- (1.) THIS case has been reported by the learned Sessions Judge, Ludiana, with a recommendation that the conviction and sentence of the petitioner be set aside and he be acquitted. The facts as appear from the report of the learned Sessions Judge and which are not disputed by the counsel before me are that Jit Singh, 21 years old, cycle repairer of Khanna, was seen riding on a newly fitted bicycle at about 2 P. m. on 16th of February, 1958 from the side of the godown of the Rayal cycle and Motor Company, Khanna, which is located beyond the municipal limits of Khanna and that when he passed the Municipal octroi post No. 3 he was stopped by the Octroi Moharrir and asked to Pay the octroi leviable on the bicycle. Jit Singh petitioner refused to do so. Later Shri Ram Sarup, Manager of the Singer Cycle company with whom the petitioner Jit Singh is alleged to have been employed came to the spot and handed over a receipt to the Petitioner to support his assertion that the bicycle had been purchased by the petitioner from the said firm on the previous day i. e. 15th February 1958. This allegation of the petitioner was enquired into, and the Municipal Committee came to the conclusion that it was not true, and that the petitioner had committed an offence under Section 78 of the Punjab Municipal Act, 1911, for introducing the bicycle in question into the octroi limits of the Municipal Committee, Khanna, without Payment of the octroi tax leviable thereon. A complaint was thereupon filed by the Municipal Committee against Jit Singh accused-petitioner under Section 78 of the Punjab Municipal Act. After considering the evidence produced both by the complainant and the accused, the learned Magistrate convicted him under section 78 of the Municipal Act and fined him Rs. 50/- or in default to undergo simple imprisonment for one month. The Magistrate came to the positive conclusion on the evidence that neither the Singer Cycle Company nor the Royal Cycle and Motor Company had been able to establish that any octroi duty had been paid for the cycle in question. The accused went up in revision before the learned Sessions Judge where his counsel disputed the findings of fact arrived at by the trial Magistrate and also contended that the necessary ingredients of the offence under Section 78 of the Punjab Municipal Act had not been made out. In particular it was contended that there was no evidence on the record to prove that the bicycle in question, being a new bicycle, was a taxable article and that the petitioner had brought it into the octroi limits with a view to defraud the Municipal Committee. The learned Sessions Judge sitting as a Court of revision refused to interfere with the findings of fact of the trial Magistrate that the accused had brought the bicycle into the octroi limits and that he had failed to substantiate the purchase of the bicycle a day earlier or the Payment of the tax on 3rd of January 1958 in respect of the bicycle in question. The learned Sessions Judge however, forwarded the proceedings on the ground that ingredients of the offence under Section 78 of the punjab Municipal Act were not established on the record. The learned Judge has stated that no evidence whatsoever had been produced by the complainant Municipal Committee to prove that the bicycle in respect of which the octroi duty was demanded was an article on which octroi duty was leviable by that Committee. The relevant rules or bye-laws of the Municipal Committee or the list of the articles on which the octroi duty is levied by the Municipal Committee, Khanna, not having been placed on the record, and no municipal employee, examined in Court in support of the complainant's case, having asserted that, according to the bye-laws or the rules framed by the Municipal Committee, octroi tax was leviable on bicycles, the essential ingredient, that the article sought to be brought into the octroi limits was liable to the-payment of octroi, was not established On the present record. The learned Sessions Judge has further remarked that the question of fraudulent intent on the part of the accused had also been ignored by the learned Magistrate, inasmuch as he had omitted to put to the accused, in the course of his examination under Section 342 of the Code of Criminal procedure, that he had brought the bicycle into the octroi limits of the Municipal Committee with the intention to defraud the Committee. The learned Judge has, however, also observed in his report, that though the omission to Put a question to the accused regarding his intention may not be enough to vitiate his trial, yet in the present case his conviction could not be recorded without a definite finding that he had imported the bicycle, which was a taxable article, with intent to defraud the Municipal Committee.
