{"id":229743,"date":"1957-04-11T00:00:00","date_gmt":"1957-04-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-collector-of-malabar-vs-erimal-ebrahim-hajee-on-11-april-1957"},"modified":"2017-03-28T22:10:34","modified_gmt":"2017-03-28T16:40:34","slug":"the-collector-of-malabar-vs-erimal-ebrahim-hajee-on-11-april-1957","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-collector-of-malabar-vs-erimal-ebrahim-hajee-on-11-april-1957","title":{"rendered":"The Collector Of Malabar vs Erimal Ebrahim Hajee on 11 April, 1957"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Collector Of Malabar vs Erimal Ebrahim Hajee on 11 April, 1957<\/div>\n
Equivalent citations: 1957 AIR 688, \t\t 1957 SCR 970<\/div>\n
Author: S J Imam<\/div>\n
Bench: Das, Sudhi Ranjan (Cj), Imam, Syed Jaffer, Das, S.K., Menon, P. Govinda, Sarkar, A.K.<\/div>\n
           PETITIONER:\nTHE COLLECTOR OF MALABAR\n\n\tVs.\n\nRESPONDENT:\nERIMAL EBRAHIM HAJEE\n\nDATE OF JUDGMENT:\n11\/04\/1957\n\nBENCH:\nIMAM, SYED JAFFER\nBENCH:\nIMAM, SYED JAFFER\nDAS, SUDHI RANJAN (CJ)\nDAS, S.K.\nMENON, P. GOVINDA\nSARKAR, A.K.\n\nCITATION:\n 1957 AIR  688\t\t  1957 SCR  970\n\n\nACT:\nIncome\tTax--Arrears  of--Wilfully withholding\tand  evading\npayment--Arrest\t of  assessee  to  recover  arrears--Whether\nillegal--Indian\t Income Tax Act, s. 46\t(2)--Madras  Revenue\nRecovery  Act  (Mad.  II of 1864),  s.\t48-_Constitution  of\nIndia, Arts. 14, 19, 21 and 22.\n\n\n\nHEADNOTE:\nThe  Income  Tax Officer forwarded a  certificate  under  s.\n46(2)  of  the Indian Income Tax Act to\t the  Collector\t for\nrecovering the arrears of Income Tax from the assesses as if\nthey were arrears of land revenue.  The Collector  proceeded\nunder s. 48, Madras Revenue\n971\nRecovery Act, and had the assessee arrested and confined  in\njail.  Upon a petition for a writ of habeas corpus the\tHigh\nCourt ordered the release of the assessee holding that s. 48\nof  the\t Madras\t Revenue Recovery Act and s.  46(2)  Of\t the\nIndian\tIncome\tTax  Act were ultra  vires.   The  Collector\nappealed.\n  Held,\t that S. 48 Of the Madras Revenue Recovery Act,\t and\nS.  46(2) of the Indian Income Tax Act were not ultra  vires\nand  neither of them violated Arts. 14,19, 21 and 22 of\t the\nConstitution.\n  Where\t the personal liberty of a person is lawfully  taken\naway  under  Art. 21, i.e., in accordance with\ta  procedure\nestablished  by a valid law, no question of the exercise  of\nfundamental rights under Art. 19(1)(a) to (e) and (g) can be\nraised.\nA.K.  Gopalan  v.  The State of Madras,<\/a>\t (1950)\t S.C.R.\t 88,\nfollowed.\n  An  arrest  for a civil debt in the process of or  in\t the\nmode  prescribed  by  law for recovery of  arrears  of\tland\nrevenue does not come within the protection of Art. 22.\nState of Punjab v. Ajaib Singh<\/a> (1953) S.C.R. 254, followed.\n Section 46(2) of the Indian Income Tax Act does not  offend\nArt. 14 and there is no violation of Art. 21 where a  person\nis  arrested  under s. 48, Madras Revenue Recovery  Act,  in\npursuance of a warrant of arrest issued for the recovery  of\nthe demand certified under S. 46(2) of the Indian Income Tax\nAct.\nPurshottam  Govindji Halai v. Shri B. M.  Desai,  Additional\nCollector of Bombay,<\/a> (1955) 2 S.C.R. 887, followed.\n  Section 46(2) of the Indian Income Tax Act gives authority\nto the Collector to recover arrears of tax as if it were  an\narrear\tof land revenue.  