# 8!2 PUBLIC PROSECUTOR, MADRAS v. R. RAJU & ANR. ETC

- **Citation:** [1973] 1 S.C.R. 812
- **Court:** Supreme Court of India
- **Decided:** 1972-08-08
- **Bench:** S. M. S!Kr!, A. N. Ray, P. Jaganmohan Reddy. K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-2-public-prosecutor-madras-v-r-raju-anr-etc-5722
- **Pages:** 10

## Headnote

B
Central Excises and Sall Act, 1944, s. 40(2)-Bar of limitation on
certain su1'ts1 proceedings, prcsecution..~•, ·when c.pplicable-Whether applies
h case of Government servants onl,v-Whether nor applicable when acts
complained of are malicious-Words "anything done or ordered to be
done'' in section whether include acts in violation of t11e Act.
Se~tion 40(2) of the Central Excises and Salt Act, 1944 provides that
no smt prosecution or other legal proceeding shal•l be instituted or anythmg done or ordered to be done under the Act after the expiration of six
months from the accrual of the cause of action or from the date of the
act or order com;:ilained of. The respondents in the present appeals were
prosecuted for violations of Central Excise Rules, punishable under s.
9(b) and (d) of the Act and also un<ler s. 420 read with section 511 of
the Indian Penal Code and Section 109 of the Inuian Penal Code. The
High Court found that ~he prosecution in both the cases was barred by
the rule of limitation in section 40 of the Act because the prosecutions
were instituted subsequent to the expi1y of sL'< months fror · the date of
the nl!eged offences.
c
D
In appeals before this Court by special leave it was contended on behalf
of the·appellant that (i) the section applies only to government servants;
(ii) the protection given to Government servants under the sectk>n is for
E
actio~s done inadvertently or mistake[\l~ buu not for acts done de!._
berateh· and maliciously; and (iii) the words "anything done or ordered
to be 0une" under this Act in- the secrion do not mean anv act in violation of the provi;ions of the Act.
·
HELD : ( i l The provisions contained in section 40 of the Act show
that the first sub-section speaks of bar of suits against the Central GovernF
ment or any officer of the Central Government in respect of orders passed
(=
in good faith or net in good faith done or orderecl to be done. The second
sub-section of section 40 provides bar of limitation of ·rime in respect of
suits, pro·secutions or other legal proceedings without any qualifying words
as to persons against whorn suit proceeding and prosecution shall be
instituted. The contention of the appellant tha.t sub~section (2) is confined
only against the Government officers is not warranted by the words of the
statute and is repelled by reference to other comparable statutes which
G
have indic~ateJ in clear words when the statute contemplates bar of suits,
proceedings or prosecution against Government servants on1y.
The words
in section 40(2) of the Act in the present case are of wide amplitude to
apply to the prosecution which was commenced against respondents in
the present case. [817H-818B]
(ii) Tbe cpntention that "anything t:one" would not include a ~alicious
act or an act done in bad faith could not be accepted. Sub..,ect1on (2)
H
of section 40 does not introduce the test of good faith in relation to act
,'-
done.
Good faith is one of the aspects in section 40(1). The present
appeals did not turn on sub-i;ection. (I) of sectfon 40. [8180-E]
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PUBLIC PROSECUTOR V. R. RAJU (Ray, ,/,)
d.J
(iii) The decisions of this Court in the light of the definition of the
'word "act" in the General Clauses Act establish that non-compliance witll
the provisions of the statute by omitting to do what the Act enjoins will
be "anything done or ordered to be done" under the Act. The complaint
against the respondents was that they wanted to evade payment of duty.
Evasion was by using and affixing cut and torn banderols,
Books of
account were not correctly maintained. There was shortage of ·vanderol
in stocks: Unbanderolled matches were found. These were all infraction
of the provisions in respect of things done or ordered to be done under
the Act. [820B]
The High Court was therefore right in its conciusion that the prosecu·
lion was barred. by the provisions of section 40 of the Act. [821D]
!';'tam Singh v. State of Haryana,
[1971]
1 S.C.C.
653, Mau/ad
Ahmad v. State of Uctar Prade

## Text

8!2
PUBLIC PROSECUTOR, MADRAS
A
v.
