Butta Laxman vs State of A.P. and Others

Ghulam Mohammed, J.—This writ petition is filed praying for a writ of Habeas Corpus declaring G.O.Rt. No. 3780, General Administration (Law & Order-II) Department, dated 21-8-1999, confirming the detention order passed by the Collector and District Magistrate, Kurnool in reference Rc. No. C1/1384/M/99, dated 24-6-1999 as illegal and arbitrary and directing production of Butta Rangaiah, son of Yellappa of Lakshmipet, Yemmiganur, Kurnool District and for a further direction of his immediate release.

On 24-6-1999 the Collector and District Magistrate, Kurnool, second respondent herein passed an order in Reference No. C1/1384/M/99, in exercise of the powers vested in him u/s 3(2)(a) r/w Section 3(1)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, directing detention of Butta Rangaiah, son of Yellappa, aged about 33 years, resident of Door No. 5/399, Lakshmipet, Yemmiganur, Kurnook District to be detained from the date of service of order on him and be lodged at the Central Jail, Secunderabad. The said order was served on the detenu on 25-6-1999. The said detention order was passed on the contravention of three Control Orders, namely; (1) Clause 7(a) of A.P. Rice Procurement (Levy) Order, 1984; (2) Clause 3 of A.P. Rice and Paddy (Storage Control) Order, 1981; and (3) Clauses 8 and 9 of A.P. Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982 r/w Section 7 of Essential Commodities Act, 1955. Along with the detention order made against the detenu the grounds of detention were also served on the detenu on 25-6-1999. The grounds of detention are narrated as hereunder:

"You, Sri Butta Rangaiah, son of Yellappa, aged about 33 years, resident of Door No. 5/399, Lakshmipet, Yemmiganur, Kurnool District of Andhra Pradesh, is the brother of Butta Govindappa, son of Yellappa, aged 40 years, resident of Door No. 5/399, Lakshmipet, Yemmiganur, Kurnool District, Managing Partner of Sri Annapoorna Trading Company, Lessees of Sri Maheswari Rice Mill, Mugathi village, Nandavaram Mandal, Kurnool District and have been managing the entire business affairs of the said firm. You were found indulging in illegal business of rice as a partner of Sri Annapoorna Trading Company by preparing false release certificate of Levy Rice of District Supply Officer, Kurnool and transporting the rice from the said Mill to other States with the assistance of your brother Govindappa and two others viz., Banda Mallikarjuna and Chaya Chandrasekhar to make illegal gains and to cause storage of supply of rice in our State. You have been illegally transporting the rice by engaging lorry on hire.

Having regard to the need of maintenance of proper supply and distribution of rice, which is an essential commodity, the Andhra Pradesh Rice Procurement (Levy) Order, 1984 was issued under the Essential Commodities Act, 1955 and Clause 7 of this order prohibits movement of rice recovered by milling except in accordance with a Release Certificate issued by the Collector or any Officer authorised by the Government in this behalf. Contravention of this clause is an offence punishable u/s 7 of Essential Commodities Act, 1955".

"You, Sri Butta Rangaiah, s/o. Yellappa, indulged in clandestine business by not maintaining true and correct records of Sri Annapoorna Trading Company, Lessees of Maheswari Rice Mill, Mugathi village, Nandavaram Mandal, Kurnool District, and by hoarding huge stocks of rice, broken rice, paddy for pecuniary benefits. Having regard to the need of maintenance of proper supply and distribution of rice which is an essential commodity, the Andhra Pradesh Scheduled Commodities (Licensing and Distribution) Order, 1982 and the Andhra Pradesh Rice and Paddy (Storage Control) Order, 1981 were issued under the Essential Commodities Act, 1955. Clauses 8 and 9 of the A.P. Scheduled Commodities (Licensing and Distribution) Order, 1982 prohibits the licence holder from contraventing the terms and conditions of the licence. Clause3 of the A.P. Rice and Paddy (Storage Control) Order, 1981 imposes restrictions on possession of stocks of rice and paddy in excess of the quantities specified. Contravention of these clauses are punishable u/s 7 of the Essential Commodities Act, 1955. Thus, you are acting in a manner prejudicial to the maintenance of supplies of essential commodities to the community".

