1. This is a revision preferred against the convictions and sentences by the learned Sub-Divisional Magistrate in C. C. No. 3 of 1956, which were confirmed by the learned Sessions Judge of Nagapattinam in C. A. No. 75 of 1956.
2. The established facts are : One Rajagopala Aiyangar is the owner of a rice mill at Alivalam near Tiruvarur. On 9th January, 1956, the Special Assistant Commercial Tax Officer, Tanjore, went with his peon to this rice mill at about 2-30 p.m. to inspect the accounts. On going there, he found the sons of the proprietor, accused 1 and 2, studying some account books near a table inside the premises. The Special A.C.T.O. disclosed himself as such to those two persons and told them that he had come for inspection. He was allowed to inspect the account books which were there. In doing so, this officer noticed two small note books kept in the drawer. The first note book related to the period from 1st April, 1955, to 7th December, 1955, and the 0ond note book related to the period 8th December, 1955, to 8th January, 1956. A comparison of the entries made in these note books with the entries made in the regular accounts showed, that several items found in the former were omitted in the latter resulting in a difference in the turnover in order to effect an evasion of sales tax extending to Rs. 3,100. The officer was making some notes of these differences. At that time accused 1 seized the first note book, for the period 1st April, 1955, to 7th December, 1955, and threw it in the drying yard in front of the office room and asked accused 2 to take it and throw it into the furnace. Accused 2 did so. Accused 1 tried to snatch the second note book for the period from 8th December, 1955, to 8th January, 1956, but the officer managed to keep hold of it. There was a scuffle and the peon who had unsuccessfully tried to prevent accused 2 from throwing the first note book into the furnace returned and helped the officer to retain the second note book. In the course of the scuffle the A.C.T.O. sustained a small injury in his right little finger and he got himself treated by the Civil Assistant Surgeon of the Government Hospital, Nagapattinam, on 11th January, 1956, and a medical certificate had been granted. After the incident the accused are alleged to have repented their action and allowed the A.C.T.O. to take the second note book and also the other account books. In fact accused 1 has given a statement admitting these facts. The A.C.T.O. sent a report to the Commercial Tax Officer, Tanjore, and sanction was obtained to file a complaint against the accused before the Sub-Divisional Magistrate, Nagapattinam.
3. The case for the accused was a half-hearted denial of the facts and minimising what happened, and secondly, a point of law which will be referred to presently. Both the courts below found the facts set out above fully proved and negatived the point of law and convicted accused 1 under Section 15 (c) of the Madras General Sales Tax Act and under Section 353 of the Indian Penal Code, and sentenced him to pay a fine of Rs. 500 for the offence under Section 353, Indian Penal Code, and convicted accused 2 under Section 15 (c) of the Madras General Sales Tax Act read with Section 109 of the Indian Penal Code and sentenced him to pay a fine of Rs. 100.
4. The point of law raised in both the courts below and negatived and urged once again here is that the officer in question, the A.C.T.O. being a special A.C.T.O., was not entitled to inspect the accounts and that any obstruction offered to prevent such officer from inspecting the accounts by using criminal force would not be an offence coming under Section 353 of the Indian Penal Code or under Section 15 (c) of the Madras General Sales Tax Act, 1939.
5. The relevant provisions which have to be borne in mind for examining this contention are as follows : Section 14 (2) of the Madras General Sales Tax Act runs:
6. 'All accounts and registers maintained by dealers in the ordinary course of their business, the goods in their possession and their offices, shops, godowns, vessels or vehicles shall be open to inspection at all reasonable times by such officers as may be authorised in this behalf.
7. Under Revenue Department Notification No. 819 dated 12th September, 1939, the officers authorised to inspect the accounts as provided in Section 14(2) of the Act are all officers of the Revenue Department not lower in rank than a Revenue Inspector, all officers of the Excise and Police Departments not lower in rank than a Sub-Inspector and all Commercial Tax Officers, Deputy Commercial Tax Officers and Assistant Commercial Tax Officers. According to a recent notification of the Revenue Department issued in Government Memorandum No. 73427 M/55-6 dated 10th February, 1956, the words 'all officers of the Commercial Taxes Department not lower in rank than an Assistant Commercial Tax Officer' have been substituted for the words 'all Commercial Tax Officers and Assistant Commercial Tax Officers'. It is common ground that the notification applicable to the present case is the previous notification under which the officers authorised to inspect the accounts are all Commercial Tax Officers, Deputy Commercial Tax Officers and Assistant Commercial Tax Officers.
8. On these provisions it is contended that the special A.C.T.O. does not come within the definition of A.C.T.O. and since the special A.C.T.O. is not mentioned as one of the officers authorised to inspect under the previous notification, the complainant in this case had no authority to inspect the accounts.
9. But as pointed out by both the courts below on an examination of the various provisions relating to the special A.C.T.O., it is found there is no substance in this contention.
