Punishment - lenient view taken by lower courts - instruction to counsels - Income Tax - 526/CBDT

INSTRUCTION NO. 526/CBDT Dated : March 16, 1973 Section(s) Referred: 277 ,278 Statute: Income - Tax Act, 1961 Though Sections 277 and 278 of the Income-tax Act, 1961 provide that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, the minimum punishment that may be given by a Magistrate is rigorous imprisonment for not less than 6 months, most of the Magistrates and higher courts have been letting off offenders and taking a lenient view on the basis of sections 3 and 4 of the Probation of Offenders Act, 1958. There are provisions similar to those in the Income-tax Act, 1961 in the Prevention of Food Adulteration Act. A question had recently come up before the Supreme Court whether in spite of the provisions for minimum punishment provided in the Prevention of Food Adulteration Act, the Probation of Offenders Act, 1958 applied. The answer was given in the affirmative by the Supreme Court in Isher Das Vs. The State of Punjab (AIR 1972 SC 1295) . A copy of this judgment is printed below. At the same time the Supreme Court has, at page 1299 made the following observations:- " Adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the legislature as revealed by the fact that minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed, the courts should not lightly resort to the provisions of the Probation of Offenders Act in the case of persons above 21 years of age found guilty of offences under the Prevention of Food Adulteration Act". 2. Another observation of the Supreme Court in this case was to the effect that the Probation of Offenders Act was enacted in 1958 subsequent to the enactment in 1954 of the Prevention of Food Adulteration Act. As the legislature enacted the Probation of Offenders Act despite the existence on the statute book of the Prevention of Food Adulteration Act, the operation of the provisions of the Probation of Offenders Act cannot be whittled down or circumscribed because of the provisions of the earlier enactments. 3. While the observations quoted in the first instance are definitely in favour of our taking a stand that the Magistrates should not lightly resort to the provisions of the Probation of Offenders Act in each and every case, the further observations regarding the date of passing of the Probation of Offenders Act may or may not find favour with the courts if we argue that the provision of minimum imprisonment in section 277 of the Income-tax Act came into effect only from 1st April, 1964 whereas the Probation of Offenders Act was passed in 1958. While the Board desire that the first mentioned observations should invariably be utilised by our prosecution counsels while arguing prosecution counsels before the Magistrate and higher courts, a few test cases may also be made on the basis of the second argument. 4. These instructions may be brought to the notice of all Deputy Directors of Inspection (Intelligence). Assistant Directors of Inspection (Intelligence) and other officers who are concerned with prosecution cases.