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TMI Blog1957 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to as the Act). The circumstances, as stated in the affidavits filed by the Collector and the Income-tax Officer of Kozhikhode 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 outstanding 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 section 46(2) of the Indian Income-tax Act and by the Income-tax Officer himself under section 46(5A) 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 18th November, 1947, and 25th March, 1948, to the tune of about Rs. 23,100. Demand notice had been served upon him on 6th November, 1947, and the series of transactions of sale started on 18th November, 1947. Out of the said sum of Rs. 23,100, the respondent paid arrears of tax to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 48 of the Act offended article 14 of the Constitution. He was of the opinion that section 48 of the Act offended article 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 magistrate as required by article 22(2). Relying upon the decision of this Court in A. K. Gopalan v. State of Madras, he was of the opinion that the contention that the provisions of article 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 section 48 of the Act nor section 46(2) of the Indian Income-tax Act was in violation of articles 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 authoriz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim to exercise any of the rights guaranteed by sub-clauses (a) to (e) and (g) of article 19(1), for those rights can only be exercised by a free man. In that sense, therefore, article 19(1)(d) has to be read as controlled by the provisions of article 21, and the view that article 19 guarantees the substantive right and article 21 prescribes a procedural protection is incorrect. The decision in Gopalan's case has been followed in this Court in a series of cases and that decision must now be taken as having settled once for all that the personal rights guaranteed by sub-clauses (a) to (e) and (g) of article 19(1) are in a way dependent on the provisions of article 21 just as the right guaranteed by sub-clause (f) of article 19(1) is subject to article 31. If the property itself is taken lawfully under article 31, the right to hold or dispose of it perishes with it and article 19(1)(f) cannot be invoked. Likewise, if life or personal liberty is taken away lawfully under article 21, no question of the exercise of fundamental rights under article 19(1)(a) to (e) and (g) can be raised. Under article 21 "Procedure established by law" means procedure enacted by law made by the State, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pursuance of a warrant of arrest issued for recovery of the demand certified under section 46(2) of the Indian Income-tax Act, which did not offend article 14 of the Constitution, inasmuch as such arrest was under a procedure established by law, that is to say, section 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 section 13 of the Bombay Act. The grounds stated in that case for declaring that section 46(2) of the Indian Income-tax Act was not ultra vires the Constitution, as it did not offend article 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 section 48 of the Act nor section 46(2) of the Indian Income-tax Act violates articles 14, 19, 21 and 22 of the Constitution. We now proceed to consider the interpretation sought to be put by Mr. Pocker on section 46(2) of the Indian Income-tax Act and section 48 of the Act. He contended that section 46(2) of the Indian Income-tax Act m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be realised by the process of law and not by voluntary payment, the element of coercion in varying degrees must necessarily be found at all stages in the mode of recovery of the money due. The coercive element, perhaps in its severest form, is the act of arrest in order to make the defaulter pay his dues. When the Collector has reason to believe that withholding of payment is wilful, or that the defaulter has been guilty of fraudulent conduct in order to evade payment, obviously, it is on the supposition that the defaulter can make the payment, but is wilfully withholding it, or is fraudulently evading payment. In the Act there are several sections (e.g., sections 16, 18 and 21) which prescribe, in unambiguous language, punishment 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 section 48. We are of the opinion, therefore, that where an arrest is made under section 48 after complying with its provisions, the arrest is not for any offence committed or a punishment for defaulting in any payment. The mode of arrest is no more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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