The Collector of Malabar v. Frimal Ebrahim Hajee

Mack J. thought that s. 48 of the Act was ultra vires the Constitution as it offended Art. 22. He did not deal at length with the argument that s. 48 offended Art. 21 as he was of the opinion that if that section was ultra vires, then the respondent had not been arrested in accordance with procedure established by 1957 law and his arrest and imprisonment had seen unlawful.

On the other hand, if s. 48 was intra vii-es the Consti-TM Collector of tution, then the respondent had been lawfully deprived

Malabar of his personal liberty. He was further of the opinion

v. that s. 46(2) of the Indian Income Tax Act was Erim:1l Ebrahim ultra

Hajte vires as it offended Art. 14 of the Constitution.

Krishnaswami Nayudu J. was of the opinion that Imam]. s. 46(2) of the Indian Income Tax Act read with s. 48

of the Act offended Art. 14 of the Constitution. He was of the opinion that s. 48 of the Act offended Art. 21 of the Constitution to the extent that it afforded no opportunity to the arrested person to appear before the Collector by himself or through a legal practitioner of his choice and to urge before him any defence open to him and that it did not provide for the production of the arrested person within 24 hours before a magis-trate as required by Art. 22(2). Relying upon the decision of this Court in A. K. Copa/an v. The State of Madras ( 1 he was of the opinion that the contention ), that the provisions of Art. 21 had been infringed did not require serious consideration because in so far as there was a law on the statute book on which the Collector had acted that would be sufficient to support the legality of the action taken by the Collector.

On behalf of the appellant, it was contended that neither s. 48 of the Act nor s. 46(2) of the Indian Income Tax Act was in violation of Arts. 14, 19, 21 and 22 of the Constitution. Section 46(2) of the Indian Income Tax Act was a valid piece of legislation and under its provisions the Collector was authorised to recover the arrears of income tax as land revenue on receipt of a certificate from the Income Tax Officer. On behalf of the respondent it was contended that these sections of the Act and the Indian Income Tax Act <li<l offend Arts. 14, 19, 21 and 22 of the Consti-tution. It was further contended that on a proper interpretation of s. 46(2) of the Indian Income Tax Act the authority given to the Collector on receipt of the certificate from the Income Tax, Officer was to recover the amount of arrears of Income tax, but there was no authority thereunder in the Collector to arrest the defaulting assessee. Even if the. said section could 1957 be interpreted to give the power of arrest, arrest could The Co/ltctor of only be made under s. 48 of the Act. A proper reading Malabar of s. 48 of the Act would indicate that the defaulter should be given an opportunity to be heard in his Erimal Ebrahim defence, previous to a warrant of arrest being issued Hajee against him, as the same could only issue if the Collector J. had reason to believe that the defaulter was wilfully Imam withholding the arrears of tax or had been guilty of fraudulent conduct in order to evade payment. Such :a belief could not be entertained by the Collector without first giving the defaulter an opportunity to be heard. The warrant of arrest issued against the respondent without hearing him in his defence was invali<l and the arrest of the respondent was illegal..

The learned Advocate for tl)e respondent further drew our attention to the fact that in s. 48 there was no provision for the release of the defaulter if he paid up the :irrears of revenue.

What we have to consider in this · appeal, at the outset, is, whether either s. 48 of the Act or s. 46(2)" of the Indian Income Tax Act or both offend Arts. 14, 19. 21 and 22 of the Constitution. The decisions of this Court in Gopalan's case, in The State of Punjab v. Ajaib Singh . ( 1) and in Purshottam Govindji Halai v. Shree B. R. Desai, Additional Collector of Bombay ( 2 ) are to be borne in mind in deciding this question.

It was heid by the majority of the . learned Judges in Gopalan's case that the right "to move freely throughout the territory of India" referred to in Art.

19 (l) ( d) of the Constitution was but one of the many attributes included in the concept of the right to "personal liberty" and when a person. is lawfully deprived of his personal liberty without offending Art.

21, he cannot claim to exercise any of the rights ~ranteed by sub-els. (a) to (e) and (g) of Art. 19(1), for those rights can only be exercised by a freeman.

In that sense, therefore, Art. 19 (1) (d) has to be read as controlled by the provisions of Art; 21, and the view that Art. 19 guarantees the substantive right and Art. 21 prescribes a procedural protection is incorrect.

1957 The decision in Gopalan's case has been followed in this

Court in a series of cases and that decision must now T /,,, Col!tttor of be taken as having settled once for all that the

Ma/abat personal rights guaranteed by sub-els. (a) to (e) and (g)

v.

