatures. Various political parties bring out their election manifestos and approach people seeking their support on the basis of promises held out in the manifestos. In the last Parliament election which took place in this State in 1989 as well as the assembly elections which were held in 1990, the people of Orissa were promised by the present Chief Minister, in the background of rampant corruption by persons holding high political and public offices in the State, to take all steps to confiscate the ill-gotten money made by such persons by corrupt means and to utilise such property for the welfare of the State. To fulfil this promise, the Chief Minister, who was also in charge of Home Department and who belongs to the Janata Dal, sent a Bill named “Orissa Special Courts Bill” to the State Assembly on 6-10-1990 after the Janata Dal had won the election in the aforesaid assembly elections in March, 1990. The Bill was introduced on 8-10-1990 and was passed on 12-10-1990. It was sent to the Central Government for obtaining the President’s assent, when the Government of India suggested few amendments after obtaining the opinion of the Attorney-General of India. The Bill was accordingly amended by introducing, an Amendment Bill in 1992. These Bills received the assent of the President on 9-7-1992 and
24-7-1992 respectively, which came to be published in the form of an Act on 27-7-1992, to be known as the Orissa Special Courts Act, 1990 (Orissa Act 22 of 1992), hereinafter “the Act”. The validity of the same came to be assailed within a fortnight of its publication, at O.J.C. No. 5647 of 1992 was filed on 10-8-1992. Four other writ petitions were subsequently filed; these being O.J.Cs. 5757/92, 6756/92, 4231/ 93 and 4429/93 on different dates between 13-8-1992 and 6-7-1993. Of the nine petitioners, eight are ex-ministers, all of whom belong to the Congress party, which is presently in opposition in the State Assembly. The only other petitioner is presently serving as Superintending Engineer under the State Government. He is concerned with O.J.C. No. 2249/93. As the post of Superintending Engineer belongs to Class I of the concerned service, he is a person holding “high public office” as defined in Rule 2(1)(e) of the Orissa Special Courts Rules, 1993 (for short “the Rules”).

2. All these petitions assail the validity of the Act on different grounds. Common questions of law having been raised, they were heard together and are being disposed of by this judgment.

3. The validity of the Act has been assailed on these grounds:–

(1) It is violative of Article 14 of the Constitution.

(2) Its Section 2(a) runs counter to Article

235.

(3) Section 3(2) has contravened Article 21.

(4) Section 4 violates Article 21.

(5) Section 5 is hit by Article 14.

(6) The provisions contained in Chapter III of the Act including Section 16 contravene Articles 14, 20(2), 20(3) and 21 of the Constitution, apart from being violative of principles of natural justice.

4. Over and above the aforesaid contentions relating to the provisions of the Act, the following submissions have been advanced:–

(1) Nomination of Hon’ble Mr. Justice A. Pasayat of this Court to preside over the Special Court established under the Act vide Notification No. 6284-C dated 1-12-1992 is not in accordance with the provisions contained in Orissa Special Courts Rules, 1993.

(2) Petitioners apprehend that they may not get fair trial at the hand of Shri G. Narasimham, an officer of the Senior Branch of the Orissa Superior Judicial Service, who has been nominated to function as the Authorised Officer, by Notification No. 1848-C dated 31-3-1993.

(3) Issuance of notice by the Special Court to Sachidananda Misra, petitioner in O.J.C. No. 4429/93 is not constitutional and/or legal.

5. Whether the Act is violative of Article 14 of the Constitution?

Let us start from the beginning. The frontal attack is that the entire Act is violative of Article 14 being discriminatory, inasmuch as the classification made by the Act has no rational nexus with the object, but is founded on irrelevant consideration, inasmuch as the entire object of the Act is to prosecute political opponents, namely, the erstwhile Chief Minister and Ministers who belong to the Congress party. This allegation is stoutly denied by the State and Shri Rao, who has appeared for the State, contends that the Act is meant to bring within its net politicians not of any particular hue, colour or party, but all those who had held high political offices, which can provide a valid basis of classification.

6. The petitioners’ argument in this con
nection, which has been basically advanced
by Shri Palit appearing for the petitioner in
O.J.C. No. 5647/92, supported by Shri
Mohapatra appearing for the petitioner in
O.J.C. No. 6756/92, has been built up basically on what finds place in the preamble of,
the Act. Let us, therefore, read it:–

“Whereas during the last several years corruption was rampant amongst persons holding high political and public offices in the State of Orissa and others connected with such corruption;

And whereas during the last Parliament Election, 1989 as well as Assembly Election, 1990 the people of Orissa were promised by the present Chief Minister that all steps will be taken to confiscate the ill-gotten money made by corrupt means by persons I holding high political and public offices and others and to utilise such property for the welfare of the State;

And whereas investigations conducted by
the agencies of the Government disclose
prima facie evidence confirming existence of
such corruptions and the Government has
reasons to believe that targe number of
persons who are holding high political and
public offices during last about ten years have
accumulated vast properties disproportionate
to their known sources of income by resorting
to corrupt means;

And whereas it is constitutional, legal and moral obligation of the State to prosecute persons involved in such corrupt practices;

And whereas the existing courts of Special Judges cannot reasonably be expected to bring the trials arising out of those prosecutions to a speedy termination and it is imperative for the efficient functioning of a parliamentary democracy and the institutions created by or under the Constitution of India that the aforesaid offenders should be tried with utmost dispatch; –

And whereas it is necessary for the said purpose to establish Special Courts presided over by the sitting Judges of High Court and it is also expedient to make some procedural changes whereby avoidable delay in the final determination of the guilt or innocence of the persons to be tried is eliminated without interfering with the right to a fair trial;”

7. To appreciate the argument advanced by Shri Palit, we have to know as to what was the language of the preamble of the Bill, the relevant part of which read as below:–

“Whereas during the period 1980-89 corruption was rampant amongst persons holding high political and public offices in the State of Orissa and others connected with such corruption;

And whereas during the last Parliament Election, 1989 as well as Assembly Election 1990 the people of Orissa were promised by the present Chief Minister that all steps will be taken to confiscate the ill-gotten money made by corrupt means by persons holding high political and public offices and others during the said period and to utilise such property for the welfare of the State;

And whereas investigations conducted by
the agencies of the Government discloses
prima facie evidence confirming existence of
such corruption and the Government has
reasons to believe that large number of
persons who are holding high political and
public offices during last about ten years have
accumulated vast properties disproportionate
to their known sources of income by resorting
to corrupt means;”

8. When the Bill was sent to the Government of India to obtain the assent of the President, as already noted, some amendments were suggested by the Government of India. We are concerned with the amendment relating to the preamble, which was mentioned in the Amendment Bill of 1992, whose Section 2 dealt with this reading as under:–

“2. Amendment of preamble. — In the preamble to the Orissa Special Courts Bill, 1990 (hereinafter referred to as the Principal Bill)

(a) in the first paragraph, for the words and figures, “during the period 1980-89” the words “during the last several years” shall be substituted, and

(b)in the second paragraph, the words “during the said period” shall be omitted.”

The aforesaid shows that though in the first paragraph of the preamble the words and figures “during the period 1980-89” were substituted by the words “during the last several years”, the words “during last about ten years” finding place in the third paragraph remained unaltered. This shows, according to the learned counsel, that the entire wrath of the Act is aimed at persons who had held high political offices during ten years preceding 1990, i.e., 1980-89 when the Congress Party
was in power in the State; and so, members of
the Congress Party, who held high political
offices during the aforesaid period, have been
singled out by the Act for a differential
treatment.

9. Shri Rao wields a shield and uses a sword to meet this attack. The protective argument is that the aforesaid words in the third paragraph of the preamble do not indicate what is sought to be read in them by Shri Palit. The aggression is that what has been stated in the preamble, in any case, cannot whittle down the width of the Act, inasmuch as there is no ambiguity in the language of the relevant sections of the Act,

10. Before we advert to the submissions advanced, we would like to put on record that when O.J.C. No. 5647/92 was taken up for admission on 13-8-1992, the Court had desired on that day itself to know from the learned Additional Government Advocate, then appearing in the case, whether to make it clear that the Act would not be confined to the offences committed during the last ten years, amendment of the Act was contemplated. On 27-8-1992, the learned Advocate-General stated that no instruction in the matter could be received and prayed for two weeks’ time, which was allowed. On 7-9-1992, the selfsame submission was reiterated, when three weeks’ further time was prayed, which was allowed. Thereafter nothing happened and we understand from Shri Rao that the matter was deliberated by the Government and no amendment was thought necessary.

11. Let us now see whether from what has been stated in the preamble, the allegation of hostile discrimination can be accepted. Shri Rao contends that what has been stated in paragraphs of the preamble is merely a recording of a fact, namely that the investigation conducted by the agencies of the Government disclosed that during the, ten-year period in question a large number of persons holding high political and public offices had accumulated vast properties disproportionate to their known sources of income by resorting to corrupt means and it was for the prosecution of persons involved in such corrupt practices that the statute was enacted. In this connection our attention is invited to the averment made in the first paragraph of the preamble which speaks about rampant corruption during the last “several years” Shri Rao contends that it was not what had happened during the ten years preceding the introduction of the bill which was in mind of the legislature, but “several years” preceding it. On being questioned as to whether the word ‘several’ would relate back beyond ten years, Shri Rao is on a slippery ground, which he has to be, because the word ‘several’ cannot relate back to infinity it has its own limitations, because this word has been defined in the Chambers 20th Century Dictionary as “more than one usu. more than three), but not very many”. In the New Oxford Illustrated Dictionary, the definition given is: “A few, more than two or three but not many”. So, the use of the word ‘several’ would not be indicative of the fact that corruption which took place many years back was under contemplation; it was corruption during some years in the immediate past, when admittedly the Congress Party was in power in the State which the legislature had in mind.

12. There is another important aspect relating to this point. The same is that in the bill as introduced in the State legislature, the first paragraph of the preamble had mentioned about the period as ” 1980-89″. It is also worth pointing out that the opening sentence of the statement of Objects and Reasons, is:

“There is widespread feeling amongst the public at large that during the last 10 years, persons who held high public and political offices smashed huge wealth by adopting corrupt means.”

It is due to the suggestion of the Government of India that these words were substituted by “last several years”. This would indisputably show that the State Legislature had the period 1980-89 in mind; and it may be that because of this that no amendment was made in the third paragraph, which speaks of 10 years r despite opportunity having been given in this regard. Is it not an example of one being true, at least, to oneself?

13. The cases which had been instituted following investigation mentioned in paragraph 3 and which have stood transferred by force of Section 6(2) of the Act, a list of which finds place in the affidavit of the Additional Superintendent of Police (Vigilance) filed on 8-7-1993, show that of the 19 cases, 10 related to persons who held high political office, all of whom were holding the office of Minister when the Congress Party was in power in the State. Though in this connection Shri Rao has urged that while framing the Act, the offenders were not in mind but the offence, namely, the corrupt practices in question, as would appear from what has been stated in paragraph 4 of the preamble; but this is not quite so, as the last paragraph speaks of the “aforesaid offenders”.

14. The question is as to who these “aforesaid offenders” are? Reading paragraphs 1 and 3 together, we are inclined to think that the offenders in mind were those persons who were in power immediately before the present Janata Dal came into power. We take this view despite the submission of Shri Rao that this State has a past history of allegations relating to corruption by persons holding high political office, dating back to 1967, as would appear from constitution of enquiries under either the Commission of Inquiry Act, 1952 or dehors it relating to allegations against the erstwhile Chief Minister Dr. Harekrushna Mahtab and others who belonged to the Congress Party, which became the subject-matter of decisions in P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215, and Dr. Harekrushna Mahtab v. Chief Minister of Orissa, AIR 1971 Orissa 175. In this connection Shri Rath, however, refers to the inquiry against the present Chief Minister when he was in the Utkal Congress Party and faced inquiry after ceasing to be the Chief Minister. This was some time in 1961. People’s memory being short, we would agree that what was in mind of the framers of the Act was corruption during the immediate past when the Congress was in power.

