TMI Blog1960 (11) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... he same, if necessary. The Sales Tax Officer, accompanied by Inspector Kandhari, went to the place of business of Bherumal Narayanadas on Girgaum Road, where the officer was told, the proprietor of L. Chaturbhuj Co. could be contacted. Accused No. 2 was the proprietor of the company. Ghanekar contacted the accused at that place and asked him to show him the books of account of his firm. The accused, however, told him that he had kept the books of account at his residence at Batra House, Sorab Bharucha Road, Colaba. The officer told him to take him there and accused No. 2 took him and the Inspector to his residence mentioned above. At the same time as the Sales Tax Officer Ghanekar got an assignment to visit the business premises of L. Chaturbhuj Co., another Sales Tax Officer Sidhwani was given an assignment order to visit the residence of accused No. 2 at Batra House for the same purpose, viz. checking his books of account. This Sales Tax Officer Sidhwani, accompanied by an Inspector by name Gandhi and another Inspector Khamgaonkar, went to the house of accused No. 2 at Batra House on the third floor and rang the bell. An old woman answered the bell and told him that accused N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty had gone up and was apprised of the incident, That Police officer then took accused No. 2, Ghanekar and Kandhari to the Police Station. The Police Constables sent by Sub-Inspector Kuril also went back with them to the Police Station, where, according to the prosecution, the first report of Ghanekar was recorded. Sub-Inspector Kuril then went with them to the house of accused No. 2. All of them entered the house and accused Nos. 1, 3 and 4 were pointed out to the Police by the Sales Tax Officers as the persons who had taken part in pushing them out of the house. The house was thereafter searched and a panchanama was prepared of the account books which were seized in course of that search. In respect of the seizure of the account books Ghanekar himself prepared a memo. under section 23 and a receipt which was exhibit I in the case. All the four accused were then taken to the Police Station and were put under arrest. The Police then started the investigation of the case and after it was complete, all the four accused were sent up on charges under section 353 read with section 34 and section 424 read with section 34 of the Indian Penal Code. As regards the charge under section 424 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders to search the flat, and, according to accused No. 2, the officers stated that they had none. On this, accused Nos.1, 3 and 4 told them that they would not allow them to enter the flat. Accused No. 2 also joined in this opposition. Accused No. 2 then stated that thereupon the officers went away. Accused No. 2 denied that any force was used on them or that they were actually pushed out of the flat. Later, according to accused No. 2, some Police officers went to his flat and took him to the Police Station. His place was searched in pursuance of the Police officers' order and a panchanama was prepared. He, however, denied that any bill book or any account book was missing. As regards the other accused, they had made similar statements denying any use of force and alleging that the officers were not allowed to enter because when questioned if they had any authority, they said that they had none. No evidence, however, was led by the defence. Before the learned Presidency Magistrate some preliminary points of law were urged, one of them being that the incident alleged by the prosecution disclosed an offience under section 36(h) of the Bombay Sales Tax Act and that, therefore, excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying upon it for the purpose of convicting accused No. 1 of an offence under section 380 of the Indian Penal Code. Our attention was invited to the evidence of Ghanekar as also the judgment of the learned Presidency Magistrate dealing with this evidence. Mr. Gambhirwalla contended that the learned Presidency Magistrate failed to appreciate that it was not really necessary for Ghanekar to state in the seizure memo. exhibit 1 in the case, as was stated in his evidence on oath before the Court, the fact as to snatching by accused No. 1 from his hands of the order of assignment which, according to him, was given to him by the Additional Collector under the Sales Tax Act. We have carefully read the evidence of Ghanekar as well as that part of the judgment of the learned Presidency Magistrate which has dealt with it and we are not disposed to disagree with the finding of the learned Presidency Magistrate that the prosecution had failed to prove beyond a reasonable doubt that accused No. 1 had in fact snatched the order of assignment from the hands of Ghanekar as alleged by him in his evidence before the Court. In coming to this conclusion, the learned Presidency Magistrate strongly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 353 read with section 34 of the Indian Penal Code and to all intent and purpose the accused did not really want to challenge their conviction even if the sentence was to be enhanced, according as we decided in that behalf. When, however, Mr. Jethmalani told us that he would not like to challenge their conviction in exercise of his right under the Criminal Procedure Code if only the sentence of fine was enhanced and no substantive sentence of imprisonment was awarded, we brought it to his notice that the question of sentence was not a matter of any bargain. We could not obviously give him any assurance as to what we would do after the hearing was over as regards the enhancement of the sentence. Thereupon Mr. Jethmalani decided to challenge the conviction of the accused and raised a number of contentions for the purpose. He addressed us on these contentions at good length and with a good deal of vehemence and eloquence. The latter was undoubtedly very impressive, but the subject-matter thereof, viz., the contentions, in our opinion, as we shall presently point out, did not hold