MAHMED AKHTAR HUSEIN v. STATE — 1990 DIGILAW 89 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) THESE three Special Criminal Applications under Arts. 226/227 of the Constitution have been moved by the same petitioner-Mahmed akhtar Husein alias Kadar Bhatti (a Pakistani national) against the concerned respondents - out of which the main respondents are - State of Gujarat commissioner of Income Tax and the Tax Recovery Officer No. 2, Income tax Office, Ahmedabad. The grievances voiced in these petitions centre round the arrest and detention of the petitioner in civil prison as he is said to have defaulted in paying the income-tax dues of Rs. 6,69,635. 00 for the assessment Year 1984-85. The petitioner was earlier ordered to be arrested under the provisions of Rule 73 (2) of the Second Schedule to the Income tax Act, 1961, by orders dated 5-12-1989 and 22-12-1989 issued by the Tax recovery Officer-II, Ahmedabad and was later ordered to be kept in the interim custody pending inquiry by an order dated 30-12-1989 passed by the same officer in exercise of his powers under Rule 75 of the same schedule. Ultimately, final order was passed by the same officer against the petitioner under Rule 76 (1) of the same Schedule and that order is dated 5-3-1990 and pursuant to that final order, the petitioner is detained in Civil prison, Bhadra, Ahmedabad all throughout till the date. In Special Criminal application No. 157 of 1990, petitioner has brought in challenge the order of his continuous detention vide order dated 30-12-1989 which is an order passed under Rule 75 of the Rules. He has challenged the mode of his incarceration pursuant to the said order by filing Special Criminal Application no. 387 of 1990; while he has challenged the final order of detention in civil prison dated 5-3-1990 by filing Special Criminal Application No. 721 of 1990. As all these three petitions are between the same contesting parties and as they are concerned with the main question about the legality of the orders of interim arrest, custody and detention of the petitioner in civil prison in connection with the certificate of recovery issued against the petitioner by the income-tax authorities for realising the income-tax dues for the assessment Year 1984-85 and as they raise common questions of law and fact, they were heard together by consent of the learned Advocates of both the sides and are being disposed of by this common judgment. . . . . . . . . . . . . . . . ( 2 ) MR. Kapadia for the petitioner raised the following contentions for attacking the impugned final order of detention of the petitioner in the civil prison as passed by the Income Tax Recovery Officer on 5-3-1990 : (1) That the conditions-precedent to the exercise of powers under Rule 76 (1) read with Rule 73 (1) have not been satisfied in the present case and the Tax Recovery Officer has not arrived at any finding on these conditions and consequently, his order at Annexure "a" to Special criminal Application No. 721 of 1990 is null and void and liable to be quashed. (2) It was alternatively contended that even if the said order is held to be valid, even in that case, the petitioners continued detention in civil prison pursuant to the said order has become illegal as the petitioner can be detained in civil prison for a period of six months in all, as required by Rule 77 of the Second Schedule and this period of six onths will start not from 5-3-1990 the date of the final order but from the date on which the petitioners liberty was curtailed by ordering his arrest under Rule 73 (2) and which detention was continued under Rule 75 from 30-12-1989. In short, it was contended that in any case, six months period of detention which is the maximum period of detention in prison contemplated by Rule 77 should be computed from 30-12-1989. In that view of the matter, by 30-6-1990, six months period has already come to an end and consequently as on date, the petitioner must be forthwith be directed to be released from detention in civil prison. . . . . . . . . . . . . . . . . . . ( 3 ) ). . . . . . The following points arise for our considerations : (1) Whether the impugned order dated 5-3-1990 at Annexure "a" to Special criminal Application No. 721 of 1990 is null and void being de hors the provisions of Rule 73 (1) read with Rule 76 (1) of the Second Schedule to the Income Tax Act, 1961. . . . . . The following points arise for our considerations : (1) Whether the impugned order dated 5-3-1990 at Annexure "a" to Special criminal Application No. 721 of 1990 is null and void being de hors the provisions of Rule 73 (1) read with Rule 76 (1) of the Second Schedule to the Income Tax Act, 1961. (2) Whether the ceiling of six months for detention in civil prison as provided by Rule 77 includes the periods during which the alleged defaulter remained in custody after arrest ordered under Rule 73 (2) and during the period he remained in interim custody of the officer as directed by the tax recovery officer in exercise of his powers under rule 75 or whether six months period will start only after the final order is passed under Rule 76 (1) viz. from 5-2-1990 onwards. (3) What appropriate final orders can be passed by the Court in the present proceedings. Before we proceed to take up for consideration these points for determination, it would be appropriate to have a look at the background facts which are admitted or which are well established on the record of the case and in