Chunilal Pranjivandas and Co. and anr. Vs. Municipal Corporation of Greater Bombay and ors. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam].a.a. cazi, j.1. the respondents have rejected the petitioners' application for refund of octroi duty paid by them on goods being polyester yarn and hence this writ petition.2. the provisions of sections 192 and 195 of the bombay municipal corporation act make it clear that octroi is levied at the time of entry of the articles into greater bombay, when the articles are for consumption, use or sale within greater bombay. when, at the point of entry octroi is paid, and thereafter the goods are exported then a refund is claimable by the party under sub-section (1) of section 195 which reads as follows:'section 195(1)---when any article upon which (octroi) has been paid shall be exported from (greater bombay) (such amount of (tax) levied as is specified in sub-section (1a) shall, subject to the provisions contained in sub-sections (2) and (3), be refunded).'it is undisputed that the petitioners exported the goods. however, the refund has been disallowed by the respondents on the condition that 'the goods involved therein were exported after six months from the date of their importation into greater bombay.' reliance is placed by counsel for the respondents on clause (a) of sub-section (3) of section 195 of the bombay municipal corporation act. the said sub-clause (3) till the end of clause (a) thereof reads as follows :'section 195(3)(a)---any article imported into greater bombay and not exported within six months of such entry of the article shall, unless the contrary is proved, be deemed to have been imported for consumption, use or sale in greater bombay.'it is urged that no amount of octroi is refundable where the goods involved are exported after six months from the date of their importation into greater bombay in view of the abovesaid clause (a) of sub-section (3) of section 195 of the bombay municipal corporation act. in my opinion, the respondents' interpretation of the said clause (a) of sub-section (3) of section 195 is not correct. if the goods are not exported within six months of their entry, then it gives rise to a presumption that the goods have been imported for consumption but this presumption is a rebuttable one and the fact that it is undisputed that the goods have been exported, there is no question of raising any presumption against the petitioners. the petitioners are entitled to refund under the provisions of sub-section (1) of section 195 of the said act.3. hence, rule is made absolute in terms of prayers (a) and (b).no order as to costs.mr. murthy applies for stay of the order for eight weeks. the operation of the order is stayed for four weeks from today.certified copy to be expedited.