any substance at all. The first contention that was raised by Mr. Jethmalani was the same a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other." As stated above, according to Mr. Jethmalani, what should be looked at is the primary object of the action on the part of the accused. The primary object, according to him, of a case falling under section 36(h) of the Sales Tax Act would be to obstruct an officer making an inspection, a search or a seizure under section 23 and the primary object of an assault or use of criminal force under section 353 of the Indian Penal Code on a public servant would be to obstruct him in discharging his public duty. Mr. Jethmalani contended that the public duty in this case consisted in seizing the books of account by the Sales Tax Officer under section 23 of the Sales Tax Act, that the primary object even of causing assault to such officer would be to obstruct him in seizing the books and that, therefore, in considering such cases, the element of assault must be completely given a go-bye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obstruction referred to in that sub-section is in regard to an inspection or a search or a seizure by the officer concerned. In causing such an obstruction, in our opinion, it is not at all necessary to cause any assault or use any criminal force to the officer concerned. Effective obstruction can be caused to such an officer while taking a search or an inspection or seizing the books of account by withdrawing the books of account or withholding them or by not producing them before the officer at all. Such an obstruction could as well be caused, if the officer comes for search of the books, merely by standing at the door of the house and preventing only by words his entry into the house. We have already referred to the Explanation under section 351 which defines assault and it says that: "Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparations such a meaning as may make those gestures or preparations amount to an assault". No gesture or preparation need be made when a person is seeking to obstruct a Sales Tax Officer taking inspection of the books of account or seizing the books of account. He need only say by standing at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, these two offences are not the species of the same kind. They stand entirely in different categories and they have got nothing in common between them. In our opinion, therefore, the offence alleged by the prosecution, falling as it did under section 353 of the Indian Penal Code, did not require any sanction of the Collector for proceeding against the accused in respect thereof. We may mention that it was open to the Sales Tax Officers to ignore the assault or the use of criminal force made against them by the accused and just to proceed under section 36(h) for having been obstructed in seizing the books of account of accused No. 2. That, however, was a matter entirely of their choice. Where if they were physically assaulted and criminal force was used against them, there was nothing to restrict them only to a prosecution under section 36(h) of the Sales Tax Act and not to prosecute the accused under the ordinary criminal law embodied in the Indian Penal Code. In the result, we are afraid, in spite of the vehemence and eloquence of Mr. Jethmalani on this point, we find no substance therein whatever. It was next contended by Mr. Jethmalani that Ghanekar had no authority what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been in consequence of the conditions and restrictions imposed by the Collector as contended by clause (5) of the order referred to above. Mr. Jethmalani contended that the evidence of the Additional Collector in this connection clearly showed that the practice of issuing orders of assignment even subsequent to the order aforesaid must have continued on account of a certain order that might have been passed by the Collector orally. It appears, however, that during the cross-examination of the Additional Collector it was elicited that he did not remember as to whether any such order was in fact passed or not. What, however, the witness was certain about was that the practice of issuing orders of assignment which prevailed before the issue of the order of the Collector referred to above continued even after the order was made as a matter of convention. This evidence, therefore, in our opinion, does not lead to the conclusion that the effect of the order passed by the Collector at stated above was nullified and that the officers authorised under that order to exercise the powers inter alia under section 23 of the Sales Tax Act had necessarily to obtain an order of assignment from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowering him to enter the flat of accused No. 2, voluntarily took him to his own flat, surely, in our opinion, it would not be open to him to contend that he had no power to enter his flat and that, therefore, he could not either take inspection of books or seize them. If he was so particular about the order of assignment with regard to his residential premises, it was open to accused No. 2 to tell Ghanekar to get the necessary order of assignment and then go to his flat. Accused No. 2, however, according to the evidence of Ghanekar did not do so. In the circumstances of the case, therefore, neither accused No. 2 nor accused No. 1 nor any other accused for that matter was justified in throwing out Ghanekar and his companions from the flat after they were allowed an entry therein, merely on the pretext that Ghanekar did not have the necessary authority from the Collector in that behalf. Besides, it must be noted that so far as Sidhwani was concerned, he had the necessary order of assignment entitling him to enter the residential premises of accused No. 2 and inspect and seize the books, if thought fit. Accused No. 1, according to the evidence of Sidhwani and others, had an occasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which some sort of dispute is to be decided. The Sales Tax Act deals with these "proceedings" in Chapter VII commencing from section 