Patna High Court
Surendra Kumar Yadav vs State Of Bihar on 20 July, 1988
Equivalent citations: 1989CRILJ1967
ORDER Ram Nandan Prasad, J.
1. The petitioner figures as accused in Special Case No. 28 of 1983 under Section 7 of the Essential Commodities Act (hereinafter referred to as the E.C. Act) and Sections 467, 468, 420 and 171 of the I.P.C. pending in the court of Special Judge (under the E.C. Act) Patna. After having appeared before the court he at first made a prayer for discharge on the ground that the materials on record do not make out any offence against him but this prayer was rejected by the learned Special Judge by his order dated 18-4-1984. Subsequently on 9-5-1984 the learned Special Judge purports to have explained the substance of accusations relating to the offences of the case to the accused and as the petitioner (accused) pleaded not guilty he ordered for summoning of the witnesses. Prayer in this application under Section 482 of the Code of Criminal Procedure is for quashing this order dated 9-5-1984 as well as the order dated 18-4-1984. The petition also contains the prayer for quashing the entire criminal proceedings of this case.
2. The petitioner is a licenced public distribution ration shop keeper in Mohalla Golghar which is a locality of Patna town within Kotwali P. S. According to the prosecution case, the Executive Magistrate Shri Ram Vinod Singh accompanied by his Supply Inspector Shri C. M. Tewary visited the petitioner's fair price shop on 12-6-1983 and in course of inspection and physical verification they are said to have found several irregularities in respect of sale and distribution of various articles to several ration card holders. This according to the Magistrate constituted offences under Section 7 of the EC. Act and under various sections of the I.P.C. The Executive Magistrate accordingly filed the written report dated 266-1983 at the Kotwali P. S. on the basis of which Kotwali P. S. Case No. 677 dated 27-6-1983 was instituted (G.R. Case No. 2572 of 1988). The police after investigation submitted charge-sheet against the petitioner for offences under Section 7 of the EC. Act and Sections 467, 468, 420 and 171 of the I.P.C. giving rise to the Special Case No. 28 of 1983 in the court of the special Judge, Patna. It may be noted that on the basis of the report of the Executive Magistrate, a paralell proceeding for cancellation of the licence of the petitioner had been initiated before the Special Officer Rationing, Patna. In response to the direction of the Special Officer Rationing, the petitioner filed a show cause before him in respect of the allegations made against him in the report of the Executive Magistrate. The order passed by the Special Officer Rationing on 12-1-1984, which has been made Annexure-III to the present application, shows that the Special Officer after considering the show cause and also the statements made by the witnesses before the police in course of the investigation, found it expedient to withdraw the order of suspension against the petitioner, which means his licence to run the shop was restored. The Special Officer Rationing, however, clearly observed in that order that this will not have any effect on the criminal case pending against the petitioner.
3. The petitioner's contention is that the allegations made by the Executive Magistrate in his written report, which form the FIR of the case, are imaginary and presumptuous and are not based on facts, and as such the prosecution against him is unwarranted. His contention is that the Magistrate while taking cognizance and explaining the substance of accusation of offences, did not judicially apply his mind and merely recorded his order in a mechanical way without even understanding what he was placing before the accused. It has further been submitted that although offence under the E.C. Act is to be tried in a summary way, offences under Sections 467, 468 and 420 I.P.C. cannot legally be tried under the summary procedure and as such the Magistrate acted illegally in explaining the substance of accusation and in adopting the summary procedure in respect of these offences. On the basis of the above submissions, it has been contended by the petitioner that not only the orders dated 9-5-1984 and 18-4-1984 are fit to be quashed but the entire proceeding should be quashed as its continuation would merely cause harassment to the petitioner and would amount to an abuse of the process of the court
4. The learned State Counsel has frankly conceded that offences under Sections 467, 468 and 420 I.P.C. cannot be tried under a summary procedure and so he contends that the proper course for the learned Special Judge was to split up the case relating to these offences and adopt the procedure of a warrant trial He has also frankly conceded that materials on record do not disclose any ingredient of the offence under Section 171 I.P.C. His contention is that the impugned order dated 9-5-1984 regarding explaining the substance of accusation will be valid and operative in respect of offence under Section 7 of the EC. Act alleged against the petitioner.
