Criminal Appeal No 145 A of 1954
972 Appeal under Article 1321 of the Constitution of India from the Judgment 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 Pocker and B K B Naidu for the respondent
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 article 1321 in consequence of which the present appeal is before us
The respondent had filed a petition in the High Court under section 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 be dealt with according to law and for his release from imprisonment
The respondent had been arrested on June 1 1954 in pursuance of a warrant issued on March 10 1954 by the Collector of Malabar under section 48 of the Madras Revenue Recovery Act Madras Act 11 of 1864 hereinafter referred to as the Act
The circumstances as stated in the affidavits filed by the Collector and the Income Tax Officer of Kozikhode 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 70000
Some amount was recovered by the Collector in pursuance of a certificate issued by the Income Tax Officer under section 462 of the Indian Income Tax Act and bY the Income Tax Officer himself under section 465A of the said Act
After deducting the amount so realised the arrears of income tax were about Rs 61668 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 973 the tune of about Rs 23100
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 23100 the respondent paid arrears of tax to the extent of Rs 10500 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 VP 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 VP 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 VP 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 section 462 of the Indian Income Tax Act the Collector proceeded under section 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 section 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 section 48 of the Act was ultra vires the Constitution as it offended article 22
He did not deal at length with the argument that section 48 offended article 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 974 Saw and his arrest and imprisonment had been unlawful
On the other hand if section 48 was intra vires the Constitution then the respondent had been lawfully deprived if his personal liberty
He was further of the opinion that section 462 of the Indian Income Tax Act was ultra vires as it offended article 14 of the Constitution
Krishnaswami Nayudu J was of the opinion that s462 of the Indian Income Tax Act read with section 48 of the Act offended article 14 of the Constitution
He was of the opinion that section 48 of the Act offended article 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 article 222
Relying upon the decision of this Court in A K Gopalan vs The State Of Madras 1 he was of the opinion that the contention that the provisions of article 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 section 48 of the Act nor section 462 of the Indian Income Tax Act was in violation of articles 14 19 21 and 22 of the Constitution
Section 462 of the Indian Income Tax Act was a valid piece of legislation and under its provisions the Collector was authorized 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 did offend articles 14 19 21 and 22 of the Constitution
It was further contended that on a proper interpretation of section 462 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 1  975 the defaulting assessee
Even if the said section could be interpreted to give the power of arrest arrest could only be made under section 48 of the Act
A proper reading of section 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 wag invalid and the arrest of the respondent was illegal
The learned Advocate for the respondent further drew our attention to the fact that in section 48 there was no provision for the release of the defaulter if he paid up the arrears of revenue
What we have to consider in this appeal at the outset is whether either section 48 of the Act or section 462 of the Indian Income Tax Act or both offend articles 14 19 21 and 22 of the Constitution
The decisions of this Court in Gopalan s case in The State of Punjab vs
Ajaib Singh 1 and in Purshottam Govindji Halai vs
Shree B B Desai Additional Collector of Bombay2 are to be borne in mind in deciding this question
It was held 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 article 19 1 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 article 21 he cannot claim to exercise any of the right guaranteed by sub cls
a to e and g of article 19 1 for those rights can only be exercised by a freeman
In that sense therefore article 19 1 d has to be read as controlled by the provisions of article 21 and the view that article 19 guarantees the substantive right and article 21 prescribes a procedural protection is incorrect
1  2  976 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 cls
a to e and g Of article 19 1 are in a way dependent on the provisions of article 21 just as the right guaranteed by sub cl
f of article 19 1 is subject to article 31
If the property itself is taken lawfully under article 31 the right to hold or dispose of it perishes with it and article 19 1 f cannot be invoked
Likewise if life or personal liberty is taken away lawfully under article 21 no question of the exercise of fundamental rights under article 19 1 a to e and g can be raised
Under article 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 ie 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 article 191 a to e or g
In Ajaib Singh s case a person was taken into custody by the police and sent to the Officer in charge of the nearest camp under section 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 article 22 of the Constitution
None of these submissions were found to be valid
It was held so far as article 22 is concerned that the taking into custody was not arrest and detention within the meaning of article 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 Singh 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 article 22