Section 48 of the  Madras  Revenue\nRecovery Act read with s. 5 make it clear that the arrest of\nthe  defaulter is one of the modes by which the\t arrears  of\nland revenue can be recovered, to be resorted to if the said\narrears cannot be liquidated by the sale of the\t defaulter's\nproperty.   Such an arrest is not for any offence  committed\nor a punishment for defaulting in any payment.\n Section  48  of the Madras Revenue Recovery  Act  does\t not\nrequire\t the Collector to give the defaulter an\t opportunity\nto  be heard before arresting him.  But the  Collector\tmust\nhave  reason  to  believe that\tthe  defaulter\tis  wilfully\nwithholding payment or has been guilty of fraudulent conduct\nin  order to evade payment.  Such belief must be based\tupon\nsome  material, which a Court may look into  in\t appropriate\ncases,\tto  find  out if the conditions\t laid  down  in\t the\nsection\t have  been fulfilled.\tThe Collector has  also\t the\npower to release the defaulter if the amount due is paid.\n\n\n\nJUDGMENT:\n<\/pre>\n
  CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 145-
\nA of 1954.\n<\/p>\n
972<\/span><\/p>\n
Appeal\tunder  Article 132(1) of the Constitution  of  India
\nfrom  the  Judgment and Order dated July 23,  1954,  of\t the
\nMadras High Court in Criminal Miscellaneous Petition No. 922
\nof 1954.\n<\/p>\n
  Porus A. Mehta and R. H. Dhebar, for the appellants.
\n  B. Pocker and B. K. B. Naidu, for the respondent.
\n   1957.  April 11.  The Judgment of the Court was delivered
\nby
\nIMAM J.-The appellant obtained a certificate from the Madras
\nHigh   Court  to  the  effect  that  the  case\tinvolved   a
\nsubstantial question of law as to the interpretation of\t the
\nConstitution under Art. 132(1), in consequence of which\t the
\npresent appeal is before us.\n<\/p>\n
  The  respondent  had filed a petition in  the\t High  Court
\nunder s. 491 of the Code of Criminal Procedure praying\tthat
\ndirections in the nature of habeas corpus may be issued\t for
\nhis production before That Court to be dealt with  according
\nto law and for his release from imprisonment.
\n  The  respondent  had\tbeen arrested on  June\t1,  1954  in
\npursuance  of  a  warrant issued on March 10,  1954  by\t the
\nCollector  of  Malabar\tunder s. 48 of\tthe  Madras  Revenue
\nRecovery  Act (Madras Act 11 of 1864) (hereinafter  referred
\nto  as\tthe  Act).   The circumstances,\t as  stated  in\t the
\naffidavits filed by the Collector and the Income Tax Officer
\nof   Kozikhode\tin  the\t High  Court,  which  led   to\t the
\nrespondent’s  arrest,  were, that he had  been\tassessed  to
\nincome-tax for various assessment years and the total amount
\nof tax remaining outstanding against him, in round  figures,
\nwas Rs. 70,000.\t Some amount was recovered by the  Collector
\nin  pursuance  of  a certificate issued by  the\t Income\t Tax
\nOfficer\t under s. 46(2) of the Indian Income Tax Act and  bY
\nthe  Income Tax Officer himself under s. 46(5)A of the\tsaid
\nAct.  After deducting the amount so realised the arrears  of
\nincome-tax were about Rs. 61,668 and odd for the  assessment
\nYears  1943-44, 1945 -46 to 1948-49.  Meanwhile\t the  Income
\nTax  Officer  had  made enquiries into the  affairs  of\t the
\nrespondent  and\t had  discovered that he  had  sold  certain
\nproperties  of his between November 18, 1947 and  March\t 25,
