M. Madhavan Niar, J.
1. The petitioner had to pay a sum of Rs. 2532 as per his bid at an auction of the right to collect fees of the vegetable market in the Thodupuzha Panchayat, for the year 1959 60. Out of that sum a balance of Rs. 998 remains due to the Panchayat in spite of several demands made. The Executive Officer of the Panchayat finding recovery by distraint impracticable in his case, prosecuted him under Section 74 of the Kerala Panchayats Act, 1960, read with Rule 26 of the Kerala Panchayals (Taxation and Appeal) Rules. 1963, and the Rule dated 7th November 1962 for Recovery of Costs, Damages etc. by Panchayats. He has been convicted and fined Rs. 50 by the Sub-Magistrate. Thodupuzha, and been directed to pay the arrears also. On appeal, the conviction and sentence have been affirmed by the District Magistrate. Ernakulam Hence this motion for revision.
2. When the case was heard on October 18, counsel for the petitioner relied on Article 20 of the Constitution and pleaded that at the time when the bid amount fell due, its nonpayment did not constitute an offence and therefore under an ex post facto law, which made non-payment of dues to a Panchayat an offence, the petitioner cannot he convicted. As this point had not been taken in the Courts below, the hearing was adjourned to this day and both sides have been heard at length.
3. Counsel for the respondent-Panchayat urges that amounts that remained due to the Panchayat when the Kerala Panchayats Act. 1960, came into force were expressly made realisable under the latter Act and therefore the provisions of the latter Act making an omission to pay any dues to the Panchayat an offence punishable under the Act, would be attracted to the instant case as well. The provisions under which the prosecution has been laid may now be read. Section 74 of the Panchayats Act, 1960, reads:
'74. Recovery of arrears of tax, cess, etc. Any arrear of cess, rate, surcharge or tax imposed or fees levied under this Act shall he recoverable as an arrear of public revenue under the law relating to the recovery of arrears of public revenue for the time being in force:
Provided that the executive authority may directly recover by distraint, under his warrant, and sale of movable properties of the defaulter subject to such rules as may be prescribed:
Provided further that, if for any reason the distraint or a sufficient distraint of the defaulter's property is impracticable, the executive authority may prosecute the defaulter before a Magistrate.'
Rule 26 of Kerala Panchayats (Taxation and Appeal) Rules, 1963, runs thus:
'26. Magistrate to recover tax, warrant fee etc.
(1) Every person who If prosecuted under the second, proviso to Section 74 of the Act shall be liable, on proof to the satisfaction of the Magistrate that he wilfully omitted to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, to pay a fine not exceeding twice of the amount which may be due by him on account-
(a) the tax and the warrant fee, if any, and
(b) if distraint has taken place, the distraint fee and the expenses incidental to the detention and sale if any, of the property distrained.
(2) Whenever any person is convicted of an offence under Sub-rule (1), the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the Panchayat the amounts, if any, due under the headi specified in Clauses (a) and (b) of Sub-rule (1) ; and may in in discretion also recover summarily and pay to the Panchayat such amount, if any, as he may fix as the costs of the prosecution.'
Obviously, the above rule does not state when a prosecution would lie. It only says that a person, if prosecuted under the second proviso to Section 74 of the Act and is shown to have been guilty of such and such acts or omissions, may be visited with such and such a punishment. Obviously resort must be had to Section 74 as the foundation for a prosecution.
The Rule for Recovery of Costs, Damages etc. by Panchayats dated 7th November 1982, is as follows:
'All costs, damages, compensation, penalties, charges, fees (other than school fees) expenses, rents, contributions and other sums which under the Kerala Panchayats Act, 1960 (Act 82 of 1960) or any other law or rules or byelaws made thereunder are due by any person to the Panchayat, may, if there is no special provision in the Act or in the other law or in the rules or byelaws made thereunder for their recovery, be demanded by bill which shall be served on the person concerned and recovered in the manner provided in the rules for the collection of taxes under the laid Act.'
This rule does not deal with prosecutions as such. It only says that rents, to which category the instant dues must belong, due to the Panchayats under the Kerala Panchayats Act, 1960, or any other law or rules or byelaws made thereunder, may be realised under the rules for the collection of taxes under the said Act. Counsel says that when the arrears that were due under the old Act became dues under the new Act, the omission to pay after the commencement of the new Act became an offence under the new Act.
Section 74 only says that if for any reason distraint or sufficient distraint of the defaulter's property is impracticable the executive authority may prosecute the defaulter before a Magistrate. Rule 26 does not lay foundationfor any prosecution but only provides the penalty to be imposed on a prosecution under Section 74. It then follows that 'the act charged as on offence' can only be the omission to pay the dues to the Panchayat. In other words, the act charged as an offence within the meaning of Article 20 of the Constitution, in this case is the omission to pay the bid amount when it fell due. If at the time when that omission occurred it was not an offence, the immunity provided by Article 20 of the Constitution entitles the accused to protection against prosecution under Section 74 of the Act, which admittedly came into force only subsequent to the date when the amount fell due. The fact that the prosecution could not be launched under Section 74 without attempting a distraint, which in its turn could not be attempted without service of a notice of demand, does not mean that the act which constitutes the offence under Section 74 is the non-compliance with the notice of demand served on the defaulter or the non-availability of the distraint in his case. They are only conditions precedent for the institution of a prosecution, much as the case of a sanction is In the case of offences referred to in Section 196, Crl. P. C. The sanction cannot be held to form an ingredient of the offence, but only a processual condition for launching the prosecution. I hold that there the act that constitutes an of fence within the scope of Section 74 of the Kerala Panchayats Act, 1960, Is only the omission to pay the dues to the Panchayat when It fell due, and that having occurred at a time when It did not constitute an offence, the prosecution laid in this case is obviously under an ex post facto law and as such unwarranted.
4. The learned Government Pleader, in supporting the conviction, contended that Section 74 of the Panchayats Act, 1960, does not constitute an offence but only a mode of recovery of dues to the Panchayat and therefore Article 20 of the Constitution is not attracted to the instant case. I cannot conceive of a prosecution before a Magistrate except on an averment of commission of an offence. Even in providing for recovery of dues the Legislature has made the non-payment of the dues an offence as such prosecutable before and punishable by a Magistrate. The case here is one of conviction and sentence, which necessarily implies that an offence has been found committed by the petitioner.
5. Article 20 of the Constitution reads:
'20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force atthe time of the commission of the offence. .,.....................''
It is obvious that if non-payment of the amount in question was not an offence on the, day it fell due, the petitioner cannot be convicted for his omission to pay under the laws enacted subsequently, even if it covered olderdues, Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 S. C. 394 lays down the principle clearly:
'The prohibition under the Article is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an 'ex post facto' law. The fullest effect must therefore be Riven to the actual words used in the Article.. .. .. The phrase 'law in force' asused in Article 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law 'deemed' to have become operative by virtue of the power of legislature to pass retrospective laws. It follows that if the appellants are able to substantiate their contention the acts charged as offences in this case have become such only by virtue of Ordinance No. 48 of 1949 which has admittedly been passed subsequent to the commission thereof then they should be entitled to the benefit of Article 20 of the Constitution and to have their convictions set aside.'
It is conceded that on the day when the amount fell due as per terms of the agreement that followed the auction, an omission to pay the amount did not constitute an offence and could not have been made the subject of a prosecution. The prosecution is therefore misconceived. The conviction entered by the Magistrate cannot stand.
6. In the result, in reversal of the conviction entered by the Sub-Magistrate and atfirmed by the District Magistrate. I acquit theaccused. The fine, if any paid, will be refunded.