the light of which, these points for determination were pressed for our consideration by the rival parties. ( 4 ) BACKGROUND facts : As stated by the petitioner in his petition, he is a Pakistan national and he permanently resides at Karachi, Pakistan. That he entered India on 10-10-1981 for a period of 90 days on the basis of a Pakistan Passport and Visa issued by the Consulate General of India at Karachi so as to meet his near relatives in India. The petitioner, during his visit to India came to Ahmedabad from Bombay on 15-2-1982 to meet one of his friends. The Customs authorities raided the premises in the Sweta Park Society, Ahmedabad and seized gold worth Rs. 140 lacs alongwith some documents from the possession of the petitioner. The petitioner was prosecuted under various laws and he was convicted and sentenced to suffer R. I. for 7 years and pay fine of Rs. 5 lacs. Mr. Kapadia informed us that this punishment has been confirmed upto the Supreme court and the petitioner has served out the sentence and also further sentence in default of payment of fine of Rs. 5 lacs as he had not paid the fine. 5 lacs. Mr. Kapadia informed us that this punishment has been confirmed upto the Supreme court and the petitioner has served out the sentence and also further sentence in default of payment of fine of Rs. 5 lacs as he had not paid the fine. The petitioner was also preventively detained under the provisions of COFEPOSA but his preventive detention was quashed by the Supreme Court in a writ petition filed by him under Art. 32 of the Constitution and he was ordered to be released from detention. The said decision of the Supreme Court has been reported in AIR 1982 SC 1500 (Ibrahim Ahmad Bhatti v. State of gujarat ). It, therefore, appears that the petitioner who is well known as Kadar bhatti is a foreign national and was involved in international racket of smuggling of gold and huge quantity of gold was seized from his possession years back in 1982. It also appears that the petitioner has international contacts. It is alleged by the income-tax department that various remittances from Dubai were received by the petitioner and that indicated his income and that is how the income-tax officer initiated proceedings against him for assessing his income under the provisions of the Income Tax Act, 1961. For the Assessment Years 1982-83 and 1983-84, the petitioner was assessed to income-tax to the tune of Rs. 35,23,82,093. 00 but we are told that these assessment orders are quashed in appeal and all the matters are remanded to the income-tax officer for fresh assessments. In the meantime, by a tax recovery certificate dated 25-7-1989, the income-tax officer requested the tax recovery officer to recover the tax arrears from the petitioner but the certificate has become otiose in view of quashing of the assessment orders in appeal. However so far as Assessment Year 1984-85 is concerned, the petitioner was assessed to income-tax and the income-tax dues of Rs. 6,69,635/ - were held payable for the said assessment year. Mr. Kapadia submitted that the petitioner has already filed an appeal against the said assessment order for Assessment Year 1984-85 but the appeal is being delayed for one reason or the other and is still not decided. In the meantime, the income-tax officer initiated proceedings for recovering income-tax for the year 1984-85 and issued tax recovery certificate dated 16-10-1989. The said certificate was received by the income-tax recovery officer somewhere in closing months of 1989. In the meantime, the income-tax officer initiated proceedings for recovering income-tax for the year 1984-85 and issued tax recovery certificate dated 16-10-1989. The said certificate was received by the income-tax recovery officer somewhere in closing months of 1989. The tax recovery officer for the reasons recorded in writing dated 5-12-1989 passed an order of arrest of the petitioner under rule 73 (2) of the Second Schedule on the ground that the petitioner who is foreign national was likely to go away from the local jurisdiction of the tax recovery officer resulting in delaying execution of the certificate. It appears that the said arrest order could not be served on the petitioner as at the relevant time, he was under preventive detention pursuant to the order passed by the competent authority under the National Security Act. Hence fresh warrant was issued on 22-12-1989 and it was executed on 30-12-1989, when the petitioner was released from detention in Civil Jail, Bhadra where he was kept after he was released from preventive detention under the National security Act, pursuant to the request made by the Customs authorities the district Collector for arresting the petitioner in civil prison for recovery of the Customs Duty. By an order dated 30-12-1989, the petitioner was kept in interim custody under Rule 75 of the Rules with the Superintendent, ahmedabad Central Prison as directed by the tax recovery officer and ultimately by the order dated 5-3-1990, the impugned final order under Rule 76 (1) directing detention of the petitioner in civil prison has been passed, pursuant to which the petitioner is undergoing detention in Civil Prison at bhadra, Ahmedabad till date. 4a. Having noted this introduced facts it will be necessary now for us to have a look at the relevant statutory provisions before we proceed to deal with the main points for determination. 