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Emperor Vs. Kadarbhai Usufalli Bohri - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 55 of 1927
Judge
Reported inAIR1927Bom483; (1927)29BOMLR987; 103Ind.Cas.593
AppellantEmperor
RespondentKadarbhai Usufalli Bohri
DispositionAppeal dismissed
Excerpt:
.....purchase and importation of such timber into area where ditty is imposed, not liable to payment of duty-indian penal code (act xlv of 1860), section 186-public servant-acting outside his authority-obstruction to such servant not an offence.;certain timber grown in the indore state forest was purchased by a merchant and stored in his depot at harda in the central provinces, the accused, also a timber merchant, purchased the timber at harda and brought it to his own depot at dharangaon in east khandesh.;government had issued a notification under section 39, clause (b), of the indian forest act, under which they levied duty on all timber brought into east khandesh from the indore state.;the complainant, a ranger in the forest department in east khandesh, being of opinion that the timber was..........sanction of the governor general in council, this section is to be read with section 82 of the indian forest act, which gives a lien on forest produce, if the amount of any money payable to government under the act is not paid, and in certain other cases. if the timber now in question was timber, in respect of which a levy of the duty mentioned in the notification of the local government could be made, then the range forest officer had power to take possession of such timber, until the amount due was paid, under the provisions of section 82. two opposing constructions are put before us. the government pleader argues that clause (b) of section 39 contains nothing to restrict its general language, such as words saying the timber must be brought directly from a place outside british.....
Judgment:

Fawcett, J.

1. In this appeal by the Government of Bombay, there are only two questions before us. The first is, whether under Section 39 of the Indian Forest Act (Act VII of 1876) and the Notification of the Government of Bombay No. 9475, dated January 5, 1925, timber or other forest produce of the kind mentioned in the schedule to the Notification, is liable to a levy of duty as prescribed in the Notification, when brought into the East Khandesh district, not directly from one of the States mentioned in the Notification (in this case the Indore State), but from Harda in the Central Provinces, to which it had been removed from that State. The second point is, whether, supposing the timber was not liable to this levy, the Range Forest Officer was acting 'in the discharge of his public functions' within the meaning of Section 186 of the Indian Penal Code, BO that the obstruction offered by the accused in the case was punishable under that section. Both these questions have been discussed very fully and carefully by the learned Sessions Judge.

2. The first point is one of construction of the words of Section 39. This authorizes the Local Government, subject to the control of the Governor General in Council, to-

levy a duty in such manner, at such places and at such rates as it may from time to time prescribe by a notification in the local official Gazette on all timber or other forest-produce-

(a) which is produced in British India, and in respect of which the Government has any right;

(b) which is brought from any place beyond the frontier of British India.

3. There is a proviso that a notification directing the levy of a duty, in the case of timber and other forest-produce brought from any place beyond the frontier of British India, which is not under the control of the Local Government, shall not be issued without the previous sanction of the Governor General in Council, This section is to be read with Section 82 of the Indian Forest Act, which gives a lien on forest produce, if the amount of any money payable to Government under the Act is not paid, and in certain other cases. If the timber now in question was timber, in respect of which a levy of the duty mentioned in the notification of the Local Government could be made, then the Range Forest Officer had power to take possession of such timber, until the amount due was paid, under the provisions of Section 82. Two opposing constructions are put before us. The Government Pleader argues that Clause (b) of Section 39 contains nothing to restrict its general language, such as words saying the timber must be brought directly from a place outside British India, and that timber which had been produced in the Indore State and brought therefrom to any place in British India would still be liable to the duty, as soon as it was brought into East Khandesh, On the other hand, Mr. Jayakar for the accused contends that it would be absurd to construe this clause in such a wide way, without regard to the possibility of there being a number of intermediaries before the timber reaches a dealer in Khandesh, and that the clause should be strictly limited to the case where the timber or other forest-produce is actually brought by the person alleged to be liable to the duty from the State into East or West Khandesh.

4. The trial Magistrate took the view that the natural interpretation of this Clause (b) would be to treat Indore timber, wherever it first went, and no matter whether there was a great lapse of time and it changed hands several times, as liable to duty as soon as it entered East Khandesh limits. The Sessions Judge, on the contrary, held that the words 'brought from Indore into Khandesh,' to use the language of the Notification, were not equivalent to 'produced in Indore and brought into Khandesh'; and that, if a Nagpur merchant, for instance, buys Indore forest-produce and stocks it at his depot at Nagpur, and a Khandesh merchant buys it from him bona fide and brings it to Jalgaon from Nagpur, it cannot be regarded as brought to Jalgaon from Indore and so liable to be taxed. He says that, even if the Government intend to impose duty on all Native State forest produce, irrespective of the place whence it is brought into Khandesh, he doubts whether they can do so under the powers conferred by Section 39(6) of the Indian Forest Act ; that the two clauses of that section made a clear distinction between the words 'produced' and 'brought'; and that, unlike Clause (a), Clause (b) did not purport to make the taxability depend on the place of the production. He further says that the rule, which is always to be applied in construing fiscal Acts, is that a duty or tax cannot be imposed except by clear and distinct words, and that such Acts cannot be extended by implication.