\n1948 to
\n973<\/span>
\nthe tune of about Rs. 23,100.  Demand notice had been served
\nupon him on November 6, 1947 and the series of\ttransactions
\nof  sale started on November 18, 1947.\tOut of the said\t sum
\nof  Rs.\t 23,100, the respondent paid arrears of tax  to\t the
\nextent\tof  Rs. 10,500 only.  Enquiries also  revealed\tthat
\nalthough the respondent had closed his business at Cannanore
\nin August, 1947, he had set up a firm in 1948 at  Tellichery
\ncarrying on an identical business in the name of V.P.  Abdul
\nAzeez  &  Bros. consisting of his one major and\t four  minor
\nsons.\tThe respondent had alleged that the capital of\tthis
\nfirm  was mainly supplied from the sale of jewels  belonging
\nto his wife, that is, Abdul Azeez’s mother.  He denied\tthat
\nthe above-mentioned firm belonged to him.  In the assessment
\nproceedings  before  the Income Tax Officer  concerning\t the
\nfirm  V.P. Abdul Azeez & Bros., the source of  these  jewels
\nwas  gone into, but it was found that the same had not\tbeen
\nproved and it was held that the business of V.P. Abdul Azeez
\n&  Bros. belonged to the respondent.  All these\t facts\twere
\ncommunicated to the Collector by the Income Tax Officer\t who
\nmade  independent  enquiries for himself and had  reason  to
\nbelieve that the respondent was wilfully withholding payment
\nof arrears of tax and had been guilty of fraudulent  conduct
\nin  evading  payment of tax.  As a certificate\thad  already
\nbeen issued to him by the Income Tax Officer under s.  46(2)
\nof the Indian Income Tax Act, the Collector proceeded  under
\ns.  48 of the Act to issue a warrant of arrest\tagainst\t the
\nrespondent  in\tconsequence  of which he  was  arrested\t and
\nlodged in Central Jail, Cannanore.\n<\/p>\n
  In  the  High Court, the petition under s.  491,  Criminal
\nProcedure Code, was heard by Mack and Krishna. swamy  Nayudu
\nJJ.  which was allowed and they ordered that the  respondent
\nbe set at liberty as his arrest was illegal.
\n  Mack J. thought that s. 48 of the Act was ultra vires\t the
\nConstitution  as  it offended Art. 22.\tHe did not  deal  at
\nlength\twith the argument that s. 48 offended Art. 21 as  he
\nwas  of\t the opinion that if that section was  ultra  vires,
\nthen the respondent had not been arrested in accordance with
\nprocedure, established by
\n974<\/span>
\nSaw  and his arrest and imprisonment had been unlawful.\t  On
\nthe  other hand, if s. 48 was intra vires the  Constitution,
\nthen  the  respondent  had been\t lawfully  deprived  if\t his
\npersonal  liberty.   He was further of the opinion  that  s.
\n46(2)  of  the Indian Income Tax Act was ultra vires  as  it
\noffended Art. 14 of the Constitution.\n<\/p>\n
  Krishnaswami Nayudu J. was of the opinion that s.46(2)  of
\nthe Indian Income Tax Act read with s. 48 of the\t Act
\noffended Art. 14 of the Constitution.  He was of the opinion
\nthat  s. 48 of the Act offended Art. 21 of the\tConstitution
\nto  the\t extent\t that  it afforded  no\topportunity  to\t the
\narrested person to appear before the Collector by himself or
\nthrough\t a  legal  practitioner of his choice  and  to\turge
\nbefore\thim  any  defence open to him and that\tit  did\t not
\nprovide for the production of the arrested person within  24
\nhours  before  a  magistrate  as  required  by\tArt.  22(2).
\nRelying upon the decision of this Court in A. K. Gopalan  v.