4a. Having noted this introduced facts it will be necessary now for us to have a look at the relevant statutory provisions before we proceed to deal with the main points for determination. ( 5 ) STATUTORY background : Section 222 of the Income Tax Act deals with certificate to be issued to the recovery officer and provides that when an assessee is in default or is deemed to be in default in making a payment of tax, the tax recovery officer may draw up under his signature a statement in the prescribed form specifying the amount of arrears due from the assessee and shall proceed to recover from such assessee the amount specified in the certificate by one or more of the modes mentioned below in accordance with the Rules laid down in the Second Schedule : (a) attachment and sale of the assessees movable property; (b) attachment and sale of the assessees immovable property; (c) arrest of the assessee and his detention in prison; (d) appointing a receiver for the management of the assessees movable and immovable properties. When we turn to the Second Schedule, we find provided therein, the procedure for recovery of tax. Part I gives definitions wherein "defaulter" is stated to mean the assessee mentioned in the certificate, and "certificate" means one drawn by the tax recovery officer under Sec. 222. "execution" in relations to a certificate means recovery of arrears in pursuance of the certificate; while "officer" means a person authorised to make an attachment or sale under this Schedule. Rule 4 in Part I in the said Schedule prescribes mode of recovery and indicates the very same four modes mentioned in Sec. 222 referred to above. The Second schedule deals with different modes of recovery. We are concerned in the present case for recovery of tax under the certificate, the mode of arrest and detention of the defaulter. That mode is dealt with in Part V of the Second Schedule. It starts with Rule 73 and ends with Rule 81. It would be necessary to refer to the relevant rules in this part. We are concerned in the present case for recovery of tax under the certificate, the mode of arrest and detention of the defaulter. That mode is dealt with in Part V of the Second Schedule. It starts with Rule 73 and ends with Rule 81. It would be necessary to refer to the relevant rules in this part. Rule 73 (1) provides for notice to show-cause and states that order for the arrest and detention in civil prison of a defaulter shall not be made unless the tax recovery officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in this notice and to show-cause why he should not be committed to the civil prison and unless the Tax Recovery Officer for reasons recorded in writing is satisfied :- (a) that the defaulter, with the object or effect of obstructing the execution of the certificate, has, after the drawing up of the certificate by the recovery officer, dishonestly transferred, concealed or removed any part of his property or, (b) that the defaulter has, or has had since the drawing up of the certificate by the tax recovery officer, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. Sub-rule (2) of Rule 73 provides for issuance of a warrant for arrest of the defaulter in the first instance if the tax recovery officer is satisfied by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate, the defaulter is likely to abscond or leave the local limits of the jurisdiction of the tax recovery officer. Sub-rule (3) of Rule 73 deals with other contingency and provides that arrest warrant may be issued against a defaulter in case where the defaulter fails to appear before the tax recovery officer pursuant to the notice issued and served on him under sub-rule (1 ). As per sub-rule (4) of Rule 73, every person arrested in pursuance of a warrant of arrest under this rule shall be brought before the Tax Recovery officer issuing the warrant as soon as practicable and in any event within twenty four hours of his arrest excluding the time required for the journey. 5a. As per sub-rule (4) of Rule 73, every person arrested in pursuance of a warrant of arrest under this rule shall be brought before the Tax Recovery officer issuing the warrant as soon as practicable and in any event within twenty four hours of his arrest excluding the time required for the journey. 5a. Rule 74 provides for hearing of the defaulter by the Tax Recovery officer, and states that when a defaulter appears before the Tax Recovery officer in obedience to a notice to show cause or is brought before the tax Recovery Officer under Rule 73, the Tax Recovery Officer shall give the defaulter an opportunity of showing cause why he should not be committed to the civil prison. This hearing will comprise of giving an opportunity to the defaulter to showcause why he should not be committed to civil prison. Rule 75 deals with custody pending hearing and lays down that pending the conclusion of the inquiry, the Tax Recovery Officer may, in his discretion, order the defaulter to be detained in the custody of such Officer as the tax Recovery Officer may think fit or release him on his furnishing security to the satisfaction of the Tax Recovery Officer for his appearance when required, and then follows Rule 76 (1) which lays down that upon the conclusion of the inquiry, the Tax Recovery Officer may make an order for the detention of the defaulter in the civil prison and shall in that event cause him to be arrested if he is not already under arrest. Under the proviso to Rule 76 (1) in lieu of passing of an order of detention, the Tax Recovery officer may give an opportunity to the defaulter to satisfy the arrears. Then occurs Rule 77 which lays down ceiling in connection with detention in civil prison. It states that every person detained in the civil prison in execution of a certificate may be so detained :- (a) where the certificate is for a demand of an amount exceeding Rs. 250. 