# and cruel murder like the present should go v. The State of Pu'lfa:b

- **Citation:** [1957] 1 S.C.R. 970
- **Court:** Supreme Court of India
- **Decided:** 1954-07-23
- **Case number:** Criminal Appeal No. 145-A of 1954
- **Bench:** S. R. Das C.J, Jafer Imam, s. K. DAS, GoVINDA MENON, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/and-cruel-murder-like-the-present-should-go-v-the-state-of-pu-lfa-b-1383
- **Pages:** 11

## Headnote

Income Tax-Arrears
of-Wilfully
withholding and evading
payment-Arrest of asses see to recover arrears-Whether illegal-
/ndian
Income Tax Act, s. 46 (2)-Madras Revenue Recovery Act
(Mad. II of 1864), s. 48-Constitution of India, Arts. 14, 19 21
and 22.
The Income Tax Officer forwarded a certificate
under s. 46(2)
of the Indian Income Tax Act to the Collector for recovering the
arrears of lncome Tax from the assessee as if they were arrears of
land revenue. The Collector proceeded under s. 48, Madras Revenue
---<.·
S.C.R.
SUPREME COURT REPORTS
971
Recovery
Act, and had the asscssee arrested and confined in jail.
Upon a petition for a writ of habeas corpus the High Court ordered
the
release of the
assessee
holding that s. 48
of the
Madras
Revenue Recovery Act and s. 46(2) of the Indian Income Tax Act
were ultra vires.
The Collector appealed.
Held, that s. 48 of the Madras Revenue
Recovery
Act, and
s. 46(2) of the Indian Income Tax Act were not ultra vires ,and
neither of them violated Arts. 14, 19, 21 and 22 of the Constitution.
Where the personal liberty of a person is lawfully taken away
under Art. 21, i.e., in accordance with a procedure established by a
valid law, no question of the
exercise
of fundamental
rights
under Art. 19(1) (a) to (e) and (g) tan be raised .
. A. K. Gopalan v.
The State of Madras, (1950) S.C.R. 88,
followed.
An arrest for a civil debt in the process of or in the mode
prescribed by law for recovery of arrears of land revenue docs not
c0me within the protection of Art. 22.
State of Punjab v. Ajaib Singh (1953) S.C.R. 254, followed.
Section 46(2) of the Indian Income Tax Act does not offend
Art. 14 and there is no violation of Act. 21
where a person is
arrested under s. 48, Madras Revenue Recovery Act, in pursuance
·of a warrant of arrest issued
for
the recovery
of the demand
certified under s. 46(2) of the Indian Income Tax Act.
Purshottam Govindji Halai v. Shri B. M. Desai, Additional
Collector of Bombay, ( 1955) 2 S.C.R. 887, followed.
Section 46(2) of the Indian Income Tax Act gives authority
to the Collector to recover arrears of tax if it were an arrear of
land revenue. Section 48 of the Madras Revenue Recovery Act
read with s. 5 make it clear that the arrest of the defaulter is one
of the modes by which · the arrears of land revenue can be recovered,
to be resorted to if the said arrears cannot be liquidated by the sale
of the defaulter's property. Such an arrest is not for any offence
committed or a punishment for defau!ting in any payment.
Section 48 of the Madras Revenue Recovery Act does
not
require the Collector to give the defaulter an opportunity to be
heard before arresting him. But the Collector must have reason to
believe that the defaulter is wilfully withholding payment or
has
.been guilty of fraudulent conduct in order to' evade payment. Such
belief must be based upon some material. which a Court may look
into in appropriate cases. to find out if the conditions laid down in
the section have been fulfilled. The Collector has also the power to
release the defaulter if the amount due is paid.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 145-A of 1954.
1957
Tiu Collector of
Malabar
v.
Erimal Ebrahim
llaju
1957
Tht Collector of
Malabar
v.
Erimal Ebrahim
Hajee
Imam J.
':l72
SUPREME COURT REPORTS
[1957]
Appeal under Article 132 ( 1) of the Constitution of
India from the Judgement and Order dated July 23,
1954, of the Madras High Court in Criminal Miscellaneous Petition No. 922 of 1954.
Porus A. Mehta and R. H. Dhebar, for the appellants.
B. Packer and B. K. B. Naidu, for the respondent.
1957. April 11. The Judgment of the Court was
delivered by
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 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 C

