minal Appeals Nos
34 to 36 of 1956
Appeal by special leave from the judgment and order dated July 1 1955 of the Bombay High Court in Criminal Revision Applications Nos
351 to 353 of 1955 arising out of the judgment and order dated November 5 1954 of the Court of the Presidency Magistrate 14th Court at Girgaum Bombay in Cases Nos
328 to 330P of 1954
H J Umrigar and A G Ratnaparkhi for the appellant
M section K Sastri and R H Dhebar for the respondent
March 24
The following Judgment of the Court was delivered by SUBBA RAO J
These appeals by special leave are directed against the judgment of the High Court of 252 Judicature at Bombay made in three connected Criminal Revision applications and raise the question of the maintainability of prosecution of a person for an offence committed under section 241b of the Bombay Sales Tax Act 1946 Bom
V of 1946 hereinafter referred to as the repealed Act
The facts that give rise to the appeals may be briefly stated The appellant Sri Kapur Chand Pokhraj was the proprietor of Messrs N Deepaji Merawalla a firm dealing in bangles and registered under the Bombay Sales Tax Act 1946
He did not disclose the correct turnover of his sales to the Sales Tax Department in the three quarterly returns furnished by him to the said Department on September 30 1950 December 31 1950 and March 31 1951 respectively
He maintained double sets of books of accounts and knowingly furnished false returns for the said three quarters to the Sales Tax Officer and thereby committed an offence under section 241b of the repealed Act
Under that Act sanction of the Collector was a condition precedent for launching of prosecution in respect of an offence committed under section 241 of the said Act
The said Act was repealed by the Bombay Sales Tax Act 1952 Bom
XXIV of 1952 which was published on October 9 1952
On December 11 1952 the Bombay High Court declared the Act of 1952 ultra vires and the State of
Bombay preferred an appeal against the judgment of the Bombay High Court to the Supreme Court
On December 22 1952 the State Government in order to get over the dislocation caused by the Bombay judgment issued the Bombay Sales Tax Ordinance II of 1952 where under it was provided that the 1946 Act was to be deemed to have been in existence up to November 1 1952
On December 24 1952 another Ordinance Ordinance III of 1952 was promulgated extending the life of the Act of 1946
On March 25 1953 the Bombay State Legislature passed the Bombay Sales Tax Act 1953 Bom
III of 1953 hereinafter referred to as the repealing Act repealing the Act of 1946 and the Ordinance III of 1952
The material fact to be noticed is that the Act III of 1953 though it repealed the earlier Act and the Ordinance extending 253 the life of that Act made provision for an offence similar to that covered by section 241 of the repealed Act prescribed a similar procedure for prosecuting persons committing the said offence and saved the liabilities incurred under the repealed Act
During the period when the Ordinance III of 1952 was in force the State Government issued a notification under section 3 of that Ordinance appointing the Additional Collector of Bombay to be a Collector under the said Ordinance
On July 4 1953 ie after Act III of 1953 came into force Mr Joshi the Additional Collector of Bombay granted sanction for the prosecution of the appellant in respect of the offence committed by him under section 241b of the repealed Act
After obtaining the sanction the appellant was prosecuted under section 241b of the Bombay Sales Tax Act 1946
Before the Presidency Magistrate the appellant pleaded guilty to the charge
The learned Magistrate accepted his plea and convicted him for the offence for which he was charged and sentenced him to pay a fine of Rs 200 in default to suffer one month s rigorous imprisonment
The State of Bombay preferred a Revision against the said Order to the High Court of judicature at Bombay praying that the sentence imposed on the appellant be enhanced on the ground that as the appellant kept double sets of accounts and intentionally furnished false information the interest of justice required that substantive and heavy sentence should be imposed on him
Before the High Court the appellant pleaded that by the repeal of the Sales Tax Act 1946 the offence if any committed by him was effaced and that in any view the prosecution was defective inasmuch as sanction had been given by the Additional Collector and not by the Collector of Sales Tax
The contentions did not find favour with the learned Judge of the High Court
In rejecting them the learned Judge enhanced the sentence passed upon the appellant to rigorous imprisonment for a period of one month in each of the three cases in addition to the fine already imposed by the Magistrate
He directed the substantive sentence of imprisonment in all the three cases to be concurrent
The appellant obtained special leave 254 from this Court to prefer the above appeals against the judgment of the High Court
The learned Counsel for the appellant raised before us the same contentions which his client unsuccessfully raised before the High Court
