D. Kumar Vs. State of Karnataka - Court Judgment

Excerpt:
- mines and minerals (regulation and development) act (67 of 1957) section 9-a & mineral concession rules, 1960, rules 31 & 27: [ram mohan reddy, j] power to tax - levy of lease rent and supervision charges on leased forest land release of forest land for mining purposes in favour of petitioners subject to payment of lease rent and supervision charges - impost of lease rent and supervision charges not established to be by way of tax under article 265 in exercise of executive functions under article 162 of constitution. it is illegal being without authority of law. the preamble in the orders of the state government, impugned, discloses reference to particulars regarding recommendations made by the state to central government for release of forest land for mining purposes in favour of the petitioners and the approval conveyed by the central government, while the operative portion of the orders accords approval for the release of the said lands in favour of the lessees, subject to payment of lease rent and supervision charges, amongst other conditions such as payment of royalty, forest development tax and other taxes as per the prevailing rates, to the forest department. neither the orders impugned nor the statement of objections filed by the state disclose the jurisdiction of the state government to impose lease rent and supervision charges nor the method or rate at which the amounts are calculated. orders impugned do not disclose whether the primary purpose of the state government in imposing the lease rent and supervision charges is to regulate and, if so, it is not a tax, even if it is assumed that it is to raise revenue for the public. it is also not known as to whether the impost is partly for revenue or partly for regulation. it is also not known whether the levy has some direct and definite relationship with the land as a unit, or the mode of determining the value of the land such as annual or capital value or its productivity. the state having not discharged its obligation to establish that the impugned government orders are under articles 265 and entry 49, list ii, in exercise of executive function under article 162 of the constitution of india, in respect of a matter which the state legislature has not legislated upon, coupled with the absence of relevant material, the condition in the orders impugned to pay lease rent and supervision charges is not an impost in accordance with law. [ram mohan reddy, j.] constitution of india - articles 226 and 227 - lease rent and supervision charges on the leased forest land -demand notices by the state government - authority of the state government - challenge to - held, power to tax is not an incidental power under the constitution. the government has general authority to raise revenue and choose the methods of doing so. a financial levy must have a mode of assessment, though, is not determinative of the character of a tax. it is permissible to classify land by reference to its user as a separate unit for the purpose of levy of cess. the state having not discharged its obligation to establish that the impugned government orders are under article 265 and entry 49 list ii, in exercise of executive function under article 162 of the constitution of india, in respect of a matter which the state legislature has not legislated upon, coupled with the absence of relevant material, the condition in the orders impugned to pay lease rent and supervision charges is not an impost in accordance with law. as a consequence, the demand notices calling upon the petitioners to pay the balance lease rentals and supervision charges are without authority of law. - further held, it is also not known whether the levy has some direct and definite relationship with the land as a unit, or the mode of determining the value of the land such as annual or capital value or its productivity. the condition incorporated in the orders impugned to pay the tax is both sketchy and skimpy in details, unable to identify its primary object, so as to distinguish its ultimate or incidental results or consequences to determine the character of the levy. writ petitions are allowed. - 167(5), the magistrate was bound to make an order stopping further investigation into the offence and the continuation of the investigation beyond the period of six months in contravention of law, was illegal and the cognizance taken by the magistrate was bad in law and the subsequent proceeding was without jurisdiction. therefore, at best, it can be said that the filing of the charge-sheet by the i. but, it is well settled in view of the decision of the supreme court in h.order1. the petitioner is the accused in c.c. no. 765/81 on the file of the j.m.f.c. nelamangala. on 8-3-1981 the sub-inspector of excise, visited madhu wine stores, situated at bylappanapalya, tumkur road, nelamangala, belonging to the accused and conducted a surprise raid. he found that the accused was in unlawful possession of 28.395 litres of un-accounted liquor contrary to s. 13(1) and punishable under s. 32 of the karnataka excise act 1965. he seized the said quantity and arrested the accused on the same day. he filed the charge-sheet against the accused in the court below on 24-11-1981 for an offence punishable under s. 32 of the karnataka excise act. the learned magistrate issued summons to the accused. hence, this revision petition by the accused. 2. the only point urged by smt. karpagam kamath, learned counsel for the petitioner is that the charge-sheet has been filed in this case after six months of the arrest of the accused contrary to the mandatory provision of s. 167(5) of the cr.p.c. 1973 and so the learned magistrate ought not to have taken cognizance of the offence. in support of her contention, she brought to my notice the decision of the calcutta high court in jay shankar jha v. state 1982 cri lj 744. no doubt, in the said case, it has been held that where in a summons case the investigation of the case was not concluded within a period of six months from the date of the arrest of the accused and no attempt was made by the investigating officer to satisfy the magistrate as required by s. 167(5), the magistrate was bound to make an order stopping further investigation into the offence and the continuation of the investigation beyond the period of six months in contravention of law, was illegal and the cognizance taken by the magistrate was bad in law and the subsequent proceeding was without jurisdiction. but, the bar under s. 167(5) is for the investigation and not for the court taking cognizance of the case. therefore, at best, it can be said that the filing of the charge-sheet by the i.o. beyond the period of six months from the date of the arrest of the accused was illegal and the evidence collected by the i.o. after the period of six months has to be excluded from consideration. but, it is well settled in view of the decision of the supreme court in h. n. rishbud v. state of delhi : 1955 crilj526 that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. therefore, with utmost respect i beg to differ from the view taken by the calcutta high court in jay shankar jha v. state 1982 cri lj 744. hence, i see no force in the said contention of smt. karpagam kamath. 3. in the result, the revision petition is dismissed. 4. revision dismissed.