What was 977 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 actual 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 article 22
In the present case the arrest was not in connection with any allegation 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 Govindji Halai s case this Court held that there was no violation of article 21 of the Constitution where a person had been arrested under section 13 of the Bombay Land Revenue Act 1876 in pursuance of a warrant of arrest issued for recovery of the demand certified under section 462 of the Indian Income Tax Act which did not offend article 14 of the Constitution inasmuch as such arrest was under a procedure established by law that is to say section 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 section 13 of the Bombay Act
The grounds stated in that case for declaring that section 462 of the Indian Income Tax Act was not ultra vires the Constitution as it did not offend article 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 section 48 of the Act nor section 462 of the Indian Income Tax Act violates articles 14 19 21 and 22 of the Constitution
We now proceed to consider the interpretation sought to be put by Mr Pocker on section 462 of the Indian Income Tax Act and section 48 of the Act
He contended that section 462 of the Indian Income Tax Act merely authorised the Collector to recover the amount 126 978 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 section 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 by 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 guilty of fraudulent conduct in order to evade payment of tax can lawfully cause the arrest and imprisonment of the defaulter
This section read with section 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 by the sale of the property of the defaulter but the Collector shall have reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade 979 payment
When dues in the shape of money are to be realised by the procees of law and not by voluntary payment the element of coercion in varying degrees must necessarily be found at all stages in the mode 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 reason 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 withholding it or is fraudulently evading payment
In the Act there are several sections eg sections 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 section 48
We are of the opinion therefore that where an arrest is made under section 48 after complying with its pro visions 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 section 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 must have 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 belief a belief which 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
From the affidavits filed in the High Court by the Collector and the Income Tax Officer it is quite clear that there was material upon which the Collector could base his belief that the respondent was wilfully withholding payment of the arrears of tax and had been guilty of fraudulent conduct in order to 980 evade payment
The Collector was therefore justified in arresting the respondent
As pointed out by Mr Pocker section 48 of the Act does 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 section 48 of the Act the Collector has under the proviso to section 462 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 held in Purshottam Govindji 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 see
2 of section 46 of the Indian Income Tax Act
Under section 58 of the Civil Procedure Code a Civil 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 section 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
It was urged that 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 not 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 section 59 of the Code of Civil Procedure in the exercise of his powers under the proviso to section 462 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
Appeal allowed


Summary:
The Income Tax Officer forwarded a certificate under section 462 of the Indian Income Tax Act to the Collector for recovering the arrears of Income Tax from the assesses as if they were arrears of land revenue
The Collector proceeded under section 48 Madras Revenue 971 Recovery Act and had the assessee 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 section 48 of the Madras Revenue Recovery Act and section 462 Of the Indian Income Tax Act were ultra vires
The Collector appealed
Held that section 48 Of the Madras Revenue Recovery Act and section 462 of the Indian Income Tax Act were not ultra vires and neither of them violated articles 1419 21 and 22 of the Constitution
Where the personal liberty of a person is lawfully taken away under article 21 ie in accordance with a procedure established by a valid law no question of the exercise of fundamental rights under article 191a to e and g can be raised
AK Gopalan vs The State of Madras   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 does not come within the protection of article 22
State of Punjab vs Ajaib Singh   followed
Section 462 of the Indian Income Tax Act does not offend article 14 and there is no violation of article 21 where a person is arrested under section 48 Madras Revenue Recovery Act in pursuance of a warrant of arrest issued for the recovery of the demand certified under section 462 of the Indian Income Tax Act
Purshottam Govindji Halai vs Shri B M Desai Additional Collector of Bombay   followed
Section 462 of the Indian Income Tax Act gives authority to the Collector to recover arrears of tax as if it were an arrear of land revenue
Section 48 of the Madras Revenue Recovery Act read with section 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 defaulting 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