R. RAJU & ANR. ETC.
August 8, 1972
[S. M. S!KR!, C.J., A. N. RAY, P. JAGANMOHAN REDDY.
K. K. MATHEW, JJ.]
B
Central Excises and Sall Act, 1944, s. 40(2)-Bar of limitation on
certain su1'ts1 proceedings, prcsecution..~•, ·when c.pplicable-Whether applies
h case of Government servants onl,v-Whether nor applicable when acts
complained of are malicious-Words "anything done or ordered to be
done'' in section whether include acts in violation of t11e Act.
Se~tion 40(2) of the Central Excises and Salt Act, 1944 provides that
no smt prosecution or other legal proceeding shal•l be instituted or anythmg done or ordered to be done under the Act after the expiration of six
months from the accrual of the cause of action or from the date of the
act or order com;:ilained of. The respondents in the present appeals were
prosecuted for violations of Central Excise Rules, punishable under s.
9(b) and (d) of the Act and also un<ler s. 420 read with section 511 of
the Indian Penal Code and Section 109 of the Inuian Penal Code. The
High Court found that ~he prosecution in both the cases was barred by
the rule of limitation in section 40 of the Act because the prosecutions
were instituted subsequent to the expi1y of sL'< months fror · the date of
the nl!eged offences.
c
D
In appeals before this Court by special leave it was contended on behalf
of the·appellant that (i) the section applies only to government servants;
(ii) the protection given to Government servants under the sectk>n is for
E
actio~s done inadvertently or mistake[\l~ buu not for acts done de!._
berateh· and maliciously; and (iii) the words "anything done or ordered
to be 0une" under this Act in- the secrion do not mean anv act in violation of the provi;ions of the Act.
·
HELD : ( i l The provisions contained in section 40 of the Act show
that the first sub-section speaks of bar of suits against the Central GovernF
ment or any officer of the Central Government in respect of orders passed
(=
in good faith or net in good faith done or orderecl to be done. The second
sub-section of section 40 provides bar of limitation of ·rime in respect of
suits, pro·secutions or other legal proceedings without any qualifying words
as to persons against whorn suit proceeding and prosecution shall be
instituted. The contention of the appellant tha.t sub~section (2) is confined
only against the Government officers is not warranted by the words of the
statute and is repelled by reference to other comparable statutes which
G
have indic~ateJ in clear words when the statute contemplates bar of suits,
proceedings or prosecution against Government servants on1y.
The words
in section 40(2) of the Act in the present case are of wide amplitude to
apply to the prosecution which was commenced against respondents in
the present case. [817H-818B]
(ii) Tbe cpntention that "anything t:one" would not include a ~alicious
act or an act done in bad faith could not be accepted. Sub..,ect1on (2)
H
of section 40 does not introduce the test of good faith in relation to act
,'-
done.
Good faith is one of the aspects in section 40(1). The present
appeals did not turn on sub-i;ection. (I) of sectfon 40. [8180-E]
A
B
PUBLIC PROSECUTOR V. R. RAJU (Ray, ,/,)
d.J
(iii) The decisions of this Court in the light of the definition of the
'word "act" in the General Clauses Act establish that non-compliance witll
the provisions of the statute by omitting to do what the Act enjoins will
be "anything done or ordered to be done" under the Act. The complaint
against the respondents was that they wanted to evade payment of duty.
Evasion was by using and affixing cut and torn banderols,
Books of
account were not correctly maintained. There was shortage of ·vanderol
in stocks: Unbanderolled matches were found. These were all infraction
of the provisions in respect of things done or ordered to be done under
the Act. [820B]
The High Court was therefore right in its conciusion that the prosecu·
lion was barred. by the provisions of section 40 of the Act. [821D]
!';'tam Singh v. State of Haryana,
[1971]
1 S.C.C.
653, Mau/ad
Ahmad v. State of Uctar Pradesh, [1963] Supp, 2 S.C.R. 38, Sitaram v.