10. In Appendix LXIII of the Madras Commercial Taxes Manual, Vol. III, at page 360, it has been stated among other things that a special A.C.T.O. is appointed for each district to assist the regular staff in detection work, that he should take extracts from the ledger accounts of wholesale dealers and send the same to the assessing officers concerned and that he should inspect permanent places of business especially those outside the headquarters of the assessing officers and should investigate cases thoroughly upto the point of assessment and then transfer the files with complete details and statistics for enabling the assessing authority to proceed to make the assessment after following the prescribed procedure. Apart from these instructions, the notification referred to above authorised all A.C.T.Os. to inspect the accounts and registers maintained by dealers in the ordinary course of their business at all reasonable times.
11. The special A.C.T.O. is only an A.C.T.O. deputed to do a particular kind of work and when he becomes a special A.C.T.O. he does not cease to be an A.C.T.O. The special A.C.T.O. would come within the definition of A.C.T.O. for the purpose of this notification. In this connection it is contended that because the special A.C.T.O. was not intended to be included within the definition of A.C.T.O., the Government thought it necessary to make the amendment by substituting the words 'all officers of the Commercial Taxes Department not lower in rank than an Assistant Commercial Tax Officer' as per notification dated 10th February, 1956, and that a special A.C.T.O. has been authorised to inspect the accounts only as per the later notification and not under the earlier notification which governs the present case. In support of this argument reference was also made to clause (3) of Notification No. 819 under which the officers empowered to require dealers to produce before them the accounts etc., are the special officer for investigation of evasion under the Act, all Commercial Tax Officers, Deputy Commercial Tax Officers and Assistant Commercial Tax Officers, and it is pointed out that while this clause makes special reference to a special officer, clause (4) has omitted to make a reference to such an officer. It is true that special officers as such are not specifically mentioned in clause (4). But this omission does not mean that special A.C.T.Os. will not also have a right of inspection mentioned in clauses (2) and (3) of Section 14 of the Madras General Sales Tax Act. These special officers, as already pointed out, are only Commercial Tax Officers or Deputy Commercial Tax Officers or Assistant Commercial Tax Officers placed on special duty for the purpose mentioned in the manual reproduced above. There is no clause or provision in the Act curtailing the powers of special officers, as and when they are placed on special duty from discharging the specific functions of an A.C.T.O. In other words, even as regards clause (3) of the notification, in view of the amendment of that clause also by substituting the words 'all officers of the Commercial Tax Department not lower in rank than an Assistant Commercial Tax Officer', the retention of the words 'the special officer for investigation of evasion under the Act' appears to be superfluous, as a special officer is also an officer of the Commercial Taxes Department of the grade of an A.C.T.O. or D.C.T.O. and as there is nothing in the Act or the rules permitting the appointing authority to appoint any person below the rank of an A.C.T.O. as a special officer for investigation of evasion.
12. Therefore, at the worst the failure to specifically include the special officer in Clause (4) of the notification is only a defect in form and does not make any difference in substance and when this omission gave rise to the criticism as in this case, an amendment has been made which now makes it clear that all officers of the Commercial Taxes Department not lower in rank than an A.C.T.O. shall be entitled to inspect the accounts irrespective of the fact whether the officer is an ordinary A.C.T.O. or a special A.C.T.O.
13. On that conclusion it follows that this special A.C.T.O. is a person also entitled to the right of inspection. It follows that if such a person in the course of such inspection is resisted by any person, it would constitute an offence under Section 15 (c) of the Madras General Sales Tax Act or under Section 353 of the Indian Penal Code. A person who aids the principal offender will be guilty of abetment.
14. One other argument which was addressed in this connection was that the special A.C.T.O. came to the rice mill during lunch hour and that he was not entitled to inspect the accounts during lunch time and therefore the obstruction caused at that time would not amount to an offence. For this reliance was placed on the decision of Panchapakesa Aiyar, J., in Venkateswara Rao v. State 1951 2 S.T.C. 167; 1951 M.W.N. 254 , wherein it was observed that under Section 14 (2), the dealer is not bound to allow any inspection of his goods or accounts or registers on a holiday in view of the significant phrase 'at all reasonable times' contained in Section 14(2). But in the present case the inspection has been made at a reasonable time, viz., during the lunch hour when the proprietor would be free to attend to the requirements of the inspecting officer as contradistinguished with the peak hours in the rice mill when the proprietor would be otherwise busy and would (sic) be able to attend to the inspecting officer without detriment to the working of the rice mill. Therefore, the decision cited above has no application whatsoever to this case.
15. The convictions are therefore correct. In view of the contritions felt by the accused then and there and the apologies tendered to the officer instantaneously, the fines of Rs. 500 and Rs. 100 seem to be excessive. The fine amounts are halved and the excess amounts collected will be refunded.