\nThe  State  Of Madras<\/a> (1), he was of the  opinion  that\t the
\ncontention that the provisions of Art. 21 had been infringed
\ndid  not require serious consideration because in so far  as
\nthere  was a law on the statute book on which the  Collector
\nhad  acted that would be sufficient to support the  legality
\nof the action taken by the Collector.\n<\/p>\n
  On behalf of the appellant, it was contended that  neither
\ns.  48 of the Act nor s. 46(2) of the Indian Income Tax\t Act
\nwas  in\t violation  of\tArts.  14, 19,\t21  and\t 22  of\t the
\nConstitution.\tSection 46(2) of the Indian Income  Tax\t Act
\nwas  a valid piece of legislation and under  its  provisions
\nthe  Collector\twas  authorized to recover  the\t arrears  of
\nincome tax as land revenue on receipt of a certificate\tfrom
\nthe Income Tax Officer.\t On behalf of the respondent it\t was
\ncontended  that\t these sections of the Act  and\t the  Indian
\nIncome\tTax  Act did offend Arts. 14, 19, 21 and 22  of\t the
\nConstitution.\tIt  was further contended that on  a  proper
\ninterpretation of s. 46(2) of the Indian Income Tax Act\t the
\nauthority   given  to  the  Collector  on  receipt  of\t the
\ncertificate  from the Income Tax Officer was to recover\t the
\namount of arrears of Income tax, but there was no  authority
\nthereunder in the Collector to arrest
\n (1) [1950] S.C.R. 88.\n<\/p>\n
975<\/span><\/p>\n
the defaulting assessee.  Even if the said section could  be
\ninterpreted  to give the power of arrest, arrest could\tonly
\nbe  made under s. 48 of the Act.  A proper reading of s.  48
\nof the Act would indicate that the defaulter should be given
\nan  opportunity\t to be heard in his defence, previous  to  a
\nwarrant\t of  arrest being issued against him,  as  the\tsame
\ncould only issue if the Collector had reason to believe that
\nthe defaulter was wilfully withholding the arrears of tax or
\nhad  been  guilty of fraudulent conduct in  order  to  evade
\npayment.   Such\t a belief could not be\tentertained  by\t the
\nCollector without first giving the defaulter an\t opportunity
\nto  be\theard.\t The warrant of arrest\tissued\tagainst\t the
\nrespondent  without hearing him in his defence\twag  invalid
\nand  the arrest of the respondent was illegal.\tThe  learned
\nAdvocate  for the respondent further drew our  attention  to
\nthe  fact  that\t in s. 48 there was  no\t provision  for\t the
\nrelease\t of  the  defaulter if he paid\tup  the\t arrears  of
\nrevenue.\n<\/p>\n
  What\twe have to consider in this appeal, at\tthe  outset,
\nis,  whether  either  s. 48 of the Act or s.  46(2)  of\t the
\nIndian Income Tax Act or both offend Arts. 14, 19, 21 and 22
\nof  the\t Constitution.\t The  decisions\t of  this  Court  in
\nGopalan’s case, in The State of Punjab v.Ajaib Singh (1) and
\nin Purshottam Govindji Halai v.Shree B. B. Desai, Additional
\nCollector  of Bombay(2) are to be borne in mind in  deciding
\nthis question.\n<\/p>\n
  It  was  held\t by the majority of the\t learned  Judges  in
\nGopalan’s case that the right “to move freely throughout the
\nterritory  of India ” referred to in Art. 19 (1) (d) of\t the
\nConstitution was but one of the many attributes included  in
\nthe concept of the right to ” personal liberty ” and when  a
\nperson is lawfully deprived of his personal liberty  without
\noffending  Art. 21, he cannot claim to exercise any  of\t the
\nright$ guaranteed by sub-cls. (a) to (e) and (g) of Art.  19
\n(1),  for those rights can only be exercised by\t a  freeman.
\nIn that sense, therefore, Art. 19 (1) (d) has to be read  as
\ncontrolled  by the provisions of Art. 21, and the view\tthat
\nArt.  19  guarantees  the  substantive\tright  and  Art.  21
\nprescribes a procedural protection is incorrect.
\n(1) [1953] S.C.R. 254.\t    (2) [1955] 2 S.C.R. 887.\n<\/p>\n
976<\/span><\/p>\n
The  decision  in Gopalan’s case has been followed  in\tthis
\nCourt  in  a series of cases and that decision must  now  be
\ntaken  as  having  settled once for all\t that  the  personal
\nrights guaranteed by sub-cls. (a) to (e) and (g) Of Art.  19
\n(1) are in a way dependent on the provisions of Art. 21 just
\nas  the\t right guaranteed by sub-cl. (f) of Art. 19  (1)  is
\nsubject\t to  Art.  31.\tIf the\tproperty  itself  is  taken;
\nlawfully  under Art. 31, the right to hold or dispose of  it
\nperishes  with\tit and Art. 19 (1) (f)\tcannot\tbe  invoked.
\nLikewise, if life or personal liberty is taken away lawfully
\nunder  Art.  21 no question of the exercise  of\t fundamental
\nrights\tunder Art. 19 (1) (a) to (e) and (g) can be  raised.