15. Shri Palit is thus on a strong wicket so far as the first submission is concerned, Shri Rao would, however, like to knock him down by using his attacking expertise, which is that what has been stated in the preamble cannot cut down the width of the section, as, it is only in case of ambiguity that reference can be made to preamble to find out the ambit of the section. To bring home this submission, the learned counsel has referred to a number of decisions. He starts from Burrakur Coal Co. v. Union of India, AIR 1961 SC 954, in paragraph 5 of which it has been stated by the Constitution Bench that one of the cardinal principles of construction is that where the language of an Act is clear, the preamble must be disregarded though, where the object or meaning of the enactment is not clear, the preamble may be resorted to explain it. This paragraph ends by stating that if the language used by the Parliament is ambiguous or is too general though in point of fact Parliament intended that it should have a limited application, one would be justified in referring to the preamble to clear the ambiguity. The view expressed by another Constitution Bench in Motipur Zamindary Co. v. State of Bihar, AIR 1962 SC 660, is that preamble cannot limit or change the meaning of the plain words used in the section. Because of this, the definition of the word ‘dealer’, as given in the section, was not held to be meant for one year because of the words “for the financial year beginning on the first of April, 1950” finding place in the preamble. What was stated by a Division Bench of four learned Judges in R. Venkataswami v. Narasram Naraindas, AIR 1966 SC 361, is then brought to our notice where in paragraph 17 while stating that a preamble is a key to the interpretation of the statute, it was observed that it is not ordinarily an independent enactment conferring rights or taking them away and cannot restrict or widen the enacting part which is clear and unambiguous. The statement that “(t)he motive for legislation is often recited in the preamble but the remedy may extend beyond the cure of the evil intended to be removed” is strongly pressed into service. Closely related to the proposition of law finding place in Venkataswami’s case, just referred, was the view of a seven-Judge Bench in what is known as Berubari’s case, AIR 1960 SC 845. It was
stated therein; after referring to the observation of Willoughby about the preamble to the American Constitution that the same had never been a source of any substantive power, that what is true about powers is equally true about the prohibitions and limitations. (See paragraphs 28 and 29). The learned counsel finally refers to the various judgments of the majority Judges in Kesavananda v. State of Kerala, AIR 1973 SC 1461, in which what has been stated in the preamble of the Constitution was referred to find out the meaning of the word ‘amendment’ finding place in Article 368; and he relies on what was held by Reddy, J. in paragraph 1165 which is as below :–

“It is clear from the above views of story that, (a) the preamble is a key to open the mind of the makers as to the mischiefs, which are to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; (c) even where the words are clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed in the preamble, and it would be much more so, if they were ambiguous; (d) there is no reason why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble; (e) the preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn from the Constitution; (f) its true function is to expound the nature, extent, and application of the powers actually conferred by the Constitution.”

16. Two other decisions to which our attention is invited by Shri Rao in this context are: (1) a Constitution Bench rendering in Atlas Cycle v. Their Workmen, AIR 1962 SC 1100, in which the occasion for raising the age of retirement was impending retirement of one A.N. Gujral because of which an argument was advanced that the enactment was discriminatory for the reasons advanced. The Bench, however, observed in paragraph 17 that the occasion which inspired the enactment of the statute might have been what was contended, but the Act as passed was of general application with reference to all persons holding the office, and so, the charge of discrimination on the ground of contravention of Article 14 was not accepted. (2) A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531, in which a seven-Judge Bench noted about erosion to the values in public life and undergoing of a new value orientation in our life and in our culture, because of which it was submitted that wider coverage of the Act should be accepted in larger public interest which requires purity of public life which is also the object of the Act.

17. We have also noted what was stated by a two-Judge Bench in Utkal Contractors & Jounery v. State of Orissa, AIR 1987 SC 1454, in paragraph 9 of which certain general observations were made regarding the interpretation of the statute. It was pointed out that a statute is best understood if we know the reason for it — the same being the safest guide to its interpretation. It was then asked how do we discover the reason for a statute? The question was answered by saying that there are external and internal aids to do so, these being statement of objects and reasons, the reports of committees which preceded, if any, debates of Parliament. These were regarded as external aids. As to the internal aids, it was stated that these are the preamble, the scheme and the provisions of the Act. The Bench opined that having discovered the reason for the statute, the interpreter may proceed ahead having set the sail to the wind.

18. Shri Mohapatra has very strenuously urged that what is stated in the preamble has to be looked into for determining the question at hand, even if there be no ambiguity in the section inasmuch as, according to the learned counsel, even to decide whether there is ambiguity or not one shall have to refer to the preamble. To bring home his submission, Shri Mohapatra has read out to us certain paragraphs from Seervai’s “Constitutional Law of India”, 3rd Edition, Vol. I, finding place at pp. 74-82. We are then referred to what has been stated in C.P. Singh’s “Principles of Statutory Interpretation”,
3rd Edition, at pp. 116-119. Reliance has also been placed on the decision of the House of Lords in Attorney-General v. H. R. H. Prince Ernest Augustus, (1957) 1 All ER 49. The only other reference made is to the decision in Utkal Contractors which has already been noted by us.

19. To understand what Seervai has stated to be the law in this regard, it has to be known what was Seervai’s discussion. For this purpose, we shall have to travel back to p. 70 wherefrom this particular discussion starts. The learned author after having quoted what was stated by the Privy Council in British Coal Corporation v. R., (1935) AC 500, in which Viscount Sankey cited with approval a passage from an earlier judgment of the Privy Council in which while dealing with the provisions of the British North America Act, which is a constitutional enactment, it was stated that the same methods of construction and exposition would apply to other statutes, but there are statutes and statutes and the strict construction deemed proper in the case, for example, of a penal or taxing statute would be often subversive of Parliament’s real intent if applied to an Act passed to ensure the peace, order and good government of a British Colony, says “the strict construction deemed proper in the case, for example of a penal or taxing statute points to an important difference in the interpretation of such statutes and a constituent or organic statute like a Constitution Act”. This is explained by saying that when interpreting an ordinary statute the rule of strict construction assumes that a Legislature has power to punish particular acts; and it only raises the question: “Has the Legislature exercised that power?”. But the whole basis of this reasoning disappears when the question shifts from the exercise of power to the possession of power. Seervai then says that widest meaning should be given to the words used in interpreting the grant of legislative power, for to give anything but the widest pieaning is to define or delimit words which the Constitution has not defined or delimited. This flows from the plenary nature of legislative power. This point is further elucidated by saying that strict construction of an ordinary law is based upon the presumption raised by the Courts that the Legislature does not intend what it has not clearly expressed. But the presumption of a limited grant of power cannot be made by a court, because to limit the grant of legislative power is a constituent and not a judicial function.

20. The further discussion which follows shows that much of what has been said relates to the attempt to find out the meaning of the words used either in the constitutional provisions or in the ordinary statutes. This would be clear from the reference to the decision in Dyson Holdings Ltd. v. Fox, (1976) QB 503, in paragraph 2.7 at p. 71 where the question for decision was the meaning of the word ‘family’ in the expression “member of the family”.

21. We can now come to paragraph 2.12 which is the first to be referred by Shri Mohapatra finding place at p. 74 which starts by saying that the golden rule of interpretation is that “words should be read in their ordinary, natural and grammatical meaning subject to the rider that in construing words in a Constitution……..”. The law has been so stated because legislative entry finding place in a Constitution uses words as to which it was stated in paragraph 2.13 that widest construction must be put on them unless the context requires otherwise. It is then stated in paragraph 2.14 that the golden rule of interpretation cannot be applied where “the words of a Constitution or an enactment” are ambiguous. The learned author then continues to say that to resolve ambiguity reference to preamble is made as an aid of construction, The decision of the House of Lords in the case of Prince Augustus (1957 (1) All ER 49) (supra) is then noted in paragraph 2.17 and what was stated by Lord Simonds is brought to the notice of the readers. We shall note what was held in that case later. Shri Mohapatra, however, relies on what was stated in paragraph 2.19 which is that the rule of literal construction stands modified by the principle that words, however, clear they may appear to be, must, be
read in the ‘context’ in which they appear; and
if they appear in an Act, the whole Act, or the
relevant part of it, must be looked into. And
‘context’ includes intrinsic and extrinsic aids
to construction preamble being one of the
extrinsic aids. !

22. The aforesaid shows that Seervai was enunciating two propositions in the main: (1)the rule of construction applicable to ordinary statutes which, in case of penal and taxing statutes, is one of strict construction would not apply to constitutional provisions which have to be liberally construed; and (2) when words are required to be interpreted (and these words have to be general words, as would appear from the reference to the construction of the word “family” mentioned in paragraph 2.7 and as would appear from what was stated by Lord Simonds in Prince Augustus’s case, which has also been cited by Seervai, context has to be borne in mind; preamble being a part of the context. That Seervai has construction of words in mind is reinforced by his reference to Lord Black-burn judgment in paragraph 2.15 (p. 77) where i* was stated, inter alia, that “words innocent in themselves may be shown to be libellous if circumstances are established…..”. So, what has been expounded by Seervai cannot be taken to mean that preamble must necessarily be lopked into even to find out the coverage of a statute, i.e., what is its width and reach.

23. As to the statement of law in G.P. Singh’s aforesaid work at pp. 116-119, it is worth pointing out that the learned author has started from the enunciation of Tindal, C.J., who delivered the opinion of the Judges who advised the House of Lords in Sussex Peerage’s case, (1844) 11 CL & F 85, to the effect that “(i)f any doubt arise from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which according to Chief Justice Dyer is a ‘key to open the minds of the makers of the Act, and the mischiefs which they intended to redress’.” . So, it is in case of doubt that recourse to preamble was held permissible and, indeed, necessary. This becomes clear from the reference at page 119 to the decision of Mudholkar, J. in Burrakur Coal Co. v. Union of India, AIR 1961 SC 954, in which it was stated (at p. 956 of AIR):

“It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though, where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it……….”

24. We now come to the House of Lords’ decision in Prince Augustus’ case, (1957 (1) All ER 49). That was a case where the question for determination before the House of Lords was whether the respondent answered the description “issue of the body of Princess Sophia” and this claim of the respondent did accord with the prima facie meaning of the enacting word. The Attorney General, however, contended that the generality of the expression “natural born subject of this Kingdom” finds place in the concerned enactment which would have supported the claim of the respondent must be restricted to persons born in the life time of Queen Anne (the respondent being not such a person), which restriction could be read by considering the context in which the words were found. For this purpose, reliance was placed in particular on the purpose of the Act as stated in the preamble.

 25.   Lord Simbnds while dealing with the aforesaid construction    observed at p. 53: "....... words,    and particularly general words, cannot be read in isolation, their colour and context are derived from their context. So.......". That Lord Simonds had interpretation of "general words" in mind in
stating the law as he did, would be clear from
what has been stated immediately after 'B' of
p. 54 also.  
 

 26. The aforesaid shows that none of the references sought to be relied by Shri Mohapatra runs counter to the proposition advanced by Shri Rao that the width of a statute cannot be cut down if unambiguous words are used in a statute which, if indicative of wide

coverage, the same cannot be cut down by referring to what has been stated in the preamble. The decision in Utkal Contractors (AIR 1987 SC 1454) which has also been referred by Shri Mohapatra does not contain any contrary principle inasmuch as what has been stated in this regard in paragraph 9 is that a statute is best understood if we know the reason for it and to discover the reason, recourse to extrinsic and intrinsic aids is permissible one of which is preamble. It has been further stated that having discovered the reason for the statute and having set the sail to the wind, the interpreter may proceed ahead. May it be pointed out that in that decision the Court was called upon to ascertain the width of the expression “grower of forest produce” and as such was concerned with an expression of general import.

27. On the basis of what has been stated above, the law in this regard may be stated to be that when a court is called upon to interpret a provision finding place in a statute, as distinguished from a constitutional enactment, the context may have to be looked into if meaning is required to be ascribed to a word or expression of general import; but if it be not so, the context would not be relevant, if the provision be unambiguous. As to preamble, it may be stated that it opens the mind of the makers, inter alia, about the mischief which is sought to be remedied; and if the language of the section be plain and unambiguous, its scope cannot be limited or cut down by reference to the preamble except to prevent an obvious absurdity; and that the occasion for passing an enactment cannot be a ground to put limitations on the provisions of the statute, though while trying to find out the reason for the enactment reference to preamble is permissible.