00 for a period of six months, and (b) in any other case for a period of six weeks. Rules 78 and 79 deal with release of the defaulter after detention in contingencies provided in these Rules. 250. 00 for a period of six months, and (b) in any other case for a period of six weeks. Rules 78 and 79 deal with release of the defaulter after detention in contingencies provided in these Rules. They further provide that if a defaulter is rearrested, the period of his detention in civil prison shall not in aggregate exceed that authorised by Rule 77. Rest of the Rules in this part are not material for our purpose and hence we need not mention them. ( 6 ) THE present controversy will have to be resolved in the background of the aforesaid statutory provisions. ( 7 ) POINT No. 1 : So far as this point is concerned, a conjoint reading of rules 76 (1) and Rule 73 (1) clearly indicate that no final order of detention in civil prison can be passed by the tax recovery officer against any defaulter unless the tax recovery officer for the reasons to be recorded in writing is satisfied that either the defaulter with the object or effect of obstructing the execution of the certificate has, after drawing up of the certificate by the tax recovery officer dishonestly transferred, concealed or removed any part of his property or the tax recovery officer is satisfied that the defaulter has, or has had since the drawing up of the certificate by the tax recovery officer, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. These are the conditions precedent on which relevant satisfaction has to exist on the part of the tax recovery officer before he can pass the final order of detention of the defaulter in civil prison. Such final order is to be passed under Rule 76 (1) after hearing the defaulter as per Rule 74. Now, if we turn to the impugned order dated 5-3-1990, Annexure "a" to Special criminal Application No. 721 of 1990, we find that after narrating the past history of the case and mentioning the events that transpired during the inquiry, the satisfaction which is recorded by the tax recovery officer for passing the impugned order is mentioned in paras 10 and 13 of the order as under :"10. It was clear that no purpose would be served by prolonging the enquiry merely for want of necessary details of Bank accounts which Mr. It was clear that no purpose would be served by prolonging the enquiry merely for want of necessary details of Bank accounts which Mr. Bhatti had himself promised to furnish. Further, looking to the facts and circumstances of the case, and on the basis of enquiries conducted, I was satisfied that Mr. Bhatti was likely to leave the local limits of my jurisdiction with the object of effect of delaying or obstructing the execution of the recovery certificate. Therefore, on 5-2-1990, the enquiries were concluded and a final order for his detention under Rule 76 (1) of the Second Schedule to the I. T. Act, 1961 was decided to be passed. ""13. In view of the facts and circumstances narrated above, I am satisfied that the conditions laid down in Rule 73 (2) of the Second Schedule to the I. T. Act, 1961 are fully satisfied in this case. Since the defaulter has failed to discharge the liability, i hereby order that the defaulter shall be committed to the civil prison situated in the city Civil Court Compound, Bhadra, Ahmedabad under Rule 77 of the Second Schedule to the I. T. Act, 1961 for six months from the date of his committal. "the aforesaid satisfaction recorded in the order clearly indicates that the tax Recovery Officer thought it fit to pass the impugned order under rule 76 (1) only because he was satisfied that conditions in Rule 73 (2) were satisfied. Now, what he is expected to decide was as to whether the conditions precedent as laid down by Rule 73 (1) (a) or (b) were satisfied or not. Unless either of these conditions or both are satisfied, the Tax recovery Officer will not have jurisdiction to pass the final order of detention under Rule 76 (1) read with Rule 73 (1 ). Such a satisfaction is nowhere recorded in the impugned order. Mr. Raval for the Revenue was at pains point out to us that such satisfaction can be said to be implicit in the order as he had noted the events that happened during the inquiry before him. Such a satisfaction is nowhere recorded in the impugned order. Mr. Raval for the Revenue was at pains point out to us that such satisfaction can be said to be implicit in the order as he had noted the events that happened during the inquiry before him. That he has noted that the defaulter was called upon to furnish details about his Bank accounts both at Karachi and Dubai and he went on promising in that connection, but did not produce details of these accounts and when the defaulter was a Pakistani national and was likely to go out of the country, there was no alternative with the tax recovery officer but to pass the impugned order. This is neither here nor there. Whatever may be the background of the facts and circumstances leading to the present proceedings and whatever may be the credentials of the defaulter, no