tition Criminal Nos 225 and 513 of 1987
Under Article 32 of the Constitution of India
41 LK Pandey for the petitioner in WP No225 of 1987
MS Gupta for the petitioner in WP No 513 of 1987
Dalveer Bhandari Ms A Subhashini and Mrs CK Sucharita for the Respondents
The Judgment of the Court was delivered by JAGANNATHASHETTY J
The petitioners have been convicted and sentenced by the General Court Martial under the 
They have been lodged in civil jails
They seek a set off of their pre trial detention against the sentence of imprisonment
The claim has been made under sec
428 of the Code of Criminal Procedure The Code
The jail and the army authorities have rejected their claim
If sec
428 of the Code of Criminal Procedure is applicable to the case of the petitioners there is no doubt that they are entitled to get the benefit thereof
The section provides that where an accused person has on a conviction been sentenced to imprisonment for a term not being imprisonment in default of payment of fine the period of detention if any undergone by him during the investigation inquiry or trial and before the date of such conviction shall be set off against the term of imprisonment and the liability of such person to undergo imprisonment shall be restricted to the remainder if any of the term of imprisonment imposed on him
The period of detention referred to in the section is of the accused person during the investigation enquiry or trial of the offence against him
Section 2h defines investigation  and sec
2g defines enquiry
Both refer to the proceedings under the Code
In the first place there is nothing on the record to indicate that the cases against the petitioners were investigated or enquired into under the Code
Secondly sec
5 of the Code provides Nothing contained in the Code shall in the absence of a specific provision to the contrary affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force
 42 The saving provisions in sec
5 provides that the Code as such will not affect I any special law II any local law III any special jurisdiction or power and lV any special form of procedure prescribed by any other law for the time being in force
The is a special enactment applicable to persons covered under sec
2 thereof
It also provides special procedure for court martial
The learned counsel for the petitioner however submitted that since the petitioners are lodged in the civil prisons they are entitled to the benefit of sec
428 of the Code just like any other convict in the jail
We are unable to agree with this contention
The petitioners may be entitled to remissions as provided in the jail manuals but not set off under sec
428 of the Code
They have been lodged in the civil prisons by an order made under sec
1691 of the 
169I provides  Whenever any sentence of imprisonment is passed under this Act by a court martial or whenever any sentence of death or transportation is commuted to imprisonment the confirming officer or in case of a summary court martial the officer holding the court or such other officer as may be prescribed shall save as otherwise provided in sub sections 3 and 4 direct either that the sentence shall be carried out by confinement in a military prison or that it shall be carried out by confinement in a civil prison
xx xx xx xx xx xx xx xx xx xx xx xx Section 167 of the also provides that the term of sentence imposed by a court martial shall be reckoned to commence on the day on which the original proceedings were signed by the presiding officer or by the officer holding the court martial as the case may be
In view of these provisions in the which is a special enactment containing elaborate procedure for trial of the persons covered thereunder we do not think that the petitioners could call into aid the provisions of sec
428 of the Code
In Bhagwan Singh vs The Asstt
Superintendent 119771  the Pun jab  Haryana High Court said that the benefit of sec
428 can only be claimed by a person whose case is investigated inquired into or 43 tried under the Code of Criminal Procedure and it cannot be claimed A by a person convicted and sentenced under the by a courtmartial
The Delhi High Court in FR Jesuratnam vs Chief of Air Staff 19761 Crl
LJ 65 and the Madras High Court in PP Chandrasekaran vs Government of India have also taken the similar view
But the Kerala High Court in Subramonian vs OC Armoured Static Workshop 1979 Crl
LJ 617 has taken a contrary view
In our opinion the Kerala High Court cannot be said to have laid down the law correctly
In the result these petitions fail and are dismissed
C SL Petitions dismissed


Summary:
 The appellant was a registered owner of a motor vehicle run by him as a stage carriage under a permit issued under the 
He was liable to pay tax in respect of the vehicle under section 3 of the Karnataka Motor Vehicles Taxation Act 1957 which provides that a tax at the rates specified in Part A of the Schedule to the Act shall be levied on all motor vehicles suitable for use on roads and item 4 in Part A of the Schedule to the Act as it stood in 1985 relates to the levy of tax on the motor vehicles used as stage carriages
On some occasions it was found that the appellants stage carriage was carrying passengers in excess of the number of passengers allowed to be carried under the permit issued to him under the 
The taxation authority under the Karnataka Act above said issued to him a demand for the payment of additional tax under section 8 of the said Act
The appellant filed a writ petition challenging the demand for the additional tax
The High Court dismissed the petition following its earlier decision in Noorullha Khan vs State of Karnataka Writ Petition No 8302 of 1980 etc
decided on 26685 The appellant appealed to this Court by special leave against the order of the High Court
Allowing the appeal the Court  HELD The taxation authority levied the additional tax under section 8 of the Karnataka Motor Vehicles Taxation Act 1957 on the ground that the appellant had proposed to use the vehicle in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax was payable in accordance with the decision of the High Court in the Noorullha Khan s case
The payment of the additional tax arises as per section 8 on two occasions i when the Motor 11 Vehicle is altered in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable or ii when any motor vehicle is proposed to be used in such a manner as to cause the vehicle to become a vehicle in respect of which a higher rate of tax is payable
The vehicle in question has not been altered and it has been used only as a stage carriage even when two or five extra persons have been carried
There is no other provision in Part A of the Schedule to the Act which requires a higher rate of tax to be paid in respect of a vehicle which is being used as a stage carriage on the basis of a larger number of passengers that are carried in it
It would have been possible to levy a higher tax on the appellant only if the words which the vehicle is permitted to carry  in item 42 of Part A to the Schedule to the Act had been omitted
These words cannot be ignored in the construction of the said item since it relates to the levy of tax
Also the provision in section 8 is specific
17G H 18A C F G The High Court in Noorullha Khan s case overlooked the presence of the words which the vehicle is permitted to carry  found also in clause b of item 7 of the Karnataka Act
A law which imposes a tax should be construed strictly
A registered owner of a motor vehicle which is permitted to be used as a stage carriage cannot be asked to pay additional tax under section 8 of the Act merely because he has carried on some occasions more passengers than the maximum number of passengers that he is permitted to carry under the permit
The tax which he is liable to pay is limited by the maximum number of passengers he is entitled to carry under the permit
The Court does not agree with the decisions of the High Court in the Noorullha Khan s case which is overruled
The judgment of the High Court impugned set aside and the respondents directed not to levy the additional tax on the appellant under section 8 of the Karnataka Taxation Act for carrying more passengers than what he was permitted to carry on some occassions during the period in question
Need impressed upon the authorities to enforce the provision in section 60 of the  strictly20A D F Payne vs Allock  referred to