28. Let us now see whether the aforesaid legal position permits us to say that the Act was meant only for the political opponents of the present party in power. Shri Rao states that this conclusion cannot be arrived at merely because the preamble had such persons in mind, on the face of clear language of the statute which does not visualise any limitation, but applies to all persons committing the ‘offence’ in question irrespective of the colour (political or other) of the person committing the offence or the time during which the offence was committed. This is sought to be brought home by first referring to the definition of ‘offence’ as given in Section 2(d) of the Act which has been defined to mean “an offence of criminal misconduct within the meaning of Clause (e) of Sub-Section (1) of Section 13 of the Prevention of Corruption Act, 1988”. Our attention is then invited to Section 4 which states that a Special Court shall take cognizance of and try such cases as are instituted before it or transferred to it under Section 10. The only other type of cases which can be tried by the Special Court are those which stand transferred to it by force of Section 6(2). The cases which can be instituted or can be transferred are those relating to which a declaration is made by the State Government under Section 5(1) which has to be regarding commission of an offence alleged to have been committed by “a person who held high public or political office in the State of Orissa”. Shri Rao points out that in Section 5 of the Act there is even no mention of the preamble unlike Section 5 of the parallel Central Act.

29. Relying on the aforesaid provisions, Shri Rao submits that no limitation at all can be read in these provisions to contend that they are confined to a particular set of persons. According to the learned counsel, the sweep of the Act in this regard is all pervading and knows of no limitation inasmuch as the word ‘offence’ as defined in the Act cannot be said to relate to any group of persons or to an offence committed during any particular time.

30. This contention is sought to be first countered by Shri Mohapatra by referring us to the word ‘held’ in the expression “a person who held high public or political office in the State of Orissa”. Learned counsel submits that ‘held’ being past tense of ‘hold’ itself shows that the declaration can be regarding those office-holders who had held such offices in the past; and the past is relatable to 1980-89 alone. Shri Rao argues that the word used in Section 5(1) in this connection had to be ‘held’ because by the time the matter comes up
before the State Government for forming its opinion under Section 5(1), the offence had been committed according to it and this is an activity of the past when the perpetrator of the crime must have held the office in question; it is, therefore, grammar which required the use of the word ‘held’, and not any intention to confine the application of the Act to the persons referred by Shri Palit. We would accept the submission of Shri Rao and state that the use of the word ‘held’ cannot be held to mean that the Act is confined to the persons referred by Shri Palit.

31. Another submission advanced by Shri Rao to demolish the aforesaid contention is that Section 5(1) makes it abundantly clear that it is not political office-holders who alone are covered but high public officers also come within the fold of the Act, and so, the political office-holders about whom Shri Palit speaks of are not the only persons brought within the dragnet. It is brought to our notice that the preamble too mentions about holders of high public office. We have also noted that of the 19 cases which have stood transferred to the Special Court because of what has been provided in Section 6(2), six appertain to holders of high public office. It can be presumed that the legislature knew about this state of affairs because in Section 6(2) mention has been made about pending cases.

32. The aforesaid being the factual and legal positions, we would say that what had happened during 1980-89 was only the reason for going in for the enactment; it had provided the occasion for the passing of the Act, which has not confined in its operation to the persons of 1980-89. There being no ambiguity in the provisions of the Act in this regard, it is not permissible to cut down its width by referring to what has been stated in its preamble. There being also no obvious absurdity in what has been stated in the provisions of the Act, no reference to the preamble is required to be made to prevent the absurdity to take place.

33. Before concluding this aspect of the matter, we may advert to two other submissions, one of which is made by Shri Palit supported by Shri Mohapatra and the other by Shri Mukherjee. Shri Palit submits that no classification could have been made to achieve the purpose of trial with “utmost dispatch” and mentions the case of Anwar AH, AIR 1952 SC 75, in this connection. The apex Court had duly noted Anwar Ali’s case in In re The Special Courts Bill, 1978, AIR 1979 SC 478, in which the advice of the Supreme Court was sought on the constitutionality of the aforesaid bill whose many provisions are parallel to the Act at hand; and while dealing with the question whether the provisions of the bill would be violative of Article 14, the view taken, inter alia, in Anwar” Ali was noted and it was opined that the bill did not violate Article 14. It may be stated that the bill desired trial of the offences which had been committed “by persons who have held high public or political offices in the country” during the period mentioned in the preamble with “utmost dispatch”. The same view was taken when the matter was examined in State v. V.C. Shukla, AIR 1980 SC 1382.

34. As despite the above, Shri Palit seems to have some reservation in the matter, which would be apparent from his seeking to rely on Anwar Ali’s case (AIR 1952 SC 75) to contend that the classification is hit by Article 14, let it be seen as to why the enactment, which had come up for examination in Anwar Ali’s case, was held to be discriminatory, whereas the Special Courts Act had not been. In Anwar Ali’s case, the vires of the West Bengal Special Courts Act, 1950 was under consideration, which Act had been enacted to provide for speedier trial of certain offences. This was challenged by those accused , whose cases came to be tried by the Special Court, against whom the allegation was that they had committed various offences in course of their raid as an armed gang on certain factory, known as the Jessop Factory, at Dum Dum. On their cases being tried by the Special Court, they were sentenced to varying terms of imprisonment. The Constitution Bench stated that the object of speedier trial by itself cannot be a ground of classification, because every trial has to be speedy. The offences or class of offences which had been selected for trial by the Special Court did not have a nexus sought to
be achieved by the West Bengal Act. As against this, the Special Courts Act has selected a class of offenders, namely those who held high public or political offices. There can be no denial that to root out corruption from such persons they can be selected to be tried with utmost dispatch to maintain purity of public life. They do form a distinct class. It is because of this that the classification made by the Act, which is based on the type of offenders as distinguished from the type of offences, which was the basis of the West Bengal Act, was held permissible in the aforesaid Supreme Court cases. What was held in Anwar Ali’s case cannot, therefore, be pleaded to regard the classification at hand as violative of Article 14.

35. Shri Palit would not leave the matter at this; Shri Mohapatra would add further fuel to it. They contend that if speed alone was the idea underlying the enactment of the statute at hand, that purpose could have been well served by appointing more number of Special Judges if the present number of such Judges was thought not to be sufficient to cope with the work, inasmuch as Section 3 of the Prevention of Corruption Act, 1988 visualises appointment of as many Special Judges as may be necessary. As to this submission, the reply of Shri Rao is that as appointment of Special Judges had also been made for “more speedy trial” as would appear from the long title of the Criminal Law Amendment Act, 1952, whose Section 6(l)(a) includes trial of offences under the Prevention of Corruption Act, 1988, has failed to deliver the goods, as would appear from what has been stated in paragraph 5 of the preamble, the Act was enacted to try a special class of offenders with ‘utmost dispatch”. It is submitted in this context that the Prevention of Corruption Act, 1988 takes care of all the offenders relating to all the offences under that Act, whereas the Act at hand deals with those offenders only who hold or held high political and public offices and that too relating to commission of offence under Section 13(l)(a) of the Prevention of Corruption Act, 1988 and not other offences.

36. The two learned counsel contend that “utmost dispatch”, which is said to be the underlying object of enactment of the statute is a pretext, inasmuch as even the Rules came to be made by 4-3-1993, whereas the Act had found place in the statute book on 27-7-1992, which shows that even the Government did not really desire trial with utmost dispatch. On being asked as to why the Rules were framed belatedly, an affidavit was filed on 9-7-93 by the Additional Legal Remembrancer by stating that the I.G. (Vigilance) sent the draft Rules on 3-11-1992, which were examined in the Home, Law and General Administration Departments, whereafter these were framed on 4-3-1993. We do not find in this affidavit mention of even any reason for the delay, not to speak of the reason being sufficient or cogent. As the Rules have been framed pursuant to the power conferred by Section 25 of the Act, which permits framing of rules for carrying out the purposes of the Act, we have no doubt that there was inordinate delay Sri the framing of the Rules, which were thought necessary to carry out the purposes of the Act. This delay ought not to have happened, according to us. The fact that three departments of the Government were involved in finalisation of the Rules is no answer to the delay, as the Rules are, in any case, not so elaborate or complicated as to require long deliberation for finalisation of the same. Despite slow moving of the wheels in the Government, it is known that if urgency is felt, the wheels do move fast. The present was a case where the rule-making authority should have realised the urgency of the matter and ought not to have allowed an opportunity to the petitioners even to contend that the Government itself was acting in a slow pace, which is against the mandate of the Act and not in tune with the object of the same. Though in this connection Shri Rao has contended that the Government did not really soft-pedal the matter, as even the Presiding Officer of the Special Court was appointed by 1-12-1992, which shows that prompt steps were taken to bring the Act into operation, we would nonetheless think that the promptness shown in this field cannot be a ground of languishing approach relating to framing of the Rules. But
then, taking a total view, we would not agree to the submission that “utmost dispatch” was a pretext for the enactment at hand.

37. This takes us to the submission of Shri Mukherjee that the Act is harsher than the Criminal Law Amendments Ordinance, 1944, and so, the same is violative of Article 14 in the absence of guideline relating to putting into motion the Act. We may not examine the question as to whether the Act is harsher, because the Ordinance in question having permitted only attachment of property of the offenders, the same cannot be pressed into service to achieve the object of confiscation. Though in this connection Shri Mukherjee has submitted that attachment alone would serve the purpose, we are not addressing ourselves to this aspect, as it is not for this Court to sit over the wisdom of the legislature; and the legislature having felt the need of confiscation, it is not for us to say that confiscation is not necessary. Of course, if the provisions pertaining to confiscation finding place in the Act were to be unconstitutional, it would be open to this Court to strike down the same; but the Court cannot examine the question whether confiscation is necessary.

38. We, therefore, conclude by saying that we do not read the provisions of the Act to be aimed at political opponents of the party presently in power in the State. The Act has not picked up such persons by classifying them separately from others. The Act is, therefore, not violative of Article 14 of the Constitution.

39. A passing submission has been made by Shri Mukherjee relating, to the petitioner in O.J.C. No. 4429 of 1993 (who, as already noted, is presently Superintending Engineer and as such a Class I Officer) that singling him put is discriminatory, inasmuch as Class II, III and IV officers have been left out. There is no force in the submission as holders of Class I posts have to be regarded as belonging to “high public office”, as distinguished from those who hold Class II, III and IV posts.

40. Because of all the above, we reject all the contentions advanced relating to the Act being violative of Article 14 of the Constitution.

41. Whether Section 2(a) runs counter to Article 235 of the Constitution?

Section 2(a) has defined “authorised officer” to mean “any officer not below the rank of a District Judge to be nominated by the State Government for the purpose of Section 13”. That Section 13 is a part of fascioulus of sections finding place in Chap. III dealing with confiscation of property. The point advanced by Shri Rath in this connection is that as a judicial officer alone can be an authorised officer, it is for the High Court to nominate (or appoint) an authorised officer. The State Government has no power to do so. The power of nomination given to the State Government by Section 2(a) is, therefore, violative of Article 235 of the Constitution, which has vested control over the Judicial officers in the High Court.

42. Our attention is invited to a number of decisions, to wit, State of Assam v. Ranga Muhammad, AIR 1967 SC 903; State of Assam v. Kuseswar, AIR 1970 SC 1616, Samsher Singh v. State of Punjab, AIR 1974 SC 2192; Punjab & Haryana High Court V. State of Haryana, AIR 1975 SC 613; State of Haryana v. Inder Prakash Anand, AIR 1976 SC 1841; and Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu, AIR 1979 SC 193, to bring home the point that the control which is vested in the High Court by Article 235 takes within its fold all matters relating to a person belonging to the judicial service of the State except initial appointment and first posting and dismissal, removal and. reduction in rank. We have only mentioned the decisions cited by Shri Rath instead of dealing with the same, because a Full Bench of this Court had recently examined this aspect of the matter in Sarat Kumar Mohanty v. State of Orissa, (1993) 75 Cut LT 685, and after examining various decisions on this aspect, the Full Bench quoted in paragraph 9 what had been succinctly summarised by a Constitution Bench in State of U.P. v. Batuk Deo Pati Tripathi, (1978) 2 SCC 102 : (1978 All LJ 477), by stating that Article 235 requires that “all matters relating to the subordinate judiciary ………. excluding the imposition of punishment falling within the
scope of Article 311 and the first appointments and postings, should be dealt with and decided upon by the High Court in exercise of the control vested in them”, which was accepted to reflect the correct legal position by another Constitution Bench in Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu, AIR 1979 SC 193.