5. For a proper appreciation of the arguments advanced by the two sides, it is better to quote here the order dated 9-5-1984 of the learned Special Judge. The order runs as follows : - "Abhiyukt Upasthit Hai. Abhiyog Ka Saransh Samjhaya Gaya Jisse Inkaar Kartey Hai Gawanho Ko Summan Kare. Dinank 23-5-1985 Gawahe Hetu". There can be no doubt that this order is rather cryptic and purfunctory and there is substance in the contention of the petitioner that it does not indicate as to exactly what control orders or conditions of the licence have been violated so as to give rise to any offence under Section 7 of the E.C. Act and as such the petitioner is not aware of the charge which he has to meet. In reply the learned State Counsel has submitted that the order dated 9-5-1984 should be read along with and in the context of the allegations made in the F.I.R. which, according to him, indicate what irregularities and illegalities were found by the Magistrate and Supply Inspector at the time of inspection. I do not think such an argument is sustainable. Whatever may be the allegations in the FIR or the petition of complaint, the law clearly enjoins a duty upon the Magistrate that particulars of the offence of which he has been charged shall be stated to him and he shall be asked whether he pleads guilty or not. The provision of law in this regard as laid down under Section 251 Cr. P.C. is quite specific and clear. Therefore, merely recording in the order-sheet that the substance of accusations has been explained, cannot be regarded as proper and necessary compliance of the mandatory provisions of Section 251 Cr. P.C. Such an order cannot, therefore, be sustained. There can be no doubt, therefore, that the impugned order dated 9-5-1984 has to be quashed.
6. Indeed the learned State Counsel has himself submitted that the order dated 9-5-1984 may be quashed and the case may be remanded to the learned Special Judge for disposal in accordance with law. The petitioner's counsel has, however, vehemently argued that not only the order dated 9-5-l984 needs to be quashed but indeed it is a fit case in which the entire criminal proceedings should be quashed as its continuation would amount to an abuse of the process of the Court. It has, therefore, to be examined and determined if there are substantial and valid reasons for quashing the entire criminal proceedings as urged by the petitioner.
The learned State Counsel has also frankly accepted that offences under Sections 420, 467 and 468 of the I.P.C. are not triable under the summary procedure or as a summons case and as such there was no question of explaining the substance of accusation to the accused in regard to these offences and in this context the order dated 9-5-1984 is unsustainable. He has also accepted that the facts of the case do not disclose anything regarding an offence under Section 171 of the I.P.C.
7. The learned State Counsel has submitted that although the order dated 9-5-1984 suffers from certain legal lacuna, the order dated 18-4-1984 whereby the learned Magistrate refused to discharge the petitioner was correct and justified His submission is that there is no question of discharge in a summons case and as such even though the reasons given by the learned Magistrate for refusing to discharge may not be quite appropriate still the conclusion arrived at by him was correct and justified. I agree with this contention that there would be no discharge in summons case and as such the prayer made by the accused in this regard was rightly not acceded by the learned Magistrate by his order dated 18-4-1984. Following up his argument, the learned State Counsel has submitted that if there could be no discharge in a summons case tried summarily, then the only way the proceedings could be brought to an end was after taking evidence and thereby giving a judgment of acquittal or conviction. His contention is that in a summons case the learned Magistrate had no power to acquit the accused merely, on the basis of first information report, case diary and other documents under Section 173 of the Code of Criminal Procedure without taking evidence. His contention is that even if the allegations be deemed to be lacking substance still the Magistrate had no option but to take evidence and only thereafter he could pass an order of acquittal In support of his contention the learned State Counsel has placed reliance on the cases (Radha Nath Maji v. Kishori Lal Banerjee AIR 1932 Mad 25 (2) : 1932-33 Cri LJ 274 (Emperor v. Varadarajulu Naidu) and (The State of Gujrat v. Thakorbhai Sukhabhai. These cases clearly laid down that the Magistrate could not acquit an accused merely on basis of police papers and that he has to hear the parties and take evidence as produced and only thereafter could there be an acquittal under Section 245 of the old Cr. P.C. (the corresponding section, of the new Cr. P.C. is Section 255). I fully agree with this contention. But though there may have been a legal hurdle for the Magistrate in terminating the case at the stage of cognizance