Erirrta/ Ebrahim of Art. 19( 1) are in a way dependent on the provisions

llaju of Art. 21 just as the right guaranteed by sub-cl. (f) of

Art. 19 ( 1) is subject to Art. 31. If the property itself Imam]. is taken lawfully under Art. 31, the right to hold or

dispose of it perishes with it and Art. 19 (i) (f) cannot be invoked. Likewise, if life or personal liberty is taken away lawfully under Art. 21 no questior. of the exercise of fundamental rights under Art. 19 (1) (a) to (e) and (g) can be raised. Under Arr. 21 "Procedure established by law" means procedure enacted by a law made by the State, that is to say, the Union Parliament or the Legislatures of the States. In the appeal before us, the principal question, therefore, is whether the respondent was deprived of his personal liberty in accordance with a procedure established by law, i.e. a valid law. If the law is valid then he has been lawfully deprived of his personal liberty and, in that situation, he cannot complain of the infraction of any of the fundamental rights mentioned in Art. 19 (1) (a) to (e) or (g).

In Ajaib Singh's case, a person wa~ taken into custody by the police a.'1d sent to the Ollicer-in-<:harge of the nearest camp under s. 4 of the Abducted Persons (Recovery and Restoration) Act (Act LXV of 1949) and it was submitted that the said Act contra-vened the provisions, inter alia, of Art. 22 of the Consti-tution. None of these submissions were found to be vaild. It was held, so far as Art.. 22 is concerned, that the taking into custody was not arrest and deten-tion within the meaning of Art. 22. Krishnaswami Nayudu . J. in his judgment, attempted to distinguish the decision. With respect to the learned Judge the principle emerging out of the decision in Ajaib Sitigh's case appears to us to be clear enough. The decision did not attempt to lay down in a precise and meticulous manner the scope and ambit of the fundamental rights or to enumerate exhaustively the cases that come within the protection of Art. 22. What was clearly laid down was that the physical restraint put 1957 upon an abducted person in the process of recovering and taking that person into custody without. any The Coll eclor of allegation or accusation of any actuai or suspected or Malabar apprehended commission by that person of any v. Erimal Ebrahitrt offence of a criminal or quasi-criminal nature or of any Hajee act prejudicial to the State or the public interest. can-not be regarded as an arrest or detention within the Imam]. meaning of Art. 22. In the present case, the arrest was not in connection with any alle~ation or accusation of any actual or suspected or apprehended commission of any offence of a criminal or quasi-criminal nature.

It was really an arrest for a civil debt in the process or the mode prescribed by law for recovery of arrears of land revenue.

In Purshottam Govind;i Halai's case, this Court held that there was no violation of Art. 21 of the Constitution where a person had been arrested under s. 13 of the Bombay Land Revenue Act 1876 in pursuance of a warrant of arrest issued for recovery of the demand certifien under s. 46(2) or the Indian Income Tax Act, which did not offend Art. 14 of the Constitution, inasmuch as such arrest was under a procedure established hy law, that is to say, s. 13 of the said Act constituted a procedure established by law. Mr. Pocker. however. attempted to distinguish the case. because this Court was dealing with s. B of the Bombay Act. The grounds stated in that case for declaring that s. 46(2) of the Indian Income Tax Act was not ultra vires the Constitution, as it did not offend Art. 14, are equally applicable to the present case and we can find no true principle upon which we can distinguish that case from the present one.

In . our opinion. having regard· to the previous decisions of this Court referred to above, neither s. 48 of the Act nor s. 46(2) of .the Indian Income Tax Act violates Arts. 14, 19, ::!l and 22 of the Constitution.

We now proceed to consider the interpretation sought to be put by Mr. Pocker on s. 46(2) of the Indian Income Tax Act and s. 48 of the Act. He contended that s. 46(2) of the Indian Income Tax Act merely authorised the Collector to recover the amount 1957 of .. arrears of Income Tax, but it did not give him any

ef . authority to arrest the respondent. He submitted T ii< Co/Lui"' that the act of arrest was not a mode of recovery of

Malabar .. the arrears of tax, but it· was a ·punishment for failure Erimal Ebrahim to pay. .We are unable to accept this interpretation.