43. Shri Rao does not fairly contest the aforesaid position but contends that what has been stated in the aforesaid decisions including the Full Bench judgment of this Court applies to all matters relating to district courts and courts subordinate thereto, control over which has been vested in the High Court. The authorised officer, however, is not a court; and it is because of this that the words ‘officer’ has been used qua him in Section 2(a). According to the learned counsel, the said officer is an administrative officer who, however, discharges quasi-judicial functions. We would have occasion later to deal with this submission when we would examine the vires of certain provisions finding place in Chapter III dealing with confiscation of property. It would be enough to point out here that an officer authorised to confiscate property need not be a judicial officer, as is the term understood in law, and the power can be exercised even by an administrative officer like Collector of Customs or Collector of a district. In case of such persons, appointment or nomination would be by the Government.

44. In support of the aforesaid submission, strong reliance is placed by Shri Rao on State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, in which the apex Court was concerned with the validity of the orders passed by this Court itself in its administrative side relating to appointment, inter alia, of Law Secretary. The apex Court opined that the posts of Law Secretary, Deputy Law Secretary and Legal Remembrancer could not be considered as district courts or courts subordinate to district Courts within the meaning of these words finding place in Article 235 of the Constitution; those posts are really similar to the corresponding posts in other departments of the Secretariat, and it is prima facie for the Governor to fill up those posts. It was further stated that as the executive cannot know the requirements of a perticular court, the High Court cannot know the requirements of any post in the Secretariat and just as the High Court resents any interference by the executive in the functioning of the judiciary, the executive has a right to ask the High Court not to interfere with its functions. It is for the executive to say whether a particular officer would meet its requirement or not, because of which the High Court cannot foist any officer on Government. (See paras 11 and 12).

45. Shri Rath’s submission is that even the decision in Sudhansu Sekhar would show that any appointment of a person borne in the judicial service made by the State Government to man an executive post has to be with the consent of the High Court, as would appear from what has been observed in para 14 of the judgment, wherein it has been stated that the judicial officers working in the Secretariat could not have been posted “without the consent of the High Court”.

46. Before expressing any opinion on the point urged by Shri Rath regarding the invalidity of Section 2(a) of the Act, we have to advert to what has been provided in Rule 9(1) of the Rules, the relevant part of which reads as below :–

“The State Government, in consultation with the High Court, shall nominate an officer belonging to the cadre of the Orissa Superior Judicial Service (Senior Branch) to act as authorised officer for the purpose of the Act.”

Shri Rath has two submissions to make regarding this provision. The first is that a rule cannot cure the infirmity, if any, in an Act. To support this legal proposition, the learned counsel has referred in his written note filed on 14-7-93 to (1) Bimal Ch. Banerjee v. State of Madhya Pradesh, AIR 1971 SC 517 (para 18); (2) Collector of Customs v. N. Sampathu Chetty, AIR 1962 SC 316 (para 13); and (3) Gannon Dunkerley & Co. v. State of Rajasthan, (1993) 1 SCC 364 : (1993 AIR SCW 2621) (para 68). We are not
dealing with these decisions, because Shri Rao has fairly conceded to the tenability of the legal submission of Shri Rath.

47. Shri Rath, therefore, contends that whatever has been stated in the rule cannot cure the infirmity in the provision finding place in Section 2(a) of the Act, which does not even speak about consultation with the High Court while nominating any officer not below the rank of a District Judge as authorised officer. Another limb of Shri Rath’s submission is that mere consultation would not meet the requirement of Article 235 inasmuch as in Sudhansu Sekhar’s case (AIR 1968 SC 647), the word used is ‘consent’. The learned counsel in his written note has referred to some decisions bringing out the difference between the conception of ‘consultation’ and ‘consent’. These decisions are : (1) Union of India v. Sankalchan Himmatlal Sheth, AIR 1977 SC 2328 (para 36); and (2) State of West Bengal v. Union of India, AIR 1963 SC 1241 (para 17). We may also refer in this connection to S.P. Gupta’s case, AIR 1982 SC 149, wherein there is a detailed discussion regarding the purport of the word ‘consultation’ as finding place in Articles. 217 and 222 of the Constitution, Though it may be that in certain circumstances, the word ‘consultation’ may be taken to mean ‘consent’, as would appear from what was stated by Bhagwati, J. (as he then was) in his dissenting judgment in Sankalchan’s case (supra) (see para 59), we may not dilate on this point, because Section 2(a) not having stated even about consultation with the High Court has to be held as violative of Article 235 of the Constitution (as what has been stated in Rule 9(1) cannot be looked into for the purpose) inasmuch as it is not the case of the State, as put forward either by Shri Rao or the learned Advocate-General, that even consultation with the High Court would not be necessary. According to us, the law really requires consent.

48. Shri Rath has further contended in this regard, and rightly, that though the vires of Section 2(a) had been challenged by approaching this Court in August, 1992 on the aforesaid ground, no efforts were made by the State despite getting sufficient time to amend Section 2(a) to bring it in harmony with Article 235 of the Constitution.

49. Because of all the above, we have no hesitation in striking down Section 2(a) as being violative of Article 235.

50. Whether Section 3(2) is violative of Article 21 of the Constitution?

This section has provided that the Special Court shall be presided over by a sitting Judge of a High Court in India “to be nominated by the State Government with the concurrence of the Chief Justice of the concerned High Court”. The submission of Shri Palit is that the nomination ought to be by the Chief Justice himself and not merely with his concurrence. The learned counsel invites our attention to the provision which had found place in the (Central) Special Courts Act, 1979, after the advisory opinion had been given by the Supreme Court on the concerned Bill (which had provided for nomination of the Judge by the Central Government in consultation with the Chief Justice of India), as reported in AIR 1979 SC 478. That Act ultimately laid down in its Section 3(2) that the Special Court shall consist of a sitting Judge of a High Court “nominated by the Chief Justice of the High Courts within the local limits of whose jurisdiction the Special Court is situated, with the concurrence of the Chief Justice of India”. In this context our attention is also invited to the recent Act named Special Court (Trial of Offence Relating to Transactions in Securities) Act, 1992, which also in its Section 5(2) provides for nomination of the Judge by the Chief Justice of the concerned High Court with the concurrence of the Chief Justice of India.

51. Shri Rao meets this objection by drawing our attention to what was opined by the apex Court in para 102 of AIR 1979 SC 478 that the appointment of sitting Judges of the High Court to the Special Courts, with the concurrence of the Chief Justice of India, will meet the requirement of Article 21. In para 103(3) also, it was stated about the Bill that the concerned provision relating to the appointment of a Judge in consultation with but without the concurrence of the Chief
Justice, of India was not just and fair. The submission, therefore, is that if the nomination be with the concurrence of the concerned Chief Justice, that would meet the requirement of Article 21. Shri Palit, however, draws ,our attention to the observation made in para 102 that “no Judge wants it to be said of him that he was specially nominated by the Government to try a particular individual”. This is a passing observation and cannot be taken to be the view of the Court on the question of fulfilment of the requirement of Article 21, which, according to us, would be satisfied if the nomination be not in consultation with but with the concurrence of the concerned Chief Justice, as is the provision in Section 4(2) (or 3(2?) of the Act.

52. We have another observation to make in this regard and the same is that the constitutionality of a provision cannot be decided by the language finding place in parallel enactments of other legislative bodies. Reference may be made in this connection to the Constitution Bench decision in State of Madhya Pradesh v. G.C. Mandawar, AIR 1954 SC 493, in which it was stated in para 9 that Article 14 does not authorise striking down of law of one State by process of comparative study of a parallel law framed by the Centre or another State, which was cited with approval by a two-Judge Bench in para 14 of Prabhakaran v. State of Tamil Nadu (1987) 4 SCC 238: (AIR 1987 SC 2117).

53. We, therefore, hold that Section 4(2) (or Section 3(2)?) of the Act is not violative of Article 21 of the Constitution. It would be apposite in this connection to refer to Rule 3(1) of the Rules, which states that the State Government for the purpose of nomination of a Judge may address to the concerned Chief Justice to suggest a name or names of sitting Judges and on receipt of suggestions, the State Government shall finalise the nomination and request the concerned Chief Justice for his concurrence. We have referred to this rule, not because any infirmity in the provisions of a statute can be taken care of by the rules as fairly admitted by Shri Rao, but to show the intention of the State Government who framed the Rules.

54. Whether Section 4 violates Article 21?

The short submission made in this regard is that this section states that the Special Court ‘shall’ take cognizance of and try such cases as are instituted before it or transferred to it under Section 10, Shri Palit in thecompany of Shri Mohapatra submits that this provision has mandated the Special Court to take cognizance even if there be no materials to the satisfaction of that Court to take cognizance. In this connection our attention is invited to Section 5 of the Prevention of Corruption Act, 1988, which states that the Special Court ‘may’ take cognizance of offences. Shri Rao answers this contention by submitting that the word ‘shall’ has been used in the section to indicate that it is the court of the Special Judge only which can take cognizance of the offences dealt by the Act. It is then urged that the Legislature could not have made it mandatory on a Special Court to be presided over by a High Court Judge that it must take cognizance even if there be no materials for the same. We accept this contention advanced by Shri Rao and hold that Section 4 also is not violative of Article 21 of the Constitution.

55. Whether Section 5 is violative of Article 14 of the Constitution?

The vires of Section 5 is attacked on the ground that while conferring the power of making the required declaration on the State Government, no guidance at all has been provided. The importance of declaration lies in the fact that it is only on a declaration, as contemplated by Section 5 being made, that the prosecution in respect of the offence with which the Act deals, is required to be instituted only in the Special Court; and that on a declaration being made, the pending cases relating to the offence stand transferred to the Special Court. So, it is the declaration of the State Government which would see any particular case pending or freshly filed in the Special Court. It is because of this, that the power conferred on the State Government by Section 5 plays a pivotal role in the scheme of the Act; and it is because of this that strenuous efforts have been made to satisfy us that Section 5 has
conferred unguided power, because of which the State Government can pick and choose to decide which cases would be tried by the Special Court.

56. Let us read that section:–

“5(1) If the State Government is of the opinion that there is prima facie evidence of the commission of an offence alleged to have been committed by a person who held high public or political office in the State of Orissa and that the said offence ought to be dealt with under the Act, the State Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion.

(2) Such declaration shall not be called in question in any Court.”

57. Shrei Palit has raised a very pertinent question as to why the power of deciding as to which cases ought to be dealt with under the Act has been conferred on the State Government when the object of the Act is to try certain class of persons involved in certain type of offences with utmost dispatch. Why should there be, asks the learned counsel, pick and choose in between such offenders and that too after a charge-sheet has been submitted which alone can be the basis for the State Government forming the opinion that there is prima facie evidence of the commission of the offence? That this would be the prime material for the formation of the required opinion of the State Government has been fairly conceded both by Shri Rao and the learned Advocate-General. Now, if a charge-sheet has been submitted alleging the commission of the offence dealt by the Act, the same being offence of criminal misconduct within the meaning of Section 13(1)(c) of the Prevention of Corruption Act, 1980, and that too by persons holding high public or political office which terms have been defined by Rules 2(e) and (f) of the Rules, why should there be a power at all left in the State Government to decide which cases should be dealt with under the Act? Learned counsel submits that the only reason could be that the State Government may for ulterior purpose make the required declaration in relation to some persons and may not give the declaration as regards others though they are similarly situated.

58. On the learned Advocate-General being asked as to why this power should vest in the State Government, the answer is that it may be that in some cases the disproportionate asset acquired is so small that it may not be thought necessary by the State Government to require a High Court Judge to try such an offender. Learned Advocate-General contends that there may be some other such reasons also, and so, a discretion was left in the matter with the Government, and rightly. Question is whether there is any guideline to control the discretion of the Government in this regard?

59. There is no dispute in law that if the discretion be unguided, the same would be violative of Article 14 inasmuch as that would permit pick and choose. As the inspiration for the enactment at hand has been drawn from the Central Act of the same name and as Section 5 has also been bodily lifted from Section 5 of the Central Act, whose validity was upheld in V.C. Shukla’s case (AIR 1980 SC 1382), let it be seen whether what was stated in that case applies to Section 5 of the Act also. According to Shri Palit that would not be so because in the Central Act, guidelines for exercise of this discretionary power exist which is missing in the Act at hand. This submission has been advanced because Section 5 of the Central Act requires declaration to be made “in accordance with the guidelines contained in the preamble”. It is, inter alia, because of this that the contention regarding conferment of unbridled power was negatived in V.C. Shukla’s case by stating in para 81 that “(t) he verious clauses of the preamble which have been set out in an earlier part of this judgment, lay down clear guidelines and provide sufficient safeguards against any abuse of power”. In the section at hand, there is no reference to the preamble. Not only that, there is nothing else to indicate that the Legislature wanted the State Government to exercise this power to achieve any particular purpose or being guided by some relevant considerations.