even if he found lack of necessary materials for proceeding with the case, there is no such limitation before this Court. The inherent power of the High Court under Section 482 of the Code of Criminal Procedure is a wide and wholesome power and if the court feels satisfied that the materials do not justify the continuation of the proceeding and that such continuation would amount to an abuse of the process of the Court, the High Court will not hesitate to quash the proceeding in exercise of its power. I do not accept the contention of the learned State Counsel that at this stage, only the first information report and the charge-sheet should be looked into and if the allegations indicate that some offences may have been committed then it would be proper and desirable for the case to proceed and evidened to be taken and interference at this stage would not be proper. I am unable to accept the contention that this Court while examining whether the materials on record as such justify the continuation of the proceeding, must confine itself to the first information report and the charge-sheet and need not go into the case diary and other materials. If the court has to examine and determine whether the continuation of the criminal proceeding would be just or would be improper, there is no reason why there would be any limitation on the powers of the court to look into all the materials available on the record. There is nothing in law to place any such limitation on the powers of the High Court under Section 482 of the Code of Criminal Procedure. In this regard I am supported by a decision of the Supreme Court (State of Karnataka v. L. Muniswami). That case arose out of a sessions trial in which the Sessions Judge had discharged some accused under Section 227 of the Code of Criminal Procedure and had ordered for framing of specific charges against rest of the accused The High Court in exercise of its power under Section 482 of the Code of Criminal Procedure quashed the proceedings against the rest of the accused also and against this order of the High Court, the Karnataka Government came up in Special Leave to Supreme Court. Upholding the High Court's Order, the Supreme Court observed that the High Court was entitled not only to examine and determine for itself whether the order of the Sessions Judge was justified by the facts and circumstances of the case but also to quash the proceedings if it be considered that allowing the same to continue would be an abuse of the process of the Court; In my opinion, therefore, no limitation as urged by the learned State Counsel can be placed on the High Court's power while dealing with the case under Section 482 of the Code of Criminal Procedure. The real touchstone is whether the High Court is satisfied that the ends of justice require that the proceedings be quashed and that its continuation would be an abuse of the process of the Court.
8. The contention of the petitioner is that although several allegations have been made in the report of the Magistrate, in respect of the inspection held by him and the Supply Inspector on 31-5-1983, all of them are presumptuous and not based on facts. He has drawn my attention to each of the allegations and has tried to show that none of them get any support from the investigation done by the Investigating Officer or from any other material on the record. I will now, therefore, proceed to see whether there are prima facie materials in support of the allegations made in the Magistrate's report but before I do so I may mention that a paralell proceeding bearing case No. 123/83 for cancellation of the petitioner's licence had been initiated by the District Supply Officer. The petitioner had filed a show cause in this proceeding and after considering his show cause and other materials the District Supply Officer had been pleased to accept his show cause and drop the proceeding against him and while so doing he has referred to the submission made on behalf of the petitioner that in course of investigation none of the card holders had made any grievance against him. The order of the District Supply Officer is Annexure-III.
9. In the Magistrate's report allegation numbers 1 and 2 are to the effect that card holders Asharfi Bind and Raghu Ram were supplied only sugar and not any rice or wheat although they had asked for it and that false entry about the supply of wheat and rice had been made in the cash memo and the sale register. The petitioner has annexed (Annexure-II), the statements made by the card holders and other witnesses before the police in course of investigation. The original case diary is also with the lower court record. Para 16 of the case diary contains the statements of both Raghu Ram and Asharfi Bind and both had stated before the police that they had absolutely no complaint against the petitioner and that they purchased the different articles from the fair price shop according to their necessity and availability of funds. Raghu Ram further stated that his wife on instigation by some one had spoken against