Public Prosecutor vs K.C. Ayyappan Pillai and Others

Ramaswami, J.—Crl.RC. Nos. 88 to 97, 99 to 105 and 108 of 1952: These are 18 connected criminal revision cases filed by the State

against the convictions and sentences of the learned Sub-Divisional Magistrate, Fort Cochin, in C.C. No. 122 of 1951 etc.

The following tabular statement gives the details of these Sales-tax cases from which these revisions are preferred:

Tax

Conviction and

Sl. No. Crl. R. C, No. C. C. No. Year of

Sentence.

Rs. A. P.

88/52 12""/51 579 5 10 1946-47 Rs. 200 fine

89/52 107/51 501 6 0 1945-46 Rs. 50 on

admission

90/52 104/51 931 13 4 "" Rs. 300 fine

91/52 93/51 144 0 0 "" Rs. 30 "" on

admission

92/52 96/51 367 4 0 "" Rs. 100 fine

93/52 92/51 1750 0 0 1946-47 Rs. 150

94/52 90/51 1612 12 2 "" Rs. 400

95/52 84/51 2639 13 6 "" Rs. 300

96/52 72/51 1507 14 5 1947-48 Rs. 80 "" balance

of tax Rs. S27-15-9

679 14 8 directed to be paid.

827 15 9

97/52 68/51 896 7 9 "" Rs. 100 fine

99/52 162/51 346 2 4 1945-46 Rs. 50 "" on

admission

100/52 157/51 1746 6 0 1947-48 Rs. 140 "" balance

of tax Rs. 526-7-6 to

1219 14 6 be paid.

526 7 6

101/52 156/51 1273 1 8 1946-47 Rs. 130 fine.

102/52 155/51 582 4 0 1945-46 Rs. 60 fine on

admision

103/52 153/51 953 0 0 1947-48 Rs. 70 fine, Balance

of tax Rs. 325 0-0

628 0 0 ''to be paid.

325 0 0

104/52 152/51 1232 0 8 1946-47 Rs. 120 fine on

admission.

105/52 151/51 764 7 4 1945-46 Rs. 80 fine

108/52 127/51 5653 2 6 "" Rs. 600 fine

There is no dispute in all these 18 cases about the correct calculation of the turnover adopted by the Deputy Commercial Tax Officer or the

assessment or the service of the demand notices or the non-payment of the taxes within the time fixed. The learned Public Prosecutor has preferred

these criminal revision cases on the ground that the learned Sub Divisional Magistrate in 14 of these cases has not provided in the order for the

payment of the sales tax in respect of which the particular respondent was found guilty and convicted u/s 15(b) of the Madras General Sales-tax

Act and that in three cases he has made the respondent liable to pay the tax only for the second half of 1947-48 in C.C. No 72/51 and for the last

three months of 1947-48 in C.C. No. 153 of 1951 and for the last three months of 1947-48 in C.C. No. 157 of 1951 and that this direction for

payment of the tax for the last quarter only is not in conformity with law and that the lower Court ought to have directed in the order the payment

of the entire tax in respect of which default was committed and for which the respective respondent was found guilty and sentenced u/s 15(b) of

the Madras General Sales-tax Act.

There can be no doubt that u/s 10 of the said Act, the tax assessed has got to be paid in such manner and in such instalments, if any, and within

such time as may be specified in the notice of assessment and that if there is failure to pay within the time allowed any tax assessed on the assessee

under the Act and he is prosecuted for an offence u/s 15, that assessee on conviction is liable to pay a fine and in case of a conviction under Clause

(b) of Section 15 the Magistrate shall specify in the order the tax which the person convicted has failed, to pay and the tax so specified shall be

recoverable as if it were a fine. Therefore, the contentions of the learned Public Prosecutor that in all these cases u/s 15(b) the defaulted tax should

be specified in the order at the Magistrate and made recoverable as if it were a fine and that the Magistrate cannot split up this tax and give relief in

regard to a portion of the year, are correct.

The learned advocates for respondents contend that the Magistrate was justified in the course which he has adopted, because under the law as

it stood when these offences were committed the present provision that in cases of convictions u/s 15(b) the Magistrate having to specify in the

order the tax which the person convicted has failed to pay and the tax so specified being made recoverable as if it were a fine did not exist, and

that to pass such an order would offend Arts. 20 and 265 of the Constitution of India.

I have carefully considered the application of both these Articles and find that there is no substance in this contention.

So far as Article 20 is concerned, which prohibits retroactive criminal laws or ''ex post facto'' laws, the scope of that Article is nothing more than

that no person shall be convicted of any offence under any law not in force at the time of the commission of the offence and secondly, that no

person shall be subject to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the

offence. The Sales-tax Act existed at the tune of the commission of the offence and also at the time of the conviction for the offence. Then turning

to the second condition, it is stated that when the tax is made recoverable as a fine, it imposes a penalty greater than that which might have been

inflicted before the Act was amended. In advancing this argument, it is overlooked that any change in the mode of execution is not bad for its being

''ex post facto'': see -- ''Holden v. State of Minnesota'', (1890) 137 US 483 and -- ''Rooney v. State of North Dakota'', (1905) 196 US 319. A

statute merely regulating procedure and leaving untouched all the substantial protection with which existing law surrounds a person accused of

crime is not within the constitutional inhibition of ''ex post facto'' laws: -- Thompson v. State of Utah'', (1898) 170 US 843; -- ''Winston v. State'',

118 ALR 719. Even a statute which changes the punishment that may be imposed for a crime theretofore committed would be ''ex post facto'' only

if it prescribes or permits the imposition of a greater sentence, which is not the case here, and not when it reduces the punishment, as is the case

here -- ''People Ex Rel P''incus v. Adams'', 110 ALR 1303 and -- ''Sekt v. Justices Court'', 167 ALR 833.

