M.P Kannan, Quilandy And Another v. State Of Kerala And Others Counter Petitioners.

The Judgment of the Court was delivered by

Anna Chandy, J.:— the two petitioners in these revision petitions are K.P Kannan a grocery dealer in Quilandy and his son M.P Balan they were convicted in two cases CC 355 of 1962 and CC 3 of 1962 on the file of the Additional First Class Magistrate Quilandy. The two cases arose out of the same incident.

2. The facts so far as they are necessary for the purposes of this case may be stated thus: P.W 1 the Intelligence Officer of the Agricultural Income-tax and Sales Tax, Kozhikode accompanied by two of his Inspectors went to inspect the first accused's shop on the evening of 5-10-1961 They entered the shop and introduced themselves as Sales Tax Officers visiting the shop for the purpose of inspecting the account books. The first accused produced some account books which were inspected by P.W 1 in the course of the inspection P.W 1 noticed some note-books and slips in an open rack and asked him to hand them over for inspection. The first accused placed them on the table P.W 1 and one of the inspectors P.W 2 examined the note books and slips (purchase vouchers and indents about fifty in number) and was satisfied that they related to the first accused's business and that some of the transactions referred to therein were not entered in the account books originally produced by the first accused. P.W 1 wanted to seize them for further scrutiny and verification. So he recorded in writing the reasons for the seizure (Ext. P-7). He also prepared the receipt Ext. P-8 (in original) with Ext. P-3 (carbon copy) and asked the first accused to sign it. The fact of seizure was also endorsed by him in the first accused's day book Ext P-2. By this time the second accused came to the shop and asked the first accused not to sign the receipt. Thereupon P.W 1 handed over the note-books to P.W 3 and asked him to lake the books to the motor van in which the had come P.W 3 packed them and was about to lake them to the him when the second accused went up to P.W 1 and caught him by his shirt. The first accuser then snatched the packet from P.W 3 and passed it on to the second accused who handed over to somebody in the crowd who escaped with it. P.W 1 proceeded immediately to the police station and reported the matter. The accused were charged separately ??? the offences under the Penal Code and the this, Tax Act in C.C 355 of 1962 the two accused were convicted under S. 868, I.P.C for using criminal force to deter a public servant from discharge of his duty and was sentenced to pay a fine of Rs. 250 each. In C.C 3 of 1962 they were convicted under Section 19(c) of the General Sales Tax Act, 1125 for having obstructed the inspection of account books by the officers and sentenced to pay a fine of Rs. 100 each. On appeal to the Sessions Court the conviction and sentence in both the cases were confirmed. In both the cases P.Ws 11 to 3 gave evidence in support of the incident and proved the relevant records. Both the accused practically admitted the fact that P.W 1 had taken into custody some of the records, though they would deny the use of criminal force on the officer or of having forcibly removed the books from his custody. The accused's case is that while the officers were inspecting the books they were asked not to pull out from the almyrah certain books and slips containing Ayurvedic Prescriptions as they were to be preserved. They took offence at this and wrote up something and asked the first accused to sign. He refused to do so as it was in English and was neither read out nor explained, to him Two witnesses were examined by them to support their version of the incident. The learned Magistrate as well as the appellate Judge accepted the prosecution evidence and found that the books and records taken for further scrutiny were forcibly removed by the accused from the custody of the officers.

3. These findings of fact arrived at by the two courts on a proper appreciation of the evidence cannot be challenged in revision and no attempt was made to do so. The main ground on which the conviction was challenged is that Section 17(2-A) of the General Sales Tax Act is ultra vires the Constitution as it offends Article 19(1)(f) and (g) of the Constitution. In CC 3 of 1962 it was urged in addition that since S. 19(c) penalises only prevention or obstruction of the inspection or entry by the officer and not seizure and as the prosecution has no case that any obstruction was offered either to the entry or to the inspection, the conviction is not sustainable.

