NATWARLAL MOHANLAL KHARADI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
NATWARLAL MOHANLAL KHARADI
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P.N.BHAGWATI, J.M.SHELAT -
(1.) This petition under Article 226 of the Constitution of India challenges the vires of Rule 51 of the Bombay Sales Tax (Procedure) Rules 1954 made by the Government of Bombay in exercise of the powers conferred upon it by section 45 of the Bombay Sales Tax Act1953 in so far as it made it an offence for any person to contravene the provisions of Rule 10. The Rule required every dealer liable to pay tax under the Act to pay the tax into a Government treasury every quarter before furnishing the return in Form I for that quarter. The petitioner being a registered dealer was liable to pay tax under the Act and he was therefore under an obligation under Rule 10 to pay the tax into a Government treasury every quarter before furnishing the return in Form I for that quarter. The petitioner however failed and neglected to comply with this obligation under Rule 10 and did not pay the tax due under the Act into a Government treasury for the quarters ending on 30th September 1955 31 December 1955 31 March 1956 30 June 1956 and 30th September 1956. The Sales Tax Officer Fourth Division Ahmedabad thereupon took action against the petitioner under section 16 of the Act and passed two orders one dated 30th July 1957 and the other dated 30th April 1959 imposing penalties on the petitioner in the respective sums of Rs. 95-6-6 and Rs. 80-4-4. The Sales Tax Officer also thereafter instituted two Criminal cases being cases Nos. 1209 and 1210 of 1961 against the petitioner in the Court of the City Magistrate Ahmedabad 22nd June 1961 charging the petitioner for offences under Rule 51 for contravention of the provisions of Rule 10 made by the petitioner by committing default in payment of the tax for the aforesaid quarters. The petitioner thereupon preferred the present petition contending that Rule 51 which made it an offence to contravene the provisions of Rule 10 offended Article 20(2) of the Constitution inasmuch as it provided for prosecution and punishment of an assessee for the same offence namely failure to pay the tax within the prescribed time for which he was liable to be prosecuted and punished under section 16 of the Act.
(2.) Now in the first instance it is difficult to see how it can possibly be contended that Rule 51 in so far as it made it an offence to contravene the provisions of Rule 10 could be said to be violative of the constitutional guarantee contained in Article 20(2) of the Constitution. Article 20(2) embodies the doctrine against double jeopardy and affords protection to an individual against a second prosecution and punishment for an offence for which he has already been once prosecuted and punished. That article does not say that there shall not be two offences constituted by the same act. The same act may be punishable under two different provisions. The existence of two different provisions making an act punishable would not by itself attract the applicability of Article 20(2). It is only if an individual has been prosecuted and punished for an act under one provision he cannot be prosecuted and punished for the same act under another provision and if he is sought to be so prosecuted and punished he can invoke the protection contained in Article 20(2). In the present case therefore if the petitioner can show that when orders of penalty were passed against him by the Sales Tax Officer under section 16 of the Act he was prosecuted and punished he may contend before the learned Magistrate trying the criminal cases instituted against him under Rule 51 read with Rule 10 that the prosecution cannot lie against him by reason of Article 20(2). But Rule 51 in so far as it made it penal to contravene the provisions of Rule 10 could not possibly be attacked on the ground of violation of that Article. The petition challenging as it does the vires of Rule 51 must therefore in any event fail.
(3.) But apart from this answer to the challenge to the validity of Rule 51 there is another answer which is to our mind equally fatal. The contention of Mr. Padia learned advocate appearing on behalf of the petitioner was that section 16 in so far as it imposed a penalty on a dealer for default in payment of tax within the prescribed time enacted a provision for prosecution and punishment of a dealer and for the same default the dealer was also liable to be prosecuted and punished under Rule 51 since that default also constituted contravention of the provisions of Rule 10 and this in the submission of Mr. Padia constituted violation of the doctrine against double jeopardy contained in Article 20(2) of the Constitution. Now obviously in order to succeed in this contention it was necessary for Mr. Padia to establish the premise that what section 16 enacted was a provision for prosecution and punishment of a dealer for default in payment of tax within the prescribed time. Mr. Padia contended that the imposition of penalty under Section 16 amounted to punishment and we agree with Mr. Padia that such would be the position but we do not think Mr. Padia is right in his contention that imposition of such penalty amounted to prosecution of the dealer. It is now well settled by several decisions of the Supreme Court commencing from Maqbool Hussain v. State of Bombay A. I. R. 1953 S C. 325 that in order that the protection of Article 20(2) can be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a judicial tribunal and prosecution in this context means an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. The proceeding which results in the punishment must therefore be a proceeding of a criminal nature before a Court of law or a judicial tribunal. The proceeding resulting in the imposition of penalty under section 16 however could not possibly be said to be a proceeding of a criminal nature. We find that this view which we are taking has also found favour with a single Judge of the Andhra Pradesh High Court in Seetharamaswamy & Co. v. Commercial Tax Officer (1960) 11 S.T.C. 581. If therefore it could not be said that there was prosecution of a dealer when penalty was sought to be imposed on him under section 16 the entire foundation of the contention of Mr. Padia must disappear and the applicability of Article 20(2) must be rejected. We are therefore of the view that Rule 51 in so far as it made it penal for any person to contravene the provisions of Rule 10 was not violative of Article 20(2) and the challenge levelled against its validity must fail.;
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