Hajee The authority given to ·the Collector by this section is

to recover the arrears of tax as if it were an arrear of Imam] land revenue. · The preamble of the Act clearly states

that the laws relating to the collection of the public revenue should be consolidated and simplified and s. 5 provides for the manner in which the arrears of revenue may be recovered. It reads, "Whenever revenue may be in arrear, it shall be lawful for the Collector, or other officer empowered by the Collector in that behalf, to proceed to recover the arrear, together with interest and costs of process, by the sale of the defaulter's movable and immovable property, or by execution against the person of the defaulter in manner hereinafter provided." This section clearly sets out the mode of recovery of arrears of revenue, that is to say, either hy the sale of the movable or immovable property of the defaulter, or by execution against his person in the manner provided by the Act. Section 48 provides that when arrears of revenue cannot be liquidated by the sale of the property of the defaulter then the Collector, if he has reason to believe that the defaulter is wilfully withholding payment of the arrears or has been guiltv of fraudulent conduct in order to evade payment of tax, can lawfully cause the arrest and imprisonment of the defaulter. This section read with s. 5. makes it abundantly clear that the arrest of the defaulter is one of the modes, by which the arrears of revenue can be recovered, to be resorted to if the said arrears cannot be liquidated by the sale of the defaulter's property. There is not a suggestion in the entire section that the arrest is by way of punishment for mere default. Before the Collector can proceed to arrest the defaulter, not merely must the condition be satisfied that the arrears cannot be liquidated bv the sale of the property of the defaulter but the Collector shall have reason to believe that the defaulter is wilfullv withholding payment, or has been guilty of fraudulent conduct in order to evade payment. When dues in the shape of money· are to be 1957 realised by the pro<:ees of law . and not by voluntary payment, the element of ·· coercion in varying degrees T/18 Collector of must necessarily be found · at all stages in the morle of Malabar recovery of the money due. The coercive element, v. perhaps in its severest form, is the act of arrest ·in Erimal Ebrahi11t order to make the defaulter pay his dues. When the Haju Collector has reasori to believe that withholding of Imam J. payment is wilful, or that the defaulter has been guilty of fraudulent conduct in order to evade pay-ment, obviously, it is on the supposition that the defaulter can make the payment, but is wilfully with~ holding it, or is fraudulently evading payment. In the Act there are seve:al sections (e.g. ss. 16, 18 and 21) which prescribe. in unambiguous language, ·punish-ment to be inflicted for certain acts done. It is clear, therefore, that where the Act intends to impose a punishment or to create an offence, it employs a· language entirely different to that to be found in s. 48.

We are of the opinion. therefore,· that where an arrest is made under s. 48 after complying with ·. its . pro-visions, the arrest is not for any offence committed or a punishment for defaulting in any · payment .. · The mode of arrest is .. no more · than a mode for recovery of the amount due. ·

There is nothing in s, 48 of the Act which .· requires the Collector · to give the defaulter an opportunity to be heard before arresting him .. • It is . true that the Collector musthave reason to believe that the defaulter is wilfully withholding_ payment or has been guilty of fraudulent · conduct in order to evade payment. The Collector, therefore. must have some material upon which he · bases his bdief~a belief whieh must be rational - belief...:_and a . court may look into that material in appropriate cases In . order to find out if the conditions laid down-in the section have been · fulfilled or not.: Ftotn the affidavits filed in the High . Court by .the Collector and the Income Tax Officer it is quite clear that there wa.~ material upon which the Collector could base his belief that the respondent was · wilfully .withh(>lding payment ·· of the arrears. of tax arid had been gtiilty of fraudulent conduct in order to 1957 evade payment. The Collector was, therefore, justified

in arresting the respondent.

T h1 Coiled or of As pointed out by Mr. Pocker, s. 48 of the Act d~

Malabar not in terms provide for the release of the defaulter if

v. he pays up the arrears, but it is to be remembered Erimal Ebrahim that in addition to the powers under s. 48 of the Act,

Hqju the Collector has. under the proviso to s. 46(2) of the

J. Indian Income Tax Act, similar powers to that which Imam a Civil Court has for recovery of an amount due under

a decree. It was helcl in Purshottam Go11indji Halai's case that the proviso is not an alternative remedy open to the Collector but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorized by sub-sec. (2) of s. 46 of the Indian Income Tax Act. Under s. 58 of the Civil Procedure Code a Ci vi! Court must release the judgment debtor if the amount due is paid. Accordingly, the Collector has the power to release the defaulter if the amount due is paid and there is no substance in the submission of the learned Advocate. Moreover, one of the conditions precedent to action under s. 48 is the existence of arrears of revenue. On payment of the arrears, that condition no longer exists and the debtor must clearly be entitled to release and freedom from arrest.

lt was urged 1hat the respondent was a man of about 70 years at the time of his arrest and a person suffering from serious ill health. Indeed, it is said, he is suffering from paralysis and that he should nor be sent back to jail custody. We cannot in the present proceedings make such an order. The respondent may, if he is taken into custody again, approach the Collector for his release who could do so, in the circumstances set out in s. 59 of the Code of Civil. Procedure, in the exercise of his powers under the proviso to s. 46(2) of the Indian Income Tax Act.

