REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL   APPEAL NO. 1925 OF 2008

State of Maharashtra        … Appellant  

  Vs.

Abu Salem Abdul Kayyum Ansari  & Ors.           …  Respondents  

JUDGMENT

R.M. LODHA, J.

The question which this Court has to arrive at a conclusion in  

this  criminal  appeal  preferred  by  the  State  of  Maharashtra  under  

Section 19 of the Terrorist and Disruptive Activities (Prevention) Act,  

1987  ( for short ‘TADA Act’),  is whether,  the  accused has a right to  

cross examine an accomplice  who  has been tendered in evidence  

by the prosecution as approver   but later on pardon tendered to him  

was   withdrawn  on  a  certificate  of  the   Public  Prosecutor  under  

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Section  308  of  the  Code  of  Criminal  Procedure,  1973  (for  short,  

‘Cr.P.C.’)  and he (approver) has not been further examined by the  

prosecution as its witness.   

2. The aforesaid question arises in  this  way.    A  certain  

Pradeep Jain (builder)  was allegedly eliminated by hired gangsters  

on March 7, 1995 and his brother Sunil  Jain was attempted to be  

killed on that day for  not succumbing to the pressure  of parting with  

their landed property situate in Mumbai   A  crime being CR No. 145  

of  1995  was  registered  with  D.N.  Nagar  Police  Station,  Mumbai.  

After completion  of investigation,   initially few persons were arrested  

and they were  charge sheeted  and tried for the offences  punishable  

under Sections 302, 307, 120B, 23, 114 IPC,  Sections 3, 25(1B)(a),  

5, 27  of the Arms Act and  Sections 3(2)(i), 3(2(ii),  3(3), 3(5), 5, 6  of  

TADA Act by the Judge, Designated  Court,  Mumbai.  The present  

respondents could not be tried as they were absconding.  The Judge,  

Designated Court,  vide judgment  dated August  5,  1997  acquitted  

the accused who were  tried.    The State of  Maharashtra   carried  

appeal in the matter before this Court  and  vide judgment dated July  

11, 2001, this Court  partly set aside the judgment  of   the Judge,  

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Designated Court, Mumbai  and convicted  some of the accused who  

were tried.   

3. On  September  18,  2002   Abu  Salem  Abdul  Kayyum  

Ansari (respondent No. 1)  and one Monika Bedi were  arrested in  

Portugal.  They were extradited and brought to India.  The  extradition  

was granted for respondent no. 1 in respect of Pradeep Jain  murder  

case, Bombay Bomb Blast case and Ajit Diwani murder case.  On  

November 11, 2005, as soon as the respondent no. 1 was brought to  

India, he was  arrested by Central Bureau   of Investigation (CBI) in  

Bombay Bomb Blast case and later on he was taken into custody by  

Anti  Terrorist  Squad,  Mumbai   in  connection  with  Pradeep  Jain  

murder case.   The respondent no.1 was charged along with Mohd.  

Naeem  Abdul  Rahim  Khan  (respondent  no.  2),  Riyaz  Ahmed  

Siddique  (respondent  no.  3),  Mohd.  Hassan  Mehendi  Hassan  

(respondent no. 4) and Virendrakumar Biharilal Jhamb (respondent  

no. 5), having conspired in Dubai with few others to murder Pradeep  

Jain  and  that  in  pursuance  of  this  conspiracy,  Pradeep  Jain  was  

murdered on March 7, 1995.  On April 28, 2006, the police submitted  

charge  sheet  against  the  present  respondent  nos.  1  to  5   and  

accordingly  TADA Special  Case No. 1 of 2006 began before the  

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Court  of   Designated  Bombay  Blast  Cases,  Greater  Mumbai  (for  

short, `Designated Court’) .  

4. On July  3,  2006,  the  respondent  no.  3  (Riyaz Ahmed  

Siddique)  addressed a  letter  to  Assistant  Commissioner  of  Police,  

Anti Terrorist Squad (I.O.) expressing  his desire to  disclose truly and  

fully  the facts pertaining to  conspiracy which had   taken place    at  

Dubai in connection with the murder of Pradeep Jain.     