final order of detention in civil prison can be passed against such defaulter unless both or any of the conditions laid down by Rule 73 (1) (a) or (b) are satisfied. It has to be noted that satisfaction for ordering interim arrest of the defaulter under Rule 73 (2) is of an entirely different type. While exercising powers of interim arrest under Rule 73 (2), all that the Tax Recovery Officer has to be satisfied is the fact that the assessee is a defaulter and that with the object or effect of delaying the execution of the certificate, the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Tax Recovery Officer. This satisfaction can be reached by him on affidavit or even otherwise. Now, on the facts of the present case, it cannot be disputed that the petitioner was a defaulter as he was an assessee mentioned in the certificate and had not paid the income-tax dues. It also cannot be disputed that the petitioner himself had stated that he was a Pakistani national and he was not authorised to remain in India after the period mentioned in his Visa was over and which was long since over. It also cannot be disputed and in fact Mr. It also cannot be disputed that the petitioner himself had stated that he was a Pakistani national and he was not authorised to remain in India after the period mentioned in his Visa was over and which was long since over. It also cannot be disputed and in fact Mr. Kapadia made it clear before us that the detenu wants to leave India immediately and in fact there is an order of deportation passed against him by the State of Gujarat directing him to be deported out of Indian territory and that the Deputy Commissioner of Police, Special Preventive, Ahmedabad by his order dated 27-6-1990 has already passed an order in exercise of powers conferred on him by clause (c) of sub-sec. (2) of Sec. 3 of the Foreigners act, that the petitioner Kadar Bhatti would not remain in India after the date on which this order is served on him and shall leave India immediately. Under these circumstances, on the admitted facts, on the record of this case, tax recovery officer could legitimately be satisfied that the defaulter was likely to leave the local limits of his jurisdiction and that will have effect of delaying execution of the certificate. In fact, the effect would be that execution of the certificate would be totally frustrated once the defaulter goes to pakistan. But Mr. Kapadias submission as that there was no affidavit before the tax recovery officer at the stage of passing of arrest order Rule 73 (2 ). However, Rule 73 (2) provides that even otherwise on any other available material, the tax recovery officer can be satisfied and even order interim arrest. This was done by him as early as on 22-12-1989. But even if the circumstances then existing and which are existing till date might have enabled the tax recovery officer to order interim arrest under Rule 73 (2), satisfaction underlying that order had nothing to do with the requisite satisfaction required to be reached by the tax recovery officer while ordering final detention of the defaulter in civil prison under Rule 76 (1 ). The affidavit-in-reply filed by the tax recovery officer also avers that the requisite satisfaction arrived at by him for passing the impugned order is reflected by the order, meaning thereby, excepting what is stated in the order, there is nothing else to show that requisite satisfaction is arrived at by him. The affidavit-in-reply filed by the tax recovery officer also avers that the requisite satisfaction arrived at by him for passing the impugned order is reflected by the order, meaning thereby, excepting what is stated in the order, there is nothing else to show that requisite satisfaction is arrived at by him. As we have noted earlier, the order does not recite any such requisite satisfaction under Rule 73 (1) (a) or (b ). ( 8 ) THERE cannot be any implied satisfaction on this aspect as submitted by Mr. Raval. It should be noted that Rule 73 (1) mandates recording of express reasons as required by Rule 73 (1) (a) or (b) before any final order under Rule 76 (1) read with Rule 73 (1) can be passed. No such satisfaction is recorded in the impugned order. Consequently, it must be held that the impugned order dated 5-3-1990 is passed without arriving at the requisite subjective satisfaction to support such an order and hence it being contrary and ultra vires Rule 73 (1) is required to be held null and void. The first point for determination is, therefore, answered in favour of the petitioner and against the Revenue. Before parting with discussion on this point, we may refer to the decisions to which our attention was invited by the learned Advocates of the parties. In the case of Koli lambhabhai v. Shukla Harilal N. , 1990 (1) GLR 50, A. P. Ravani, J. while considering Sec. 51 of the Code of Civil Procedure rules that judgment debtor should be afforded an opportunity to show cause why he should not be committed to prison and the Court is also required to be satisfied and the Court must record a finding to that effect. The Supreme Court had also an occasion to consider the same section in the case of Jolly George v. Bank of Cochin, AIR 1980 sc 470 . Krishna Iyer, J. speaking for the Supreme Court while dealing with sec. 51 read with Order 21, Rule 37 C. P. Code, observed that :"the simple default to discharge the decree is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or pursuant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. 