From the grounds of detention stated above, the following instances prove your clandestine business in rice, paddy and your involvement in smuggling of rice to other States. The above said basis was illustrated by giving more specific details in the following manner:

"On the intervening night of 10/11-3-1999 at about 00.45 hours, the Vigilance staff headed by the Inspector of Police, Vigilance Cell, Civil Supplies Department, Kurnool, intercepted lorry bearing No. AP. 21 -V-1499, coming from Yemmiganur side at high speed, near State Guest House, Mantralayam village located on Mantralayam-Madhavaram road, Kurnool District and checked it. The lorry was found to be loaded with 200 packets of Sonamasuri rice. On examination, Sri Banda Mallikarjuna s/o Ganganna, age 25 years, r/o. Door No. 11 /25, Kalugotla road, Yemmiganur, clerk of your firm and Chaya Chandrasekhar, s/o.Tippanna,age28years, r/o. H. No. 9/90, Mugathipeta, Yemmiganur town, driver of lorry No. AP. 21-V-1499, who were found in the lorry stated that at your instance they were transporting 100 quintals of Sonamasuri steam rice contained in 200 packets from your firm Sri Annapoorna Trading Company, Lessees of Maheswari Rice Mill, Mugathi village, Nandavaram Mandal, Kurnool District to Sholapur of Maharashtra State with false Release Certificate, credit bill of your firm, cash receipt of Agriculture Market Committee. Yemmiganur and lorry hire charge bill of your firm given by you. As you have moved 100 quintals of Sonamasuri steam rice from your firm in lorry No. A.P. 21/V-1499 with false Release Certificate in order to sell in Sholapur. Banda Mallikarjuna, clerk of your firm and Chaya Chandrasekhar, driver of the lorry were arrested and the said lorry alongwith rice all worth Rs. 5,20,000/- was seized in the presence of mediators Sri S. Yella Reddy, VAO, Kallur village, Kurnool District and T. Imam Sab, Village Servant, Kallur, under a cover of panchanama, which was registered as a case in Cr. No. 31/VC-KNL/99 under Clauses 8 and 9 of the A.P. Scheduled Commodities Dealers (L & D) Order, 1982, conditions 5,6,12 of Dealers Licence issued under the APSCD (L &D) Order, 1982 and Clause 7(a) of A.P. Rice Procurement (Levy) Order, 1984, r/w. Section 7(1) and 8 of the Essential Commodities Act, 1955. The arrested persons were sent for judicial custody on 11-3-1999.

Investigation disclosed that you were the owner of the said rice, got the said rice loaded in lorry bearing Regd. No. A.P. 21/V-1499 for transporting to Sholapur of Maharashtra State with false Release Certificate and credit bill of your firm.

Investigation further disclosed that Chaya Chandrasekhar was driving the said lorry and Medar Murthy r/o. Yemmiganur was the owner of the lorry and that you engaged this lorry, Registration No. A.P. 21/V-1499 for transporting 200 packets of Sonamasuri steam rice without Release Certificate, from your firm M/s. Sri Annapoorna Trading Company, Mugathi village of Andhra Pradesh to Sholapur of Maharashtra State for pecuniary gains. You and the lorry owner Sri M. Murthy have obtained anticipatory bail on 21-4-1999 vide Crl.M.P. No. 844 of 1999 of the Principal Sessions Judge, Kurnool. In this case 6-A report was filed before the Joint Collector, Kurnool and it is pending enquiry vide EC. No. 32/99.

On 11-3-1999 the Inspector of Police, Vigilance Cell, Civil Supplies Department, Kurnool and his staff alongwith mediators, inspected your firm Sri Annapoorna Trading Company. Lessees of Maheswari Rice Mill, Mugathi village, Nandavaram Mandal, Kurnool District, in the presence of your eldest brother Butta Govindappa, s/o. Yellappa, Managing Partner of the Firm. Inspection of your firm disclosed that you have been managing the entire business of the firm at the behest of your brothers (partners of the firm).