\nUnder  Art.  21\t ”  Procedure established  by  law  ”  means
\nprocedure  enacted  by a law made by the State, that  is  to
\nsay, the Union Parliament or the Legislatures of the States.
\nIn the appeal before us, the principal question,  therefore,
\nis  whether  the  respondent was deprived  of  his  personal
\nliberty\t in accordance with a procedure established by\tlaw,
\ni.e.,  a  valid law.  If the law is valid then he  has\tbeen
\nlawfully  deprived  of\this personal liberty  and,  in\tthat
\nsituation,  he cannot complain of the infraction of  any  of
\nthe fundamental rights mentioned in Art. 19(1)\t  (a) to (e)
\nor (g).\n<\/p>\n
In  Ajaib Singh’s case, a person was taken into\t custody  by
\nthe police and sent to the Officer-in-charge of the  nearest
\ncamp  under  s.\t 4 of the  Abducted  Persons  (Recovery\t and
\nRestoration) Act (Act LXV of 1949) and it was submitted that
\nthe said Act contravened the provisions, inter alia, of Art.
\n22  of\tthe Constitution.  None of  these  submissions\twere
\nfound  to  be  valid.  It was held, so far  as\tArt.  22  is
\nconcerned,  that the taking into custody was not arrest\t and
\ndetention  within  the\tmeaning of  Art.  22.\tKrishnaswami
\nNayudu\tJ.  in his judgment, attempted\tto  distinguish\t the
\ndecision.   With respect to the learned Judge the  principle
\nemerging  out of the decision in Ajaib Singh’s case  appears
\nto  us to be clear enough.  The decision did not attempt  to
\nlay  down in a precise and meticulous manner the  scope\t and
\nambit of the fundamental rights or to enumerate exhaustively
\nthe cases that come within the protection of Art. 22.\tWhat
\nwas
\n977<\/span>
\nclearly\t laid down was that the physical restraint put\tupon
\nan  abducted person in the process of recovering and  taking
\nthat   person  into  custody  without  any   allegation\t  or
\naccusation  of\tany  actual  or\t suspected  or\t apprehended
\ncommission  by that person of any offence of a\tcriminal  or
\nquasi-criminal nature or of any act prejudicial to the State
\nor  the public interest, cannot be regarded as an arrest  or
\ndetention  within  the meaning of Art. 22.  In\tthe  present
\ncase,  the arrest was not in connection with any  allegation
\nor  accusation\tof any actual or  suspected  or\t apprehended
\ncommission  of any offence of a criminal  or  quasi-criminal
\nnature.\t  It  was really an arrest for a civil debt  in\t the
\nprocess\t or  the  mode prescribed by  law  for\trecovery  of
\narrears of land revenue.\n<\/p>\n
  In Purshottam Govindji Halai’s case, this Court held\tthat
\nthere was no violation of Art. 21 of the Constitution  where
\na  person had been arrested under s. 13 of the\tBombay\tLand
\nRevenue Act 1876 in pursuance of a warrant of arrest  issued
\nfor  recovery of the demand certified under s. 46(2) of\t the
\nIndian\tIncome Tax Act, which did not offend Art. 14 of\t the
\nConstitution, inasmuch as such arrest was under a  procedure
\nestablished  by law, that is to say, s. 13 of the  said\t Act
\nconstituted  a\tprocedure established by law.\tMr.  Pocker,
\nhowever,  attempted  to distinguish the case,  because\tthis
\nCourt was dealing with s. 13 of the Bombay Act.\t The grounds
\nstated\tin  that  case for declaring that s.  46(2)  of\t the
\nIndian Income Tax Act was not ultra vires the  Constitution,
\nas it did not offend Art. 14, are equally applicable to\t the
\npresent case and we can find no true principle upon which we
\ncan distinguish that case from the present one.