(2.) MR. Har Parshad has appeared before me in support of the recommendation and Mr. M. R. Chhibar and Mr. Dalip Singh Kang have appeared in opposition. Mr. Chhibar has Produced before me a copy of the Punjab Government Gazette Notification No. 57-LG (C) 52/11-247 dated 17th of January 1952, issued in pursuance of the provisions of Sub-section (10) of Section 62 of the Punjab Municipal Act, with the previous sanction of the Punjab Government, containing a list of articles on which tax was imposed and published in part 1-A, at page 40 of the Gazette dated 25th January 1952. He has also produced an official publication containing this notification. In the list of articles, liable to payment of tax I find new cycles, new tricycles, new perambulators, new cycle-rickshaws and spare parts of all vehicles entered in item 87, Clause (e ). Mr. Chhibar has also referred me to the testimony of witnesses for the complainant who, according to the counsel, have deposed that new bicycles are liable to be taxed. In this connection the evidence of Shri baldev Krishan P. W. 3, Octori Superintendent of the Khanna Municipal Committee, has been specifically relied upon. This witness has stated that he actually explained to the accused that new bicycles were liable to octroi duty. The counsel has also submitted that according to the prosecution witnesses the accused only pleaded that he had Purchased the bicycle a day earlier and that octroi duty had already been paid on it. Mr. Har Parshad has objected to the production of a copy of the notification at this stage, and has submitted that the Court cannot take judicial notice of such a notification which must be properly proved in accordances with the Provisions of the Indian evidence Act. He has, in this connection, placed reliance on the provisions of Sections 57 and 78 of the Indian evidence Act, He submits that such a notification does not fall within the terms of Clause (1) of section 57, Indian Evidence Act, which lays down that the Court shall take judicial notice of all laws in force in the territory of India. Section 78 of the Act has been relied upon by the counsel in support of the contention that notifications of the State Government or of any of its departments can only be proved by the records of the departments concerned, certified by the heads of those departments respectively. In support of his contention reliance has been placed by the counsel for the accused on Mathuradas v. The State AIR 1954 Nag. 296, the headnotes of which are in the following terms: (a) It is not right to deduce the meaning of the term 'law' from the definition of the term 'indian law' in Section 3 (29), General Clauses Act. However, even if the definition of 'indian Law' in the General Clauses Act is accepted as the definition of 'law' in force in the territory of India a notification cannot be said to be included within it. (b) In a revision application the applicant raised the contention that the retail price of yarn with regard to which the applicant was said to have committed an offence, fixed by the Textile commissioner, Madhya Pradesh, had not been proved. It was contended on behalf of the State that this price was specified in Notification No. 745-G-STYC (M. P.) dated 4-2-1950, published in the Madhya Pradesh Gazette, dated 10-2-1950 and that the Court should take judicial notice of that notification. Held that in the circumstances a Court is not, under Section 57, Evidence Act, entitled to take judicial notice of notification published in the Gazette and that the fact of the publication of the notification has to be proved in the manner Provided for in Section 78, evidence Act. In support of this dictum reference in the reported case was made to Collector of Cawnpore v. Jugal Kishore AIR 1928 All. 355 and Public Prosecutor v. Illur Thippayya AIR 1949 Mad 459, mr. Har Parshad has also submitted that the accused, when he was required to pay the' tax, had definitely taken up the position, that new cycles were not liable to octroi duty, with the result that it was incumbent on the prosecution to Prove by the best evidence that the bicycle in question was one of the articles on which duty was payable. In this connection the learned counsel has relied upon the testimony of P. W. I and P. W. 3 it has also been contended that no finding having been given with respect to fraudulent intent of the accused, to bring into the municipal limits the bicycle in question, the conviction of the accused is liable to be set aside on this ground as well. The counsel then referred to Rahmat elahi v. Emperor AIR 1931 Lah. 752 (1) where Shade Lal C. J. observed "that to constitute an offence under Section 78, Punjab Municipal Act, there should be an attempt to introduce dutiable articles into octroi limits with intent to defraud the committee. This is the offence generally known as smuggling. Where there is a evidence to show that the accused did anything of the kind, he cannot be convicted under Section 78 which does not apply to a refusal to pay taxes on the ground that they are not due. " This decision was later followed by din Mohammad J. in Benarsi Shah Charan Singh v. The Crown:, 1940-42 Pun LR 444. State v. Koli Amra AIR 1953 Sau. 164 has also been cited by the counsel in support of the contention that bona fide refusal to pay octroi duty is not intention to defraud municipality.