C
State of Madhya Pradesh, [1962] Supp, 3 S.C.R. 21 and Amalgamated
Electricity Co. v. Municipal Committee Ajmer, [1969] 1 S.C.R. 430, relied
on and applied.
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CRIMINAL ,APPELLATE JURISDICTION :
Criminal
Appeals
Nos. 194 and 195 of 1969.
Appeals by special leave from the judgment and order date<l
Nowmber 21, 1968 of the Madras High
Court in
Crimiμal
Appeals Nos. 211 and 232 of 1966 and Criminal E.C. No. 16'43
of 1966.
Gobind D!ls and S. P. Nayar, for the appellant.
M. S. Narasimhan, tor the respondents.
The Judgment of the Court was delivered
Ray, J,
These 1!wo appeals are by special leave from the
judgment dated 21 November, 1968 of the High Court at Madras
dismissing the appeals filed by the appellant against the order of
the Sub-Divisional Magistrate dated 30 November, 1965 and the
order oi the Sessions Judge da1>~d 16 November, 1965 acouitting
the respondents.
The question which falls for consideration in these appeals is
the interpretation of section 40 ( 2) of the Central Excises and
Salt Act, 1944 hereinafter r.~ferrnd to for brevhy as the Section
and the Act.
The section is as follows :-
"No st.it, prosecution or other legal
proceedings
shall be instituted for anything done or ordered to be
done under the Act after the ·~xpiration of six months
from the accrual of the cause of action or from the da'te
of the act or order complained of"
The respondents in both the appeals were prosecuted for
violation of rules 9, 53, 64, 67, 68, 70, 71, 66 and 226 of the
Central Excise Rules punishable under seotion 9 (b) and ( d)
of the Act and also under section 420 read with section 511 of
•
814
SUPREME COURT REPORTS
[1973] 1 S.C.R.
the Indian Penal Code and section 109 of the Indian Penal Code.
A
The High Court found that the proswtion in .both the cases was
barred by the rule of limitation in section 40 of the Act.
The
acts complained of in Criminal Appeal No. 194 of 1969 occurred' on 25 July, 1964 and the complaint was filed on 18 May,
1965. In Criminal Appeal No. 195 of 1969 the aots complained
of occurred on 20 June 1964 and the complaint was filed on
B
15 January, 1965.
The appellant's contentions are three-fold. First, the section
applies only to Government servants.
Second, the words "anything done or ordered to be done under this Act" in the section
do not mean any act in violation of the provisions of the Act.
Third, the protection given to Government servants under the
C
section is for actions done inadvertently or mistakenly but not
for acts done deliberately and maliciously.
It was therefore said
that the prosecution of the respondents was no within the mischief
of •the section.
The respondents' contention on the other hand is that the
~ection applies to prosecution of the respondeni:s for violation of
the provisions of. the. Rules and the Act It is further said on behalf of the respondents that they were rightly acquitted bJY the
High Court because the prosecution were instituted subsequent to
the expiry of six months from the date of the alleged offences.
In Criminal Appeal No. 194 of 1969 the complaint was filed
on 18 May, 1965.
The complaint was filed against accused No.
1 who was the licence" of Paulrai Match Works, Nallichatram
and accused No. 2 whv was the accountant in the factory and
who had assisted accused No. 1 in the manufacture of matches
and maintenance of accounts and records of the factory.
The
complaint against the accused who are respondents in this appeal
was that on 25 July, 1964 the accused being proprietor and accountant respectively of Paulrai Match Works at Nallichatram
were found to have affixed cut banderols and torn banderols to
the matches· manufactured in the said Match Factory with a view
to evade the payment of excise duty payable to the Government
and that the accused also attempted to deprive the Central Government of Rs. 577.42 by their acts.
The complaint against the
accused was for violation of Rules 53, 64, 67, 68, 70, 71, 66 and
226 of the Central Excise Rules punishable under section 9 (b)
and ( d) of tb.e Central Excises and Salt Act, 1944 and
also
under section 420 of the Indian Penal Code read with section
511 of the Indian Penal Code and section 109 of the Indian
Penal Code.