5. On  July  7,  2006   the  Investigating  Officer   made  an  

application under Section 307 Cr.P.C.  before the  Designated  Court  

that the respondent no. 3 may be tendered pardon on his readiness  

and  willingness  to  disclose  true  and  correct  facts  about  the  

conspiracy hatched by them for  the murder of Pradeep Jain.   

6. On  July  18,  2006   the   Designated  Court  tendered  

pardon  to  the  respondent  no.  3  under  Section  307  Cr.P.C.   and  

permitted the prosecution to examine him as witness in the trial.  In  

that order, the Designated Court noted that the approver is supposed  

to depose true and correct facts pertaining to the crime  and that he  

(approver)  has accepted the pardon with that  condition.   

7. On September 18, 2008, the respondent no. 3 (approver)  

was called as witness for the prosecution; he went into the witness  

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box to give evidence but after some time, he  requested the Court to  

adjourn  the  matter  as  he was  observing Ramzan fast  and feeling  

weak.  The next day i.e. September 19, 2008,  further deposition of  

approver   began  but  the  Special  Public  Prosecutor  realized  that  

witness was not desirous of telling the Court about conspiracy that  

led to the murder of Pradeep Jain.  The Special Public Prosecutor put  

a specific question to the approver as to whether  he wanted to tell  

the Court about the conspiracy of Pradeep Jain murder to which his  

answer   was  in  the  negative.     Immediately,  the  Special  Public  

Prosecutor  issued a certificate under  Section 308 Cr.P.C.  that  the  

approver has not complied with the condition on which pardon was  

tendered to him and,  therefore,  he may be tried separately.      The  

order dated  September 19, 2008  to the extent  it is relevant reads as  

follows:   

“ ……… The Id Spl. PP files certificate u/sec. 308 of  Cr.P.C.  conveying  that  the  approver  witness  Riyaz  Ahmed  has  committed  breach  of  conditions  of  the  Pardon and the Pardon may be withdrawn and will be  tried for same offence separately . . . . . . . .”

The matter was then adjourned to September 23, 2008.    

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8. On  September  23,  2008,  the   Designated  Court  

passed the following order:   

“………… Mr. Sudeep Pasbola requests the court to  allow  him  to  cross  examine  the  approver  who  is  certified by the Id. Spl. PP to have committed breach  of conditions of Pardon.  

The  Id.  Spl.  PP  opposes  the  said  request  on  the  ground  that  once  the  PP  forfeits  the  pardon  the  witness relegates back to the status of accused to be  tried  separately  for  the  same  offence  and  as  such  looses  his  status  as  witness  of  the  prosecution,  therefore, his entire evidence though  till be on record  but cannot be used for any purpose and as such the  question of  cross examining such hostile  witness by  other accused does not arise.  

Mr. Pasbola submits that merely withdrawal of pardon  by  the  Id.  Spl.  PP  is  not  sufficient  to  transpose  approver  as  an  accused  and  his  evidence  so  far  recorded cannot be taken away from record.  It is not  law that if the witness does not support the prosecution  he is always telling lies.  The witness may not support  the  prosecution  in  the  very  language  it  wants  and  therefore, the evidence  recorded by the Court  in the  proceedings cannot be wiped out.   

Adv. Shri Pasbola has relied on 1978 Cr.L.J. NOC 126  Andhra  Pradesh  wherein  the  Hon’ble  Court  has  observed that accused are entitled to cross examine  the approver with regard to his statement u/sec. 162 of  Cr.P.C.

In  the  present  case,  the  statement  of  approver  i.e.  Riyaz Ahmed Siddiqui  is  not  recorded after  grant  of  Pardon as Pardon is granted u/sec. 307 of Cr.P.C. by  a  Sessions  Judge  and  therefore,  no   question  of  recording any evidence in Committal Court did arise.  However, the confessional  statement of said witness  u/sec.  15 of  TADA  Act  was  also recorded after  his  