The appeal is accordingly allowed with costs and the judgment of the High Court is set aside. It will be open to the Income Tax Officer of Kozikhode and the Collector of Malabar to take such steps _against the respondent according to law as they may be advised, Appeals allowed.

CRIMINAL APPELLATE JURISDICTION : Criminal ---<.· Appeal No. 145-A of 1954.

1957 Appeal under Article 132 ( 1) of the Constitution of

India from the Judgement and Order dated July 23, Tht Collector of 1954, of the Madras High Court in Criminal Miscella-

Malabar neous Petition No. 922 of 1954.

v.

Erimal Ebrahim Porus A. Mehta and R. H. Dhebar, for the appellants.

Hajee B. Packer and B. K. B. Naidu, for the respondent.

1957. April 11. The Judgment of the Court was J. delivered by Imam

IMAM J .-The appellant obtained a certificate from the .Madras High Court to the effect that the case involved a substantial question of law as to the inter-pretation of the Constitution under Art. 132(1), in consequence of which the present appeal is before us.

The respondent had filed a petition in the High Court under s. 491 of the Code of Criminal Procedure praying that directions in the nature of habeas corpus may be issued for his production before that Court to he dealt with according to law and for his release from imprison1nent.

The respondent had been arrested on June 1, 1954 in pursuance of a warrant issued on March 10, 1954 hy the Collector of Malabar under s. 48 of the Madras Revenue Recovery Act (Madras Act II of 1864) (here-inafter referred to as the Act). The circumstances, as stated in the affidavits filed bv the Collector and the Income Tax Officer of Kozikh~de in the High Court, which led to the respondent's arrest, were, that he had been assessed to income-tax for various assessment years and the total amount of tax remaining outstand-ing against him, in round figures, was Rs. 70,000. Some amount was recovered by the Collector in pursuance of a certificate issued by the Income Tax Officer under s. 46(2) of the Indian Income Tax Act and by the Income Tax Officer himself under s. 46(5)A of the said Act. After deducting the amount so realised the arrears of income-tax were about Rs. 61,668 and odd for the assessment years 1943-44, 1945-46 to 1948-49. Meanwhile the Income Tax Officer had made enquiries into the affairs of the respondent and had discovered that he had sold certain properties of his between November 18, 1947 and March, 25, 1948 to the tune of about Rs. 23,100. Demand notice had 1957 been served upon him on November 6, 1947 and the series of transactions of sale started on November 18, The Collector of 1947. Out of the said sum of Rs. 23,100, the respond-Malabar ent paid arrears of tax to the extent of Rs. 10,500 only. v. Enquiries also revealed that although the respondent Erimal EbiuJri,11 had closed his business at Cannanore in August, 1947, Hajce he had set up a firm in 1948 at Tellichery carrying on Imam}. an identical business in the name of V.P. Abdul Azeez & · Bros. consisting of his one major and four minor sons. The respondent had alleged that the capital of this firm was mainly supplied from the sale of jewels belonging to his wife, that is, Abdul Azeez's mother.

He denied that the above-mentioned firm belonged to him. In the assessment proceedings before the Income Tax Officer concerning the firm V.P. Abdul Azeez & Bros., the source of these jewels was gone into, but it was found that the same had not been proved and it was held that the business of V.P. Abdul Azeez & Bros.

belonged to the respondent. All these facts were communicated to the Collector by the Income Tax Officer who made independent enquiries for himself and had reason to believe that the respondent was wilfully withholding payment of arrears of tax and had been guilty of fraudulent conduct in evading payment of tax. As a certificate had already been issued to him by the Income Tax Officer under s. 46(2) of the Indian Income Tax Act, the Collector proceeded under s. 48.

of the Act to issue a warrant of arrest against the respondent in consequence of which he was arrested and lodged in Central Jail, Cannanore.

In the High Court, the petition under s. 491, Crimi-nal Procedure Code, was heard by Mack and Krishna· swamy Nayudu JJ. which was allowed and they ordered that the respondent be set at liberty as his arrest was illegal.