Ministerial tax recovery under sales tax law may be handled by an Executive Magistrate, with fine fiction limited to recovery.

Section 23(2)(b) of the Kerala General Sales Tax Act, 1963 authorises recovery of assessed tax by treating it as recoverable "as if it were a fine", but the fiction is confined to recovery alone. The function is ministerial and executive in character, flowing from the sales tax statute itself rather than the Code of Criminal Procedure. It does not convert the tax into a fine or require the matter to be dealt with only by a Judicial Magistrate. An Executive Magistrate is therefore competent to entertain and proceed with the recovery application, and the jurisdictional objection fails.

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Issues: Whether, under section 23(2)(b) of the Kerala General Sales Tax Act, 1963, an Executive Magistrate has jurisdiction to entertain and proceed with an application for recovery of tax as if it were a fine.

Analysis: The recovery power flows from the Sales Tax Act itself and not from the Code of Criminal Procedure. The expression "as if it were a fine" operates only for the limited purpose of recovery and does not convert the tax into a fine or make the Magistrate act under the Criminal Procedure Code. The enquiry involved in such recovery is essentially ministerial or executive, and does not ordinarily require appreciation or sifting of evidence or the formulation of a punitive decision. Section 3(4) of the Code of Criminal Procedure, 1973, therefore does not confine the function to a Judicial Magistrate where the task is merely to effect recovery of the assessed tax.

Conclusion: An Executive Magistrate is competent to act under section 23(2)(b) for recovery of tax, and the jurisdictional objection fails.

Ratio Decidendi: A Magistrate who entertains an application for recovery of tax under a sales tax statute acts as a persona designate performing a ministerial recovery function, and the statutory fiction that the amount is recoverable "as if it were a fine" is confined to recovery only and does not import the procedural or jurisdictional limits of the criminal court system.

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