51 read with Order 21, Rule 37 C. P. Code, observed that :"the simple default to discharge the decree is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or pursuant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. The provision emphasise the need to establish not mere omission to pay but an attitude of refusal as demand verging on dishonest disowning of the obligation under the decree, and that merely because a person is poor, he cannot be incarcerated in execution of money decree against him". The aforesaid principles are well settled and even the petition on Rule 73 (1) read with Rule 76 (1) encompass the requisite conditions precedent to the satisfaction in a given case before a defaulter can be detained in civil prison. On the facts of the present case, these conditions are not held satisfied and hence the impugned order of detention in civil prison cannot be sustained. Mr. Raval contended, placing reliance on Collector of Malabar v. E. Ebrahim, AIR 1957 SC 668 and Ram narayan v. State of U. P. , AIR 1984 SC 1213 that arrest and detention in civil prison for recovering tax arrears do not amount to either preventive detention or punitive detention but are only a mode of recovery of public dues and consequently, if some coercion found to have been exercised against a defaulter, it would not vitiate the exercise. There cannot be any dispute on these propositions which are well settled. However, the moot point is whether the impugned order is in accordance with the Rules and Regulations or it is de hors and ultra vires these Rules. In the present case, the order is ex-facie contrary to Rule 73 (1) as discussed earlier. ( 9 ) POINT No. 2 : This point was canvassed in the alternative by Mr. Kapadia. So far as this point is concerned, it has to be kept in view that the minimum period of detention in civil prison as prescribed by Rule 77 is the period of six months in case the certificate is for the demand of an amount exceeding Rs. 250. 00. As in the present case, the demand is for rs. 6,69,635/-, ceiling limit would be of six months. There is no dispute on this point. However, Mr. 250. 00. As in the present case, the demand is for rs. 6,69,635/-, ceiling limit would be of six months. There is no dispute on this point. However, Mr. Kapadias submitted that for computing this period of six months, time spent by the detenu in interim detention from 30-12- 1989 should also be taken into consideration. To support this contention, Mr. Kapadia submitted, placing reliance on the decision of the Bombay High Court in the case of Emperor v. Lallu Waghji, 1919 Cr. LJ 391, that physical contact is not necessary to compete physical possession and possession depends upon the physical possibility of the possessor dealing with the thing exclusively. That case was dealing with preparation of Panchnama by the Mamlatdar declaring buffaloes to be under attachment as per Sec. 154 of the Bombay land Revenue Code. The question was whether merely become Panchnama declaring buffaloes to be under attachment was made, the buffaloes can be said to have been in the possession of the Mamlatdar. Answering this question in the affirmative, the Division Bench ruled that physical contact is not necessary to complete physical possession. We fail to appreciate how this decision can be of any assistance to Mr. Kapadia. Here, we are not concerned with any constructive possession of the defaulter by the tax recovery officer. he had passed two interim orders against him, one was of interim arrest under Rule 73 (1) which was to last for 24 hours and the second one was of interim custody pending hearing as per Rule 75. None of them can be said to be an order of detention in civil prison. However, Mr. Kapadia submitted that these interim orders also can be said to have been passed in execution of the certificate as they were intermediate steps towards execution of the certificate and that they were taken in the process of recovery of income-tax dues. That may be so. However, for the purpose of applicability of ceiling about detention in civil prison and for attracting Rule 77 (1), following conditions are required to be satisfied : (i) concerned person must be detained. (ii) such detention must be in civil prison. (iii) such detention must be in execution of the certificate. Mr. Kapadia submitted that in the present case, all the three conditions are satisfied. Mr. Raval submitted to the contrary. (ii) such detention must be in civil prison. (iii) such detention must be in execution of the certificate. Mr. Kapadia submitted that in the present case, all the three conditions are satisfied. Mr. Raval submitted to the contrary. Let us, therefore, consider as to whether the aforesaid three conditions for applicability of rule 77 (1) are satisfied in the present case. At the stage of issuance of interim arrest order under Rule 73 (2), there was no question of detaining the petitioner in civil prison. That occasion had not arisen. It was merely interim arrest order lasting for 24 hours and its purpose was to bring him before the taxing officer as laid down by Rule 73 (4), read with Rule 74. That interim arrest was for the purpose of procuring the presence of the defaulter before the tax recovery officer so that hearing can be given to the defaulter in the inquiry against him. Consequently, order of interim arrest cannot be said to be detention of the defaulter in civil prison in execution of the