KASHI PRASAD VERMA Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge of Benares recommending that the conviction of the accused under Section 155, Municipalities Act, be set aside and is connected with a criminal revision filed by the accused. The accused is an importer of tubes and tyres. He imported a large quantity of such goods without paying any octroi duty. There was considerable correspondence between the officers of the Municipal Board and the accused, but the accused failed to pay the octroi duty which was demanded by the Board. He was then prosecuted under Section 155 of the Act and has been convicted and fined.

(2.) A preliminary objection is taken on behalf of the Board that it is not open to this Court and for the matter of that was not open to the Magistrate even to inquire into the question whether the goods were really liable to the payment of octroi. The argument is that once the Municipal authorities have chosen to assess octroi on certain goods, the only remedy open to the importer is to proceed under Section 161 of the Act, and appeal to the District Magistrate whose order is final. If he omits to do that, then the Criminal Courts have no option but to convict the accused under Section 155, even if they are of opinion that the goods were not liable to the payment of octroi and were expressly exempted under the Act and that therefore, the accused is not guilty. On the face of it such a contention is difficult to accept.

(3.) Section 155 provides that a person intending or attempting to introduce within octroi limits or abetting such introduction of any goods or animals liable to the payment of octroi for which the octroi has neither been paid nor tendered, shall be punishable with fine. The complainant must, therefore, satisfy the Criminal Court that the accused has introduced or attempt ed to introduce or abetted the introduction of any goods or animals "liable to the payment of octroi." Unless this condition is fulfilled and the Criminal Court is satisfied that the goods imported are really liable to the payment of octroi, no offence under Section 155 can be said to be committed. It is an essential ingredient of the offence that the importation should be of goods which are liable to the payment of octroi. No offence is committed if goods, which under the Act are exempted from liability, are imported. The mere fact that the accused had not sought the earlier remedy of appealing to the District Magistrate, would not compel the Criminal Court to convict him in the face of an express exemption under the Act. Any other interpretation of the section would stultify Criminal Courts which would be constrained to convict persons of an offence, although they know that they are not guilty. The burden, in our opinion, is on the Municipal Board to satisfy the Criminal Courts that the goods in fact were liable to duty.