\n  In our opinion, having regard to the previous decisions of
\nthis  Court referred to above, neither s. 48 of the Act\t nor
\ns. 46(2) of the Indian Income Tax Act violates Arts. 14, 19,
\n21 and 22 of the Constitution.\n<\/p>\n
  We  now proceed to -consider the interpretation sought  to
\nbe  put by Mr. Pocker on s. 46(2) of the Indian\t Income\t Tax
\nAct and s. 48 of the Act.  He contended that s. 46(2) of the
\nIndian\tIncome\tTax Act merely authorised the  Collector  to
\nrecover the amount
\n126<\/span>
\n978<\/span>
\nof  arrears  of\t Income Tax, but it did\t not  give  him\t any
\nauthority  to arrest the respondent.  He submitted that\t the
\nact  of arrest was not a mode of recovery of the arrears  of
\ntax,  but  it was a punishment for failure to pay.   We\t are
\nunable\tto accept this interpretation.\tThe authority  given
\nto  the Collector by this section is to recover the  arrears
\nof  tax\t as  if\t it were an arrear  of\tland  revenue.\t The
\npreamble of the Act clearly states that the laws relating to
\nthe collection of the public revenue should be\tconsolidated
\nand simplified and s. 5 provides for the manner in which the
\narrears\t of revenue may be recovered.  It reads, ”  Whenever
\nrevenue\t may  be  in  arrear, it shall\tbe  lawful  for\t the
\nCollector,  or other officer empowered by the  Collector  in
\nthat behalf, to proceed to recover the arrear, together with
\ninterest   and\tcosts  of  process,  by\t the  sale  of\t the
\ndefaulter’s movable and immovable property, or by  execution
\nagainst\t the person of the defaulter in\t manner\t hereinafter
\nprovided.”  This  section  clearly  sets  out  the  mode  of
\nrecovery  of arrears of revenue, that is to say,  either  by
\nthe  sale  of  the  movable or\timmovable  property  of\t the
\ndefaulter, or by execution against his person in the  manner
\nprovided by the Act.  Section 48 provides that when  arrears
\nof revenue cannot be liquidated by the sale of the  property
\nof  the\t defaulter then the Collector, if he has  reason  to
\nbelieve\t that the defaulter is wilfully withholding  payment
\nof  the arrears or has been guilty of fraudulent conduct  in
\norder to evade payment of tax, can lawfully cause the arrest
\nand  imprisonment of the defaulter.  This section read\twith
\ns.  5,\tmakes  it abundantly clear that the  arrest  of\t the
\ndefaulter  is  one  of the modes, by which  the\t arrears  of
\nrevenue\t can  be recovered, to be resorted to  if  the\tsaid
\narrears cannot be liquidated by the sale of the\t defaulter’s
\nproperty.   There is not a suggestion in the entire  section
\nthat  the arrest is by way of punishment for  mere  default.
\nBefore\tthe Collector can proceed to arrest  the  defaulter,
\nnot merely must the condition be satisfied that the  arrears
\ncannot\tbe  liquidated by the sale of the  property  of\t the
\ndefaulter  but\tthe Collector shall have reason\t to  believe
\nthat  the defaulter is wilfully withholding payment, or\t has
\nbeen guilty of fraudulent conduct in order to evade
\n979<\/span>
\npayment.  When dues in the shape of money are to be realised
\nby  the\t procees of law and not by  voluntary  payment,\t the
\nelement\t of coercion in varying degrees must necessarily  be
\nfound  at  all stages in the mode of recovery of  the  money
\ndue.  The coercive element, perhaps in its severest form, is
\nthe  act  of arrest in order to make the defaulter  pay\t his
\ndues.\tWhen  the  Collector  has  reason  to  believe\tthat
\nwithholding of payment is wilful, or that the defaulter\t has
\nbeen guilty of fraudulent conduct in order to evade payment,
\nobviously,  it is on the supposition that the defaulter\t can
\nmake  the  payment, but is wilfully withholding\t it,  or  is
\nfraudulently evading payment.  In the Act there are  several
\nsections  (e.g.\t ss.  16, 18 and  21)  which  prescribe,  in
\nunambiguous language, punishment to be inflicted for certain
\nacts  done.   It  is clear, therefore, that  where  the\t Act
\nintends\t to impose a punishment or to create an offence,  it
\nemploys a language entirely different to that to be found in
\ns.  48.\t  We are of the opinion, therefore,  that  where  an
\narrest\tis  made under s. 48 after complying with  its\tpro-
\nvisions,  the arrest is not for any offence committed  or  a