the shopkeeper before the Supply Inspector and for this he had scolded his wife. Thus the statements made by these two witnesses before the Investigating Officer do not at all support the allegations made in the Magistrate's report. The third allegation is that although the card holder Deodhari Mistri was dead, supply of articles on his ration card on 31-5-1983 had been shown. In reply to this it has been urged on behalf of the petitioner that since there were a large number of card holders attached to his shop it was not possible for him to keep track as to which of them were still alive or had died and that actually it was the responsibility of the supply department to keep a check on such things and to modify or cancel the ration cards standing in the names of such persons. It has further been urged that very often the ration card holder himself does not come to take the articles and this is done by some family .member or even some friend or servant and under these circumstances it was not possible for the shopkeeper to know about the death of the different persons of the locality attached to his shop. It has also been urged on his behalf that the ration card issued in the name of the head of the family is for supply of articles to all members of the family on the basis of the units specified in the card and so long as some member of the family comes along with the card to take the articles, he cannot refuse to give the same. I think there is substance in this contention. The learned State Counsel has failed to point out any rule or instruction of the government which places the responsibility on the shop keeper of keeping track of death of a card holder or any member of his family. Indeed such responsibility ought to be of the Supply Department. In course of investigation, the Investigating Officer made inquiry in regard to Deodhari Mistri and his findings show that although Deodhari Mistri had died, his wife was alive but living at a different place. As such so long as the ration card standing in the name of Deodhari Mistri was not cancelled or altered, the shopkeeper could not ligitimately refuse to supply articles on this card. The next allegation mentioned in the Magistrate's report is that although supply of articles on 31-5-1983 against the ration cards standing in the name of Shri Lal Behari, Shri Nagina Paswan, Shri Ram Nand Paswah has been shown in the documents of the shop but no trace of these persons could be found even after inquiry. Annexure-II as well as original case diary, however, show that the Investigating Officer in course of .the investigation had actually met and examined Shri Ram Nandan Paswan and Nagina Paswan both of whom are rickshaw pullars and both stated before him that they get their ration from the shop of the petitioner and that they have no grievance against him. Annexure-II as well as the case diary shows that in course of investigation the Investigating Officer has examined several other persons also including Acchey Lal Sharma and Mohammad Salim and both of them stated before him that they had no grievance against the shop-keeper Surendra Prasad Yadav. Mohammad Salim further stated that till the inquiry by the Investigating Officer, no one else had come to make any inquiry or take any statement. There appears to be no mention about Lal Bihari in the case diary and it appears that this person was not present when the Investigating Officer had gone for the spot inquiry and examined the witnesses. The case diary does not show that the Investigating Officer made any effective efforts to trace out Lal Bihari. Be that as it may, merely because the Magistrate or the Investigating Officer was not able to meet Lal Bihari, it does not follow that Lal Bihari is a fictitious man. Moreover what is more relevant and important is whether any ration card stood in the name of Lal Bihari or not and if there was such a ration card then the shopkeeper was justified in supplying articles on the basis of the same the Magistrate's report does not show that a fake ration card stands in the name of Lal Bihari, as such the supply of articles on the ration card of Lal Bihari cannot give rise to any offence merely because the prosecution was not able to trace out the said Lal Bihari. It is noteworthy that although occurrence is said to have taken place on 31-5-1983, the Magistrate's report was filed at the P.S. on 26-6-1983. There was, therefore, sufficient time to make the necessary inquiry and if even after so much of delay the prosecution has not been able to find out whether there was any genuine ration card in the name of Lal Bihari or not, how can the shopkeeper be made liable for supplying articles on the ration card standing in his name ? It will thus appear that the allegations made out in the Magistrate's report were not supported in course of the investigation and it is in this context that it has been urged on behalf of the petitioner that the continuation of the proceedings against him would be mere harassment and amount to an abuse of the process of the Court.