Investigation disclosed that you had not been maintaining true and correct accounts of the firm. There were abnormal variations of stocks i.e., excess stocks of 175.45 quintals of rice, 145.00 quintals of broken rice and 354.24 quintals of paddy when compared the book balance with that of ground stocks. You have also stored huge stocks of paddy, rice., broken rice in excess of the quantities specified. Thus, you have contravened Clauses 8 and 9 of the A.P. Scheduled Commodities (L&D) Order, 1982, conditions 5, 6 and 12 of Dealers Licence issued under the A.P.S.C.D (L&D) Order 1982, Clause 3 of the A.P. Rice and Paddy (Storage Control) Order, 1981 and Clause 7 of the A.P. Rice Procurement (Levy) Order, 1984 r/w. Sections 7(1) and 8 of the E.C. Act, 1955. For the said contraventions your eldest brother B. Govindappa was arrested and the available ground-stock i.e. 3460.80 quintals of paddy contained in 4494 bags, 1007 quintals of Sonamasuri rice and Hamsa rice contained in 1644 bags and 347 quintals of broken rice contained in 623 bags all worth Rs. 33,01,539-00 was seized in the presence of mediators Sri Karnam Satyanarayana Rao, VAO, Mugathi village and Gurivella Nagaraju Setty. Partner of M/s. G. Krishna Mohan and brothers, Lessees of Lakshmi Venkateswara Modern Rice Mill, Yemmiganur, under a cover of panchanama, which was registered as a case in Cr. No. 32/VC-KNL/99. In this case 6-A report was filed and the same is pending enquiry vide EC. No. 34/99 against you and your brothers.

You and your brothers obtained anticipatory bail on 21-4-1999 vide Crl.M.P. No. 847 of 1999 of the Principal Sessions Judge, Kurnool. On credible information that paddy and rice is being illegally transported to Karnataka State through Madhavaram check post by the Traders of Yemmiganur, the SI of Police, VCCSD, Kurnool, alongwith staff and with the association of Officials of Inter-state Civil Supplies Checkpost, Madhavaram, noticed lorry bearing No. AAQ-3499 coming from Madhavaram side at high speed on 14-6-1999 at 21.30 hours and when it was signalled to stop, the driver tried to speed away the lorry. They chased the lorry, intercepted it in the middle of the Tungabhadra Bridge, two furlongs away from Madhavaram Civil Supplies Check Post and checked it. The lorry was found to be loaded with 206 packets of Sonamasuri rice. On examination, Sri Badvel Venkatasiva Reddy, s/o. Pulla Reddy, aged 29 years, r/o. D. No. 1-381-403, SMT colony, Yemmiganur, driver-cum-owner of lorry AAO 3499 and Chakali Srinivasulu, s/o. Laxmanna, age 30 years, r/o. D. No. 11/219, Madi Velappagudi, Yemmiganur, clerk of your firm, who were found in the said lorry stated that at your instance, they were transporting 103 quintals of Sonamasuri rice contained in 206 packets from your firm Sri Annapoorna Trading Company, Lessees of Sri Maheswari Rice Mill, Mugathi village, Nandavaram Mandal, Kurnool District to Gulbarga of Karnataka State without any documents. As you have moved 103 quintals of Sonamasuri Rice from your firm in lorry No. AAQ-3499 without documents, the said Badvel Venkatasiva Reddy and Chakali Srinivasulu were arrested and the said lorry alongwith rice all worth Rs. 4,04,500/- was seized in the presence of mediators, T. Sunki Reddy, VAO Kumool and T. Ganapathi, Village Servant, Kurnool under a cover of panchanama which was registered as a case in Cr. No. 71 /VC-KNL/99 under Clauses 8 and 9 of the A.P. Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982, conditions 5, 6 and 12 of Dealers Licence issued under the APSCD (L&D) Order, 1982 Clause 7(a) of the Rice Procurement (Levy) Order, 1984 r/w. Sections 7(1) and 8 of the EC Act, 1955. The arrested persons were sent for judicial custody on 15-6-1999. Subsequently, you were also arrested on 16-6-1999 and were sent for judicial custody on 17-6-1999.

