1958 (3) TMI 50 - SC - VAT and Sales Tax

Appeals Dismissed, Sentence Modified to Simple Imprisonment

Kapur Chand Pokhraj Versus The State of Bombay

The appeals were dismissed with a modification in the sentence, changing it from rigorous to simple imprisonment for one month in each case. The ... Whether in a given case there was proper exercise of judicial discretion by the trial Judge? Held that:- Appeal dismissed. The High Court thought rightly that as the appellant had kept double sets of account books, it was eminently a case in which a substantive sentence ought to have been imposed. The Magistrate has improperly exercised his discretion within the meaning of the aforesaid observations of this Court and, therefore, the High Court was certainly within its right to enhance the sentence. High Court committed a mistake in awarding a sentence of rigorous imprisonment for a period of one month, which it is not entitled to do under the provisions of section 24(1) of the Act. Under that section the Court had jurisdiction only to give a maximum sentence of simple imprison. Be it as it may we change the sentence from rigorous imprisonment to simple imprisonment for a period of one month in each case. With this modification the appeals are dismissed. Issues Involved:1. Maintainability of prosecution under the repealed Bombay Sales Tax Act, 1946.2. Validity of sanction for prosecution by the Additional Collector.3. Appropriateness of the sentence imposed by the High Court.Detailed Analysis:1. Maintainability of Prosecution under the Repealed Bombay Sales Tax Act, 1946:The primary issue was whether the prosecution for an offence under the repealed Bombay Sales Tax Act, 1946, was maintainable. The appellant argued that the repeal of the 1946 Act by the Bombay Sales Tax Act, 1953, did not save penalties for offences committed under the repealed Act, thus nullifying the prosecution. The Court examined Section 48(2) of the 1953 Act, which states, 'Notwithstanding the repeal of the said Act...the said repeal shall not affect or be deemed to affect...any right, title, obligation or liability already acquired, accrued or incurred.' The term 'liability incurred' was interpreted to include both civil and criminal liabilities. The Court concluded that the liability for offences committed under the 1946 Act was preserved by the saving clause in Section 48 of the 1953 Act, thus maintaining the prosecution's validity.2. Validity of Sanction for Prosecution by the Additional Collector:The appellant contended that the sanction for prosecution should have been given by the Collector, not the Additional Collector, as per the 1946 Act. The Court reviewed the relevant provisions and found that the State Government had appointed the Additional Collector as the Collector of Sales Tax under Ordinance III of 1952, which continued to be in force under the 1953 Act by virtue of Section 49(2). This section states, 'Any appointment...made or issued under the Ordinance hereby repealed shall continue in force...unless it has been already, or until it is superseded by an appointment...made or issued under this Act.' Since no new notification was issued under the 1953 Act to revoke the earlier appointment, the sanction given by the Additional Collector was deemed valid.3. Appropriateness of the Sentence Imposed by the High Court:The appellant argued that the High Court unjustifiably enhanced the sentence from a fine to rigorous imprisonment without providing compelling reasons. The Court referenced prior judgments, emphasizing that the discretion exercised by the trial judge should not be interfered with unless improperly exercised. The High Court justified the enhancement by highlighting the appellant's deliberate and systematic fraud involving double sets of account books and false returns. However, the Court noted an error in the High Court's imposition of rigorous imprisonment, as Section 24(1) of the 1946 Act only allowed for simple imprisonment. Consequently, the Court modified the sentence from rigorous to simple imprisonment for one month in each case.Conclusion:The appeals were dismissed with a modification in the sentence, changing it from rigorous to simple imprisonment for one month in each case. The prosecution was held maintainable under the saving clause of the 1953 Act, and the sanction by the Additional Collector was validated. The High Court's enhancement of the sentence was justified, albeit with a correction in the nature of imprisonment.