We shall now proceed to deal with them seriatim
The main argument of the learned Counsel was that the Bombay Sales Tax Act 1953 Bom
III of 1953 in repealing the Act of 1946 did not save penalties in respect of offences committed under that Act and therefore no prosecution was maintainable in respect of an offence committed under the Act of 1946
A clearer conception of the argument can be had by looking at the relevant saving provisions enacted in Act III of 1953 and also the relevant sections of the Bombay General Clauses Act
Section 482 of the Bombay Sales Tax Act 1953 reads  Notwithstanding the repeal of the said Act and the said entries the said repeal shall not affect or be deemed to affect i any right title obligation or liability already acquired accrued or incurred ii any legal proceeding pending on the 1st day of November 1952 in respect of any right title obligation or liability or anything done or suffered before the Raid date and any such proceeding shall be continued and disposed of as if this Act had not been passed iiithe recovery of any tax or penalty which may have become payable under the said Act and the said entries before the said date and all such taxes or penalties or arrears thereof shall be assessed imposed and recovered so far as may be in accordance with the provisions of this Act 
Section 7 of the Bombay General Clauses Act says  Where this Act or any Bombay Act made after the commencement of this Act repeals any enactment hitherto made or thereafter to be made then unless a different intention appears the repeal shall not a revive anything not in force or existing at the time at which the repeal takes effect or b affect the previous operation of any enactment 255 so repealed or anything duly done or suffered thereunder or c affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed or d affect any penalty forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed or e affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid and any such investigation legal proceeding or remedy may be instituted continued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing Act had not been passed A comparative study of the aforesaid provisions indicates that while under section 7 of the Bombay General Clauses Act there is a specific saving of any penalty forfeiture or punishment incurred in respect of any offence committed under the enactment repealed as distinct from civil rights and liabilities under section 48 of Act III of 1953 there is no separate treatment of Civil and Criminal matters while under the former provisions legal proceedings are saved under the latter provisions legal proceedings pending on November 1 1952 in respect of rights acquired or liabilities incurred under the repealed Act are saved
By such a study of the two provisions the argument proceeds it is clear that the enactment of a specific saving clause in the repealing Act indicates a  different intention  excluding the operation of section 7 of the General Clauses Act and the omission under section 48 of the repealing Act of a clause similar to el
d of section 7 of the General Clauses Act demonstrates that the liability saved excludes criminal liability
In our view the consideration of the provisions of section 7 of the General Clauses Act need not detain us for section 482i of the repealing Act affords a complete answer to the question raised
Under that clause the repeal did not affect any right title or obligation or liability already acquired accrued or I incurred The words liability 256 incurred  are very general and comprehensive and ordinarily take in both civil and criminal liability
In Criminal Law the term  liability covers every form of punishment to which a man subjects himself by violating the law of the land
There is no reason why the all comprehensive word should not carry its full import but be restricted to civil liability alone  The context does not compel any such limitation
Indeed there is no conceivable ground to impute to the Legislature the intention to wipe out the offences committed under the repealed Act when it expressly retained the same offences under the repealing Act
If there was any justification for preserving Civil liabilities incurred under the repealed Act there was an equal justification to save criminal liabilities incurred under that repealed Act
The fact that section 7 of the Bombay General Clauses Act provided separately in different clauses for Criminal and Civil liabilities while section 482 of the repealing Act clubbed them together in one clause is not decisive of the question raised as for ought we know section 48 might be an attempt by the Legislature at precise drafting by omitting unnecessary words and clauses
Nor the circumstance that a special provision is made under section 482 of the repealing Act for pending proceedings is indicative of any conscious departure by the Legislature from the established practice embodied in section 7 of the General Clauses Act indicating an intention to save only offences under the repealed Act in respect of which legal proceedings were pending on a specified date