Investigation disclosed that you were the owner of the said rice, got the said rice loaded in lorry bearing Regd. No. AAQ. 3499 for transporting to Gulbarga of Karnataka State without any documents. Investigation further disclosed that Badvel Venkatasiva Reddy who is the owner of lorry No. AAQ 3499, was driving the said lorry and that you engaged this lorry for transporting 206 packets of Sonamasuri rice weighing 103.00 quintals without Release Certificate or any other document from your firm Sree Annapoorna Trading Company, Mugathi village of Andhra Pradesh, to Gulbarga of Karnataka State for pecuniary gains.

On 16-6-1999 the Inspector of Police, VCCSD Kurnool and his staff along with mediators, inspected your firm Sri Annapoorna Trading Company, Lessees of Sri Maheswari Rice Mill, Mugathi village, Nandavaram Mandal, in the presence of your father Butta Yellappa, s/o. Rangaiah, owner of Sri Maheswari Rice Mill. Inspection of your firm disclosed that you have been managing the entire business of the said firm on behalf of your brothers (other partners of the firm) though your eldest brother Butta Govindappa is the Managing Partner of the said firm. Investigation disclosed that you had not maintained any record or accounts of the firm from 11-3-1999, the date on which inspection of your firm was conducted in Cr. No. 32/VC-KNL/99 though you have been conducting business by purchasing paddy of two or three loads, milling the same in your firm and selling rice either at Yemmiganur or in Kamataka and Maharashtra States without maintaining any record. There were stocks of 49 quintals of Hamsa paddy, 25 quintals of Hamsa rice and 3 quintals of broken rice in the mill premises without any record. Thus, you have contravened Clauses 8 and 9 of the A.P. Scheduled Commodities Dealers (L&D) Order, 1982, conditions 5, 6 and 12 of Dealers Licence issued under APSCD (L&D) Order, 1982, Clause 7(a) of A.P. Rice Procurement (Levy) Order, 1984 r/w. Sections 7(1) and 8 of the EC Act, 1955. For the said contraventions, the said ground-stocks all worth Rs. 38,650/- were seized in the presence of mediators Karnam Satyanarayana Rao, VAO, Mugathi village and Nagireddygari Govardhan Reddy, Partner of Sri Ramashankar Modern Rice Mill, Mugathi village under a cover of panchanama which was registered as a case in Cr. No. 72/VCKNL/99 against you and your brothers. You were arrested on 16-6-1999 and were sent tor judicial custody on 17-6-1999.

According to Clause 7 of the Andhra Pradesh Rice Procurement (Levy) Order, 1984 no licensed miller/licensed dealer shall sell or agree to sell or otherwise dispose of rice recovered by milling, except in accordance with the Release Certificate issued by the competent authority and contravention of this clause is punishable. Clause 3 of the A.P. Rice and Paddy (Storage Control) Order, 1981 imposed restrictions on possession of stocks of rice and paddy in excess of the quantities specified and Clauses 8 and 9 of the A.P. Scheduled Commodities (Licensing and Distribution) Order, 1982 prohibits the licence holder from contravening the conditions of the licence. You have contravened the above provisions of law by thus doing illegal trade in a manner prejudicial to the maintenance of supplies of essential commodities, punishable u/s 7 of the Essential Commodities Act, 1955.

The said detention order passed by the second respondent was confirmed by the first respondent vide C.O.Rt. No. 3780, dt. 21-8-1999, which reads as follows:

WHEREAS, the Collector and District Magistrate, Kumool, made an order of Detention under the provisions of Section 3 of Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 on 24-6-1999, in respect of Sri Butta Rangaiah, son of Yellappa;

WHEREAS the Government approved the said detention order under Sub-section (3) of Section 3 of the Act;

WHEREAS the Advisory Board constituted u/s 9 of the said Act, consisting of Sri Justice G. Venkatrama Sastry, Retired Judge. High Court of Andhra Pradesh, Chairman, Advisory Board and two other Members, duly considered the case of the detenu on 09-08-1999 and has reported that there is in its opinion, sufficient cause for the detention of the said Sri Butta Rangaiah, son of Yellappa;

AND WHEREAS, the Government have duly considered and rejected the representation made by the detenu:

NOW, THEREFORE, after due consideration of the report of the Advisory Board and the material available on record, Government, in exercise of the powers conferred under Sub-section (1) of Section 12 read with Section 13 of the said Act, hereby confirm the said Detention order and direct that the detention of the said Sri Butta Rangaiah, son of Yellappa be continued for the whole of the period of six months from 24-06-1999 i.e., the date of his detention.