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arrest while his statement u/sec. 161 of Cr.P.C. was  also  recorded.   In  ordinary  course   if  the  witness  becomes hostile the prosecution and the defence both  are entitled to cross examine him.  The evidence of  hostile witness   cannot be thrown away out right.  The  court can use it in favour of prosecution or defence to  the extent it  supports them and after weighing it  can  accept it partially in favour of any of the parties to the  trial.  Thus if the law says that the entire evidence of  hostile  witness  can  not  be  ignored  and  still  can  be  used  there  is  no  reason  to  block  the  defence  from  cross  examining  such  witness  who  in  view  of  prosecution is of no value for it  since he declines to  support the prosecution.  Once the person enters into  the  witness  box  as  a  witness  the  record  of  his  deposition  remains  to  be  recorded  of  evidence  of  witness and as such accused is entitled to exercise his  rights conferred on him by virtue of Sec. 162 of Cr.P.C.  to contradict him with his previous statements.  While  the  prosecution can not do so even if its witness turns  hostile.   The  prosecution  has  only  choice  to  bring  supporting material through the cross examination by  Id.  Public  Prosecutor.   What  action  is  to  be  taken  against the approver who commits breach of condition  of  Pardon is  to  be decided later  on as Sec.  308 of  Cr.P.C.  says that such person may be either tried for  offence  in  respect  of  which  the  pardon  was  so  tendered  or  for  any  other  offence  which  appears  to  have been committed by him and also for giving false  evidence.  So the stage to decide which mode is to be  adopted against   such an approver is  yet  to come.  However,  simply  because  prosecution  disowned  its  witness he does not loose a status of witness unless  prosecuted separately in view of provisions of Section  308 of  Cr.P.C. and as such accused has every  right  to  cross  examine  such a  witness.   The  question  of  probative  value  of  his  evidence  is  distinct  one.  However, in my opinion the defence has statutory right  to cross examine the hostile witness or approver and  as such accused in this case are entitled to exercise  the right by cross examining the  witness Riyaz Ahmed  Siddiqui .”  

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9. The State of Maharashtra is aggrieved by the above  

order whereby  permission has been granted to the defence to  

cross examine the respondent no. 3.

10. Section 306  of Cr.P.C. makes a provision for tender of  

pardon to accomplice.  It reads as follows:-

“S.-306. -Tender of pardon to accomplice. –

(1) With a view to obtaining the evidence of any person  supposed to have been directly or indirectly concerned  in or privy to an offence to which this section applies,  the  Chief  Judicial  Magistrate  or  a  Metropolitan  Magistrate at any stage of the investigation or inquiry  into, or the trial of, the offence, and the Magistrate of  the  first  class  inquiring  into  or  trying the  offence,  at  any, stage of the inquiry or trial, may tender a pardon  to such person on condition of his making a full  and  true  disclosure  of  the  whole  of  the  circumstances  within  his  knowledge  relative  to  the  offence  and  to  every other person concerned, whether as principal or  abettor, in the commission thereof.

(2) This section applies to –

(a)  any  offence  triable  exclusively  by  the  Court  of  Session or by the Court of a Special Judge appointed  under the Criminal Law Amendment Act, 1952 (46 of  1952).

(b) any offence punishable with imprisonment,  which  may  extend  to  seven  years  or  with  a  more  severe  sentence.

(3) Every Magistrate who tenders a pardon under sub- section (1) shall record –

(a) his reasons for so doing;

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(b) whether the tender was or was not accepted by the  person to whom it was made,

and shall, on application made by the accused, furnish  him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made  under sub-section (1) –

(a) shall be examined as a witness in the court of the  Magistrate taking cognizance of the offence and in the  subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in  custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon  made under sub-section (1) and has, been examined  under  sub-section  (4),  the  Magistrate  taking  cognizance of  the offence shall,  without  making any  further inquiry in the case –

(a) commit it for trial –

(i)  to  the  Court  of  Session  if  the  offence  is  triable  exclusively  by  that  court  or  if  the  Magistrate  taking  cognizance is the Chief Judicial Magistrate;

(ii)  to  a  court  of  Special  Judge appointed  under the  Criminal Law Amendment Act 1952 (46 of 1952), if the  offence is triable exclusively by that court;

(b) in any other case, make over the case to the Chief  Judicial Magistrate who shall try the case himself.”

11. Section 307 Cr.P.C. provides that at any time after  

commitment  of   a  case  but  before  judgment  is  passed,  the  

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Court to which the commitment is made may,  with a view to  

obtaining at  the trial the evidence of any person supposed to  

have been directly or indirectly concerned in, or privy to, any  

such offence,  tender a pardon on the same condition to such  

person.  

12. Section  308 provides for  the  trial  of  the  approver  

who has accepted tender of  pardon but fails to comply with the  

condition of pardon.  The said provision reads as under:-  

“S.  308.-  Trial  of  person  not  complying  with  conditions of pardon.