It is more likely as the learned Judge of the Bombay High Court pointed out that el 2 was enacted to obviate the argument that once a case is sent up the liability merges in the proceedings launched and has to be saved specially
On a fair reading of the terms of the saving clause in section 482 of the repealing Act we cannot give a restricted meaning to the words liability incurred especially when the scheme of the Act does not imply that the Legislature had any intention to exclude from the saving clause criminal liability incurred under the repealed Act
We therefore hold that the liability incurred 257 ie the offence committed under the repealed Act is covered by the saving clause embodied in section 48 of the repealing Act
In this view it is not necessary to express our view whether by reason of the saving clause enacted in section 48 of the repealing Act the Legislature indicated a different intention within the meaning of section 7 of the Bombay General Clauses Act so as to exclude its operation in construing the provisions of the repealing Act
Even so the learned Counsel contended that the appellant who committed the offence under the repealed Act should be prosecuted only with the previous sanction of the Collector as provided by that Act but as the sanction in the present case was given by the Additional Collector the Magistrate had no jurisdiction to take cognizance of the offence
To appreciate this argument it would be necessary to notice the provisions relating to sanction in the repealing Act and in the Acts and Ordinances that preceded it  BOMBAY SALES TAX ACT 1946
 Section 24 1b Whoever failswithout sufficient cause to submit any return as required by section 10 or know ingly submits a false return      shall in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both and when the offence is a continuing one with a daily fine not exceeding fifty rupees during the period of the continuance of the offence Section 242 No Court shall take cognizance of any offence under this Act or under the rules made thereunder except with the previous sanction of the Collector and no Court inferior to that of a Magistrate of the Second Class shall try any such offence  Section 2a   Collector  means the Collector of Sales Tax appointed under sub section 1 of Section 3  Section 31  For carrying out the purposes of 33 258 this Act the State Government may appoint any person to be a Collector of Sales Tax and such other persons to assist him as the State Government thinks fit
 ORDINANCE No II of 1952 Under this Ordinance Bombay Act V of 1946 and the entries relating to the said Act in the third schedule to the Bombay Merged States Laws Act 1950 were deemed to have continued to be in force up to and inclusive of November 1 1952
ORDINANCE III OF 1952 Section 36
Offences and Penalties whoever b fails without sufficient cause to furnish any return or statement as required by section 13 or 18 or knowingly furnishes a false return or statement   in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extend to six months or with fine not exceeding two thousand rupees or with both and when the offence is a continuing one with a daily fine not exceeding one hundred rupees during the period of the continuance of the offence  Section 37
Cognizance of offences
No Court shall take cognizance of any offence punishable under section 36 or under any rules made under this Ordinance except with the previous sanction of the Collector and no Court inferior to that of a Magistrate of the Second Class shall try any such offence  Section 26  Collector  means the Collector of Sales Tax appointed under section 3  Section 31 For carrying out the purposes of this Ordinance the State Government may appoint any person to be a Collector of Sales Tax and such other persons to assist him as the State Government thinks fit
 BOMBAY SALES TAX ACT 1953 Act III of 1953  Section 36 Whoever b fails without sufficient cause to furnish any return or statement as required by Section 13 or 18 or 259 knowingly furnishes a false return or statement  shall in addition to the recovery of any tax that may be due from him be punishable with simple imprisonment which may extent to six months or with fine not exceeding two thousand rupees or with both and when the offence is a continuing one with a daily fine not exceeding one hundred rupees during the period of the continuance of the offence Section 492 Any appointment notification notice order rule regulation or form made or issued or deemed to have been made or issued under the Ordinance hereby repealed shall continue in force and be deemed to have been made or issued under the provisions of this Act
in so far as such appointment notification notice order rule regulation or form is not inconsistent with the provision of this Act unless it has been already or until it is superseded by an appointment notification notice order rule regulation or form made or issued under this Act THE BOMBAY SALES TAX AMENDMENT ACT 1956
BOMBAY ACT NO
XXXIX OF 1956 Section 3
Amendment to section 3 of Bom