An affidavit is filed by the brother of the detenu, Butta Laxman, son of Butta Yellappa, aged 28 years, challenging the detention order on the alleged contravention of three Control Orders, namely:

(1) Clause 7(a) of A.P. Rice Procurement (Levy) Order, 1984;

(2) Clause 3 of A.P. Rice and Paddy (Storage Control) Order, 1981; and

(3) Clauses 8 and 9 of A.P. Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982 r/w Section 7 of Essential Commodities Act, 1955.

With regard to first ground, i.e., with regard to the alleged contravention of A.P. Rice Procurement (Levy) Order, 1984 it is submitted that a case in Cr. No. 31/VC-KNL/99 is pending and the so called alleged confessional statements of B. Mallikarjuna, s/o. Ganganna and C. Chandrasekhar, s/o. Tippanna, recorded on 11-3-1999 by the Inspector of Police, Vigilance Cell, Civil Supplies, Kurnool, while they were in his custody. These two persons are shown as A-1 and A-2 in the First Information Report, in Cr. No. 31 / VC-KNL/99, dated 11-3-1999. The confessional statements of these two persons are made under threat before the Police Officer and it is hit by Section 25 of the Evidence Act and the said confessional statements cannot be made against the accused for the said offence punishable under Clause 7(a) of A.P. Rice Procurement (Levy) Order, 1984.

The petitioner herein further stated in the affidavit that in the grounds of detention, the detaining authority has relied upon these confessional statements made before the Police Officer against the detenu. The petitioner further contends that the said Mallikarjuna is not the clerk of his firm and he is never employed in his firm except the false confessional statement of Mallikarjun that he is working in his firm since two months, the detaining authority has not considered the material filed alongwith the bail application in Crl.M.P. No. 847/99 in Cr. No. 32/VCCS/KNL/99, and the order passed therein by the Principal District and Sessions Judge, Kurnool.

The petitioner further Contends that the detaining authority has relied upon a Xerox copy of Release Certificate No. 3534, dated 1-3-1999 and accordingly the detaining authority has not applied its mind accordingly. As far as the second alleged violation under Clause 3 of A.P. Rice and Paddy (Storage Control) Order, 1981, the petitioner''s Counsel vehemently contends that the said alleged violation is non-existent, illusory and the detention order is passed on the alleged violation without noticing the proceedings issued by the Government in Memo, dated 27-11-1995 whereunder Rule 7 confers power on the Government to grant exemption with regard to the maintaining of stocks and possessing of rice beyond a particular limit. By virtue of that proceedings, the detention order is made by the second respondent which is a non-existing ground and the same cannot be applied against the petitioner. It shows that the detaining authority has not applied its mind while passing the detention order and the order of detention suffers from ''non-application of mind'' by the detaining authority.

To substantiate this contention the learned Counsel for the petitioner relied upon a decision of this Court in Sri Rangineni Chenchu Naidn, detained in District Jail, Secunderabad, represented by wife, Smt. Varalakshmi and the District Collector-cum-Magistrate, Chittoor, C. Viswanath and Ors. 1989 (1) APLJ 1.

Constitution of India, Articles 22(5) and 226 - A.P. Scheduled Commodities Dealers (Licencing and Distribution) Order, 1982,. Clauses 2(d) (ii) and 3 - Detention - Where the order of detention is based on more than one ground and one of them is found to be non-existent - Held order of detention is invalid and liable to be quashed.