It will be noticed that before the amendment any person who wilfully acted in contravention of any of the provisions of this Act shall on conviction

be liable to a fine of Rs. 1000 and where the breach is a continuing breach, to a further fine which may extend to Rs. 50 for every day after the

first, during which the breach continues. This has been omitted in the amended section. Therefore, this new provision amounts to nothing more than

an alteration of procedure which does not make the act which was not an ottence to foe an offence or imposes a greater penalty than what was the

case before. Before the Act was amended, u/s 10 when the tax assessed was not paid and there was default the amount could be recovered as if it

were an arrear of land revenue just as now it has been made as if it were a fine. The recovery by the procedure prescribed in the Madras Revenue

Recovery Act is one of the modes of realising the tax.

But this is not the only mode. The Crown can even sue as on a debt within a period of six years -- (Article 120 of the Limitation Act), see --

INDERCHAND Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL., , -- get a decree and realise the debt by attachment of property

as an ordinary debt. Suit for taxes is governed by Article 120 of the Limitation Act. See -- ''Larkana Municipality v. Kaloomal Pamoomal'', AIR

1933 Sind 48; -- ''Masand Motifam v. Shikarpur Municipality'' AIR 1936 Sind 184; -- Mathura Prasad Vs. Special Officer in charge, Gaya

Municipality, ; -- Dip Narain Choudhry and Another Vs. The Addl. Dist. Magistrate (in charge of the Patna Municipality), ; -- ''President of

Guntur Municipal Commission v. Padmaraju'', 3 Mad 124; --''Rajah of Vizianagaram v. Thammanna'', AIR 1937 Mad 217; -- Valia Maliyakkal

Sayid Muhammad Jiffiri Attakoya Thangal and Others Vs. Sayid Muhammad Bin Alabi Ayidross Kunhikoya Thangal, ; and -- Mt. Badrunnissa

and Others Vs. Municipal Board, .

Thirdly, the tax can after 1-1-1948 be recovered also as fine by a Magistrate, on conviction u/s 15(b) or Section 15 (d) of the Act. The

recovery of the tax as if it were a fine does not impose a greater penalty than the other two modes. Even though tax collectable as arrear of land

revenue may not be a first charge, the general principle of law preferring the Crown''s debt to that of the subject when both stand on the same

footing, nevertheless applies: -- ''Peoples Bank v. Secretary of State'', AIR 1935 Sind 232. Thus, the Crown has priority over other unsecured

creditors and when the property of an assessee is attached in execution of a simple money decree and money is deposited in court, since the

attachment by a decree-holder creates no right in property, the Crown can step in and recover any tax due to the Govt. without suit or attachment.

See -- ''Secretary of State v. Ma Nyein Me'', AIR 1937 Rang 380; -- O.S. Varadachari Vs. Secy. of State, and -- MANICKAM CHETTIAR

Vs. Income Tax OFFICER, MADURA., . In the case of the collection of the tax as land revenue, the mode is indicated in the Madras Revenue

Recovery Act II of 1864. u/s 5 of the Madras Revenue Recovery Act the arrear of revenue with interest and costs can be recovered by the sale of

the defaulter''s moveable or Immovable property or by execution against the person of the defaulter.

The procedure regarding moveable property is governed by distraint as set out in Sections 8 to 21 and sale of Immovable property, by Sections

25 to 35 regulating attachment, and by Sections 36 to 47 regulating sale; and in regard to the procedure for arrest this is governed by Sections 48

and 49. I do not see how the recovery of the tax as if it were a fine would be a greater penalty because it is open to the court in deserving cases

not to prescribe default sentences and the realisation of the fine otherwise than by default sentence of imprisonment is regulated by Rule 290-A of

the Criminal Rules of Practice, which is certainly far less onerous than the corresponding provisions under the Madras Revenue Recovery Act. In

such cases if steps taken in regard to the sale of moveables fail, the fine can even be written off. Therefore, Article 20 does not apply to this case,

and on this footing the application of Article 265 does not arise.

On this conclusion, the contentions of the Public Prosecutor are found to be correct and the orders of the lower Court as they stand cannot be

allowed to stand. The orders of the lower court are modified to the extent that in addition to the fine imposed in all these cases the taxes due by the

respective respondent and for which these prosecutions had been launched will stand added and they are made recoverable as if they were fines.

Petitions allowed.

Crl.R.C. Nos. 98, 106, 107, 109, 110 and 111 of 1952; As separate appeals against acquittal have been preferred in these cases by the State

and are pending, these petitions are dismissed.