60. Shri Palit seeks to fortify the aforesaid contention by bringing to our notice that the State Government has given the declaration in question only in respect of 19 cases mentioned in the affidavit filed on 8-7-1993, whereas as per his instruction there are other cases of persons who are similarly situated in whose cases the required declaration has not been made by the Government. One such ease is said to relate Central Minister Shri K.C. Lenka. As this submission was made on 15-7-1993, we desired to be informed about the factual position. An affidavit was filed on 16-7-1993 by the Additional Superintendent of Police (Vigilance) stating that there were 13 other such cases (all involving high public offices) regarding which reference was made on 16th July for consideration to make necessary declaration. It has been further stated in this affidavit that the vigilance enquiry against Shri K.C. Lenka is still in progress.

61. The aforesaid shoves that Shri Palit was right in submitting on 15th July that cases of all similarly situated persons had not stood transferred to the Special Court. Of course, the reason is not any pick and choose by the Government. A perusal of Home Department File No. 734/92 made available to us as per out desire shows that the Director-cum- I.G. of Police, Vigilance, had informed the Government on 27-12-1992 about 19 cases covered by the Act in which charge-sheets had been submitted, and the Government made the required declaration for all the 19 cases. We do not know why 13 similar cases mentioned in the aforesaid affidavit were not referred to the Government along with 19. This ought to have been avoided. The action of referring these cases to the Government only on 16th July (in hot haste?) after the grievance was made on 15th, does not speak well of the Vigilance Department. But then, the allegation of pick and choose by the Government due to non-declaration in some cases, does not get fortified by the aforesaid fact with which aspect we are really concerned in these cases.

62. Shri Palit has further submitted that the mere fact that the power of declaration has been conferred on the Government may not weigh much with us in this regard, though this was one of the aspects noted in V.C. Shukla’s case (AIR 1980 SC 1382) while upholding the validity of Section 5 of the Central Act. This contention has been advanced because of what has been recently, pointed out by Sawant, J. in Delhi Transport Corporation v. D.T.C. Mazdoor Congress. AIR 1991 SC 101, in para 223, which reads as below :–

“There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however, high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by direction which it can conveniently and easily be covered by the rule of law.”

63. The aforesaid being the position, we are satisfied that the discretion conferred on the Government by Section 5 to make declaration is unguided and is, therefore, hit by Article 14. The question is whether law permits striking down of apart of the section while keeping the other in tact. Shri Palit submits that this is permissible and in this context refers to State of West Bengal v. Anwar Alli, AIR 1952 SC 75, in para 64 of which fault was found with the power conferred by the concerned section to direct ‘cases’ as distinguished from “classes of cases” to be tried by Special Court, which was regarded as purely arbitrary selection, because of which it was stated that “this part of the section must incur our condemnation”. Though Anwar Alli has not spelt out as to why striking down of a part of a section is permissible in law, this has been pointed out
by a Constitution Bench in Harakchand v. Union of India, AIR 1970 SC 1453, para 24 of which deals with the question as to what is the result of striking down of some sections of an Act. It was stated that the test to be applied in this connection is whether what remains of the statute is so inextricably bound up with the invalid part that what remains cannot independently survive; or to put it differently, whether it can be assumed that the legislature would have enacted at all that which survives without enacting the part that is ultra vires. In legal circle it is known as the doctrine of severability.

63-A. According to us despite striking down of that portion of Section 5(1) which states “and that the said offence ought to be dealt with under the Act”, the remaining part of the section can survive independently, and so, the doctrine of severability permits us to sever the obnoxious part, which is the one we have quoted, and which, therefore, incurs our condemnation as violative of Article 14 of the Constitution. We make it clear that the remaining part of Section 5(1) would continue to remain functional.

64. While at Section 5, we may state that in so far as the provision contained in Sub-Section (2) that the declaration made shall not be called in question in any Court is concerned, Shri Rao fairly agrees that this would not take away the power of judicial review available to this Court under Article 226, and for that matter to the Supreme Court under Article 32, as was observed in para 100 of AIR 1979 SC 478 and endorsed in para 83 of AIR 1980 SC 1382.

65. Whether the provisions contained in Chapter III of the Act are violative of Articles. 14, 20(2), 20(3), 21 of the Constitution and of natural justice?

This leaves for consideration the most contentious aspect which relates to certain provisions finding place in Chapter III dealing with “Confiscation of Property”. This attack is spearheaded by Shri Rath, who submits that a combined reading of Sections. 13 to 16 of the Act finding place in this Chapter would show that there is a total denial of natural justice, and some of the provisions violate Articles. 14, 20(2) and 20(3), so also Article. 21. As natural justice has been accepted as a part of Article 14 by two Constitution Bench decisions, the first of which is Union of India v. Tulsiram Patel, AIR 1985 SC 1416, (para 72) and the second Charanlal Sahu v. Union of India, AIR 1990 SC 1480 (paras 42, 109 and 110), violation of natural justice would be violation of Article 14 also. Even so, we shall deal with this grievance separately.

66. Let us see whether the aforesaid submission merits our acceptance. For this we have to know the provisions finding place in that Chapter which are as below :–

“13. (1) Where the State Government on the basis of prima facie evidence has reason to believe that any person who held high public or political office has committed the offence, the State Government may, whether or not the Special Court has taken cognizance of the offence, authorise the Public Prosecutor for making an application to the authorised officer for confiscation under this Act of the money or other property which the State Government believes the said person to have procured by means of the offence.

(2) An application under Sub-Section (1) shall be accompanied by one or more affidavits, stating the grounds on which the belief that the said person has committed the offence is founded, and the amount of money or value of other property believed to have been procured by means of the offence. The application shall also contain any information available as to the location for the time being of any such money or other property and shall, if necessary, give particulars, including the estimated value of other property of the said person.

14. (l) Upon receipt of an application made under Section 13 the authorised officer shall serve a notice upon the person in respect of whom the application is made (hereinafter referred to as the person affected) calling upon him within such time as may be specified in the notice, which shall not be ordinarily less than thirty days, to indicate the source of his income, earnings or assets, out of which or by means of which he has acquired such money
or property, the evidence on which he relies
and other relevant informations and particulars, and to show cause why all or any of
such money or property, as the case may be,
should not be declared to have been acquired
by means of the offence and confiscated to the
State Government,

(2) Where a notice under Sub-Section (1) to any person specifies any money or property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.

15. (l)The concerned authorised officer may, after considering the explanation, if any, to the show cause notice issued under Section 14, and the materials available before it and after giving to the person affected (and in case where the person affected holds any money or .property specified in notice through any other person, to such other person also), a reasonable We opportunity of being heard by order, record a finding whether all or any other money or properties in question have been acquired illegally.

(2) Where the authorised officer specifies that some of the money or property referred to in the show cause notice is acquired by means of the offence but is not able to identify specifically such money or property, then it shall be lawful for the authorised officer to specify the money or property which, to the best of his judgment, has been acquired by means of the offence, and record a finding accordingly under Sub-Section (1).

(3) Where the authorised officer records a finding under this section to the effect that any money or property has been acquired by means of the offence, he shall declare that such money or property shall, subject to the provisions of this Act, stand confiscated to the State Government free from all encumbrances;

Provided that if the market price of the property confiscated is deposited with the authorised officer, the property shall not be confiscated.

(4) Where any share in a company stands confiscated to the State Government under this Act, then, the company shall, notwithstanding anything contained in the Companies Act, 1956, or the Articles of Association of the Company forthwith register the State Government as the transferee of such share.

(5) Every proceeding for confiscation of money or property under this Chapter shall be disposed of within a period of six months from the date of service of the notice under Sub-Section (1) of Section 14.

(6) The order of confiscation passed under this section shall, subject to the order passed in appeal, if any, under Section 18, be final and shall not be called in question in any Court of law.

16. In any proceedings under this Act, the burden of proving that any property specified in the notice served under Section 14 is not acquired by means of the offence shall be on the person affected.

17. Where after the issue of a notice under Section14 any money or property referred to in the said notice is transferred by any mode whatsoever such transfer shall, for the purposes of the proceedings under this Act, be void and if such money or property is subsequently confiscated to the State Government under Section 15, then the transfer of such money or property shall be deemed to be null and void.

18. (1) Any person aggrieved by any order of the authorised officer under this Chapter may appeal to the High Court within thirty days from the date on which the order appealed against was passed.

(2) Upon any appeal preferred under this section the High Court may, after giving such parties; as it thinks proper, an opportunity of being heard, pass such order as it thinks fit.

(3) An appeal preferred under Sub-Section (1) shall be disposed of within a period of three months from the date it is preferred. Stay order, if any, passed in an appeal shall not remain in force beyond the prescribed period of disposal of appeal.

19. (1) Where any money or property has been confiscated to the State Government under this Act, the concerned authorised officer shall order the person affected as well as any other person who may be in possession of the money or property to surrender or deliver possession thereof to the concerned authorised officer or to any person duly authorised by it in this behalf within thirty days of the service of the order.

(2) If any person refuses or fails to comply with an order made under Sub-section (1), the authorised officer may take possession of the property and may, for that purpose, use such force as may be necessary.

(3) Notwithstanding anything contained in Sub-section (2) the authorised officer may, for the purpose of taking possession of any moneyor property referred to in Sub-section (1), requisition the service of any police officer to assist and it shall be the bounden duty of such officer to comply with such requisition.

20. Where an order if confiscation made under Section 15 is modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or property shall be returned to the person affected and in case it is not possible for any reason to return the property, such person shall be paid the price thereof including the money so confiscated with interests at the rate of twelve per cent per annum thereon calculated from the date of confiscation.”

67. The aforesaid being the statutory provisions, Shri Rath contends that the person affected faces a confiscation proceeding merely because it is so desired by the State Government, and the property will ultimately stand confiscated without the person affected getting full opportunity to have his say, which he would hesitate because the disclosure made in this proceeding will be used against him in the trial. Further, the applicant shall have to prove nothings before the: property is confiscated, as these provisions virtually require the person affected to prove his innocence. What is more, Section 16 which applies to “all the proceedings under the Act” would even operate during trial. A strong submission is advanced about hardship which would follow if the confiscated property is taken possession of even before the person affected is found guilty, as permitted by Section 19, it being no solace to the person affected that the same would be returned to him on his being acquitted by the Special Court, as enjoined by Section 20. As to the mention in Section 20 that the price of the property shall be paid if it be not possible for any reason to return the property, the learned counsel contends that the price which would be offered may be one which was prevailing when the property was acquired and not when it was confiscated. The provisions are thus highly unreasonable, deny full opportunity to the person affected to defend his property, put him in double jeopardy and compel him to be a witness against himself, not to speak of denying his fair trial, at the hand of the Special Court, and, as; such, violative of Articles 14, 20(2), 20(3) and 21, apart from playing foul with natural justice.

68. Shri Rao had a difficult time in trying to protect these provisions fully. The learned counsel ultimately made two important concessions to persuade us to hold the constitutionality, inter alia, of Sections 14 and 16. Restated that though Section 14(1) has used the word ‘shall’ in its opening part, it would be open to the authorised officer not to issue notice if he were of the view that no prima facie case for issuance of notice has been made out. To put it differently, the word ‘shall’ should be read as ‘may’. As to Section 16, the learned counsel, to relieve his discomfiture, ultimately submitted that the initial burden of proving the guilt in the trial would be on the prosecution, and the burden of which Section 16 speaks would not dislodge that burden. We shall take note of these concessions at appropriate place. We have mentioned about these at the threshold to show how indefeasible some of the provisions are as enacted.

69. Shri Rao has done us good by drawing our attention to the nature of confiscation proceeding and how has his proceeding been viewed so far by the apex Court. He states that confiscation is aimed against the goods; it consists in condemnation of goods whereas the trial is aimed against the persons. To apprise us about the above, we are first referred to a Constitution Bench decision in Maqbool Hussain v. State of Bombay, AIR

1953 SC 325, in which tbis aspect of the matter was examined in the context of Article 20(2). That case dealt with the power of confiscation given to sea customs authorities and the Court opined in paragraph 16 that though the customs authorities can impose confiscation as one of the penalties, that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law in respect of which also an option has been given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit. (The proviso to Section 15(3) of the Act also contains a similar provision.) It was further observed in that paragraph that customs officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to anybody. Because of this and similar other provisions, it was pointed out that sea customs authorities are merely constituted as administrative machinery for the purpose of adjudging confiscation. It was then observed in para 17 that such authorities are not judicial tribunals.