certificate. So far as the interim custody as provided by Rule 75 is concerned, Mr. Kapadia is right when he contends that Rule 75 (3) deals with detention, but in the context in which the term "detention" is used in Rule 75, no doubt is left in our mind that the said detention as an interim measure is pending conclusion of the inquiry and it has nothing to do with the final order which can be passed at the conclusion of the inquiry. It is an interim detention under which defaulter can be entrusted to the custody of such officer as the tax recovery officer may think fit pending conclusion of the inquiry. Such interim detention cannot be said to be detention in civil prison and that too in execution of the certificate. Detention in civil prison in execution of the certificate would be pursuant to the final order of detention that can be passed at the conclusion of the inquiry by the tax recovery officer under rule 76 (1) read with Rule 73 (1 ). Consequently, even accepting the contention of Mr. Kapadia that interim custody under Rule 75 may amount to detention, it would not be covered by Rule 77 (1) for two obvious reasons. Consequently, even accepting the contention of Mr. Kapadia that interim custody under Rule 75 may amount to detention, it would not be covered by Rule 77 (1) for two obvious reasons. It would not be detention in civil prison and secondly, it would not be in execution of the certificate. Detention in execution of the certificate would be final detention order in lieu of recovery of arrears pursuant to the certificate as the term "execution" is defined by Rule 1 (c) accordingly. It is interesting to note that as per Rule 75, interim detention may be interim custody of any officer as decided by the tax recovery officer and that officer may not be an officer necessarily in-charge of civil prison. In fact, is the present case, interim custody of the petitioner was directed to be handed over for 30-12-1989 to the Superintendent in-charge of Ahmedabad Central Prison. Even though the said officer was directed to give all facilities to the petitioner as a civil prisoner, he was obviously not an officer in-charge of the civil prison. But even that apart, detention in custody of an officer as directed by the tax recovery officer as interim measure pending conclusion of the inquiry is miles away from the ultimate detention of the defaulter in civil prison in execution of the certificate. We must, therefore, hold, repelling the contention of Mr. Kapadia, that the ceiling limit of six months or six weeks of detention in civil prison as provided by Rule 77 (1) attaches to the final order of detention under Rule 76 (1) and does not take in its sweep any period spent in interim custody pursuant to the orders passed under Rule 75 or any time spent after interim arrest, as per Rule 73 (2 ). We may mention at this stage one apprehension voiced by Mr. Kapadia. He submitted that if this construction is adopted on the applicability of rule 77 (1), then in that cases a dilatory tax recovery officer may deliberately or otherwise prolong the inquiry pending interim custody under Rule 75 for more than six months and thereafter pass final order of detention and the result would be that the defaulter may remain in detention for more than one year. This is neither here not there. This is neither here not there. If it was the intention of the rule making authority to find such a contingency and to club such period of interim custody with the period of final detention, Rule 77 (1) would have been suitably amended or drafted. But that has not been done. It is also pertinent to note that there was no provision under Sec. 428 of the Criminal procedure Code in Rule 77. Even prior to enactment of Sec. 428, many a times it used to happen that imprisonment as undertrail prisoner used to exceed even final period of sentence on conviction imposed upon the concerned offender. With a view to plugging such loophole the Parliament intervened by enacting Sec. 428 and provided for set-off imprisonment as undertrial prisoner while computing final sentence of imprisonment imposed on the accused. Such a provisions is conspicuously absent in Rule 77. But even that apart, if in any case, pending interim custody of the defaulter, it is apprehended by him that interim custody is being dragged on unnecessarily, he can move this Court to the Supreme Court for issuance of appropriate directions to the concerned authorities to expedite completion of the inquiry. But so far as the express language of Rule 77 goes, it is not possible to agree with the contention of Mr. Kapadia that six months provided therein must be treated to include the period spent during the interim custody or interim arrest by the defaulter. Consequently, it must be held that six months period pursuant to the order dated 5-3-1990 would start from 5-3-1990 and would end on 4-9-1990 and the period from 30-12-1989 till passing of the order dated 5-3-1990 cannot be included for computing six months period of detention in civil prison. Second point, therefore, is answered against the petitioner and in favour of the Revenue. ( 10 ) POINT No. 3 : That leaves out the last point. Mr. Kapadia for the petitioner vehemently submitted that in light of our conclusion on point No. 1, the petitioner must be ordered to be released forthwith from civil detention as the impugned order is held to be null and void and there remains no occasion for issuing any further direction to the