(3.) AFTER considering the respective contentions of the counsel for the parties, I think the recommendation of the learned Sessions Judge cannot be accepted. Section 57 of the Indian evidence Act is in the following terms: 57. The Court shall take judicial notice of the following facts: (1) All laws in force in the territory of India: (2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed: (3) Articles of War for the Indian Army, Navy or Air Force; (4) The course of proceeding of Parliament of the United Kingdom of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in India: (5) The accession and the sign manual of the sovereign for the time being of the United kingdom of Great Britain and Ireland: (6) All seals of which English Courts take judicial notice: the seals of all the Courts in India, and of all Courts out of the India, established by the authority of the Central Government or the crown Representative: the seals of Courts of Admiralty and Maritime Jurisdiction and of notaries Public, and all seals which any person is authorised to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India: (7) The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any State, it the fact of their appointment to such office is notified in any official Gazette: (8) The existence, title and national flag of every State or Sovereign recognized by the government of India: (9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette: (10) The territories under the dominion of the Government of India: (11) The commencement, continuance and termination of hostilities between the Government of india and any other State or body of Persons: (12) The names of members and officers of the Court and of their deputies and Subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it: (13) The rule of the road on land or at sea: In all these cases and also on all matters of public history, literature, science or Article the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. The expression "all laws in force in the territory of India" as used in Clause (1) of this section has not been defined in the Evidence Act or the General Clauses Act, 1897. The expression 'indian Law' has, however, been defined in Section 3 (29) of the General Clauses Act of 1897. This definition, which, as usual, is subject to repugnancy, is in the following terms: 3 (29) : 'indian Law' shall mean any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any province of India or part thereof, or thereafter has the force of law in any part A State or part C state or part thereof, but does not include any Act of Parliament of the United Kingdom or any order in Council, rule or other instrument made under such Act. For our present purposes, I would merely observe that this definition includes rule, order, bye-law or other instrument which has, after the commencement of the Constitution, the force of law in any Part A State of Part C State or part thereof. It is not disputed that Khanna Municipal committee is a part of the Punjab State, a Part A State. In Clause (51) of Section 3 the word 'rule' has been defined to mean a rule made in exercise of a Power conferred by any enactment, and shall include a regulation made as a rule under any enactment. It is now necessary to consider as to what) precisely is the nature, scope and value of the subject-matter of the notification in question, and whether it falls within the expression 'law in force' in the territory of which it is incumbent on the Courts to take judicial notice. The essential characteristic of 'a law' is that it lays down a policy either affecting rights or creating rights or liabilities and making it a binding rule of conduct, and is enforceable in a Court of law. Every determination binding on a subject does not necessarily possess the attributes of a law; and in judging its character, one has to take into account the nature of the function, which comes up for adjudication. It must be borne in mind that the counsel for the petitioner has not contended, that the notification in question is otherwise invalid on the ground of being contrary to law, or not having been made in accordance with Sections 61 and 62 of the Punjab Municipal Act. Nor is it his case that the delegation of the legislative Power is outside the legally recognised limits. The argument before me was strictly limited to the question whether the trial Court was bound to take judicial notice of the law as contained in the notification or whether it was incumbent on the Municipal committee formally to produce its records or a copy of the notification, failing which the Court was bound in law to acquit the accused petitioner. As a