70. The second case to be brought to our notice in this connection is a judgment of two learned judges in Divisional Forest Officer v. G.V. Sudhakar Rao, AIR 1986 SC 328, in paragraph 12 of which it was stated that the confiscation proceeding is distinct from trial before court and the power of confiscation conferred on authorised officer (the Court was dealing in that case with the power of authorised officer given by the Andhra Pradesh Forest Act to confiscate goods in relation to which a forest offence has been committed) was not dependant upon whether a criminal prosecution for commission of the forest offence has been launched against the offender or not. Shri Rao brings to our notice particularly what had been stated in para 14 wherein the view taken by a Division Bench of Andhra Pradesh High Court (reported in (1980) 1 Andh LT 8) in the case referred in that paragraph was approved which had gone to the extent of holding that merely because there was an acquittal of the accused in the trial before the Magistrate did not necessarily entail in nullifying the order of confiscation passed by the authorised officer based on his satisfaction that a forest offence has been committed.

71. The learned counsel for the State then draws our attention to some other statutes which permit confiscation of goods. These being; (1) Customs Act, 1962; (2) Essential Commodities Act, 1955; and (3) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, all of which are central enactments. Our attention is also invited to certain provisions finding place in these statutes which show that the power of confiscation has been conferred on administrative officer like customs authorities, District Collector or competent officer appointed by the Central Government. We are brought nearer home by referring to section 56 of the Orissa Forest Act, 1972, as amended, which permits confiscation. Reference is made to two Bench decisions of this Court (Jogender Singh v. State of Orissa, (1990) 70 Cut LT 613, and Sarat Kumar Malu v. State of Orissa, AIR 1992 Orissa 128) in which the provision of the Forest Act conferring power of confiscation was held not to violate Article 14 of the Constitution, nor hit by double jeopardy which is prohibited by Article 20(2) of the Constitution.

72. With the aforesaid in mind, let us examine the merit of the grievances of the petitioners relating to the provisions finding place in Chapter III of the Act. We propose to do so separately qua each grievance.

73. Violation of natural justice.

To decide about this complaint, we have to consider whether what has been provided in Sections 13, 14 and 15 of the Act meet the call of natural justice. To answer this, we may say a few words about what is the requirement of natural justice. The law in this regard is well settled by now and the same can be stated to be that natural justice takes care of fair play in action, which demand that no civil consequences should be allowed to take place without the person concerned having a reasonable opportunity of presenting his case; the three cardinal requirements of which are;

(1) the person affected should know about the nature of the complaint against him; (2) he should be given an opportunity to state his case; and (3) the tribunal must act in good faith. This is what was stated by Barman, J. in Byrne v. Kinematograph Renters Society Ltd., (1958) 2 All ER 579, which was noted with approval in Hiranath v. Rajendra Medical College, AIR 1973 SC 1260. Then, natural justice cannot be put in a strait-jacket and its requirements vary from case to case. Further, the principles of natural justice should not be extended to such an extent as to make it unnatural. As picturesquely stated by Krishna lyer, J. in Board of Mining Examination v. Ramjee, AIR 1977 SC 965 natural justice is “no unruly horse and no lurking land mine”; it is also not a bull in China shop. ‘These being the settled principles, no need has been felt to cite decisions which have established these. It would be enough to refer to the discussion in Chapter III-E “Principles of natural justice — nature and scope” as finding place in the book titled “Writ Jurisdiction under the Constitution” authored by one of us (Hansarla, C.J.) published by N.M. Tripathi of Bombay.

74. Having said as above, let us now see whether what has been provided in Sections 13 to 15 meet the requirement of natural justice as explained above. Shri Rao has contended that the provisions of these sections have taken due care of arbitrariness, prevention of which is one of the principal aims of natural justice, as would appear from what has been stated in the aforesaid chapter in the book on “Writ Jurisdiction under the Constitution”. The learned counsel has advanced this submission because before the authorised officer is approached, the State Government must have (1) “reason to believe” about the commission of the offence; (2) it is the Public Prosecutor who is authorised to make the application, which itself is a kind of safeguard; and (3) the application has to accompany affidavits stating the grounds. According to the learned counsel, there is thus no scope for arbitrariness; more so, when a judicial officer of the Senior Branch of the Superior Judicial Service of the State alone can be appointed as authorised officer, who shall have to apply his mind before ordering for service of notice mentioned in Section 14(l). It is this requirement which led the learned counsel to submit that the word ‘shall’ appearing in Section 14(1) has really to be read as ‘may’, which takes further care of arbitrariness in the matter. Our attention is then invited that Section 18(1) has provided appeal to this Court against the order of authorised officer.

75. Let us see whether what is contended by Shri Rao merits our acceptance. We shall start with the first safeguard, namely, initiation of the proceeding by the State Government on its having “reason to believe”. The expression “reason to believe” is pregnant with meaning. It would be enough to refer to what was stated by Shah, J. as a member of the Constitution Bench in Calcutta Discount Co. v. I.T.O., AIR 1961 SC 372 in para 39, while expressing opinion on the purport of this expression as finding place in Section 34(1) of the Income-tax Act, which had permitted an Income-tax Officer, on his having “reason to believe” that income has escaped assessment or had been under-assessed due to failure to disclose fully and truly material fact, to reopen the assessment. This is what was stated :–

“The expression “reason to believe” postulates belief and the existence of reasons for that belief. The belief must be held in good faith; it cannot be merely a pretence. The expression does not mean a purely subjective satisfaction of the Income-tax Officer; the form of decision as to the existence of reasons and the belief is not in the mind of the Income-tax Officer. If it be asserted that the Income-tax Officer had reason to believe that income had been under-assessed by reason of failure to disclose fully and truly the facts material for assessment, the existence of the belief and the reasons for the belief, but not the sufficiency of the reasons, will be justiciable. The expression therefore predicates that the Income-tax Officer holds the belief induced by the existence of reasons for holding such belief. It contemplates existence of reasons on which the belief is founded, and not merely a belief in the existence of reasons inducing the

belief; in other words, the Income-tax Officer must on information at his disposal believe that income has been under-assessed by reason of failure fully and truly to disclose all material facts necessary for assessment. Such a belief, be it said, may not be based on mere suspicion; it must be founded upon information.”

The aforesaid requirement is thus definitely a valuable safeguard.

76. As to the contended safeguard in athorised officer being moved through the Public Prosecutor, Shri Rath states, and rightly, that this may not be taken as any safeguard against arbitrariness, inasmuch as the Public Prosecutor in such a matter has no Independent role to play, as he has while approaching a criminal court for withdrawing a prosecution as visualised by Section 321 of the Criminal Procedure Code.

77. The same cannot, however, be said about the application being required to be accompanied by one or more affidavits stating the grounds. The submission of Shri Rath in this connection that Section 13(2) has not specified as to the, status of the persons who shall file the affidavits is an argument of despair, inasmuch as it is evident that the affidavit has to be filed by one who has either knowledge or information of the fact affirmed in the affidavit. The status of the deponent has no bearing in the matter; it is his, acquaintance with the fact which counts. As to despairness on the part of the petitioners, may we say that we find no occasion for the same having leading lights of the bar including Shri Rath to defend and protect them.

78. We now come to yet another safeguard mentioned by Shri Rao — the same being that the authorised officer shall apply his mind before ordering for service of notice — which requirement would follow if the word ‘shall’ appearing in Section 14(1) is read as ‘may’. Shri Rath contends that it is not open to us to substitute the words finding place in a statute, as that would be interpolation with the statute which is not permissible; nor can we stretch the language of a statute. This is what has been stated in para 11 of Sankalchan’s case (AIR 1977 SC 2328) (supra) and para 19 of Section Narayanaswamy v. C. Panneeresevalam, AIR 1972 SC 2284, in which what was stated in Heera Devi v. District Board, AIR 1952 SC 362 at page 365 was quoted with approval.

79. As against the above cases cited by Shri Rath, the learned Advocate-General refers us to State of Madhya Pradesh v. Azad Bharat Finance Company, AIR 1967 SC 276, wherein while dealing with the word ‘shall’ as appearing in Section ll(d) of the Opium Act, 1878 as applicable to Madhya Pradesh, it was held that this word does not always signify an obligation to do a thing and the same would depend upon the context in which the word occurs and other circumstances. This is a direct decision on the point at hand. It may also be pointed out that a court has to interpret a statute, as far as possible, agreeably to justice and reason, and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always presumption against the law maker intending injustice and unreason, as stated in para 133 of Madhav Rao Scindia v. Union of India, AIR 1971 SC 530, which is a judgment of a Bench consisting of eleven learned Judges.

79-A. The suggested change being neither a case of “interpolation” nor of stretching the language of the section, but of finding out the true intention of the legislature, which it is always open to the courts to discover, and as acceptance of the submission of Shri Rao would make the statute reasonable and just, we are satisfied that the word ‘shall’ appearing in Section 14(1) has to be understood as ‘may’. This does provide a safeguard to the person affected. In this context, Shri Rao has further submitted that as an appeal to this Court against the order of the Authorised Officer has been provided by Section 18(1), the same would put the authorised officer on guard regarding orders to be passed by him.

80. So, we find that before a person, affected is noticed, the legislature has taken care to see that he is not called upon to face a frivolous proceeding. In this context, it would also be apposite to refer to the decision of Collector of Customs v. Sampathu Chetty,

AIR 1962 SC 316, which judgment was cited with approval in Pukhraj v. D.R. Kohli, AIR 1962 SC1559. A combined reading of these two decisions, the first of which is by a Constitution Bench and the second by a Division Bench, would show that the burden cast by Section 178-A of the Sea Customs Act on the person noticed was held to be permissible in law, because the seizure had taken place on the reasonable belief that the goods were smuggled, as noticed in para 6 of Pukhraj’s case, to which our attention has been invited by Shri Rath. A similar requirement found place in Section 44(2)(a) of the Andhra Pradesh Forest Act permitting confiscation, the reasonableness and legality of which had come up for consideration in Divisional Forest Officer v. G. V. Sudhakar Rao, AIR 1986 SC 328. The Act at hand also satisfies this requirement, inasmuch as the confiscation proceeding can be initiated only on the State Government having reason to believe that the person affected had committed the offence.

81. This being the position, the cases based on reasonable belief alone shall come before the authorised officer, which takes care of the argument that such proceeding shall be initiated only to harass political opponents.

82. Let us now see what opportunities have been made available to the person affected to have his own say to rebut the allegation made against him. A perusal of Sections 14 and 15 shows that all that natural justice requires in this connection has been provided. The primary submission of Shri Rath in this connection is that the persons who had sworn affidavits as required by Section 13(2) are not made available for cross-examination, nor the person affected is allowed to lead evidence, which opportunities have to be extended, without which the assurance of “reasonable opportunity of being heard” given by Section 15(1) would not be meaningful. As to this submission, we say that as natural justice cannot be put in a strait jacket, whose requirements would vary from case to case, the aforesaid two aspects need not exist in all cases to satisfy the demand of natural justice — the same would depend upon facts and circumstances of each case. We may, however, state that we have noted that the aforesaid expression as finding place in Article 311(2) of the Constitution requires the above, as would appear from the Constitution Bench decision in State of Madhya Pradesh v: Chintaman, AIR 1961 SC 1623. (See para 10). But we would not concede this in the cases under the Act. We have taken this view because of what has been stated in the aforementioned case of Harinath and because, as is known, when the Supreme Court and the High Courts are approached under Article 32 and 226 of the Constitution, as the case may be, the entire matter is decided on the basis of affidavits. Of course, writ courts would not like to decide seriously disputed questions of fact; but then, as in all cases coming before these constitutional courts, there would be disputed questions of fact which would be decided on the basis of affidavits, we find no difficulty in the authorised officer also adopting the same approach. Any other view would protract the proceeding and frustrate the very object of the Act, which we would like to avoid to the extent legally permissible, as the Act seeks to achieve the high public purpose of rooting out rampant corruption among the holders of high public and political offices.