10. It is also alleged in the Magistrate's report that although under the rules and instructions the fair price shopkeeper is required to take the signature or L.T.I. on the counter foils of the cash memos, the same were found to be absent in the counter foils of the cash memos issued from the petitioner's shop. It has been submitted on behalf of. the petitioner that there was no rule or instructions which required the taking of signature or L.T.I. on the counter foils of the cash memo and as such if the same has not been done, no irregularity or offence has been committed by the petitioner. The learned State Counsel was unable to show that in fact there was at the relevant time any such rule or instructions placing responsibility on the fair price shopkeeper to take the L.T.I. or signature on the counter foil and therefore there is no basis for saying that by not doing so the petitioner has violated any condition of the licence or provision of any control order. He has brought to my notice letter No. 1513 dated Ist March, 1988 issued by the Joint Secretary of the Food and Supply Department Government of Bihar to District Magistrates intimating about certain decisions and instructions in respect of fair price ration shops and One of these mentions that the authorities should see that the signature or L.T.I. of the consumer is taken on the counter foil of the cash memo issued by the shopkeeper. The State Counsel was unable to show that there was any such instruction prior to the 1st of March, 1988. As such the absence of the signature or L.T.I. of the consumers on the counter foil of the cash memo issued by the petitioner cannot be regarded as violation of any instruction. It will thus appear that the materials on record do not indicate which particular control order has been violated and what kind of illegality has been committed by the petitioner so as to give rise to an offence under Section 7 of the Essential Commodities Act. Indeed the omission to specify the particular control order and leave everything vague is in itself a ground for quashing the proceedings, Further, the materials on record do not indicate in what way any forgery or cheating has been committed so as to give rise to an offence under Sections 420, 467 and 468 of the I. P. C
11. It was submitted by the learned State Counsel that the supply Officer in course of inquiry had taken the statements of Asharfi Bind, Bhola Yadav and some others who juported the allegation that the petitioner did not supply the articles to some of the card holders. As already indicated above, these witnesses in course of investigation by the police did not at all support the allegations made in the Magistrate's report Further, there is nothing to show as to what exactly was the reason for non supply or non purchase of certain articles by some of the card holders on 31-5-1983 or on some other date; It has also been submitted on behalf of the petitioner that the illeterate people were coaxed and misled by the Supply Officer to make allegations so that some basis for making a report could be made out. The petitioner's allegation is that this was done because he was unable to meet the illegal demands of some officers of the District Supply Office. It is not necessary to enter into this aspect of the case. Suffice it to say, that the persons who are said to have spoken in presence of the Supply Officer, did not at all support the allegations during the investigation by the police. As such the so called statements made before the Supply Officer in course of the so called inquiry can hardly have any significance at all.
12. It was urged on behalf of the State that the allegations against the petitioner might be substantiated at the evidence stage and therefore it would be more expedient to allow the prosecution to continue. On the other hand, it has been emphatically urged on behalf of the petitioner that the materials on record do not bring out even prima-facie evidence to support the allegations and that the prosecution should not be allowed to continue merely to allow the prosecution to fabricate new evidence or pressurize the witnesses to change their statements made before the I.O. In support of his contention that at the time of cognizance in a summons case and framing of charge in a warrant case, it is more expedient to allow the case to proceed and even strong suspicion would justify framing of charge against the accused the learned State Counsel relied on the case . (The State of Bihar v. Ramesh Singh). It is no doubt true that at the initial stage of the trial the truth, veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged or weighed in a sensitive balance as is done at the time of judgment. This is a well settled principle of law. But this also is well settled that if the evidence which the prosecution proposes to adduce lacks substance and does not even prima facie make out any offence against the accused, then continuation of such a proceeding would not be in the ends of justice and would obviously lead to harassment and an abuse of the process of the court. I have already mentioned above a case reported in the same volume namely in which the Supreme Court upheld the High Court's Order quashing the trial against those accused in respect of whom the Sessions Judge had ordered for framing of charge. There is yet another case reported in the same volume namely (Dr. Sharda Prasad Sinha v. State of Bihar). In that case the Excise Inspector had filed a complaint against the appellant Dr. Sharda Prasad Sinha alleging violation of Section 54(a) and Section 57(c) of the Bihar and Orissa Excise Act. A licence for serving foreign liquor had been given to Bankipore Club in form No. 2 and Dr. Sharda Prasad Sinha was only secretary of the club on the alleged date of occurrence namely 31-12-1975. He had filed an application under Section 482 of the Code of Criminal Procedure before the High Court contending that the complaint filed against him did not make out any offence at all and further it also did not disclose as to what condition of the licence had been broken but his application was rejected by the High Court and then he went up in appeal to the Supreme Court. The Supreme Court after examining the complaint and other materials on record found that the allegations did not constitute any offence under Section 54(1)(a) or Section 57(c) of the Excise Act. Further, it observed that the complaint does not allege as to which condition "of the licence had been broken and the Supreme Court held that the High Court ought not to have rejected the application of the appellant for quashing the proceedings against him. It will be useful to quote the following observations of the Supreme Court in this context (para 2):
It is now settled law that where the allegations set out in the complaint or the chargesheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence.