5. The question has been very ably discussed before us, and I have come to the conclusion that the view taken by the Sessions Judge is correct for the following reasons.

6. In the first place, as pointed out by the Sessions Judge, the general rule of construction is that fiscal statutes must be construed strictly: cf. Empress v. Kola Lalang I.L.R. (1881) Cal. 214. In considering whether a duty is leviable on certain timber or forest-produce, a question that obviously arises is, who is to pay that duty. The section itself contains nothing definite on that point. But, clearly, in the case of timber or other forest produce falling under Clause (a), the duty would be leviable from the person, who first acquires the timber or forest-produce and removes it from the forest, where it has been produced. The clause contemplates Government having certain rights in respect of such produce. When some person buys or otherwise acquires a right to possess and control it, then obviously the duty would be taken from such a person. Then coming to Clause (b) the ordinary interpretation would be that the duty is to be levied from the person who actually brought the timber from some place outside British India to the place, where on its importation the duty becomes leviable. This is in accordance with the ordinary principle that, for instance, governs the importation of goods by sea, The Sea Customs Act, 1878, for instance, in Section 20 and other sections, clearly lays down that it is the owner of the goods, who actually imports them, who has to pay the customs duty that may be leviable upon those goods. There may, of course, be special provisions, rendering some other person liable for payment of the duty in question. But, in the absence of any such provision, the ordinary principle would be that it is the actual importer, who has to pay the duty. I think this is a consideration, which has an important bearing on the point we have to decide, because Section 39 must, in my opinion, be taken to contemplate the levy of a duty on ordinary principles, such as I have mentioned. That being so, it seems to me that it would be straining Clause (b) to hold that timber, of which a person obtains possession and which has been originally brought from a place beyond the frontier of British India, is liable in the hands of that person to duty, though he has taken no part in the bringing of that timber from the place beyond the frontier. There may, of course, be cases of conspiracy to escape the levy of the duty, where such a person might still be liable, because he is shown to have taken part in the bringing of the timber from the place beyond the frontier. But, otherwise, it seems to me that what the clause only contemplates is the levy of duty from a person, who has actually brought timber from a foreign place to the place where the duty is leviable; and if, in fact, a person has not brought it from such foreign place and has not participated in a conspiracy of the kind I have mentioned, then the timber is not liable in his hands to a levy of duty. In support of that conclusion, I may refer to Emperor v. Chunilal Manilal.(7) The accused in that case consigned certain Mhowra flowers partly at the Nadiad and partly at the Umreth stations of a railway company for conveyance to Nandod in the Rajpipla State. The goods were taken possession of by the railway company and were conveyed to Ankleshwar, for transhipment into the Rajpipla State Railway. Ankleshwar was a place in a prescribed area, within which even the possession of Mhowra flowers without a permit was unlawful (Section 18A of the Bombay Abkari Act), The Mhowra flowers were attached at the Ankleshwar Railway Station and the accused was convicted and sentenced under Section 43(2) of the Act. On revision it was hold by this Court that the accused had not committed any offence, for ho personally did not possess the Mhowra flowers within the prescribed area or transport them within, or import them into or export them from that area. The principle of personal importation, on which I have laid some stress, is there recognized by the Court, when it said that the accused had taken no personal part in that particular importation of Mhowra flowers into Ankleshwar, and that there was no evidence to show that he conspired with the railway company in regard to such importation without a permit. Accordingly, it was held that he was not guilty of the offence of which he had been convicted. If it is the intention that timber or other forest-produce should be chargeable in a case like the present, then, in my opinion, the section must be amended so as to give clear authority for such levy of duty. As Clause (b) stands, the view taken by the Sessions Judge is, in my opinion, correct. I may add that it has been found by the Sessions Judge that there was nothing in the evidence in this case to suggest that the accused had any interest in the firm, which got this timber from the Indore forest and stored it in their depot at Harda in the Central Provinces, nor any evidence that he himself had brought the timber from Indore and stored it in their depot at Harda, with the object of avoiding duty. The Sessions Judge further says that he is not proved to have had anything to do with the purchase, of the timber in the Indore State or its transfer from there to the depot at Harda. When he purchased it, it had become the property of the Harda firm, and he brought it into East Khandesh District from Harda and not from the Indore State, On those findings, it seems to me clear that neither Section 39, nor the Notification thereunder, suffice to make any duty leviable in respect of this particular timber.

