NARESH PRAN JIVAN MEHTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this writ petition the petitioner has challenged the orders passed by the Metropolitan Megistrate, 25th Court, Mazgoan, Bombay, dated 20th December, 1983, dimissing the applications filed by him raising certain preliminary objections.

(2.) It appears from the record that criminal proceedings are instituted against the petitioner after obtaining senction from the Deputy Commissioner of Sales Tax (A), Enforcement, Bombay City Division, under sanctions 63(2)(1), 63(4) and 63(8)(i) of the Bombay Sales Tax Act, 1959 as amended by the Maharashtra Sales Tax (Amendment) Act, 1981. It appears to be an admitted position that a show cause notice dated 6th May, 1982 was issued to the petitioner, calling upon him to show cause as to why a penalty should not be imposed under section 36 of the Act. Prior to this a complaint was made to the police on 23rd April, 1982 about the offences committed by the petitioner.

(3.) According to Shri Kothari, the learned Counsel appearing for the petitioner, in substance, criminal prosecution was launched against the petitioner when offences complained against him were explained to him on 26th April, 1983. Prior to this, though criminal proceedings were started, in law no charges were levelled against the petitioner. Prior to 26th April, 1983 itself, on 6th May, 1982 a show cause notice to show cause as to why penalty should not be imposed on the petitioner, was issued. In view of this, the present prosecution is wholly barred under section 63(14) of the Bombay Sales Tax Act. He also contented that since the sanaction accorded by the Deputy Commissioner of Sales Tax resulted in penal and serious consequences viz. a criminal prosecution which could result in the sentence of fine or jail, it was obligatory on the part of the Deputy Commissioner of Sales Tax to give an opportunity of being heard to the petitioner before the sanction was accorded. Therefore, the sanction granted is contrary to th principles of natural justice and on that count also the criminal proceedings instituted against the petitioner are not maintainable. In support of his contentions, Shri Kothari has placed strong reliance upon the decisions of the Supreme Court in (M/s. Erusian Equipment and Chemicals v. State of West Bengal and others) A.I.R. 1975 S.C. 266; (State of Punjab v. K.R. Erry and another) A.I.R. 1973 S.C. 834 and (Swadeshi Cotton Mills v. Union of India) A.I.R. 1981 S.C. 818.