In Re: Darla Ramadoss

Srinivasachari, J.—These are three "being C. R. C. Nos. 66, 67 & revision petitions of 1956. The petitioner is the same in all these petitions. The ques tions arising for consideration are the petitions.

The facts of C. R. P. No. 64 of 1956 are that the petitioner Darla Ramadas had been taxed by the Assistant Commercial Tax Officer, Narasaraopet for payment of tax of Rs. 1093-12-0 for the turnover for 1951-52, He failed to pay the tax. He was therefore charged for having committed an offence u/s 15 (b) of the Madras General Sales Tax Act 1939. The petitioner denied the offence and submitted that he had paid the tax payable for the year 1951-52.

The prosecution examined three witnesses. On the evidence the case against the accused was held to be established and the Magistrate holding him guilty u/s 15 (b) of the Madras General Sales Tax Act sentenced the accused to pay a fine of Rs. 500/- and in default to suffer simple imprisonment for six months. He further directed that the sales tax of Rs. 1093-12-0 due from the accused be recovered as if it were a fine.

On appeal the Sessions Judge for Guntur while confirming the conviction, reduced the sentence to a fine of Rs. 100/- in default to undergo two months simple imprisonment. He also directed that Rs. 1093-12-0 the tax amount be recovered as if it were a fine. The accused has preferred a revision to this Court against the above order.

The facts relating to the two other Criminal revisions are almost the same excepting that the tax payable and the fine imposed in these cases are different. The convictions in these cases also have been confirmed by the Sessions Judge, It is not necessary to go into the details of each case as the points of law urged by the learned Counsel are the same, and apply to all the revisions.

learned Counsel placed the following points for my consideration. Firstly he urged that the direction in the order of the Magistrate for collecting the amount of the sales tax as if it were a fine and the further order of the Magistrate making the accused suffer imprisonment in default of payment, placed the accused in double jeopardy and as such, such an order was hit by Article 20(2) of the Constitution.

Section 10 of the Madras General Sales Tax Act 1939 provides for the mode in which the sales-tax payable by the assessees is to be recovered. It says that it could be realised. in the same way as land revenue could be recovered. While Section 10 deals with the mode of recovery Section 15 (b) of the Act allows the imposition of a fine, if the sales-tax were not paid within a time to be fixed; it further enjoins that the Magistrate shall specify in the order the tax, fee or other amount which the person convicted has failed or evaded to pay and such tax, fee or amount so specified shall be recovered as if it were a fine.

The question is as to whether the provisions in Section 15 (b) of the Act for the recovery of the sales tax and the fine in the same manner as a fine could be recovered, is hit by Article 20(2) of the Constitution, This clause only embodies the well known principle of criminal jurisprudence that no one should be punished twice for the same offence or for the same cause. Section 403, Criminal P.C.r also gives effect to this principle.

Similarly Section 26 of the General Clauses Act (Act X of 1897) provides that where an act or omission constitutes an offence under two or more enactments, then (lie offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. Section 403 embodies the basic principle pf prohibiting a person being put in peril twice for the same offence.

It is significant that in order to bring it within the prohibition under Article 20(2) it must be established that the person was ''prosecuted and punished''. The words ''prosecuted'' and ''punished'' are to be taken conjunctively and not disjunctively. A prosecution and a punishment consequent on conviction is necessary. A prosecution without a punishment would not bring the case within the prohibition of Article 20(2).

This is now well established by the decision of the Supreme Court in Maqbool Hussain Vs. The State of Bombay, . There it was held that confiscation u/s 167 of Sea Customs Act does not involve a prosecution and therefore a criminal prosecution of the person from whose possession the property was confiscated was not barred.

Likewise in the instant case the liability of the dealer''s property being attached and the amount of the sale-tax being recovered as arrears of land revenue by tile attachment and sale of his property cannot be regarded as amounting to a prosecution of the dealer or the assessee. I am therefore of the opinion that the direction in the order of the Magistrate for the recovery of the amount of sales tax and the amount of the fine as if it were a fine is not hit by Article 20(2) of the Constitution.

The next argument of the learned Counsel was that the clause directing the accused to undergo imprisonment, in default of payment of fine was illegal. In this connection Section 25 of the General Clauses Act read with Section 64 of the Indian Penal Code makes the order for imprisonment in default of payment of fine legal.

It may also be observed that the word "offence" is used in Sections 64 - 67 to indicate "a thing punishable under the Penal Code or under any special or local law as hereinafter defined." This would be evident from Section 40 of the Indian Penal Code. The Madras General Sales Tax Act is a local law. An offence thereunder under a local law would be an offence for the purpose of Sections 64 - 67 of the Penal Code. u/s 64 the Magistrate is competent to direct by sentence that in default of payment of a fine imposed the accused shall undergo imprisonment.

I may also point out that a provision for [imprisonment in default of fine cannot be regarded as amounting to a double punishment. The Madras High Court had to consider this question in the case of J. Loomchand Sait Vs. The Official Liquidators, Peerdan Joharmall Bank Ltd., , and the learned Judges held Section 282-A of the Companies Act which empowered the accused being made to undergo imprisonment in default of payment of fine was not capable of being interpreted as to provide for a double punishment for one and the same offence.

The words in Section 15 (b) of the Madras General Sales Tax Act "shall be recovered as if it were fine" only indicate the mode of the recovery of the tax assessed and the fine imposed, and cannot be regarded as amounting to a greater penalty and cannot be said to contravene the principles embodied in Article 20(2) of the Constitution.

Section 25 of the General Clauses Act says that Sections 63 - 70 of the Indian Penal Code and the provisions of the Code of Criminal Procedure in relation to the issue and execution of warrants for levy of fines shall apply to all fines imposed under any Act, Regulation... unless such Act Regulation... contains an express provision to the contrary." Therefore, the provisions of Section 64 of the Indian Penal Code would apply to fines imposed under a local law, the Madras General Sales Tax Act.

For all the above reasons, I am of the opinion that the grounds of objections raised by the petitioner to the conviction and sentence cannot be sustained.

The revisions are dismissed.

This order will govern C. Rule 66, 67 and 68 of 1956.