4. As the latter objection is confined to Criminal R.P 231 of 1964 it may be disposed of first. We feel that the objection has to prevail. Section 17(2A) was inserted by Section 11(i) of Act 18 of 1955 on 1-10-1955 and it would appear to be an omission on the part of the Legislature not to have introduced a corresponding change in S. 19(c) by penalising the obstruction to seizure as well it may be noted in this connection that in the Kerala General Sales Tax Act, 1963 the necessary changes have been made in S. 46(2)(a) by penalising prevention or obstruction of inspection entry search or seizure by an officer. The learned State Prosecutor would contend that S. 19(c) will take in a case of seizure as well because the seizure is implicit in the act of inspection and forms an integral part of it he has also an alternative contention that obstruction to seizure will come within the purview of S. 19(h) which penalises all acts in contravention of any of the provisions of this Act in our opinion both these positions are untenable.

5. If Section 17(2) as originally framed was intended-to include taking into ??? and removal of the account books for inspection, there was no occasion for the addition of S. 17(2A) to authorise the seizure of such accounts and registers and prescribing the necessary procedure to be adopted in such a case. We are also unable to agree that S. 19. Cl. (h) would cover a case of obstruction to seizure as it envisages only acts done by a person in contravention of the provisions of the Act S. 17(2A) confers a power on the officer to act in ??? manner and no corresponding duty is imposed on the dealer so as to make his act one in contravention of the provisions of the Act. We accept the objection taken by the learned counsel that S. 19(c) in terms does not penalise obstruction to seizure under S. 17(2A) and set aside the conviction and sentence passed on the accused in C.C No. 3 of 1962 Criminal R.P No. 231 is allowed.

6. Now we have to deal with the main objection raised by the learned counsel regarding the Constitutional validity of S. 17(2A) Article 19(1)(f) declares the right of a citizen to acquire, hold and dispose of property and Article 19(1)(g) to practise any profession of to carry on any occupation, trade or business. The limitations to the exercise of that right are contained in Clauses (5) and (6) which recognise the power of the State to make laws imposing reasonable restrictions on the exercise of any right conferred by sub-clauses (f) and (g) in the interests of the general public. The injection taken by the defence is that the restrictions imposed by Section 17(2-A) of the General Sales Tax Act are not reasonable since on the one hand wide and unrestricted powers are vested in the officers which the exigencies of levy of the tax do not warrant or justify and on the other hand no safeguards are provided for controlling, regulating or guiding the actions of the officers. The issue to be decided. In the court is whether the restriction is in excess of the requirements and whether it was imposed in an arbitrary manner. In doing so the court is to determine the constitutionality of the restriction imposed upon the exercise of the fundamental right both on the substantive and he procedural aspects.

7. The general principles to be kept in view while testing the reasonableness of the statute have been laid down by the Supreme Court in State of Madras v. VG Row AIR 1952 SC 196:

“The test of reasonableness, wherever prescribed should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition the prevailing conditions at the time should all into the judicial verdict.”

8. It is now for us to examine S. 17(2A) in the light of the above well-recognised canons. The section reads thus

“If any officer not below the rank of assessing authority has reason to suspect that any dealer is attempting to evade the payment of any tax or fee due from him under this Act he may, for reasons to be recorded in writing, seize such accounts, registers of documents of the dealer as may be necessary and shall grant a receipt for the same. The officer who seizes such accounts, registers or documents shall return them within ten days from the date of seizure unless the are required for a prosecution”