The further details of the complaint were that the
register R.G.I. was not written out from 2 July, 1964 and R.G. 3
register was not correctly maintained. There was also a shortage
of 50 leaves of banderols in stock.
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l'UBLIC PROSECIJlOR V, R, RAJU (Ray, /,)
815
In Criminal Appeal No. 195 of 1969 the complaint was
against accused Np. 1 . the licencee of Meenachi Match Works
and accused No. 2 husband of accused No. 1 who was running
the factory and maintaining accounts.
The complaint against
the accused was 'that on 20 June, 1964 the Central Excise staff
visited the factory and found tliat the factory was working at
night.
On inspection it was found that cut banderols instead of
full banderols had been pasted on certain quantities of match
boxes with a view to evade payment of excise duty in violation
of rules 64, 68 and 70 of the Central Excise Rules.
The further
allegations in the complaint were ithat on inspection of
lorry
despatches and clearances of the factory, it was found that during
1963-64 and 1964-65 upto 20 !une, 1964 the licence.e had actually cleared without entry in the official Central Exdse Records
and without payment of duty a quantity of matches in excess of
the quantity shown in the records.
The complaint was that the
accused had attempted to deprive the Central Government
of
Rs. 2437.50 being the Excise duty calculated at 1he standard
rate.
The accused were alleged to have committed violation of
Ru!es 9, 53, 64, 66, 67, 68, 70 and 226 of the Central Excise
Rules punishable under
section 9 (b) and ( d) of the Central
Excises and Salt Act. 1944 and also under section 420 of the
Indian Penal Code read with sections 511 and 109 of the Indian
Penal Code.
In Criminal Appeal No. 194 of
1969 the
Sub-Divisional
Magistrate on 30 November, 1965 acquitted the accused of the
charges and held that 'the bar of limitation under the section applied to 1he prosecution by the State.
The complaint was received in the Court of the Sub-Divisional Magistrate on 18 May,
1965.
The inspection of factory by the Central Excise staff was
on 25 July, 1964. The Sub-Divisional Magistrate therefore held
that computing the period of six months from the date,
the
last date within which the complaint should ha,,e been laid would
be 25 January, 1965. The State preferred an appeal to the High
Court of Madras.
The High Court held that the prosecution
must fai\ as it was barred by. limitation.
The present appeal is
from the judgment of the High Court.
In Criminal Appeal No. 195 of 1969 the
Sub-Divisional
Magistrate on 6 July, 1965 found the respondents guilty.
The
respondents preferred an appeal to the Sessions Comt at Ranianathapuram.
The Sessions Judge on 16 November, 1965 set
aside the conviction and sentence and acquitted the respondents.
The
Sessiops Judge held that the bar of limitation under the
section operaited against the State because the prosecution was
commenced after the expiry of prescribed period of limitation.
The State preferred an appeal to the High Court.
The High
816
SUPREME COURT REPORTS
[1973] l S.C.R.
•
Court maintained the .jμdgment of 1the Sessions Judge. The ap·
peal is from the decision of the High Court.
Counsel on oohalf of the appellant contended that 1he pro·
visions of the section did not apply to prosecution for offences·
committed by individuals in contravention 6f the Act and the
Rules made thereunder.
It was said that the seotion was intended for prescribing limitation in respect of prosecution only
against departmen1al officers or Government servants.
The section consists of two sub-sections. ~ firs1
subsection speaks of bar of suits against the Central Government
or against any officer of the Government in respect of any order
passed in good faith or any act in .good faith done or ordered
to oo done under the Act.
The second
sub-section speaks of
limrtation of suits, prosecution or other-legal proceeding for any·
thing done or ordered to be done under the Act
after 1he
expiration of six months from the accrual of the cause of action
or from the date of the act or order complained of. The two subsections operate indifferent fields.
The first sub-section con1emplates bar of suits against the Central Government or against the
officers by protecting them in respect of orders passed in good
faith or acts done in good faith. It is manifest tha1 the second
sub-seotion does not have any words of restriction or limitation of
class of persons unlike sub-section ( 1). Sub-section (2) does not
have any words of qualification as to persons.