\npunishment  for\t defaulting  in any payment.   The  mode  of
\narrest\tis  no more than a mode for recovery of\t the  amount
\ndue.\n<\/p>\n
There  is  nothing in s. 48 of the Act\twhich  requires\t the
\nCollector  to give the defaulter an opportunity to be  heard
\nbefore\tarresting him.\tIt is true that the  Collector\tmust
\nhave  reason  to  believe that\tthe  defaulter\tis  wilfully
\nwithholding payment or has been guilty of fraudulent conduct
\nin  order to evade payment.  The Collector, therefore,\tmust
\nhave  some material upon which he bases his belief-a  belief
\nwhich must be rational belief-and a court may look into that
\nmaterial  in appropriate cases in order to find out  if\t the
\nconditions  laid down in the section have been fulfilled  or
\nnot.   From  the affidavits filed in the High Court  by\t the
\nCollector and the Income Tax Officer it is quite clear\tthat
\nthere  was material upon which the Collector could base\t his
\nbelief that the respondent was wilfully withholding  payment
\nof  the\t arrears of -tax and had been guilty  of  fraudulent
\nconduct in order to
\n980<\/span>
\nevade payment.\tThe Collector was, therefore, justified
\nin arresting the respondent.\n<\/p>\n
As  pointed out by Mr. Pocker, s. 48 of the Act does not  in
\nterms provide for the release of the defaulter if he pays up
\nthe arrears, but it is to be remembered that in addition  to
\nthe powers under s. 48 of the Act, the Collector has,  under
\nthe  proviso  to  s. 46(2) of the  Indian  Income  Tax\tAct,
\nsimilar powers to that which a Civil Court has for  recovery
\nof an amount due under a decree.  It was held in  Purshottam
\nGovindji Halai’s case that the proviso is not an alternative
\nremedy\topen  to the Collector but only\t confers  additional
\npowers\ton the Collector for the better and  more  effective
\napplication of the only mode of recovery authorized by\tsub-
\nsee. (2) of s. 46 of the Indian Income Tax Act.\t Under s. 58
\nof  the Civil Procedure Code a Civil Court must release\t the
\njudgment debtor if the amount due is paid.  Accordingly, the
\nCollector  has\tthe power to release the  defaulter  if\t the
\namount\tdue  is\t paid  and there  is  no  substance  in\t the
\nsubmission  of the learned Advocate.  Moreover, one  of\t the
\nconditions precedent to action under s. 48 is the  existence
\nof  arrears  of revenue.  On payment of\t the  arrears,\tthat
\ncondition  no longer exists and the debtor must\t clearly  be
\nentitled to release and freedom from arrest.
\n  It  was  urged that the respondent was a man of  about  70
\nyears at the time of his arrest and a ‘Person suffering from
\nserious\t ill  health.  Indeed, it is said, he  is  suffering
\nfrom  paralysis and that he should not be sent back to\tjail
\ncustody.  We cannot in the present proceedings make such  an
\norder.\t The  respondent may, if he is\ttaken  into  custody
\nagain,\tapproach the Collector for his release who could  do
\nso,  in\t the circumstances set out in s. 59 of the  Code  of
\nCivil  Procedure,  in the exercise of his powers  under\t the
\nproviso to s. 46(2) of the Indian Income Tax Act.
\n  The  appeal  is  accordingly allowed with  costs  and\t the
\njudgment of the High Court is set aside.  It will be open to
\nthe  Income  Tax Officer of Kozikhode and the  Collector  of
\nMalabar to take such steps against the ‘respondent according
\nto law as they may be advised.\n<\/p>\n
\t\t\t  Appeal allowed.\n<\/p>\n
981<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Collector Of Malabar vs Erimal Ebrahim Hajee on 11 April, 1957 Equivalent citations: 1957 AIR 688, 1957 SCR 970 Author: S J Imam Bench: Das, Sudhi Ranjan (Cj), Imam, Syed Jaffer, Das, S.K., Menon, P. Govinda, Sarkar, A.K. PETITIONER: THE COLLECTOR OF MALABAR Vs. RESPONDENT: ERIMAL EBRAHIM HAJEE DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-229743","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Collector Of Malabar vs Erimal Ebrahim Hajee on 11 April, 1957 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-collector-of-malabar-vs-erimal-ebrahim-hajee-on-11-april-1957\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Collector Of Malabar vs Erimal Ebrahim Hajee on 11 April, 1957 - 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