7. On the second point, I am of opinion that we should follow the ruling in Emperor v. Shivdas Omkar (1912) 15 Bom. L.R. 315, and the similar ruling in Queen-Empress v. Tulsiram I.L.R. (1888) 13 Bom. 108, that Section 186 does not cover the case of a public servant, who, instead of acting in the discharge of his public functions as there contemplated, is acting wholly outside his jurisdiction or authority. The provisions of Section 99 are immaterial, for the conditions under Section 186 must be satisfied before a conviction can be obtained under that section and the view of this Court, contrary in some respects to the view taken by the Madras High Court, is that Section 186 does not apply to an officer, who is acting wholly outside his jurisdiction or authority. Here, no doubt, the Range Forest Officer was acting in perfect good faith, but it is shown that he had no jurisdiction whatever to seize any of this timber under Section 82 of the Indian Forest Act, or under any other enactment. Therefore I am of opinion that the conclusion of the learned Sessions Judge is correct, and I would dismiss this appeal.

Patkar, J.

8. I agree. The facts have been fully stated in the judgment of the lower Court. The concurrent finding of both the Courts is that the accused obstructed the Range Forest Officer, when he was searching for Indore rafters in the depot of the accused. The question which arises for decision in this case is, whether the Range Forest Officer was acting in the discharge of his public function within the meaning of Section 186, Indian Penal Code. The public functions mean legal and legitimately authorized public functions and do not cover any act which a public functionary may take upon himself to perform. Cf. Lilla Singh v. Queen-Empress I.L.R. (1894) 22 Cal. 286 and Queen-Empress v. Tulsiram I.L.R. (1888) 13 Bom. 168. It was held in Emperor v. Shivdas Omkar (1912) 15 Bom. L.R. 315 that the question whether the public servant was acting in the discharge of his public function is a question of fact and not a matter of the public servant's intentions. His intentions may be perfectly honest, but if in fact and in law the functions in discharge of which he is obstructed are not public functions, no offence can be committed under Section 186. Reference was made to Section 99 of the Indian Penal Code, but no offence other than the obstruction to the public servant was committed in this case, and the right of private defence was not set up on behalf of the accused. I do not think that Section 99 has any relevance to the question we are considering in the present case. The question in this case is whether the functions which the Range Forest Officer was performing fell within or outside the jurisdiction or authority, which he as a public servant possessed. The obstruction, in this case was to the Range Forest Officer taking possession of the Indore rafters in the depot of the accused. The Ranger was authorized to take possession of the rafters under Section 82 of the Indian Forest Act 1878, and he could only do so, if duty was payable in respect of the rafters. The question, therefore, is whether duty was leviable on the rafters found in the depot of the accused, The duty is imposed under Section 39 of the Indian Forest Act on timber and other produce

(a) which is produced in British India, and in respect of which the Government has any right;

(b) which is brought from any place beyond the frontier of British India.

9. The Government Notification No. 9475, dated January 5, 1925, issued under Clause (6) of Section 39 of the Indian Forest Act refers to timber or other forest-produce which is brought into East Khandesh from Indore and other places.

10. Now, Clause (a) of Section 39 refers to the source or origin of the forest produce, i.e., British India, and Clause (b) only refers to its importation, presumably regardless of its source or origin. It is found by the lower Court that some of the rafters were imported from Indore to Harda in the Central Provinces in British India, that the Government of Central Provinces have not issued any Notification under Section 39 of the Indian Forest Act, that the firm of Amarsinh Attarsing sold the rafters to the accused as per bill, Ex. 16. It is not shown that the accused was in any way concerned in importing the rafters from Indore to Harda. It is found that he purchased it bona fide from Amarsinh's firm and brought it into East Khandesh from Harda in the Central Provinces and not from the Indore State.

11. It is argued by the learned Government Pleader that the duty was leviable as it was Indore timber and brought from Indore to East Khandesh. But the timber was brought from Indore into Harda and was not liable to duty at Harda as there was no Government Notification under Section 39 of the Indian Forest Act in force in the Central Provinces. The accused brought the rafters from Harda to Jalgaon in East Khandesh, and therefore it was neither brought from Indore within the wording of the Notification, nor brought from any place beyond the frontier of British India within the meaning of Clause (b) of the Indian Forest Act. It is said that the intention of the Act and the Notification was to impose duty on Indore timber at any time when it was brought into East Khandesh. But the intention ought to be ascertained from the words used in the enactment. Speaking not of a penal statute but of the Companies Act, Lord Watson in Salomon v. Salomon & Co. [1897] A.C. 22:-

'Intention of the Legislature' is a common but very slippery phrase, which, properly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity] what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable or necessary implication.

12. In the case of penal statutes and fiscal enactments strict construction most favourable to the subject ought to be adopted. See Mylapore Hindu Permanent Fund (Limited) v. The Corporation of Madras I.L.R. (1908) Mad. 408 and Manindra Chandra Nandi v. Secretary of State for India I.L.R. (1907) Cal. 257, Halsbury's Laws of England, Volume XXII, paras 339 and 345, at pp. 177 and 180.

13. I think, therefore, that the timber in this case was not liable to duty either under Section 39 of the Indian Forest Act or under the Notification issued by Government, and therefore the Range Forest Officer had no jurisdiction to take possession of this timber under Section 82 of the Indian Forest Act, and the accused was not guilty of an offence under Section 186 of the Indian Penal Code. The appeal must, therefore, be dismissed.


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