83. We are, therefore, satisfied that the; provisions finding place in Sections 13 to 15 of Chapter III are fair, just and reasonable and take care of arbitrariness and provide full opportunity to the person affected to have his say. The demand of natural justice is thus adequately met. We would, however, observe that we have noted one infirmity in these provisions, to which our attention has been invited by Shri Rath — the same being that there may be inhibition in the mind of the person affected to disclose information’, particulars etc. of which mention; has been made in Section 14(1), lest the same may be used against him in the trial which he may be facing or may have to face. What we propose to say in this regard while testing the provisions of Chapter III on the anvil of Article 21 of the Constitution would, however, take care of this inhibition.

84. For the aforesaid reasons, we do no

read violation of natural justice in the provisions as they find place in Chapter III,

85. Contravention of Article 14.

Before expressing our views as to whether there is reasonableness in the very provision of confiscation before the person affected is found guilty by the Special Court, or whether any of the provisions contained in Chapter III is unreasonable, we would state that as the order of confiscation, if passed, would deprive (may be temporarily) the person affected of his property so much so that it would be open to the State Government to take possession, as laid down by Section 19, Article 300-A of the Constitution gets attracted. As is known, that article was inserted by the Constitution (44th Amendment) Act, 1978, which had omitted Article 19(l)(f) dealing with right to hold property from the Constitution. But then, Article 300-A (which deals with right to property) assures: “No person shall be deprived of his property save by authority of law”. The mention of the word ‘law’ in this Article has to mean ‘valid law’; and for a law to be valid, it has to pass, inter alia, the test of Article 14, which would not be so if a provision would be unreasonable, in view of what has been stated in Maneka Gandhi’s case, AIR 1978 SC 597, the law propounded in which has become well entrenched, as fairly admitted by Shri Rao. It is because of this that Chapter III has to assure reasonableness.

86. The act of confiscation, even without the finding of guilt by the Special Court, cannot be regarded as against the law; more so, when Section 20 assures return of the property on the person affected being acquitted by the Special Court. We have taken this view because in Sudhakar Rao’s case, AIR 1986 SC 328, it was held that confiscation proceeding is distinct from trial and the same need not depend upon whether a criminal prosecution has been launched againdt the offender or not. Not only this, the apex Court approved the view taken by the Andhra Pradesh High Court that the mere fact that there was an acquittal did not necessarily entail in nullifying the order of confiscation.

87. The real unreasonableness, which has been impressed upon us, is the action of taking possession by the strength of Section 19, which may throw out the person affected, if he be residing in the property, to streets. It would be no consolation to such a person even if he were to be back in possession after his acquittal by the Special Court. We are quite satisfied that the power conferred by Section 19 to take possession has to be regarded as unreasonable. Ordinarily, we would have, therefore, struck down this section as being violative of Article 14. We are, however, refraining from doing that and instead propose to give an opportunity to the State to appropriately amend Section 19 which, according to us, could lay down that if after confiscation order is passed, it is found that the person affected is residing in the property in question, instead of dispossessing him from the same, he would be given an option to occupy it on condition that he agrees to pay rent to the State and on his refusal to opt, he would be dispossessed as provided in Section 19. The rent to be paid by the person affected could abide the result of the trial. This provision, according to us, subserves the object behind confiscation, the same being to prevent the person affected from reaping the benefit of the property which he had acquired by means of the offence, and to utilise the same for the welfare of the State. We have not mentioned about inserting any provision prohibiting transfer of the confiscated property, because it is apparent that it would not be so done, otherwise the question of its being available for return, as visualised by Section 20, would not arise.

88. We desire to say a few words as to why on our own we have suggested amendment, instead of striking down the section. The reason is that the Act being enacted to achieve laudable object, namely, to take care of rampant corruption among persons holding high political and public offices, which is the result of erosion of values in public life, calling for new value orientation in our life and in our culture, public interest demands that such offenders should be tried with utmost dispatch and that the illgotten property shoud also be confiscated. But then, the same has to be done within the parameters of the Constitution.

88-A. Question is if a court finds that the statute which seeks to achieve the aforesaid object is not constitutionally valid, has the court the only duty and obligation to strike down the provision, or to give an opportunity to take care of the constitutional infirmity? According to us, as protection of larger interest of the society is the raison d’etre of every instrumentality of the State, and the judiciary is one, it has a role of its own to play. Rooting out of corruption among the holders of high political and public offices is definitely an important item of our national agenda inasmuch as with such corruption existing, there cannot be a “social order in which justice, social, economic and political, shall inform all the institutions of the national life”, which type of order is desired to be ushered in by Article 38 of the Constitution. Article 37 would, therefore, require even the judiciary to contribute its mite in this regard to the extent permissible; it being also, as already stated, an organ of the State.

88-B. So, we have suggested the amendments at the call of, what we would like to say, participative justice. May we say that what we have done is nothing very unusual as in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the Supreme Court itself after having found certain provisions of the Administrative Tribunals Act, 1985 as invalid gave opportunity to bring out necessary amendment to take care of the invalidity. We also do so and give one month’s time from today to the State to do the needful,

89. The only other unreasonableness urged by Shri Rath is that the price which would be paid to the person affected in case it would not be possible to return the property for a.ny reason, as stated in Section 20, may not be the market price as prevailing on tiic date of confiscation, but may be one fixed arbitrarily. Shri Rath assumes full form and, while drawing our attention to these provisions relating to confiscation as finding place in the Act, contends (in which he is fully joined by Shri Palit am.) Shri Mohapatra) that the entire purpose of the Act is to harass the person effected, inasmuch as he is deprived of his property before being found guilty; and what is more is that the Act desires hurrying up of the confiscation proceeding by requiring the authorised officer to dispose of the same within a period of six months from the date of service of notice under Section 14(1) as mentioned in Section 15(5). Not only this, the legislature has fixed a time limit for disposal of appeal by this Court, which is three months from the date it is preferred, as would appear from Section 18(3) of the Act, and a limit of three months has been placed for the operation of stay order, if any, passed in appeal. No concern for dispatch has, however, been shown about the trial for which no time limit has been fixed, similar to the one finding place in Section 86(7) of the Representation of the People Act, 1951.

90. Shri Rao replies by submitting that as confiscation is a known provision in various other statutes, the mere fact that a property is confiscated cannot be taken to be an unreasonable provision. Indeed, according to the learned counsel, the provisions at hand are rather liberal inasmuch as on acquittal, return of the property is assured, which would not be legally required in view of what was stated in Sudhakar Rao’s case (AIR 1986 SC 328). We may, however, point out that return of the property in case of acquittal is not the provision only in the Act, but Section 6-A(3)(c) of the Essential Commodities Act, 1955 also visualises the same. As to the price which would be paid in case the property be not available for return, Shri Rao first contends that in normal course the immovable property would be available for return unless the same has been destroyed by force of nature or by vis major; and in case it be not available, the price of which Section 20 speaks is the market price which prevailed on the date of confiscation.

90-A. As to fixation of time limit of the stay order, if any passed in appeal – same being three months, Shri Rao states that this provision would not preclude passing of further stay order if a case for the same were to be made out. As regards non-fixation of time limit for completing trial, Shri Rao summits that Section 11 having stated that the Special Court shall not adjourn any trial unless the condition mentioned therein is satisfied, the legislature did not think it

necessary to put time limit. That may be so; but it is not enough that fairness and reasonableness exist, it must seem to exist also. The Act having fixed time limit even for disposal of appeal by this Court could have done so for the trial as well. Not that would have ensured completion of trial within the period fixed (evident from prolongation of election disputes in High Courts much beyond the period of six months mentioned in Section 86(7) of the aforesaid Act); but the adverse comment in question would not have then been made.

91. Having given time to amend Section 19 as indicated above, we reserve our order on the contention regarding violation of Article 14 and postpone to do so after hearing further, for which purpose order is being passed at the end.

92. Disregard of Article 20(2).

This takes us to the contention relating to violation of Article 20(2). As to this, the submission of Shri Rao is that this Article is not attracted first because confiscation proceeding is not ‘prosecution’; secondly because condemnation of goods is not a ‘punishment’; and thirdly, the authorised officer is not a court. To support him in this regard, reliance is placed on a Constitution Bench decision in Assistant Collector of Customs v. L. R. Melwani, AIR 1970 SC 962, in para 7 of which after referring to Maqbool Hussain’s case (AIR 1953 SC 325) (supra), it was stated that a confiscation proceeding in that case which had been taken by the Collector of Customs as permitted by Section 167(8) of the Sea Customs Act was not a ‘prosecution’ nor was the Collector a ”court’; nor was the order of confiscation a’punishment’; because of which it was held that Article 20(2) has no application and subsequent prosecution would not be barred. We are also reminded that this Court in jogender Singh’s case (1990 (70) Cut LT 613) has held qua confiscation proceeding under the Orissa Forest Act that the same is not hit by double jeopardy. We accept this submission of Shri Rao and hold that the confiscation proceedings in Chapter III are not hit by Article 20(2).

93. Denial of protection of Article 20(3)

The next fundamental right which is said to have been violated by the provisions of this chapter is Article 20(3). Shri Rath states that as the person affected is called upon to indicate in reply to the notice served on him as required by Section 14(1) of the Act, “the evidence on which he relies and other relevant informations and particulars”, the same would show that the person affected is being compelled to give evidence against himself which would violate Article 20(3) of the Constitution.

94. The scope and width of this article has been subject-matter of a long line of decisions of the apex Court. Shri Rath first refers in this connection to M. P. Sharma v. Satish Chandra, AIR 1954 SC 300, in which a Bench of eight learned Judges being required to decide whether issuance of search warrant followed by seizure of documents from accused infringes Article 20(3) dealt at length with the scope of protection given by this article which was stated to prohibit “testimonial compulsion”, as stated in para 10. It was held that the guarantee that a person shall not be compelled to be a ‘witness’ is notconfined to giving of oral evidence but furnishing of evidence also by way of producing documents. It was stated that “to be a witness” is nothing more than “to furnish evidence”. Shri Rath submits that this is precisely what the person affected is required by Section 14(1) of the Act as he is called upon to furnish evidence on which he seeks to rely in support of his case.

95. We are then referred to Nandini
Satpathy v. P. L. Dani, AIR 1978 SC 1025, in
which Krishna lyer, J. laid bare the entire
ethos of the article in his inimitable style. Shri
Rath who had himself argued before the apex
Court in that case submits that one of the
facets of Article 20(3) is right to silence which
has been violated in the present case, as under
threat of confiscation the person affected is
forced to speak which would be compelled
testimonial. Paras 41, 48 and 53 of the
aforesaid judgment are read out in this
connection to us.

96. Shri Rao in defending the provision contends that Article 20(3) has not been violated

because the person affected is not being compelled to be a witness against himself. We are referred in this connection to the decision in State of Bombay v. Kathi Kalu, AIR 1961 SC 1808, which is a rendering by eleven learned Judges of the apex Court, in para 32 of which it was held that even when an accused is asked to give his specimen handwriting or impression of his finger, he is not being compelled to be a witness against himself. We are then referred to what was stated in para 36 which is to the effect that where the accused gives the concerned information without any compulsion, it cannot be said that he had been “compelled to do so”. The view taken in para 37 is that the word ‘compelled’ has an element of constraint or coercion in the physical sense. Whether inducement or promise would also amount to compulsion was, However, not decided.

97. Relying on the above legal position, Shri Rao contends that when the person affected is permitted by Section 14(1) to indicate the evidence on which he relies and other relevant informations and particulars, he is neither being ‘compelled’ and not at all to do so against himself. The learned counsel submits that the person affected has a choice to remain silent despite service of notice. In this connection Shri Rath has referred us to what was stated in para 48 of Nandini Satpathy’s case (AIR 1978 SC 1025) regarding the connotation of ‘compulsion’, the same being that compulsion consists of ‘duress’ which includes threat also, and that as the person affected is under threat that his property shall be confiscated if he would not prove that the same had not been acquired by legal means, he is under threat to speak and to furnish evidence. Even if it were to be conceded that the notice to confiscate can be regarded as threat, we are of the view that the option given to the person affected to indicate his evidence etc. is not to compel himself to be a witness against himself, instead to help himself. Shri Rap is right in submitting that if ‘the particulars of the type visualised” by Section 14(1) wire-not to be given,’ the grievance would have been that natural justice has been violated; and so, an opportunity of being heard being given, it does not really lie in the mouth of the petitioner to contend that Article 20(3) is violated.

