The main legal point established in the judgment is that the arrest under S.43 and S.46 (2) was a lawful mode of recovery of arrears of revenue, not a punishment for default, and that S.48 did not violate the Constitution.

1. 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 Art.132 (1), in consequence of which the present appeal is before us.

2. The respondent had filed a petition in the High Court under S.491, Criminal P. C. 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.

3. 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 S.43, Madras Revenue Recovery Act (Madras Act II 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 Kozhikode 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 S.46 (2), Income-tax Act, and by the Income-tax Officer himself under S.46 (5A) of the said Act. After deducting the amount so realised the arrears of Income-tax were about Rs. 62,668 and odd for the assessment years 1943-44,1945-46 to 1948-49. Meanwhile the Income-tax Officer had made enquiries into the affairs to 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.

Demand notice had been served upon him on 6th November 1947, and the series of transactions of sale started on 18th November 1947. Out of the said sum of Rs. 23,100, the respondent 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 Tellicherry carrying on an identical business in the name of V. P. 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 proceeding before the Income-tax Officer concerning the firm V. P. 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 V. P. Abdul Azeez & Bros., belonged to the respondent.

All these facts were communicated to the Collector by the Income-tax officer who made independent enquires 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 S.46(2), Income-tax Act, the Collector proceeded under S.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.

4. In the High Court, the petition under S.491, Criminal P. C. was heard by Mack and Krishnaswami Nayudu, JJ., which was allowed and they ordered that the respondent be set at liberty as his arrest was illegal.

5. Mack, J., thought that S.48 of the Act was ultra vires the Constitution as it offended Art.22. He did not deal at length with the argument that S.48 offended Art.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 law and his arrest and imprisonment had been unlawful. On the other hand, if S.48 was ultra vires the Constitution, then the respondent had been lawfully deprived of his personal liberty. He was further of the