(1) Where, in regard to a person who has accepted a  tender of pardon made under section 306 or section  307, the Public Prosecutor certifies that in his opinion  such person has, either by willfully concealing anything  essential or by giving false evidence, not complied with  the  condition  on  which  the  tender  was  made,  such  person may be tried for the offence in respect of which  the pardon was so tendered or for any other offence of  which he appears to have been guilty  in  connection  with the same matter, and also for the offence of giving  false evidence:

Provided that such person shall not be tried jointly with  any of the other accused:

Provided further that such person shall not be tried for  the  offence of  giving  false evidence except  with  the  sanction of the High Court, and nothing contained in  section 195 or section 340 shall apply to that offence.

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(2) Any statement made by such person accepting the  tender of pardon and recorded by a Magistrate under  section  164  or  by  a  court  under  sub-section  (4)  of  section 306 may be given in evidence against him at  such trial.

(3) At such trial, the accused shall be entitled to plead  that  he has complied with  the condition upon which  such tender was made, in which case it shall be for the  prosecution to prove that the condition has not been  complied with.

(4) At such trial the court shall-

(a) if it is a Court of Session, before the charge is read  out and explained to the accused;

(b) if it is the court of a Magistrate before the evidence  of the witnesses for the prosecution is taken,  

ask  the  accused  whether  he  pleads  that  he  has  complied with  the conditions on which  the tender of  pardon was made.

(5) if the accused does so plead, the court shall record  the plea and proceed with the trial and it shall, before  passing judgment in the case, find whether or not the  accused  has  complied  with  the  conditions  of  the  pardon, and, if it finds that he has so complied, it shall  notwithstanding anything contained in this Code, pass  judgment of acquittal.”

13. The salutary principle of tendering a pardon to an  

accomplice is to unravel the truth in a grave offence so that guilt  

of  the  other  accused  persons  concerned  in  commission  of  

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crime could be brought home.  It has been repeatedly said by  

this Court that the object of Section 306 is to allow pardon in  

cases  where  heinous  offence  is  alleged  to  have  been  

committed  by  several  persons  so  that   with  the  aid  of  the  

evidence of  the person granted pardon,  the  offence may be  

brought home to the rest.  Section 306 Cr.P.C. empowers the  

Chief Judicial  Magistrate or a Metropolitan Magistrate to tender  

a  pardon  to  a  person  supposed  to  have  been  directly  or  

indirectly  concerned  in  or  privy  to  an  offence  to  which  the  

section applies, at any stage of the investigation or inquiry or  

trial of the offence on condition of his making   a full and true  

disclosure  of  the  whole  of  the  circumstances  within  his  

knowledge relative to the offence.   The  Magistrate of the first  

class, under Section 306, is also empowered  to tender pardon  

to an accomplice at any stage of inquiry or trial  but not at the  

stage of investigation on condition of his making full and true  

disclosure  of  the  entire  circumstances  within  his  knowledge  

relative  to the crime.    Section 307 vests  the court to which  

the commitment is made, with power to tender a pardon to an  

accomplice.  The expression, ‘on the same condition’ occurring  

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in Section 307, obviously refers to  the condition  indicated in  

sub-section (1) of  Section 306, namely, on the accused making  

a  full  and true  disclosure  of  the  whole  of  the  circumstances  

within his knowledge relative to the offence and to every other  

person  concerned,  whether  as  principal   or  abettor,   in  the  

commission  thereof.   An  accomplice  who  has  been  granted  

pardon under Section  306 or 307 Cr.P.C. gets protection from  

prosecution.   When   he  is  called  as  a  witness  for  the  

prosecution,  he must comply  with the condition of making a  

full and true disclosure of the whole of the circumstances within  

his  knowledge  concerning  the  offence  and  to  every  other  

person  concerned,  whether  as  principal  or    abettor,  in  the  

commission  thereof  and  if  he  suppresses   anything  material  

and essential within his knowledge concerning the commission  

of crime or fails or refuses to comply with the condition on which  

the tender  was made and  the  Public   Prosecutor  gives his  

certificate  under  Section  308  Cr.P.C.  to  that  effect,  the  

protection given to him is  lifted.  