III of 1953  In section 3 of the said Act for sub section 1 the following sub section shall be and shall be deemed ever to have been substituted namely 1 for carrying out the purpose of this Act the State Government may appoint a a person to be the Collector of Sales Tax and b one or more persons to be Additional Collectors of Sales Tax and c such other persons to assist the Collector as the State Government thinks fit NOTIFICATION ISSUED BY THE STATE GOVERNMENT UNDER SECTION 3 OF THE ORDINANCE III OF 1952 Government of Bombay is pleased to declare the Additional Collector of Sales Tax Bombay State Bombay as  Collector of Sales Tax Bombay State Bombay  for purposes of the Bombay Sales 260 Tax No 2 Ordinance 1952 Bombay Ordinance No III of 1952
 It will be seen from the aforesaid provisions that under the Acts as well as under the Ordinances knowingly furnishing a false return or statement is made an offence punishable with simple imprisonment or fine or with both
The only difference is that under the Ordinance and the Act of 1953 the maximum amount of fine is increased from Rs 1000 to Rs 2000
Under the Ordinance as well as under the Acts no Court can take cognizance of the said offence except with the previous sanction of the Collector
The term Collector  is defined in similar terms in the Ordi nance as well as in the Acts i e a person appointed as Collector  by the State Government
The notification issued by the State Government under Ordinance 11I of 1952 appointing the Additional Collector as Collector of Sales Tax must be deemed to have continued to be in force under the Bombay Sales Tax Act 1953 by reason of section 49 2 of that Act as it is common case that no fresh notification was made under that Act repealing that made under that Ordinance
Shortly stated the Bombay Act III of 1953 introduced the same offence and provided for the same machinery that its predecessors contained
On the basis of the aforesaid provisions the argument of the learned Counsel for the appellant is that as the State Government appointed the Additional Collector as Collector of Sales Tax in exercise of the power conferred on it under the Ordinance III of 1952 and not under the power conferred on it by the repealed Act the sanction given by the Additional Collector to prosecute the appellant is invalid
The first answer to this contention is that as the State Government had the power to appoint any person including  an Additional Collector as Collector of Sales Tax both under the repealed Act as well as the Ordinance III of 1952 the appointment may reasonably be construed to have been made in exercise of the relevant power in respect of the offence saved under the Ordinance
The second answer is more fundamental
There is an essential distinction between an offence and the 261 prosecution for an offence
The former forms part of the substantive law and the latter of procedural law
An offence is
an aggregate of acts or omissions punishable by law while prosecution signified the procedure for obtaining an adjudication of Court in respect of such acts or omissions
Sanction or prior approval of an authority is made a condition precedent to prosecute in regard to specified offences
Prosecution without the requisite sanction makes the entire proceeding ab initio void
It is intended to be a safeguard against frivolous prosecutions and also to give an opportunity to the authority concerned to decide in the circumstances of a particular case whether prosecution is necessary
Sanction to prosecute for an offence is not therefore an ingredient of the offence but it really pertains to procedure
In Maxwell s Interpretation of Statutes the following passage appears at page 225  Although to make a law punish that which at the time when it was done was not punishable is contrary to sound principle a law which merely alters the procedure may with perfect propriety be made applicable to past as well as future transactions
 In the instant case when the repealing Act did not make any change either in the offence or in the procedure prescribed to prosecute for that offence and expressly saved the offence committed under the repealed Act the intention can be legitimately imputed to the Legislature that the procedure prescribed  under the new Act should be followed even in respect of offences committed under the repealed Act
If so it follows that as sanction pertains to the domain of procedure the sanction given by the Additional Collector appointed by the State as Collector of Sales Tax was valid
Even so it was contended that the notification appointing the Additional Collector as Collector of Sales Tax issued under Ordinance No 11 of 1952 would not enure to the prosecution launched under Act III of 1953
This argument ignored the express provisions of section 49 2 of the said Act already extracted supra which in clear and express terms laid down 262 that notifications issued or orders made under the repealed Ordinance would be deemed to have been made or issued under the provisions of the Act and would continue to be in force until superseded by appropriate orders or notifications under the new Act
It was not suggested that any fresh notification revoking that made under the Ordinance was issued under the repealing Act
