TMI Blog1957 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... powers under the proviso to section 46(2) of the Indian Income-tax Act.The appeal is accordingly allowed with costs and the judgment of the High Court is aside. - Criminal Appeal No. 145- A of 1954 - - - Dated:- 11-4-1957 - Judge(s) : GOVINDA MENON., JAFAR IMAM., S. K. DAS., S. R. DAS., A. K. SARKAR JUDGMENT The Judgment of the Court was delivered by JAFER 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 interpretation of the Constitution under article 132(1), in consequence of which the present appeal is before us. The respondent had filed a petition in the High Court under section 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 be dealt with according to law and for his release from imprisonment. The respondent had been arrested on 1st June, 1954, in pursuance of a warrant issued on 10th March, 1954, by the Collector of Malabar under section 48 of the Madras Revenue Recovery Act (Madras Act II of 1864) (hereinafter referred to as the Act). The circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 491 of the Criminal Procedure Code was heard by Mack and Krishnaswami Nayudu, JJ., which was allowed and they ordered that the respondent be set at liberty as his arrest was illegal. Mack, J., thought that section 48 of the Act was ultra vires the Constitution as it offended article 22. He did not deal at length with the argument that section 48 offended article 21 as he was of the opinion that if that section was ultra vires, then the respondent had not been arrested in accordance with the procedure established by law and his arrest and imprisonment had been unlawful. On the other hand, if section 48 was intra vires the Constitution, then the respondent had been lawfully deprived of his personal liberty. He was further of the opinion that section 46(2) of the Indian Income-tax Act was ultra vires as it offended article 14 of the Constitution. Krishnaswami Nayudu, J., was of the opinion that section 46(2) of the Indian Income-tax Act read with section 48 of the Act offended article 14 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity to be heard. The warrant of arrest issued against the respondent without hearing him in his defence was invalid and the arrest of the respondent was illegal. The learned advocate for the respondent further drew our attention to the fact that in section 48 there was no provision for the release of the defaulter if he paid up the arrears of revenue. What we have to consider in this appeal, at the outset, is whether either section 48 of the Act or section 46(2) of the Indian Income-tax Act or both offend articles 14, 19, 21 and 22 of the Constitution. The decisions of this Court in Gopalan's case, in State of Punjab v. Ajaib Singh and in Purshottam Govindji Halai v. B.M. Desai, Additional Collector of Bombay are to be borne in mind in deciding this question. It was held 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 article 19(1)(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 article 21, he cannot claim to exercise any of the rights guar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 article 22. What was clearly laid down was that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest, cannot be regarded as an arrest or detention within the meaning of article 22. In the present case, the arrest was not in connection with any allegation 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 Govindji Halai's case, this Court held that there was no violation of article 21 of the Constitution where a person had been arrested under section 13 of the Bombay Land Revenue Act, 1876, in pursuance of a warrant of arrest is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 guilty of fraudulent conduct in order to evade payment of tax, can lawfully cause the arrest and imprisonment of the defaulter. This section read with section 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 by the sale of the property of the defaulter but the Collector shall have reason to believe that the defaulter is wilfully withholding payment, or has been guilty of fraudulent conduct in order to evade payment. When dues in the shape of money are to be realised by the process of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 48 of the Act, the Collector has under the proviso to section 46(2) of the Indian Income-tax Act, similar powers to that which a Civil Court has for recovery of an amount due under a decree. It was held in Purshottam Govindji 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-section (2) of section 46 of the Indian Income-tax Act. Under section 58 of the Civil Procedure Code a Civil 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 section 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. It was urged that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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