A.N. Chandurkar, J. -
(1.) The only point which has been argued in these two cases is that a prosecution under Sec. 139 of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act) cannot be instituted unless a bill as required by Sec. 138 of the Act is presented by the Municipal Council. The two applicants in these revision applications claim to be partners of a partnership firm. Both of them are being prosecuted under Sec. 139 of the Act on the allegation that on 12 -4 -1970 and 14 -4 -1970 they imported 90 quintals of sugar within the municipal limits of Buldana without payment of octroi which they were bound to pay In respect of the sugar imported on 12 -4 -1970 the applicants were liable to pay, according to the Municipal Council, Rs. 128.12 by way of octroi, and in respect of the sugar brought in on 14 -7 -1970 the octroi payable was Rs. 137.50. The complaint filed by the Municipal Council states that octroi was imposed under Sec. 103 (1) (b) of the Act. It was also recited in the complaint that both the accused were given notice under Sec. 337 (1) of the Act and information was called for but the accused had failed to comply with the notices and had willfully supplied false information and they had committed an offence under Sec. 137 read with Sec. 299 of the Act (section 259 appears to be a mistake). A preliminary objection seems to have been taken by the accused in both the cases. The only objection which is material for the purposes of these revision applications is that, according to the accused, the prosecution was not maintainable inasmuch as no bill of the said tax has been tendered to the accused as required by the mandatory provisions of Sec. 138 of the Act before launching the prosecution under Sec. 139. This objection has been rejected by the trying Magistrate and the revision applications filed by the two accused were rejected by the Sessions Judge, Buldana.
(2.) It is contended before me on behalf of the applicants that under Sec. 137 of the Act power is given to an officer authorised by the Chief Officer to require a person bringing into or receiving from beyond the octroi limits of the Council any animal or goods on which octroi is payable, to furnish any information with regard to the animal or goods which have been brought within the municipal limits without paying octroi and under Sec. 138 of the Act, a bill demanding the octroi which such person was liable to pay has to be presented to that person. The argument is that Sec. 139 follows Sec. 138 and the scheme of the Act must, therefore, be so construed that a prosecution under Sec. 139 was not contemplated unless a bill as required by Sec. 138 has been presented. According to the learned counsel, no such bill was ever presented and, therefore, the prosecution under Sec. 139 could not go on. It is not disputed that a bill as required by Sec. 138 was not presented to the two accused in respect of the octroi which they were liable to pay. The question which, therefore, falls to be considered is whether the launching of the prosecution under Sec. 139 of the Act is dependent on action being taken against a person who is charged with the evasion of octroi under Sec. 137 and 138 of the Act. It is necessary to reproduce these three relevant provisions of the Act which are as follows ;
137.(1) A person bringing into or receiving from beyond the octroi limits of a Council any animal or goods on which octroi is payable shall, when required by an officer authorised in this behalf by the Chief Officer and so far as may be necessary for ascertaining the amount of tax chargeable, -
(a) Permit that officer to inspect, examine weigh and otherwise deal with such animal or goods;
(b) communicate to that officer any information and exhibit to him any bill, invoice or document of a like nature, which he may possess relating to such animal or goods; and
(c) make a declaration in writing to that officer regarding the correctness and accuracy of the document shown to him.
(2) If any person bringing into or receiving from beyond the octroi limits of a Council in which octroi is leviable, any conveyance or package, refuses on demand of an officer authorised by the Chief Officer in this behalf, to permit the officer to inspect the contents of the conveyance or package for the purpose of ascertaining whether it contains anything in respect of which octroi is payable, the officer may cause the conveyance or package to b^ taken without unnecessary delay before such Executive Magistrate, as the State Government appoints in this behalf by name or office, who shall cause the inspection to be made in his presence.
138. An officer demanding octroi by the authority of the Council shall tender to every person introducing or receiving anything on which the tax is claimed, a bill specifying the animal or goods taxable, the amount claimed, and the rate at which the tax is calculated.
139. Where any animal or goods passing into a municipal area are liable to the payment of octroi; any person who, with the intention of defrauding the Council, causes or abets the introduction of or himself introduces or attempts to introduce within the octroi limits of the Council any such animal or goods upon which payment of the octroi due on such introduction has neither been made nor tendered, shall, on conviction be punished with fine which may extend to ten times the amount of such octroi or to two hundred rupees, whichever may be greater.
(3.) It is also necessary to refer to certain relevant rules in the Maharashtra Municipalities (Octroi) Rules, 1968, which were admittedly in force on the day on which the alleged evasion has taken place. Under rule 12 it is provided that every driver of a vehicle or conveyance of any nature whatsoever and every person in charge of any pack animal shall stop his vehicle or conveyance or animal at the Octroi Naka to enable the octroi staff to ascertain whether the said vehicle or conveyance contains or the animal carries any goods liable to octroi and every other person bringing goods within the octroi limits shall likewise stop at the Octroi Naka to enable the octroi staff to ascertain whether the goods in his possession are liable to octroi. Under rule 13 importers, drivers or other persons who are wanting to bring the goods within the municipal limits are prohibited from leaving the octroi Naka until the goods are inspected and the relevant document is made by the octroi staff and octroi on any of the goods, if leviable, is paid. The rule provides:
13. Importers, drivers, etc. not to leave Octroi Naka till goods are inspected and octroi dues (if any) are paid. Every importer, driver or other person shall not leave the Octroi Naka until inspection of the goods and of the relevant documents is made by the octroi staff and octroi on any of the goods, if leviable, is paid. He shall assist the Octroi Officer by giving all the particulars of the goods and producing relevant documents necessary for proper assessment and collection of octroi.
Rules 14 and 15 deal with the procedure for the purposes of assessment and recovery of octroi. Under rule 15 (1) it is provided that where any goods imported within the octroi limits are intended for consumption, use or sale in the municipal area, the Octroi Officer shall, after checking and on being satisfied as to the correctness of the description, number, quantity, weight, measure or value of the goods as given in the declarations or otherwise by determining those matters as provided in these rules, assess the amount of octroi payable, and demand its payment, and on such payment , being made, the Octroi Officer shall grant a receipt for the payment giving date and time of issue to the importer or his representative. Under rule 15 (2) (a) if the person importing within the octroi limits has no money with him to pay octroi on demand, he is required to deposit with the Octroi Officer any article or part of the goods imported which in the opinion of the Octroi Officer is of sufficient value to satisfy the demand. When the octroi is later paid, the depositor has to return to the Octroi Officer the receipt with an endorsement that the article or the part of the goods deposited has been received by him. Under rule 15 (2) (b) if the amount of octroi is not paid and the arise or the part of goods deposited is not redeemed within the specified period, the same shall be deemed to be the goods seized for non -payment of octroi under Sec. 141 and dealt with accordingly. From these rules it is clear that in a raise where the goods in respect of which octroi is payable are to be brought within the limits of the Municipal Council, the goods cannot be taken beyond the Octroi Naka till they are inspected and octroi dues are paid. If this is the requirement of the law, then it will not be permissible to bring within municipal limits any goods or articles in respect of which octroi is payable without paying the necessary octroi and there is a prohibition under rule 13 upon the person bringing the goods against leaving the Octroi Naka till the octroi is paid. When goods are said to be brought in by evading this liability to pay octroi, evasion of octroi takes place. Such an evasion must obviously result in putting the Municipal Council to loss and it is in respect of this evasion which takes place the moment goods or articles are brought in without payment of octroi that penalty is provided under Sec. 139 if it is found that the goods are introduced within municipal limits with the intention of defrauding the Municipal Council.;