9. The nature of the right alleged to be infringed is the first factor which is to be considered. It is on a temporary deprivation of the right to possess the records and documents for a period of ten days unless they, are required for prosecution in which case they have to be produced before a court of law. The next relevant consideration is the underlying purpose of the restriction imposed. The underlying purpose;is seen from the scheme of the Act is to prevent evasion of payment of sales tax, a very legitimate one Section 16 seeks to achieve this object by insisting on the maintenance of true and correct accounts and records by dealers and S. 17 provides the means to check whether S. 16 is properly complied with Section 17(1) enables the officer to call upon the dealer to produce accounts for inspection and S. 17(2) insists that the books etc. shall be open to inspection at all reasonable times by the officers Section 17(2A) is intended to provide for cases in which the officer thinks that a more intensive scrutiny of the accounts is necessary for inspection and for prosecution if need be. The extent and urgency of the evil sought. In be remedied thereby is patent and needs no comment. The next consideration is the disproportion of the imposition and it is one of the specific grounds on which the constitutionality of the provision is attacked by the defence. In dealing with the question we have is see whether the limitation imposed has a proximate connection of nexus with the purpose sought to be achieved here the limitation imposed viz., temporary dispossession of the records 2nd books has a proximate connection with the purpose sought to be achieved, viz. The prevention of evasion of tax by a thorough inspection of the accounts and records and if necessary by a prosecution. As for the prevailing condition of the times we may not be in error when we say from our experience that there is an ever increasing tendency for the evasion of payment of tax of all kinds including sales in on the above mentioned hypothesis we can safely hold that the restriction has a rational relation to the object which the Legislature seeks to achieve and it is not greater than the mischief sought to be prevented.

10. Next we shall examine the reasonable ness of the procedural aspect Under this provision on an officer not below the rank of assessing authority is given jurisdiction to act and that only if he has reason to suspect that any dealer is attempting to evade payment of lax or fee due from him and before he takes action he has to follow the procedure laid down, viz., to record his reasons in writing and then grant receipts for the accounts and legislates seized and also to return them within ten days unless they are required for prosecution. It is also relevant to note that only the registers, accounts or documents of the dealer himself and only such of them as may be necessary are to be seized. It is the inadequacy of the procedural safeguards that has been stressed by the defence. It is argued that the restriction is not procedurally reasonable as it empowers the executive to restrict the fundamental right without complying with the rule? of natural justice, in so far as (1) the action:s taken without notice to the dealer so as to afford him an opportunity to object to the proposed action (2) the decision taken by the officer in the propriety of the action taken by him are not made subject to appeal to a higher administrative authority or to the Government, (3) the necessity for a seizure of the records is made dependent solely on the subjective satisfaction of the officer and (4) no guarantee is afforded by insisting on the action being taken in the presence of independent witnesses and (5) the possibility of abuse of the power due to the failure to provide for the above-mentioned safeguards.

11. In dealing with the above-mentioned objections it has to be noted that the very purpose of the provision would be defeated if the party is given notice of the proposed action thereby affording him an opportunity to secret the relevant accounts, registers and records. The speed and promptness with which the action is to be taken if it is to be effective can also be taken as a justification for making the exercise of the power dependent on the subjective satisfaction of the officer, especially as an additional safeguard is provided by insisting on the reasons being recorded so as to be available for scrutiny if and when the openly of the action is called in question Again though the statute does not special provide for an appeal to a higher authority the possibility of the action being scrutinised by the superior officers in case of any possible complaint is always there. Moreover so long as I he statute itself lays down the conditions which alone give jurisdiction for the exercise if the power and also specifies the manner in which the power is to be exercised there is always the possibility of the acts of the executive authority being open to the challenge of “ultra vires” for violation of the conditions and us such the exercise of the power cannot he said to be unfettered Regarding the absence of the guarantee afforded by insisting on the action being taken in the presence of independent witnesses as in the case of searches under the Criminal Procedure Code it must be noted that such a guarantee which is necessary in the case of searches relating to offences under the Penal Code and other similar statutes where the possession of incriminating articles by the accused and their recovery from his possession are by themselves either proof of the offence or a significant item of evidence in support of it, may not be essential in the case of seizure of the account books and registers under the Sales Tax Act, it is when the records themselves and the entries in the books which cannot normally be planted or fabricated and not the factum of recovery or the place of recovery that assumes importance such a safeguard need not be insisted. At best it can be considered as an additional safeguard though we are inclined to lake the view that the safeguards that are provided that the act are themselves sufficient to serve the purpose. The mere possibility of the abuse of power is not to be taken into account for determining the reasonableness of the restriction imposed by the law itself but on the contrary it may be presumed that the public authority will act honestly and reasonably in the exercise of his statutory powers. As observed by the Supreme Court in Collector of Customs, Madras v. Sampathu Chetty AIR 1962 SC 316.