If so it follows that the notification issued under the Ordinance appointing the Additional Collector as Collector of Sales Tax continued to be in force when the said Collector gave sanction to pro secute the appellant
In this view it is not necessary to consider the scope of the Bombay Sales Tax Amendment Act 1956
Lastly a strong plea was made for reducing the sentence of imprisonment given by the High Court to that of fine
It was said that the Magistrate in exercise of his discretion gave the sentence of fine and the High Court was not justified in enhancing the same to imprisonment without giving any reasons which compelled them to do so
Reliance was placed in this context on two decisions of this Court Dalip Singh vs State of Punjab 1 and Bed Raj vs The State of Uttar Pradesh 2
In the former case the Sessions Judge convicted each of the 7 accused under section 302 Indian Penal Code read with section 149 Indian Penal Code
As the fatal injuries could not be attributed to any one of the accused he refrained from passing a sentence of death but instead he convicted them to imprisonment for life
The High Court without giving any reasons changed their sentences from transportation to death
Bose J who delivered
the judgment of the Court in holding that the High Court should not have interfered with the discretion exercised by the Sessions Judge made the following observation at page 156  But the discretion is his and if he gives reasons on which a judicial mind could properly found and appellate Court should not interfere
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest 1  2  263 possible reasons
It is not enough for an appellate Court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate Court but to the trial Judge and the only ground on which an appellate Court can interfere is that the discretion has been improperly exercised as for example where no reasons are given and none can be inferred from the circumstances of the case or where the facts are so gross that no normal Judicial mind would have awarded the lesser penalty
 In the latter case the appellant along with another was convicted by the Sessions Judge under section 304 Indian Penal Code and sentenced to three years  rigorous imprisonment
On appeal the High Court enhanced the sentence to ten years
In enhancing the sentence the learned Judges gave the reason that the deceased was unarmed and the attack was made with a knife and it could not be said that the appellant did not act in a cruel or unusual manner
This Court in allowing the appeal on the question of sentence made the following observation at page 588  A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines an appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment  
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment
Interference is only called for when it is manifestly inadequate
 These observations are entitled to great weight
But it is impossible to lay down a hard and fast rule for each case must depend upon its own facts
Whether in a given case there was proper exercise of judicial discretion by the trial Judge depends upon the circumstances of that case
In the present case the appellant kept double sets of account books and submitted false returns for successive quarters omitting from the turn over shown by him in the returns substantial amounts
Under section 241 of the Act infringement of 264 the provisions of the Act is made punishable
The offences under that section are of different degrees of moral turpitude
They range from a mere infringement of a rule to conscious and deliberate making of false returns
For all the offences the section fixes the maximum punishment of simple imprisonment which may extend to six months
The magistrate who tries the offenders under that section is given a wide discretion to could the punishment in such a way as to make it commensurate with the nature of the offence committed
Though the appellant adopted a syste matic scheme to defraud the State by keeping double sets of account books and therefore deserved deterrent punishment the learned Magistrate presumably because the appellant pleaded guilty without giving any reasons gave him the lenient punishment of fine of Rs 200
It is obvious that the sentence should depend upon the gravity of the offence committed and not upon the fact that the accused pleaded guilty or made an attempt to defend the case
In the circumstances the High Court was certainly justified in enhancing the sentence from fine to imprisonment and fine and it had given good reasons for doing so
The High Court thought and in our view rightly that as the appellant had kept double sets of account books it was eminently a case in which a substantive sentence ought to have been imposed
The Magistrate has improperly exercised his discretion within the meaning of the aforesaid observations of this Court and therefore the High Court was certainly within its right to enhance the sentence
But the High Court committed a mistake in awarding a sentence of rigorous imprisonment for a period of one month which it is not entitled to do under the provisions of section 241 of the Act