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14. In  A.J.  Peiris  v.  State of  Madras1,    a  3  -  Judge  

Bench   of  this  Court  stated  that  the  moment  a   pardon  is  

tendered to the accused he must be presumed to have been  

discharged,  whereupon  he  ceases  to  be  an  accused  and  

becomes  a witness.   

15. In  State  v.  Hiralal  Girdharilal  Kothari2,   with  

reference to  Sections  337 and 339 of the  Code of Criminal  

Procedure, 1898  (now Sections 306, 307 and  308 Cr.P.C.),  

this Court stated that a pardon tendered under Section 337 is a  

protection from prosecution; failure to comply with the condition  

on which the pardon is tendered removes that protection.     

16. In  State (Delhi Administration) v. Jagjit Singh3, this  

Court held as under:-  

“8.  ……The power to grant pardon carries with it the  right  to  impose  a  condition  limiting  the  operation  of  such a pardon. Hence a pardoning power can attach  any condition, precedent or subsequent so long as it is  not  illegal,  immoral  or  impossible  of  performance.  Section 306 clearly enjoins that the approver who was  granted  pardon had  to  comply  with  the  condition  of  making a full and true disclosure of the whole of the  circumstances  within  his  knowledge  relative  to  the  offence  and  to  every  other  concerned  whether  as  principal  or  abettor,  in  the  commission  thereof.  It  is  because of this mandate,  the State cannot withdraw  the  pardon  from the  approver  nor  the  approver  can  

1.AIR 1954 SC 616  2  AIR 1960 SC 360  3 1989 Supp (2) SCC 770

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cast  away  the  pardon  granted  to  him  till  he  is  examined as a witness by the prosecution both in the  Committing  Court  as  well  as  in  the  trial  court.  The  approver may have resiled from the statement made  before the Magistrate in the Committing Court and may  not have complied with the condition on which pardon  was  granted  to  him,  still  the  prosecution  has  to  examine him as a witness in the trial court. It is only  when the Public Prosecutor certifies that the approver  has  not  complied  with  the  conditions  on  which  the  tender  was  made  by  wilfully  concealing  anything  essential or by giving false evidence, he may be tried  under Section 308 of the Code of Criminal Procedure  not only for the offence in respect of which pardon was  granted but also in respect of other offences……..”.  

17. The above statement of law in Jagjit Singh3  cannot  

be  understood  as  laying  down that  an  accomplice  who  has  

been tendered  pardon and called as a witness for prosecution  

must be continued to be examined as a prosecution witness  

although he has failed  to comply with the condition on which  

the  tender  of  pardon  was  made  and  a  Public  Prosecutor  

certifies that he  has not complied  with the condition on which  

the tender was made.   As a matter of fact, in  Jagjit Singh’s3  

case no certificate was given by the Public Prosecutor.   The  

legal  position  that  flows  from  the  provisions  contained  in  

Sections  306, 307 and 308 Cr.P.C. is that once  an accomplice  

is granted pardon, he  stands  discharged  as an accused and  

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becomes witness for the prosecution.  As a necessary corollary,  

once the  pardon is   withdrawn or  forfeited on the certificate  

given by the Public Prosecutor that such person has failed to  

comply with the condition on which the tender was made, he  is  

reverted to the  position of an accused and liable to  be tried  

separately  and the evidence given by him, if any, has to be  

ignored  in  toto  and  does  not  remain  legal  evidence  for  

consideration in the trial against  the co-accused, albeit    such  

evidence may be  used against him  in the  separate trial where  

he  gets  an  opportunity  to  show that  he  complied   with  the  

condition  of pardon.  As a matter of fact,  it  is for this reason  

that a specific statement was made by the counsel for the State  

of  Maharashtra  before  us  –  a  similar  statement  was  made  

before the  Designated Court  as well –  that the evidence of  

respondent no. 3 so far recorded  shall  not be used  by the  

prosecution in the present trial.   

18. Section 114, illustration (b)   of the Indian Evidence  

Act, 1872 (for short,  ‘Evidence Act’)  provides that the Court  

may presume that an accomplice is unworthy of credit, unless  

he is corroborated in  material particulars.  