Therefore, subsection (2) is applicable to any individual or person.
Referano~ may be made to some statutes 1o indicate as to
how the Legislature places bar againsit any class of person in
respect of sui1s, proceedings, prosecutions for anything done or
ordered to be qone under the relevant statute.
Section 20 of the Medicinal and Toilet Preprations (Excise
Duties) Act, 1955 (16 of 1955) containing two sub-sections is
a type.
The first sub-section there speake of bar of suits or other
legal proceedings against the collecting Government or against
any officers in respect of any order passed in .good faith or any
action in go(>d faith done or ordered to be done under the Act.
The second sub-section there speaks of bar of suit, prosecution
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or other legal proceeding against the collecting Government or
against any officer for anything done or ordered to be done under
the Act after the expiration of six months from the accrual of
the cause of action or from the.date of the act or order complained
of.
These provisions illusetrate the manner in which the legislature has by appropriate words placed bar of suits or prosecution
or other legal procer-.dings only against the Government or any
officer.
There is no bar in that statute of suits, prosecutions
against individuals. In the present case, sub-section (2)
of
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PUBLIC PRO.~ECUTOR v. ,R. RAJU (Ray, J.)
817
section 40 of the Act does not contain any bar of suit, prosecution
or legal proceeding by confining the same only to Government
~·,rvants.
The Madras General Sales Tax Act, .1959 affords anothe·.
illustration.. Section 50 of the Madras Act, 1959 enacts that
no suit shaH be illS'tituted against the Government and no suit,
prosecution' .or other proceeding shall be instituted against any
officer or servant of the. Government in respect of any act done
or purporting to be done Wider the Act unless the suit, prosecution or other proceeding is instituted wvthin six months from
the date of that act complained of.
The Madras General Sales
Tax Act provides yet another instance of limitation for suits and
prosecution against specified class of persons, namelj', Government and Government servants.
The Bombay (District) Tobacco Act, 1953 deals in section
24.( 1) qf the Act with proteCltion of persons acting in good faith
and limitation of suits and prosecutions against them.
Limitation of suits and prosectl'l:ions in section 24(2) of too Bombay
Act is provided by enacting that no suit shall -be instituted agaii'ist
the. Government and no prosecution or suit shall lie against any
Tobacco Officer in -respect of anything done or alleged to have
been done, in pursuance of the Act, unless the suit or prosecution has been instituted within four months from the date of the
act complained of.
The Bombay statute typifies in section 24 ( 2)
limitati.>n of suit and prosecution by restriClting the operation of
the provisions only against the Government and Tobacco Officers.
The Madhya Pradesh Motor Vehicles (Taxation of Goods)
Act, 1962 has comparable provisions in section 25 thereof by
providing thal\, no suit or other proceeding shall be instituted
against the State and no suit, prosecution or other proceeding
shall be instituted agaiast any officer or servant of the Government in respect of any act done or purpoNing to be done under
this Ac.t, unles the suit, prosecution or other proceeding is instituted within one year from the date of the act complained of.
These different statutes have been mentioned only to indicate
that where the legislature intends to restrict the limitation of suits.
proceedings __ or prosecutions against the Govermnent servants
only the legislature has chosen proper words of limitation to ensure the restricted operation of the provisions of the statute.
The provisions contained in section 40 of the Act in the present case show that the first sub-section speaks of bar of ~uits
against the Central Government or any officer of th!( Government
in"respect of orders passed in good faith or act !n good fait,h done
or ordered to be done.
The second sub-section of section 40
3-Lt72 Sup CI/73
,
818
SUPREME COURT REPORTS
(1973]1 S.C.R.
provides bar of limitation of time in respect of suits, prosecutions
or other legal proceedings without any qualifying words as to
person against whom suit, proceeding and prosecution shall be
instituted.
Th.e contention of. the appellant that sub-section (2)
is confined only against the Government officers is not warranted
by the words .9f the statute and is repelled by reference to other
comparable statutes which have indicated in clear words when the
statute contemplates bar of suits, proceedings
or
prosecution
against Government servant only.