Under that section the Court had jurisdiction only to give a maximum sentence of simple imprisonment extending to 6 months but had no power to impose a sentence of rigorous imprisonment
This mistake if any should go to the benefit of the appellant for the High Court might have imposed a sentence of longer period of simple imprisonment if it had realised that it had no power to sentence 265 the appellant to rigorous imprisonment
Be it as it may as the High Court had no power to impose a sentence of rigorous imprisonment we change the sentence from rigorous imprisonment to simple imprisonment for a period of one month in each case
With this modification the appeals are dismissed
Appeals dismissed


Summary:
By virtue of the notifications issued by the Government of Maharashtra in exercise of its powers under section 41 of the Bombay Sales Tax Act the new industries set up in backward areas for the production of edible as well as non edible oils came to enjoy the benefit of exemption from paying purchase taxsales tax
Subsequently the Government of Maharashtra amended the Act and introduced section 41A by virtue of which the tax exemption facility originally granted under the Package Scheme of Incentives 1979 to edible oil units stood withdrawn earlier than stipulated in the exemption notifications
The withdrawal of the tax exemption however did not apply to units engaged in producing non edible oils
The petitioner in one petition has challenged the constitutional validity of section 41 while the petitioners in the other two writ petitions challenged the validity of section 41A
The petitioner in the first petition who was engaged in the production of washed cottonseed oil in an old unit contends that i the power of exemption can be granted on any specified class of sales or purchases from payment of tax and the Government was not entitled to grant exemption only in favour of new units set up in backward areas ii section 41 confers arbitrary powers of exemption on the State Government so as to exempt new units from the payment of purchase tax sales tax and central sales tax thus placing old units in a very disadvantageous position and PG NO 72 PG NO 73 iii washed cottonseed oil is also edible oil although it requires some processing for making it fit for human consumption and therefore the new washed cottonseed oil units should also be classified as units producing edible oils and subjected to purchase tax and sales tax
The petitioners in the other two petitions contend that the Government was precluded by Promisory Estoppel from going back on the lncentive Scheme before the expiry of the full term of tax exemption benefit period
Dismissing the writ petitions it was HELD l Section 41 has been provided in order to enable the State government to grant exemption from payment of purchase tax sales tax on any specified class of sales or purchases in public interest
It is not as if the power has been given to the government to act in an arbitrary manner or for conferring largess on any section of manufacturers or traders
Section 41 has withstood the test of time and has enabled the government to promote public interest by granting tax exemption benefit whenever needed
81A D 2 The words exempt any specified class of sales or purchases  could well be construed as applying to the grant of exemption of the new units because the sales and purchases effected by new entrants would constitute a specified class by themselves in contra distinction with the class of sales and purchases effected by the older and seasoned units
82C D 3 Even though edible and non edible oils may fall under the general heading of oils they undoubtedly constitute two separate groups which are capable of distinct classification on intelligible basis
83A B 4 The Package Incentives Scheme was only evolved to provide incentive to entrepreneurs to start new units in backward areas
It could never have been the intention or the object of the Government that the entrepreneurs should unjustly enrich themselves at the cost of the public exchequer or to be given competing ability with the older units to such an extent as to virtually drive the latter out of the business
5 Since the very foundation of the Scheme for giving tax exemption benefits is public interest the government PG NO 74 was not only entitled but it was under an obligation to withdraw the tax exemption benefit when the continuance of the Scheme was going against public interest
6 As long as the washed cottonseed oil that is produced is sold without further processing it will not constitute edible oil
82Fl 7 The government had neither acted arbitrarily nor practised any discrimination against edible oil units started newly or had interfered with the rights of the owners of the new units in running their business and trade in any manner when it enacted Section 41A 8 Section 41A is fully in accordance with law and not violative of Articles 14 19ig and 300A of the Constitution
83E Tapti Oil Industries vs The State of Maharashtra
AIR 1984 Bom
161 Olympic Oil Industries Ltd WP No 3275 of 1985 in Bombay High Court and SLP Civil No 10144 and 10550 of 1986 in the Supreme Court referred to