Read in this light, it is for the detaining authority at least to refer to facts which will constitute the offence as prescribed. The offence as prescribed in Clause 3 of the 1982 Order consists in a person carrying on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. It is nowhere averred in the grounds that the detenu was carrying on business as a dealer. In fact as we have noticed from paragraph 6 of the grounds (reproduced above) that the detaining authority straightaway jumped to the conclusion that the detenu ''indulged'' in business of foodgrains as a dealer without licence, without any facts in support thereof. Clause 3 of 1982 Order did not require indulging in business, but requires ''carrying on'' of business. The detaining authority appears to have come to the conclusion of indulging in business by the solitary transaction noticed by it. One solitary transaction would not make a person either a ''wholesaler'' or ''retailer'' within the meaning of Clause 2(j) or (k). The detenu did not have to obtain any licence within the meaning of Clause 3 of 1982 Order. It, therefore, appears to us that the grounds of detention is a non-existent ground and therefore, we are not sure to what extent the subjective satisfaction of the detaining authority was arrived at on the basis of non-existent ground. In view of the catena of decisions of the Supreme Court in Shibban Lal Saksena Vs. The State of Utter Pradesh and Others, ; Rameshwar Lal Patwari Vs. State of Bihar, and Biram Chand Vs. State of Uttar Pradesh and Others, and the order of detention is based on a non-existent ground, it will be liable to be quashed.

The petitioner has also relied upon rulings of Apex Court in Shibban Lal Saksena Vs. The State of Utter Pradesh and Others, wherein it was held:

"Where however the Government itself while confirming the detention in exercise of its powers u/s 11 admits that one of the two grounds mentioned in the original order is un substantial or non-existent, to say that the other ground, which still remains, is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole".

The petitioner has also relied upon another ruling of Apex Court in Bhupal Chandra Ghosh v. Arif Ali and Ors., AIR 1974 SC 255 wherein it was held at para 8 as follows:

Turning to cases cited at the Bar, The State of Bombay Vs. Atma Ram Sridhar Vaidya, is distinguishable on facts. It is not concerned with the question of relevancy of the grounds of detention. In Shibban Lal Saksena Vs. The State of Utter Pradesh and Others, this Court observed:

"The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other grounds, which still remains, is quite sufficient to sustain the order would be to substitute decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole."

The Counsel for the petitioner further relied upon a decision of this Court in Rangineni Chenchama Papaiah Naidu, represented by K. Eswaraiah v. Collector and District Magistrate, Chittoor, 1989 (3) ALT 593 to substantiate the point that the alleged confessional statement recorded before the police officer is not a ground to base the detention without considering the material placed before the criminal Court in support of the bail applications. The learned Counsel has relied the relevant passage of that ruling which is extracted hereunder:

It will be noticed that the averments in the bail application are to the above effect, but according to the statement recorded by the vigilance authorities and relied upon by the detaining authority, the lorry was sent by the detenu for transporting the paddy after taking it from P. Sreeramulu. As per the averments in the bail application the lorry was engaged by P. Sreeramulu on hire of Rs. 500/- for transporting the paddy from Poyya village to Goverdhanagiri village. Thus, the two statements, one before the vigilance authorities and the other in the bail application are contradictory and can in no way be reconciled. In any case, when the order of detention is based upon the detaining authority''s reliance upon the statements of the driver and clerk of the detenu, and if there is retraction by the driver or tine clerk, that becomes relevant material and if the same is not considered, the detaining authority will be guilty of what is called, ''non application of mind''. We have gone through the grounds of detention and we find that, at no place, the retraction contained in the bail application was noticed, muchless considered. This is the plea taken in the writ petition for impugning the order of detention.

Considering the above cases and also the order passed by the second respondent as well as the first respondent, we are of the considered view that the detention order suffers from material irregularity and also suffers from non-application of mind by the detaining authority. After considering the entire material on record, we are satisfied that the detention of the petitioner is illegal. Accordingly, we set aside the impugned order passed by the second respondent which is confirmed by the first respondent vide G.O.Rt. No. 3780, General Administration (Law & Order-II) Department, dated 21-8-1999 and the writ petition is allowed directing the authorities to release the detenu forthwith.

The writ petition is allowed but in the circumstances, without costs.