The words in section 40(2)
of the Act in the present case are of wide amplitude to apply to
the prosecution which was commenced against the respondents in
the present appeals.
Section 40 ( 2) of the Act cann<Yt be said to be confied in i'ts
operation only to Government servants. The sub-section is applicable to any person against whom suits or proceedings or prosecution shall lie for anything done or ordered 'to be done under
the Act.
The other contention on behalf of the appellant was that
the words "anything done or ordered to be done" in the se~1ion
would nat mean anything done in violation of the provisions of
the Act.
It was also said that "anything done" would not include a malicious act or an act done in bad faith.
Sub-section
( 2) of section 40 does not introduce the 'test of good faith in
relation to act done. Good faith is one of the aspects in section
40(1). The present appeals do not turn on srb-section (1)
of section 40.
:Section 9 of the Act deals with offences and penalties.
The
offences mentioned in section 9 are mainly these.
Evasion of
payment of duty under the Act is an offence.
Failure to supply
any information required by Rules under the Act or supply of
false information is also an offence.
Contravention of provisions
and of Rules under the Act is also an offence.
Rules are made
under section 37 of the Act.
In the present case, the complaint
was •that Rules 9, 53, 64, 67, 68, 70, 71, 66 and 226 were violated.
Rule 9 speaks of time and manner of payment of duty.
No excisable goods shall be removed from any place where they
are produced, unless ihe excise duty leviable thereon has · been
paid at such place and in such manner as is prescribed in th·~se
Rules. If excisable goods are in contravention of sub-rule ( l)
of Rule Y removed from any place the manufacturer shall pay
duty leviable on such goods and shall also be liable 1to a penalty.
Rule 53 deals with daily stock account.
Every manufacturer
shall maintain a stock account in the proper form and is required
to enrer in such account daily the weights, descriptions and rating
of all excisable goods. Matches are dealt with in Rules 58 to 82.
Rule 64 requires that each box or booklet of matches shall bea1
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PUBLIC PROSECUTOR V. R. RAJU (Ray, J.)
819
ban\ierol.
Duty on matches is paid by affixing to each box or
boOklei ll Government banderol of a value appropriate to the rate
of duty.
Rule 65 states that all banderols shall be procured from
a Government Treasury.
Rule 66 provides that banderols are
to be kept in a secured place and are to be periodically inspected.
Rule 67 requires the manufacturer to maintain account of banderols purchased and used.
Rule 68 deals with the manner of
affixing banderols.
Every banderol shall be so affixed that the
words and figures on the banderol specifying the maximum nuber of matches covered by the banderol are legible.
The box
or booklet cannot be opened without tearing the banderol, and
where it is affixed to a box, '111e ends of the banderol are covered
by the factory's label.
Rule 70 states that as soon as possible
after matches are finished they shall be banderollcd and enclosed
in packets and presented 'to the officers of the factory for assessment.
Rule 71 deals with the method of packing.
Rule 226
sets out •that the entry books, stock account and warehouse re~is
ter should be maintaiw..,ci.
Reference to these rules is necessary
to understand •the requirements of the Act and the violations committed by the respondents.
The complaint in the presell't appeals
against ·the respondents was that the stock and accounts were
examined and the banderols affixed to the unit box were also
examined.
The .examination revealed that cut banderols have
been affixed and full length torn banderols were affixed with a
view to evade excise duty.
Unbanderolled matches were
also
found in excess stock over and above the book value.
The regisler was not correctly maintained.
The complaint was that the
respondents violated the provisions of the Rules.
The respondents did not comply with the Rules.
The word 'act' is defined in the General Clauses Act, 1897.
The definition is as follows :
"act" used with reference to an offence or a civil
wrong, shall include a series of acts and words which
refer to acts done extend also to ille11al ommissions".
The words "anything done or ordered to be done" under the
Act in section 40 ( 2) of the Act were therefore contended by
counsel for the respondents to extent to illegal ommissions and
infraction of the requirements of the statute.