subsidiary question, it will also have to be determined whether the learned Sessions Judge was justified in setting aside the conviction on the ground of non-production of the notification on the record of the case when the trial Court had not considered it necessary to require the municipal Committee to produce the notification to enable it to take judicial notice of its contents. This brings me to the precise nature and scope of the notification in question. As already observed, this notification came into being by virtue of Section 62 (10) of the Punjab municipal Act. To appreciate and understand its legal effect, it would be helpful to reproduce sections 61 and 62 of the above Act, so far as they are relevant for the purposes of this case: section 61. Subject to any general or special orders which the State Government may make in this behalf, and to the rules, any committee may, from time to time for the purpose of this Act, and in the manner direct-ed by this Act, impose in the whole or any Part of the municipality any of the following taxes, namely: (1) (a) * * * * (b) * * * * (c) * * * * (d) * * * * (e) * * * * (a) * * * * (2) Save as provided in the foregoing clause, with the previous sanction of the State government any other tax which the State* Legislature has power to impose in the State under the Constitution. (3) * * * * nothing in this section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution: Provided that a committee which immediately before the commencement of Constitution was lawfully levying any such tax under this section as then in force, may continue to levy that tax until provision to the contrary is made by Parliament. Explanation.- In this section 'tax' includes any duly, cess or fee. Section 62 (1 ). A committee may, at a special meeting, pass a resolution to Propose the imposition of any tax under Section 61. (2) When such a resolution has been passed the committee shall publish a notice, defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed, and the system of assessment to be adopted. (3) Any inhabitant objecting to the proposed tax may, within thirty days from the Publication of the said notice, submit his objection in writing to the committee; and the committee shall at a special meeting take his objection into consideration. (4) If the committee decides to amend its proposals or any of them, it shall publish amended proposals along with a notice indicating that they are in modification of those previously published for objection. (5) Any objections which may within thirty days be received to the amended Proposals shall be dealt with in the manner prescribed in Sub-section (3 ). (6) When the committee has finally settled its proposals, it shall, if the proposed tax falls under clauses (b) to (1) of Sub-section (1) of Section 61 direct that the tax be imposed, and shall forward a copy of its order to that effect through the Deputy Commissioner, to the State government; and if the proposed tax falls under any other Provision, it shall submit its proposals together with the objection if any made in connection therewith to the Deputy Commissioner. (7) If the proposed tax falls under Clause (a) of Sub-section (1) of Section 61, the Deputy commissioner, after considering the objections received under Sub-sections (3) and (5) may cither refuse to sanction the proposals or return them to the committee for further consideration, or sanction them without modification or with such modification not involving an increase of the amount to be imposed, as he deems fit, forwarding to the State Government a copy of the proposals and his order of sanction; an if the tax falls under Sub-section (2) * * * * * of Section 61, the Deputy Commissioner shall submit the Proposals and objections with his recommendations to the State Government. (8) The State Government on receiving proposals for taxation under Sub-section (2) * * * * may sanction or refuse to sanction the same, or return them to the committee for further consideration. (9) * * * * * (10) (a) When a copy of order under Sub-sections (6) and (7) has been received, or (b) when a proposal has been sanctioned under Sub-section (8) * * * * the State Government shall notify the imposition of the tax in accordance with, such order or Proposal, and shall in the notification specify a date not less than one month from the date of the notification, on which the tax shall come into force. (11) A tax livable by the year shall come into force on the first day of January or on the first day of April, or on the first day of July, or on the first day of October in any year, and if it comes into force on any other than the first day of the year by which it is leviable shall be leviable by the quarter till the first day of such year then next ensuing. (12) A notification of the imposition of a tax under this Act shall be conclusive evidence that the tax has been imposed in accordance with the provisions of the Act.;