STATE OF MYSORE Vs. K MOHAMED ISMAIL

JUDGEMENT

(1.) THE question of the validity of section 22 of the Mysore Sales Tax Act, 1948, having arisen in C.C. Nos. 288 and 289 of 1954 on the file of the First Class Magistrate, Civil Station, Bangalore, the said Magistrate has made this reference under section 432 of the Criminal Procedure Code. The question which has been referred to the High Court is :-

(2.) A short time prior to the making of this reference, the Madras High Court had held in the case of In re Guruviah Naidu and Co. ([1954] 5 S.T.C. 129; A.I.R. 1954 Mad. 833), that section 16-A of the Madras General Sales Tax Act (which corresponds to section 22 of the Mysore Sales Tax Act, 1948) was ultra vires of the of the Constitution and of the Code of Criminal Procedure. The counsel for the accused in the two criminal cases before the learned Magistrate above referred to appears to have based his arguments on a newspaper report of the above-said decision of the Madras High Court and contended before the learned Magistrate that section 22 of the Mysore Sales Tax Act, 1948, was ultra vires of the Constitution and the Code of Criminal Procedure. The learned Magistrate took the view that there was force in the contention of the learned counsel and has made this reference. Section 22 of the Mysore Sales Tax Act, 1948, as it stood at the time when the learned Magistrate made this reference, was as follows :-

(3.) THE main contentions which have been urged by the learned counsel Sri Ullal who has appeared for the accused persons in those cases is that section 22 is repugnant to the provisions of the Code of Criminal Procedure and the Indian Evidence Act and that therefore it cannot have effect; it is also contended by him that it offends Article 14 of the Constitution and that therefore it is void. His arguments were more or less on the lines of the arguments advanced on behalf of the petitioners in the case reported in Guruviah Naidu, In re ([1954] 5 S.T.C. 129; A.I.R. 1954 Mad. 833). In that case it was held by the Madras High Court that section 16-A of the Madras General Sales Tax Act was repugnant to the provisions of the Code of Criminal Procedure and the Evidence Act and also offended Article 14 of the Constitution. In a Full Bench case reported in P. K. Velayudhan, In re ([1955] 6 S.T.C. 331), the High Court of Travancore-Cochin had to consider the constitution validity of section 21 of the Travancore-Cochin General Sales Tax Act. In that Full Bench case, their Lordships did not accept the contentions similar to those which had been advanced in the case of Guruviah Naidu, In re ([1954] 5 S.T.C. 129; A.I.R. 1954 Mad. 833), and did not concede that the said decision laid down the correct law. Instead, they agreed with the views which had been expressed in the earlier Madras decision, viz., Syed Mohammed and Co. v. State of Madras ([1952] 3 S.T.C. 367; A.I.R. 1953 Mad. 105), and held that the section in question was not ultra vires of any of the provisions of the Constitution, the Code of Criminal Procedure or the Indian Evidence Act. The State of Madras had appealed to the Supreme Court against the decision of the High Court of Madras in Guruviah Naidu's case ([1954] 5 S.T.C. 129; A.I.R. 1954 Mad. 833), and the decision pertaining to that appeal is reported in State of Madras v. Guruviah Naidu and Co., Ltd. ([1955] 6 S.T.C. 717; A.I.R. 1956 S.C. 158). The Supreme Court set aside the judgment of the Madras High Court, on grounds other than those pertaining to the validity or otherwise of section 16-A of the Madras General Sales Tax Act. In regard to the question pertaining to section 16-A, their Lordships of the Supreme Court have expressly stated as follows :