27, whereas section 23 falls under Chapter VI entitled "liability to produce accounts, to supply information and to pay the tax in the case of transfer of business". In our opinion, therefore, it is not at all necessary for the Collector to pass any order assigning the "proceedings" in favour of a Sales Tax Officer under section 44(2) of the Act before such officer exercises his powers under section 23 of the Act. Apart from this, however, it appears from the assignment orders produced as exhibit 2 in this case, that the "case" of accused No. 2 as proprietor of L. Chaturbhuj Co. was assigned to the two officers for inspection and verification of books of accounts, search of premises where books are likely to be kept, seizure of the books if necessary, their examination and further necessary action under section 23 of the Bombay Sales Tax Act, 1953. If the word "case" as used in these orders means a "proceeding", the orders of assignment can well be said to have been passed both under sub-section (1) and sub-section (2) of section 44 of the Act. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act which is to be exercised by the officer concerned relates to seizure of the books, but it is difficult to imagine that the officer would want to seize all the books he comes across in the premises which he visits. He must necessarily find out in the first instance whether the books he is able to find are really relevant for the purposes of the Sales Tax Act and that would not be done unless and until the officer concerned looks at the books of account and ascertains for himself as to whether those books are really relevant for the purposes of the Act. If there are a number of books to be examined in that behalf, it does undoubtedly take some time and if during that period of time the officers squat in the flat and examine the books with the ultimate object of selecting what books they should seize, in our opinion, the action of the officers in that behalf cannot be branded as a trespass. There is no evidence on the record of this case to suggest that the officers were regularly inspecting the books of account with a view to take out extracts from them. Mr. Jethmalani in cross-examination of these witnesses, has not been able to elicit any answer from any of these witnesses to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1959. There is no evidence on record as to what was the financial year in respect of the business of accused No. 2, but it is clear that it could not in any event be more than 12 months. If we consider the cash books from March, 1957, and from July, 1958, there is a gap of more than one year. There must, therefore, necessarily be another cash book covering at least the period between 1st April to 30th June, 1958. That cash book was not found in the premises during the seizure by the officers. Then again, there is a cash book from September, 1954. There is undoubtedly no evidence to suggest as to whether the officers required the books of account from 1954 onwards. But from the fact that the cash book from September, 1954, was among the books that were seized by the officers, it is reasonable to infer that they wanted the later books as well. Obviously from the list it appears that the cash books for 1955 and 1956 were not found in the premises at all. So far as the ledgers are concerned, only three ledgers were found. Obviously, if we take the accounts from 1954 to 1959, there should have been at least five or six ledgers. In these circumstances, therefore, we are not prepared to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Station seeking their help, if they were allowed to perform their duties at the flat of accused No. 2 in the manner in which they were required to be done by law. This in itself lends considerable corroboration to the evidence not only of Ghanekar but also to the evidence of all the witnesses on the point of assault and use of criminal force by the accused against them. Mr. Jethmalani conceded and so also the accused in their statement before the court that Sidhwani and Gandhi had in fact gone to the Police and that the Police had come back to the flat. If it were just an obstruction of a simple kind without any assault or use of criminal force, we do not think that it was necessary for any of the officers to seek Police help. They could have taken action under section 36(h) of the Sales Tax Act against the accused for having obstructed them in either inspecting or searching or seizing the books of account from the flat. The aid of the Police became necessary, in our opinion, because the accused had assaulted the officers and had also used criminal force by bodily lifting them and putting them out of the flat. In view of this circumstance, therefore, whatever may be the minor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot too late to realise that as from the date of the Constitution the Government which is run in this country is the Government of the people, for the people and by the people themselves. It is the duty of the members of the public, whether businessmen or otherwise, to co-operate with the officers of the Government in discharge of their lawful duties. Law and order have got to be maintained, and if any member of the public trifles with law and order, he must necessarily be dealt with harshly. In the circumstances of this case, as stated above, we regard this offence as a serious one. But as urged by Mr. Jethmalani, this being the first offence of its kind on the part of the accused, we do not desire to be unduly harsh in the matter of sentence. We must, however, consider all the circumstances of the case and mete out such sentence which should meet the ends of justice. Accused No. 1 has been sentenced to pay a fine of Rs. 250 only. On the evidence, we have found that he was the man out of all the 4 accused who actually took up the cudgels and disputed the authority of the officers to enter the flat and seize the books, although he was shown the authority at least of Sidhwani in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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