1957 Supreme(SC) 41

SUPREME COURT OF INDIA
11th April 1957.
S.R. DAS, C.J.I. IMAM S.K. DAS GOVINDA MENON AND SARKAR, JJ.
Collector of Malabar and another, Appellants
Versus
Erimmal Ebrahim Hajee, Respondent.
Criminal Appeal No.145-A of 1954
Advocates appeared
M/s. Porus A. Mehta and R. H. Dhebar, Advocate, for Appellants; Mr. B. Pocker Senior Advocate, (Mr. B.K.B. Naidu, Advocate with him), for Respondent.

Headnote:Section 46(2)-Arrears of income-tax-Recovery under S. 48 of the Madras Revenue Recovery Act, 1864-Arrest and imprisonment of defaulter-Whether any contravention of Arts, 14, 19, 21 and 22 of the Constitution.

       Validity of S. 46(2) of the Income-tax Act and S. 48 of the Madras Revenue Recovery Act, 1864.

       Opportunity of hearing before arrest whether necessary.

       The respondent had been arrested on 1st June 1954 in pursuance of a warrant issued on 10th March 1954 by the Collector of Malabar under section 48, Madras Revenue Recovery Act, 1864. The circumstances, as stated in the affidavits filed by the Collector and the Income-tax Officer which led to the respondents arrest, were that he had been assessd to income-tax for various assessment years and the total amount of tax remaining outstanding against him was about Rs. 72,000/-. Some amount was recovered by the Collector in pursuance of a certificate issued by the Income-tax Officer under section 46(2) of the Income-tax Act and by the Income-tax Officer himself under section 46(5A) of the said Act. After deducting the amounts 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 18th November 1947 and 25th March 1948, to the tune of about Rs. 23,100/-, out of which he 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. Abdual Aziz & Brothers consisting of his one major and four minor sons. The respondent alleged that the capital of this firm was mainly supplied from the sale of jewels belonging to his wife, i.e. Abdul Azizs mother. He denied that the above mentioned firm belonged to him.

       As a certificate had already been issued to him by the Income-tax Officer under section 46(2) of the Income-tax Act, the Collector proceeded under section 48 of the Act and issued a warrant of arrest against the respondent in consequence of which he was arrested. On petition under section 491, Criminal Procedure Code, the High Court ordered that the respondent be set at liberty as his arrest was illegal. 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 132(1).

       Held: (1) The personal rights guaranteed by sub-clauses (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-clause (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.

       (2) "Procedure established by law, under Article 21, means procedure enacted by law made by the State, that is to say, the Union Parliament or the Legislatures of the States. If the law is valid then he has been lawfully deprived of his personal liberty and, in that situation, he cannot complain of the infruction of any of the fundamental rights mentioned in Article 19(1) (a) to (e) or (g)."

       (3) 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 a quasi-criminal nature. It was really arrest for a civil debt in the process or the mode prescribed by law for recovery of arrears of land revenue. Where an arrest is made under section 48 of the Madras Revenue Recovery Act, 1864, 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. An arrest and imprisonment of the defaulter under section 48 of the Madras Revenue Recovery Act cannot therefore be regarded as an arrest or detention within the meaning of Article 22.

       (4) There is nothing in S. 48 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.

       (5) Though S. 48, Madras Act does not in terms provide for the release of the defaulter if he pays up the arrears, 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), Indian Income-tax Act, similar powers to that which a Civil. Court has for recovery of an amount due under a decree. Under S. 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. 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. - Articles 21, 22-Co-relation between Articles 19 and 21-lncolDe-tax Act, 1922, S. 46 (2)-Arrears of income-tax-Recovery under S. 48 of the Madras Revenue Recovery Act, 1864Arrest and imprisonment of defaulter-Nature of-Validity of S. 46 (2) of the Income-tax Act, 1922 and S. 48, Madras Revenue Recovery Act, 1864.

       Held: (1) Neither S. 48 of the Madras Revenue Recovery Act, 1864, nor S. 46 (2) of the Income-tax Act, 1922, violates Arts. 14, 19, 21 and 22 of the Constitution.