Judgment:
ORDER

1. The petitioner is the accused in C.C. No. 765/81 on the file of the J.M.F.C. Nelamangala. On 8-3-1981 the Sub-Inspector of Excise, visited Madhu Wine Stores, situated at Bylappanapalya, Tumkur Road, Nelamangala, belonging to the accused and conducted a surprise raid. He found that the accused was in unlawful possession of 28.395 litres of un-accounted liquor contrary to S. 13(1) and punishable under S. 32 of the Karnataka Excise Act 1965. He seized the said quantity and arrested the accused on the same day. He filed the charge-sheet against the accused in the court below on 24-11-1981 for an offence punishable under S. 32 of the Karnataka Excise Act. The learned Magistrate issued summons to the accused. Hence, this revision petition by the accused.

2. The only point urged by Smt. Karpagam Kamath, learned counsel for the petitioner is that the charge-sheet has been filed in this case after six months of the arrest of the accused contrary to the mandatory provision of S. 167(5) of the Cr.P.C. 1973 and so the learned Magistrate ought not to have taken cognizance of the offence. In support of her contention, she brought to my notice the decision of the Calcutta High Court in Jay Shankar Jha v. State 1982 Cri LJ 744. No doubt, in the said case, it has been held that where in a summons case the investigation of the case was not concluded within a period of six months from the date of the arrest of the accused and no attempt was made by the investigating officer to satisfy the Magistrate as required by S. 167(5), the Magistrate was bound to make an order stopping further investigation into the offence and the continuation of the investigation beyond the period of six months in contravention of law, was illegal and the cognizance taken by the Magistrate was bad in law and the subsequent proceeding was without jurisdiction. But, the bar under S. 167(5) is for the investigation and not for the Court taking cognizance of the case. Therefore, at best, it can be said that the filing of the charge-sheet by the I.O. beyond the period of six months from the date of the arrest of the accused was illegal and the evidence collected by the I.O. after the period of six months has to be excluded from consideration. But, it is well settled in view of the decision of the Supreme Court in H. N. Rishbud v. State of Delhi : 1955 CriLJ526 that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Therefore, with utmost respect I beg to differ from the view taken by the Calcutta High Court in Jay Shankar Jha v. State 1982 Cri LJ 744. Hence, I see no force in the said contention of Smt. Karpagam Kamath.

3. In the result, the revision petition is dismissed.

4. Revision dismissed.