The learned lawyer for the petitioner cited also the ruling reported in 1983 B.B.C.J. 441 in which a prosecution under Section 7 of the E.C. Act has been quashed because it appeared that it was based on suspicion or presumption rather than any specific and substantive evidence. I agree with the contention of the petitioner that the present case is very much similar.
13. It is also submitted that the learned District Supply Officer was himself not satisfied about the so-called statements made before the Supply Officer in course of the inquiry and that is why he dropped the proceeding for conciliation of the petitioner's licence and passed the order contained in Annexure-3 in favour of the petitioner.
14. The petitioner also put forward the contention that District Supply Officer after considering the entire materials on record including the statements made by the witnesses in course of police investigation was satisfied that no serious irregularity or violation of any control order had been committed and therefore dropped the proceeding for cancellation of his liscence, and therefore on a parity of reasoning the prosecution of the petitioner for violation of any control order or condition of licence is also not maintainable. In support petitioner has relied upon two single Judge decisions of this Court:
The first is reported in 1985 BRLJ 231 (Laxmi Narain Sah v. The State of Bihar) and the other one is an unreported decision in Cr. Misc. 3611/75 disposed of on 11-3-1978. In the first case 1985 BRLJ 231 three parallel proceedings had been initiated against the accused shopkeeper for discrepancies in the stock register; one of the proceedings relating to confiscation was dropped by the District Magistrate as he considered that the discrepancies were natural inasmuch as the petitioner had no time or opportunity to enter in the stock register goods purchased on the same date. The learned Judge who heard the petition under Section 482 of the Code of Criminal Procedure for quashing the criminal proceedings, accepted the contention that on a parity of reasoning the prosecution for the offence punishable under Section 7/3 of the E.C. Act could not be sustained and as such he allowed the application and quashed the entire criminal proceedings of that case. A similar view was taken by the Hon'ble Judge who decided the application in criminal Miscellaneous 3611/75. With the greatest respect to the Hon'ble Judges who decided the above two cases, I feel hesitant to accept the principle of parity of reasoning in such cases. The proceeding before an executive Magistrate, though in respect of same or similar alleged irregularities as in the criminal prosecution before a judicial court, may be decided from the administrative angle and by taking into account matters of expediency. I may just give an example. The confiscation proceeding, or a proceeding for cancellation of licence, in respect of a fair price shop situated in a far away place in the interior may have to be dropped for the reason that either confiscation or cancellation of the licence may result in great hardship to the people who take the ration from the shop in that interior village. There may be other similar administrative reasons. In my opinion, such criteria or guidelines cannot be applicable for terminating a criminal prosecution. In other words, the judicial court has to consider the case on its merit and should not abdicate its judicial function of coming to its own independent finding as to whether the criminal prosecution should continue or not, and merely because the Executive Authority considers it inexpedient or unnecessary to continue with the proceeding pending before it, need not be regarded as sufficient ground, on the theory of parity of reasoning, to terminate the criminal proceeding against the alleged offender.
15. I do not of course mean to suggest that the principle of parity of reasoning can never be applied. Where one of the proceedings is before another judicial or quashi judicial authority and its order is based on judicial reasoning, the court where the criminal prosecution may be pending, may on the principle of parity of reasoning consider it proper to terminate the proceeding but even while doing so it must come to its own satisfaction in accordance with law. Perhaps in due course, a pronouncement on the point of parity of reasoning may be available from a larger Bench. The contention regarding the parity of reasoning is, however, not of much consequence in the present case inasmuch as even otherwise the materials are such that the continuation of the criminal prosecution against the petitioner appears to be unjustified
16. From what has been discussed above, it is obvious that the allegations made in the Magistrate's report have no basis. The entire investigation shows that none of the witnesses have supported any of these allegations and the other materials oh record including Annexure-III indicate that there is no chance of any allegation being substantiated in course of the trial. Under these circumstances, the continuation of the trial will be ho more than an exercise in futility. There is, therefore, substance in the petitioner's contention that continuation of the proceedings would merely amount to harassment and would be an abuse of the process of the court
17. In the result, I find not only that the order of cognizance dated 9-5-1983 being illegal and unsustainable is fit to be set-aside but also that in the ends of justice it is necessary to quash the entire criminal proceeding pending against the petitioner, and accordingly I do so.
18. The application thus stands allowed.