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19. Section 132 of the  Evidence Act reads as follows:  

“132.  Witness  not  excused  from  answering  on  ground that answer will criminate -  A witness shall  not be excused from answering any question as to any  matter relevant to the matter in issue in any suit or in  any civil or criminal proceeding, upon the ground that  the answer to such question will criminate, or may tend  directly or indirectly to criminate, such witness, or that  it will  expose, or tend directly or indirectly to expose,  such witness to a penalty or forfeiture of any kind:  

Proviso  -  Provided  that  no  such  answer,  which  a  witness shall be compelled to give, shall subject him to  any arrest or prosecution, or be proved against him in  any  criminal  proceeding,  except  a  prosecution  for  giving false evidence by such answer.”

20. Section 133 of the Evidence Act  provides that an  

accomplice shall  be a competent witness against an accused  

person;  and  a  conviction  is  not  illegal  merely  because  it  

proceeds upon the uncorroborated testimony of an accomplice.  

21. Section 154 of the  Evidence Act is as under:  

“S.-154. Question by party to his own witness.- (1)  The  Court  may, in its discretion, permit the person  who calls a witness to put any question to him which  might  be  put  in  cross  examination  by  the  adverse  party.  

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2. Nothing in this section shall disentitle the person  so permitted under sub-section (1), to rely  on any part  of the evidence of such witness.”  

22. Section 315 of Cr.P.C. makes an accused  person  

a competent witness for the defence and he may  voluntarily  

give evidence on  oath in disproof of the charges made against  

him or any person charged together with him at  the same trial.  

The said provision reads as follows:  

“S.-315. Accused person to be competent witness -

(1)  Any  person  accused  of  an  offence  before  a  Criminal  Court  shall  be a competent  witness  for  the  defence and may give evidence on oath in disproof of  the charges made against him or any person charged  together  with  him  at  the  same  trial:

Provided that-

(a) he shall not be called as a witness except on his  own request in writing;

(b) his failure to give evidence shall not be made the  subject of any comment by any of the parties or the  court or give rise to any presumption against himself or  any  person  charged  together  with  him at  the  same  trial.

(2)  Any  person  against  whom  proceedings  are  instituted in  any Criminal  Court  under section 98,  or  section 107, or section 108, or section 109, or section  110, or under Chapter IX or under Part B, Part C or  Part D of Chapter X, may offer himself as a witness in  such proceedings:

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Provided  that  in  proceedings  under  section  108,  section 109 or section 110, the failure of such person  to give evidence shall not be made the subject or any  comment by any of the parties or the court or give rise  to any presumption against him or any other person  proceeded  against  together  with  him  at  the  same  inquiry.”

In other words,  Section 315 clearly  lays   down that  an accused  

cannot be compelled to give evidence except  on his own  request in  

writing.  

23. Article 20(3) of the Constitution protects an  accused from  

being called or compelled to be witness against himself.  

24. We  have  referred  to  the   aforesaid  provisions   of  the  

Evidence  Act, Cr.P.C.  and Constitution to indicate that none of these  

provisions militates  against the  proposition that a pardon granted to  

an accomplice under Section 306 or 307 Cr.P.C. protects him from  

prosecution and he becomes witness for prosecution but on forfeiture  

of such pardon, he is relegated to the position of  an accused and his  

evidence is rendered useless for the purposes of the trial of the co-

accused.  He cannot be compelled to be a witness.   There is no  

question of  such person being further examined  for  the prosecution  

and, therefore, no occasion arises for the defence to cross examine  

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him.   The   Designated  Court  seriously  erred  in  treating  the  

respondent no. 3 (Riyaz  Ahmed  Siddique) hostile witness;  it failed  

to  consider  that  the  pardon  granted  and  accepted  by  him  was  

conditional  pardon   inasmuch   as  it  was  on  the  condition  of  his  

making  a  true  and  full  disclosure  of  all  the  facts  concerning  the  

commission  of  crime  and  once  the  pardon  granted  to  him  stood  

forfeited,  on the certificate issued by the Special Public Prosecutor,  

he was relegated to the position of an accused and did not remain a  

witness.  In the circumstances, there was no justification to permit the  

defence to cross examine the respondent no. 3 and to that extent the  

impugned order cannot  be sustained.  

25. The appeal is allowed  as  indicated above.     

        ……..……………….J.                      (P.  Sathasivam)  

             ………………… ….J.     

(R.M. Lodha)              

OCTOBER  5 , 2010. NEW DELHI.  

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