In Pritam Singh v. State of Haryana(') a Police Officer was
Prosecuted for offences under section 29 of
the Police Act.
Section 42 of the Police Act enacted that "prosecution against
any person which may be lawfully ·brought for anything done
or intended to be done under the provisions of the
Act shall
be commenced within three months after the act
complained
(I) 1197!1 I, S.C.C. 653.
820
SUPREME COURT REPORTS
[1973] ! S.C.R
of Shall have been
committed
and
not
otherwise."
The
apJ)ellan~ in that case was found absent from duty from
the
~ohce. Lme a1 the time of roll-call. Prosecution of the appelllint
IJ! Pritam Sin_gh's case (supra) was initiated for non-compliance
with the reqmreme.nts to be on duty as required under the Police
Act. This was held to be prosecution for something done und~
the provisions of ·the Act.
This Court in Maulud Ahmad v. State of Uttar Pradesh(')
considered the case of prosecution of a head Constable.
Section 42 of the Police Act was invoked as a bar
to
the
prosecution in Mau/ud Ahmad's(') case
(supra) the question was whether Chauhan abetted Maulud Ahmad in making
false entries in the General Diary of Police St3tion Mailani
and whether Maulud Ahmad made false entries in the General
Diary of Police Station Mailani with the intention
to
save
or knowing it likely that he would thereby save the offenders.
from legal punishment. The Coul't in Maulud Ahmad's(') case
(supra) said that if the appellant did not discharge his duty in
keeping a regular diary he has committed an offence under section 29 of the Act.
Sitaram v. State of Madhya Pradesh(') this Court t'""llllined
a criminal trial in respect of the offence of filing false retums
of sales ~ax. Section 26 of the C.P. and Berar Sales Tax Act,
1947 provided inter alia, 1that no prosecution shall be instituted agai!lst any person in respect of anything· done or int.ended to bt. done under the Act unless the prosecution has been
instituted within three months of the date of the
act
complained of. It was contended that the words
"any person"
showed the intention of the legislature to give
protection to
Government servants in regard to prosecution and not to persons other than Government servants. This Court did not
accept that contention, because there were no words to restrict
the meaning of the words "any person"' Furthermore this Court
held that when the appellant in that case submitted returns he did
so under the provisions of the Act. When he produced the accounts he did so under the provisions of the Act. The. fili,ng of
the returns and the production of accounts could not be said to
be outside the provisions of the Act.
These decisions in the light of the definition of the words
'act' in the General Clauses Act establish that non-compliance
:with the provisiO!JS of the statute by omitting to do what the act
enjoins will be anything done or ordered to be done under the
Act. The complaint against the respondents was that they wanted
to evade payment of duty. Evasion was by using and affixing ~ut
and torn banderols .. Books of account were not correctly mamtained. There ·was shortage of banderol in sto.ck. Unbanderolled
(I) [1963] Supp. 2 S.C.R. 38.
(2) [1962] Supp. 3 S.C.R. 21.
A
B
c
D
E
-.
G
H
A
B
PUBLIC PROSECUTOR 11 .• R. RAJU (Ray, J.)
82 I
matches were found. These are all infraction of the provision> in
respect of things done or ordered to be done under the Act.
In Amalgameted Electricity Co. v. Municipal
Committee,
Ajmer( 1 ) the meaning of 'omission' of a statutory
dU'ty
was
explained by this Court. Hegde, J. speaking for the Court said
"The omission in question must have a positive content in it.
In other words, the non-discharge of that duty must amount to
an illegalny''.
The positive aspect of omission in the present
case is evasion of payment of duty.
The provisions
of
the
Act require proper affixing of banderols. Cut or torn banderols
were used.
Unbanderolled match boxes were
found.
These
provisions abont use of banderols are for collection and pay·
C ment .of excise duty. The respondents did not pay the lawful dues
which are Qcts ·to be done or ordered to be done under. the Act.
The Hil!h Court was right in its conclusion that the prosecution was barred by the provisions of section 40 of the Act.
The appeals therefore fail and are dismissed.
D G.C.
Appeals dismissed.
(1) fl969] l S.C.R. 430.