       (2) The personal rights guaranteed by sub-clauses (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-c1ause (f) of Art. 19 (1) is subject to

       1. A.I.R. 1950 S.C. pp. 114, 118, 119.

       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 (1) (f) cannot be invoked. Likewise, if life or personal liberty is taken away lawfully under Art. 21, no question of the exercise of fundamental rights under Art. 19 (1) (a) to (e) and (g) can be raised.

       Under Art. 21 "Procedure established by law" means procedure enacted by law made by the State, that is to say, the Union Parliament or the Legislatures of the States. If the law is valid then he has been lawfully deprived of his personal liberty and, in that situation, he cannot complain the infraction of any of the fundamental rights mentioned in Art. 19 (I) (a) to (e) or (g).

       (3) Where an arrest is made under S. 48. Madras Revenue Recovery Act, 1864, 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. An arrest and imprisonment of the defaulter under S. 48 cannot therefore be regarded as an arrest or detention within the meaning of Art, 22. [Editors note :-Of all the cherished objects of life liberty perhaps stands supreme. It is the main ingredient of happiness. The Constitution of India therefore rightly guarantees in Art. 19 freedom of speech and expression, to assemble peacefully and without arms, to form associations and unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to acquire hold and dispose of property, and to practice any professions, or to carry on any occupation, trade or business, subject of course to certain safe• guards and restrictions in the interest of society. Article 20 provides for protection in respect of conviction for offences. But even more than these individual liberties is the safeguard provided to secure personal freedom in Art. 21 which guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. But the procedure established by law may in itself be so vicious as to virtually deprive a person of his life or personal liberty, and then the guarantee provided by Art. 21 will be meaningless. At the same time, in the interest of settled Government and growth of healthy society it is essential that there should be proper control of the sub-versive activities of comparatively insane element of the public. The Constitution has attempted to strike a balance between the two by laying down in the next article the minimum requirements of preventive law, and certain exceptions to the rule provided in Art. 21.

       Article 22 provides:

       (i) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless

       (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention ;

       (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)

       (ii) Parliament may by law prescribe-

       (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board as referred to above;

       (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention;

       (c) the procedure to be followed by the Advisory Board.

       (iii) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The authority making an order of preventive detention is, however, not required to disclose facts, while conveying to the detenu the grounds of detention, which such authority considers to be against the public interest to disclose.

       Legislation relating to preventive detention :

       To be constitutionally valid, any law relating to preventive detention in India must, therefore, fulfil the requirements stated above. The disturbed conditions in the country in the wake of partition necessitated some measures of public safety and for maintenance of public order to be enacted, and a number of Acts, ordinances and orders were consequently passed.1 On the coming into force of the new Constitution on 26th January, 1950, all this legislation and pre-partition legislation on the subject came for scrutiny before the High Courts and the Supreme Court in the light of the provisions of the Constitution referred to above, and some of the provisions of these enactments were held invalid and ineffective. There was a crop of litigation in various States after 26th January, 1950 challenging orders of detention passed under various State enactments dealing with public safety. It was therefore considered necessary that the matter should be set at rest by central legislation, and the result was the enactment of the Preventive Detention Act, 1950 (Act IV of 1950). This Act also came for examination before the Supreme Court of India in various cases, as we shall presently see, and has since been amended by the Preventive Detention (Amendment) Act, 1950, the Preventive Detention (Amendment) Act. 1951, the Preventive Detention (Amendment) Act. 1952, the Preventive Detention (Second Amendment) Act, 1952] and the Preventive Detention (Amendment) Act, 1954. - Article 22 -Income-tax Act, 1922, S. 46 (2)-Arrears of Income tax Recovery under S. 48 of the Madras Revenue Recovery Act, 1864-Arrest and imprisonment of defaulter not arrest detention within the meaning of Art. 22. 1. Now as amended it does - Civil .Procedure Code (1908), S. 58-Income-tax Act (1922), S. 46(2) -Arrears of tax-Arrest and imprisonment of defaulter under S. 48, Madra •• Revenue Recovery Act (II of 1864) Release of defaulter-Provision of See under "Income-tax Act" and "Madras Revenue Recovery Act" post.