(Prayer: Writ Petitions filed under Article 226 of the Constitution of India seeking to issue writs of declaration to declare that Section 278E of the Income Tax Act, 1961 is ultra vires, illegal, unreasonable and unconstitutional, repugnant to the Constitution of India.)

The writ petitioners challenge the constitutional validity of Section 278E of the Income Tax Act, 1961 (hereinafter referred to as the 'Act').

2. The petitioners are facing prosecution before the Additional Chief Metropolitan Magistrate (E.O. II), Egmore, Chennai-8 for the offence under Section 276CC of the Act. The case of the petitioners is that, the expression 'wilfully' occurring in Section 278E of the Act indicates the mens rea element. This is the basis for the prosecution. Therefore, the prosecution is bound to prove the existence of mens rea on the part of the accused, beyond reasonable doubt. However, by introduction of Section 278E, which gives rise to a presumption as to the culpable mental state of the accused, the entire basis of accusatorial jurisprudence, as accepted and recognised in India, has been shifted. The petitioners contend that while having to defend a wholly baseless and vexatious criminal proceedings, they are also expected to discharge the burden of not possessing the criminal intent and proving it beyond reasonable doubt. According to the petitioners, the impugned provision violates Article 21 of the Constitution of India and their right to pray for discharge from the criminal proceedings has been negated merely on the basis of the impugned provision. According to the petitioners, the guarantee against self-incrimination protected by Article 20(3) of the Constitution has also been taken away from them.

3. The following grounds are raised by the petitioners:

(1) The procedure established by law must be just, fair and reasonable and not arbitrary, fanciful or oppressive. By shifting the burden of proving absence of culpable mental state on to the accused and requiring the same to be established beyond reasonable doubt, the rights guaranteed by the Constitution under Article 21 are violated.

(2) The impugned provision runs counter to the well recognised principles of accusatorial system which requires the prosecution to establish the culpable mental state beyond reasonable doubt.

(3) The provisions of the Indian Evidence Act relating to the manner of proving facts and the burden of proof establish clearly what the duty of the prosecution is with regard to establishing mens rea and presumption of innocence of the accused, and even where the onus is placed on the accused, it is only to prove it by a preponderance of probabilities and not to prove it beyond reasonable doubt. Even Section 108 of the Indian Evidence Act does not abrogate the well established rule of criminal law which places the burden on the prosecution to prove its case.

(4) The presumption under Section 114 of the Indian Evidence Act must be seen in the background of common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.

(5) The requirement of mens rea is a constituent part of a crime unless and until a statute excludes it.

(6) Even where a statute provides for certain presumptions, the onus is to be discharged only on a balance of probabilities and not beyond reasonable doubt.

(7) The requirement of proportionality and reasonableness as regards legislative action has not been met and there is failure to follow the principle of proportionality as formulated by the Supreme Court in Om Kumar vs. Union of India [(2001) 2 S.C.C. 386]. According to the learned counsel for the petitioners, this decision would show that Courts should determine, while considering the vires of a provision, whether the choice of the legislature excessively infringes the rights of the individual. Further, the principle of reasonableness, which is a basic feature of the Indian Constitution, as laid down by the Sup