## Text

970
SUPREME COURT REPORTS
[1957]
1957
Sanvan Singh
bring home to Sarwan Singh the charge framed against
him. If that he the true position, we must hold that
the learned Judges of the High Court were in error in
convicting Sarwan Singh of the offence of murder. It
is no doubt a matter of regret that a foul could-blooded
and cruel
murder
like the
present
should
go
v.
The State of
Pu'lfa:b
1957
J. unpunished. It may be as Mr. Gopal Singh strenuous! y urged before us that there is an element of truth
in the prosecution
story
against both the appellants.
Mr. Gopal Singh contended that, considered as a whole.
the prosecution story may be true ; hut between 'may
be true' and 'must be true' there is inevitably a long
distance to travel and the whole of this distance must
be covered by
legal,
reliable
and unimpeachable
evidence. We have carefully considered all the arguments which Mr. Gopal Singh urged before us ; but we
do not think it
would be possible to regard the
approver as a reliable witness or to hold that the
confession of Sarwan Singh is voluntary or true.
In
the result, the appeal preferred by Sarwan Singh must
be allowed, the order of conviction and sentence passed
against him must be set aside and he must be acquitted and discharged.
Appeals allowed.
THE COLLECTOR OF MALABAR
v.
FRIMAL EBRAHIM HAJEE
(S. R. DAS C.J., JAFER IMAM, s. K. DAS,
GoVINDA
MENON and A. K. SARKAR JJ.)
Income Tax-Arrears
of-Wilfully
withholding and evading
payment-Arrest of asses see to recover arrears-Whether illegal-
/ndian
Income Tax Act, s. 46 (2)-Madras Revenue Recovery Act
(Mad. II of 1864), s. 48-Constitution of India, Arts. 14, 19 21
and 22.
The Income Tax Officer forwarded a certificate
under s. 46(2)
of the Indian Income Tax Act to the Collector for recovering the
arrears of lncome Tax from the assessee as if they were arrears of
land revenue. The Collector proceeded under s. 48, Madras Revenue
---<.·
S.C.R.
SUPREME COURT REPORTS
971
Recovery
Act, and had the asscssee arrested and confined in jail.
Upon a petition for a writ of habeas corpus the High Court ordered
the
release of the
assessee
holding that s. 48
of the
Madras
Revenue Recovery Act and s. 46(2) of the Indian Income Tax Act
were ultra vires.
The Collector appealed.
Held, that s. 48 of the Madras Revenue
Recovery
Act, and
s. 46(2) of the Indian Income Tax Act were not ultra vires ,and
neither of them violated Arts. 14, 19, 21 and 22 of the Constitution.
Where the personal liberty of a person is lawfully taken away
under Art. 21, i.e., in accordance with a procedure established by a
valid law, no question of the
exercise
of fundamental
rights
under Art. 19(1) (a) to (e) and (g) tan be raised .
. A. K. Gopalan v.
The State of Madras, (1950) S.C.R. 88,
followed.
An arrest for a civil debt in the process of or in the mode
prescribed by law for recovery of arrears of land revenue docs not
c0me within the protection of Art. 22.
State of Punjab v. Ajaib Singh (1953) S.C.R. 254, followed.
Section 46(2) of the Indian Income Tax Act does not offend
Art. 14 and there is no violation of Act. 21
where a person is
arrested under s. 48, Madras Revenue Recovery Act, in pursuance
·of a warrant of arrest issued
for
the recovery
of the demand
certified under s. 46(2) of the Indian Income Tax Act.
Purshottam Govindji Halai v. Shri B. M. Desai, Additional
Collector of Bombay, ( 1955) 2 S.C.R. 887, followed.
Section 46(2) of the Indian Income Tax Act gives authority
to the Collector to recover arrears of tax if it were an arrear of
land revenue. Section 48 of the Madras Revenue Recovery Act
read with s. 5 make it clear that the arrest of the defaulter is one
of the modes by which · the arrears of land revenue can be recovered,
to be resorted to if the said arrears cannot be liquidated by the sale
of the defaulter's property. Such an arrest is not for any offence
committed or a punishment for defau!ting in any payment.
Section 48 of the Madras Revenue Recovery Act does
not
require the Collector to give the defaulter an opportunity to be
heard before arresting him. But the Collector must have reason to
believe that the defaulter is wilfully withholding payment or
has
.been guilty of fraudulent conduct in order to' evade payment. Such
belief must be based upon some material. which a Court may look
into in appropriate cases. to find out if the conditions laid down in
the section have been fulfilled. The Collector has also the power to
release the defaulter if the amount due is paid.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 145-A of 1954.
1957
Tiu Collector of
Malabar
v.
Erimal Ebrahim
llaju
1957
Tht Collector of
Malabar
v.
Erimal Ebrahim
Hajee
Imam J.
':l72
SUPREME COURT REPORTS
[1957]
Appeal under Article 132 ( 1) of the Constitution of
India from the Judgement and Order dated July 23,
1954, of the Madras High Court in Criminal Miscellaneous Petition No. 922 of 1954.
Porus A. Mehta and R. H. Dhebar, for the appellants.