“The possibility of abuse of a statute otherwise valid does not impart to it any element of validity. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If, so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid”.

12. The learned counsel relied on the decision of the Madras High Court in Ram kishan Srikishan Jhaver v. Cornmr. of Commercial Taxes, (1965) 57 ITR 664 (Mad) in support of his contention that S. 17(2A) offends Article 19(1)(f) and (g). That decision struck down sub-sections (2) to (4) of Section 41 of the Madras Sales Tax Act, 1959 as in the opinion of the court they were not reasonable restrictions Sub-section (2) of Section 41 of the Madras Act deals with the power of inspection, sub-section (3) with the seizure of accounts, registers, records, corresponding to Section 17(2-A) of the General Sales Tax Act and sub-section (4) relates to seizure and confiscation of goods. The explanation to the section authorises the Government to empower different classes of officers for the purpose of laking action under sub-sections (1), (2) and (3) and the exercise of the powers under sub-section (4) and the Government by notification have invested all officers of the Commercial Taxes Department not lower in rank than the Assistant Commercial Tax Officer, all officers of the Revenue Department not lower in rank than a Revenue Inspector and all officers of the Police Department not lower in rank than a Sub Inspector with powers of inspection, seizure and confiscation under sub-sections (2) to (4) Their Lord ships were of the view that “the exigencies it tax collection do not justify such a general, unrestricted and direct investiture of the power of search on even the minor officials of the various departments, not confined to the tax authorities alone, without any higher official above them, having to examine in each case whether the interests of the State demand or the circumstances of tax collection require, that the power of search should be exercised in particular and specific cases in the light of information and reasons they have for the purpose and thus exercise caution and eliminate arbitrary, harmful but sometimes futile exercise of the power”.

13. The provision made in sub-clause (3) for recording reasons for the necessity of the seizure was in the opinion of the court not a sufficient safeguard “as it is not stated whether the officer has to record his reasons before or after the search and he is not obliged to forward the same to the higher officer to ensure proper exercise of the power and no provision is made for seizure in the presence of independent witnesses so also the provision for giving a receipt for the books seized” as it is not indicated when the receipt is to be given—at the completion of the search and seizure or long thereafter.

14. The investiture of power by the Government authorising in general all officers of the departments and even those unconnected with the tax department does not arise in the as of S. 17(2A) under which the investiture of power is by the Legislature itself and that is confined to officers not below the rank of assessing authority. The notifications published by the Government in that behalf show that no officer below the rank of a Sales Tax Officer has been invested with the powers of assessing authority. The officer empowered. Is one who is exercising a quasi-judicial function as the assessing authority and that is ??? his competency to take a proper decision as to the necessity of effecting a seizure with reference to the facts of each case. He is also an officer sufficiently high in the hierarchy of officers who could normally be presumed to act honestly and legally. We do not feel that the efficacy of the provision for recording the reasons with regard to seizure is affected by the failure to specify whether reasons have to be recorded before or after the search or of the provision to give a receipt for any ambiguity as to whether it is to be given at the completion of the search or long thereafter. The provision that the officer may seize the account books for reasons to be recorded implies that the recording of reasons is a condition precedent to the search. So also the wording of the section leaves no room for doubt that the receipt has to be given sometime before the removal of the books. A provision for the seizure being effected in the presence of independent witnesses is no doubt an additional safeguard but as indicated earlier, in the nature of the power exercised and the other conditions and limitations by which it is hedged in, it cannot be said that the absence of such an additional safeguard will justify the power being characterised as arbitrary naked or unrestricted. As the above discussion should make the position sufficiently clear we do not feel it necessary to go into the other decisions cited in the Madras case. We overrule the objection that Section 17(2-A) of the General Sales Tax Act, 1125 offends Article 19(1)(f) and (g) of the Constitution.

15. The Criminal Revision Petition No. 230 has only to be dismissed.

CJ/D.R.R

16. Petition dismissed.