98. In our opinion, the submission of Shri Rao has to be accepted as it has been clearly stated by the Full Bench in Kathi Kalu’s case, (AIR 1961 SC 1808) at p. 1815 that if the information given is not self-incriminatory, the question of counter of Article 20(3) does not arise. The opportunity made available to the person affected by Section 14(1) is not to incriminate him, but to exculpate; and so, the information etc. furnished would not be self-incriminatory, but self-exculpatory. So, the concerned provision does not violate Article 20(3).

99. Flouting of Article 21

Article 21 has spread its wings far and wide like Article 14. Though Article 21 contains a short provision, hardly ever such a provision has made so long strides as this Article. The present is not an occasion to go into details as to how Article 21 stands at the apex point of the golden triangle formed by Articles 14, 19 and 21. It is enough for the purpose of cases at hand to say that if a person faces a trial, which may result in his conviction followed by imposition of sentence, the same has to be fair. This is not disputed by Shri Rao. Let us, therefore, see whether the provisions as contained in Chapter III ensure fair trial or mocks at, and knocks down fairness. Mockery is writ large, as section it states:-

“Burden of proof — In any proceedings under this Act, the burden of proving that any property specified in the notice served under Section 14 is not required by means of the offence shall be on the person affected.”

100. The aforesaid is against all canons of fair trial as is this facet of Article 21 understood and accepted by the people of this country, who gave to themselves the Constitution which contains Article 21. Before we unfold our reasons for this view taken by us. let it be put on record that on a specific question being asked to Shri Rao as to whether Section 16 takes care of proceedings relating to confiscation alone inasmuch as that section finds place in

Chapter III dealing with “Confiscation of Property”, the clear answer was that this section would apply not only to confiscation proceedings but to the trial also which the person affected would face before the Special Court. We may incidentally mention that when the learned Advocate General took his stand while replying to some of the submissions advanced by the learned counsel for the petitioners, he did make a statement that Section 16 is confined to confiscation proceedings. But in view of the categorical stand taken by Shri Rao, we take it that Section 16 is meant to apply during the course of trial also.

101. The property of which mention has been made in Section 16 is the one which has been specified in the notice served under Section 14; and if that section is read with Section 13, it would be clear that the property is one which has been acquired by means of the offence. The result is that Section 16 places the burden on the accused during the trial to prove that he had not acquired the property by means of the offence to establish which he shall have to first prove that he had not committed the offence. So, the trial is one where the entire burden of proving innocence is on the accused, as against the established principle of criminal law of this country that it is the burden of the prosecution to establish the guilt; it being optional to the accused to lead such evidence as is deemed necessary by him to support his defence.

102. When the case was argued by Shri Rao. he was asked by the Court whether he really supported Section 16. Though at one stage he did take a stand that Section 16 did not violate Article 21, the learned counsel realised that he had not been true to his conscience and fair to the Court in taking this tand and so submitted subsequently that in the trial before the Special Court, the initial burden of proving the guilt relating to the offence would be on the prosecution. To put it differently, Shri Rao agreed that in the trial it shall be the burden of the prosecution to establish all the neccssary ingredients required to bring home the offence under Section I3(l)(e) — the same being; (i) nature and extent of the pecuniary resources or property Sound in the possession of the accused (ii) his known sources of income; and (iii) the property found in the possession of the accused was disproportionate to his known sources of income. These are the three of the four facts mentioned in para 13 of State of Maharashtra v. Wasudeo Ramachandra, AIR 1981 SC 1186. We have not mentioned about the fourth fact, which is to establish that the accused is a public servant, which in the cases to be tried by the Special Court would perhaps be an admitted position; if not, the same shall have to be established by the prosecution.

103. Section 16 has no use in so far as confiscation proceedings are concerned inasmuch as Sections 14 and 15 adequately provide as to what the person affected is required to do on notice being served on him. We have already dealt with the opportunities which Sections 14 and 15 have made available to the person affected in having his say in the matter on the notice being served on him. Section 16 is redundent so far as confiscation proceedings are concerned.

104. In view of what has been stated above, we hold that Section 16 is violative of Article 21 and we strike down the same. This would not, however, affect the procedure mentioned in Chapter III dealing with confiscation of property and, as such, despite Section 16 being struck down, Chapter III would remain functional.

105. Article 21 peeps in through another window also; the same is the apprehension of the person affected that if he were to mention in his reply to the notice even about the evidence on which he relies and other relevant information and particulars in support of his case that the property in question had not been acquired by means of the offence, these offences of material may be used against him in the trial, because of which the trial to be faced by him would be, as it is called, a loaded trial. But then, if he does not disclose the same, it may be that the authorised officer holds that the property in question had been acquired by means of the offence, because of which he would not get full opportunity to have his say before the authorised officer. The person affected is thus in a dilemma. He cannot afford not to disclose the evidence,

information and particulars of which Section 14(1) speaks; and if he discloses, he faces the trial which would be loaded against him.

106. The aforesaid predicament is real. But then, if Section 14(1) would not allow the person affected to have his say in the matter, that section may be held to be violative of the principles of natural justice and as such violative of Article 14. The State is also thus in a predicament, inasmuch as if it does not allow the person affected to have his full say, the provision may be violative of Article 14; but if it allows, the wrath of Article 21 is incurred.

107. Being confronted with the aforesaid predicament of both the sides and being of the view that the Act is aimed at achieving a laudable object, we have deemed it fit to suggest that if Section 14 were amended to state that the evidence, information and particulars which the person affected would bring on record before the authorised officer shall not be used against him in the trial before the Special Court, the same would take care of the predicament of both the sides and would protect the concerned provision from being hit by Articles Hand 21. We have noted that a provision of such a nature finds place in Section 6 of the Commissions of Inquiry Act, 1952, which has provided : “No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement”. We are suggesting this amendment for the reason already indicated and give one month’s time for this amendment also. We would express our final view qua violation of Article 21 along with our opinion regarding contravention of Article 14 after hearing the cases further as pointed out earlier.

108. Only one more submission relating to this Chapter remains to be dealt with. The same is that the finding of the authorised officer relating to acquisition of the property by means, of the offence, if against the person affected, would be used against him in the trial, which would prejudice the concerned person. As to this, we would observe that initiation of confication proceeding without awaiting the result of the trial cannot be avoided. But then, what weight, if at ail, shall be given to the finding of the authorised officer is a matter to be decided by the Special Court. This does not come within our domain in the present proceeding.

109. Whether there is any infirmity in the nomination of Hon’ble Justice A. Pasayat to preside over the Special Court?

This point was taken by way of filing an amendment petition to O.J.C. No. 5647/92 to contend that the nomination is not in accordance with what has been provided in Rule 3 of the Rules. In the counter affidavit filed by the opposite parties to this petition for amendment, it has, however, been stated that the requirements of both Sub-rule (1) and Sub-rule (2) of rule 3 were duly complied with before the nomination of the Hon’ble Judge. To support this contention, a communication of the Under Secretary to the Government of India in the Ministry of Law & Justice addressed to the Secretary to the Home Department, Government of Orissa, was enclosed as Annexure D, which states that the President is pleased to request Shri Justice Pasayat to function as the Presiding Judge of the Special Court. This communication is dated 3-11-1992 whereas the nomination is dated 1-12-1992. In view of this, we do not find any infirmity in the nomination of the Hon’ble Judge to preside over the Special Court.

110. Does the nomination of Shri G. Narasingham suffer from any illegality?

As Shri Narasingham has been nominated in pursuance of Sub-section (a) of Section 2 of the Act, as would appear from the notification No. 1848/C dated 31-3-1993 and as we have held this section to be violative of Article 235 of the Constitution, it is apparent that though the notification states about consultation with the High Court, nomination of Shri Narasingham has to be held as illegal, also because such nomination is not with the consent of the High Court but only after consultation with it, whereas law required consent.

111. Because of the above, we are not
addressing ourselves to another submission advanced relating to the infirmity in the appointment of Shri Narasingham as authorised officer while holding the post of Legal Remembrancer and ex-efficio Additional Joint Secretary, Law Department. This apart of the attack is on the ground that while discharging this function in the Department, Shri Narasingham remains under the control of the Law Minister who has been taking “unusual interest” in the matter. It is submitted that it is the Law Minister who is the accepting authority of the confidential character roll of Shri Narasingham insofar as his work in the Law Department is concerned, because of which the petitioners reasonably apprehend that they may not get full justice at the hands of Shri Narasingham.

112. This submission has been countered by Shri Rao by contending that Shri Narasingham being a judicial officer of the rank of District Judge, it would be too much to contend that to please the Law Minister he would go out of his way. It is also contended that the Law Minister being the accepting authority cannot cause any harm to Shri Narasingham, even if the former would like, which he would not, if the reporting officer, who is the Law Secretary, and the countersigning officer, who is the Chief Secretary, were to speak well of Shri Narasingham.

113. We do not propose to express any view on this aspect having held the appointment of Shri Narasingham as illegal. The point urged relating to bias does not, however, seem to be unfounded, as what has to be looked into in this context is not actual bias but reasonable likelihood of the same.

114. Whether the notice issued by the Special Court to Shri Sachidananda Misra suffers from any constitutional or legal infirmity?

Shri Mukherjee appearing for Shri Misra has advanced two contentions in this regard. The first is that the classification of affected persons holding high public office, is not reasonable. This question, however, is not res Integra, as in the aforesaid two decisions of the apex Court relating to the (Central) Special Courts Bill, 1978 and the Special Courts Act, 1979, this question has been answered by stating that this classification is reasonable and constitutionally permissible.

115. In view of the above, the fact that only class I officers have been regarded as holders of high public offices to be dealt with by the Act leaving out class II, III and IV officers, cannot be a ground to strike down the classification. We may further add that class I officers have to be regarded as holders of high public offices. We do not, therefore, find any constitutional or legal infirmity in the notice said to have been issued by the Special Court to Shri Misra.

116. Stage has come to conclude and we do so by summarising our views as below on the contentions advanced before us :-

(1)The Act is not hit by Article 14 of the Constitution.

(2) Section 2(a) violates Article 235.

(3) Section 3(2) does not play foul with Article 21.

(4) The word ‘shall’ in Section 4 of the Act does not mean that the Special Court has to take cognizance; it would do so on it being satisfied about the matter. That word connotes that it is the Special Court alone which can take cognizance of the cases specified in the Act.

(5) Section 5 of the Act without the words “and that the said offence ought to be dealt with under the Act” finding place in subsection (1) passes the test of Article 14. The quoted part of the section offends Article 14 and shall not be deemed to be a part of the section.

(6) The word ‘shall’ in Section 14(1) has to be read as ‘may’, because of which the authorised officer shall order for issue of notice only on his being satisfied that a prima facie case for issuance of notice has been made out on the basis of materials placed before him.

(7) Section 16 is violative of Article 21 and so has been struck down,

(8) The provisions contained in Chapter III are not violative.of Arts. 20(2) and(20(3),.nor of natural justice. Whether these.contravene. Articles 14 and 21 shall be decided when the cases shall be taken up for further hearing after a month which is the time given for effecting certain amendments in this Chapter

as indicated in the judgment.

(9) The provision in Section 18(3) limiting the operation of stay order, if any, passed in appeal for a period of three months does not prohibit passing of fresh stay order beyond that period, if a case for the same were to be made out to the satisfaction of the court.

(10) The word ‘price’ in Section 20 means market price as prevailing on the date of confiscation.

(1l)The nomination of Hon’ble Justice A. Pasayat to preside over the Special Court suffers from no infirmity.

(12) The nomination of Shri G. Nara-singham as authorised officer is illegal. No opinion has been expressed on the contention relating to bias.

(13) The notice issued by the Special Court to Shri Sachidananda Misra, petitioner in O.J.C. No. 4429 of 1993, does not suffer from any constitutional or legal infirmity.

117. We put on record our appreciation for the valuable assistance rendered to us by the learned counsel of all the parties, and the fair stand taken by Shri Rao on many points, especially relating to Section 16 of the Act.

118. The cases shall be fixed for further hearing after a month when we shall be informed whether the provisions of Chapter III have been amended; if so, how? We shall then record our opinion on the question whether the provisions of Chapter HI as these would be found when the cases shall be taken up for further hearing, violate both Arts. 14 and 21 or any one of these.

R.K. Patra, J.

119. 1 agree.