B. Packer and B. K. B. Naidu, for the respondent.
1957. April 11. The Judgment of the Court was
delivered by
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 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) (hereinafter 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 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 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
S.C.R.
SUPREME COURT REPORTS
973
the tune of about Rs. 23,100. Demand notice had
been served upon him on November 6, 1947 and the
series of transactions of sale started on November 18,
1947. Out of the said sum of Rs. 23,100, the respondent paid arrears of tax to the extent of Rs. 10,500 only.
Enquiries also revealed that although
the
respondent
had closed his business at Cannanore in August, 1947,
he had set up a firm in 1948 at Tellichery carrying on
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, Criminal 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.
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
The Collector of
Malabar
v.
Erimal EbiuJri,11
Hajce
Imam}.
1957
TM Collector of
Malabar
v.
Erim:1l Ebrahim
Hajte
Imam].
974
SUPREME COURT REPORTS
[1957]
law and his arrest and imprisonment had seen unlawful.
On the other hand, if s. 48 was intra vii-es the Constitution, then the respondent had been lawfully deprived
of his personal liberty. He was further of the opinion
that s. 46(2) of the Indian Income Tax Act was ultra
vires as it offended Art. 14 of the Constitution.
Krishnaswami Nayudu J. was of the opinion that
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 magistrate 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 Constitution.
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
(') (1950) S. C.R. 88.
S.C.R.
SUPREME COURT REPORTS
975
the defaulting assessee.
Even if the. said
section could
be interpreted to give
the power of arrest, arrest could
only be made under s. 48 of the Act. A proper reading
of s. 48 of the Act would indicate that the defaulter
should be given an opportunity to be heard in his
defence, previous to a warrant of arrest being issued
against him, as the same could only issue if the Collector
had reason to believe that the defaulter was wilfully
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.
{I) [1953] S. C. R. 254
(2) .[ 1955 j 2 S. C.R. 887
1957
The Co/ltctor of
Malabar
Erimal Ebrahim
Hajee
Imam J.
1957
T /,,, Col!tttor of
Ma/abat
v.
Erirrta/ Ebrahim
llaju
Imam].
976
SUPREME COURT REPORTS
[1957]
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-els. (a) to (e) and (g)
of Art. 19( 1) are in a way dependent on the provisions
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
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 contravened the provisions, inter alia, of Art. 22 of the Constitution. 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 detention 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
S.C.R.
SUPREME COURT REPORTS
'177
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 actuai 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 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
The Coll eclor of
Malabar
v.
Erimal Ebrahitrt
Hajee
Imam].
1957
T ii< Co/Lui"' ef .
Malabar
..
Erimal Ebrahim
Hajee
Imam]
978
SUPREME COURT REPORTS
(1957]
of .. arrears of Income Tax, but it did not give him any
authority
to
arrest
the respondent.
He submitted
that the act of arrest was not a mode
of recovery of
the arrears of tax, but it· was a ·punishment for failure
to pay.
.We are unable to accept this interpretation.
The authority given to ·the Collector by this section is
to recover the arrears of tax as if it were an arrear of
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
S.C.R.
SUPREME .·COURT REPORTS
979
payment. When dues in the shape of money· are to be
realised by the pro<:ees of law . and not by voluntary
payment, the element of ·· coercion in varying degrees
must necessarily be found · at all stages in the morle 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
reasori 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 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, ·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 s. 48.
We are of the opinion. therefore,· that where an arrest
is made under s. 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 · 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
T/18 Collector of
Malabar
v.
Erimal Ebrahi11t
Haju
Imam J.
1957
T h1 Coiled or of
Malabar
v.
Erimal Ebrahim
Hqju
Imam J.
980
SUPREME COURT REPORTS
[1957]
evade payment. The Collector was, therefore, justified
in arresting the respondent.
As pointed out by Mr. Pocker, s. 48 of the Act d~
not in terms provide for the release of the defaulter if
he pays up the arrears, but it is to be remembered
that in addition to the powers under s. 48 of the Act,
the Collector has. under the proviso to s. 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 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.