respondent authorities to pass appropriate orders against the petitioner. Kapadia for the petitioner vehemently submitted that in light of our conclusion on point No. 1, the petitioner must be ordered to be released forthwith from civil detention as the impugned order is held to be null and void and there remains no occasion for issuing any further direction to the respondent authorities to pass appropriate orders against the petitioner. He submitted that the entire inquiry was completed by the tax recovery officer and if he failed to pass appropriate order which can be countenanced by law, he has to thank himself and no second opportunity should be given to him. Mr. Raval on the other hand submitted, placing reliance on the decision of the Supreme Court in the case of Jolly george (supra) that the Supreme Court itself while taking the view that conditions of Sec. 51 C. P. Code had to be satisfied, remanded the proceedings to the executing Court for coming to appropriate conclusion on evidence and permitted the inquiry to go on in execution against the judgment debtor. He also submitted, placing reliance on the decision of the Supreme Court in the case of Comptroller and Auditor General v. K. S. Jagannathan, AIR 1987 SC 537 , that in exercise of the powers under Art. 226 of the Constitution, we can pass the same orders which the subordinate authority can pass. In this connection, he invited our attention to the following pertinent observations made by Madan, j. speaking for the Supreme Court :"the High Courts exercising their jurisdiction under Art. 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and material or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High court can, in the exercise of its jurisdiction under Art. 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance. In a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. "he further submitted that the facts of the present case are peculiar. As admitted by the petitioner himself, he is a Pakistani national. He has no moorings in India. He has admitted before the tax recovery officer that he has no property in his name in India. It is his case that he has no property in his name elsewhere either in Pakistan or any other part of the world. It is his case that he has no property in his name elsewhere either in Pakistan or any other part of the world. It is his case that in the two Bank accounts in his name one in Bank of Oman at Dubai and another in United Bank Limited at Karachi, there is negligible balance from which these tax arrears cannot be met. Mr. Kapadia produced xerox copies of two statements of accounts showing that in the Bank of Oman Limited at Dubai, there is balance of 218. 22 Dirham in the name of the petitioner, while in Karachi Bank accounts there is balance of Rs. 894. 00 only. That it is his case that he is to be deported out of India moment he is released from civil prison. Thus, it is almost certain that he will immediately go out of India moment he is released from civil prison. If that happens, the tax recovery certificate will become a paper order and there will be a huge loss to the public exchequer. If such loss is inevitable, the amount of tax dues will have to be treated as bad debt and that consequence may ultimately follow. If that happens, the tax recovery certificate will become a paper order and there will be a huge loss to the public exchequer. If such loss is inevitable, the amount of tax dues will have to be treated as bad debt and that consequence may ultimately follow. But before that eventuality happens a fair chance should be given to the revenue to arrive at a correct conclusion about financial capacity of the petitioner who was involved in international racket of gold smuggling and who is convicted under the Customs Act as he was caught red-handed at Ahmedabad and was found in possession of smuggled gold worth Rs. 140 lacs years back. He, therefore, submitted that on the peculiar facts of this case it cannot be said or even whispered that the petitioner is a pauper or a non-entity. That it appears that the petitioner is suppressing his real financial capacity and he is not to defraud the Revenue. Consequently, interest of justice demands that we permit the tax recovery officer to come to an appropriate finding as required by Rule 73 (1) read with rule 76 (1 ). That such an exercise was never undertaken by the tax recovery officer earlier. That this is not a case in which exercise was undertaken by reaching a finding under Rule 73 (1) in connection with the conditions precedent. If such an exercise was once undertaken by the tax recovery officer and it was found to be unsustainable on record the question of giving second innings to the tax recovery officer might arise but as we ourselves have held, the order shows that the recovery officer addressed himself to Rule 73 (2) satisfaction and passed the final order under Rule 76 (1 ). Thus, he has, up till now, not considered even once whether the conditions precedent for passing order under Rule 76 (1) read with Rule 73 (1) had existed or not in the case of the petitioner and hence, that opportunity, if given in the interest of justice on the peculiar facts of this case, would amount to giving such opportunity for the first time only. ( 11 ) WE find considerable force in the aforesaid contention of Mr. Raval. this is not a case in which allegedly poor judgment-debtor is being sought to be detained on account of his poverty. ( 11 ) WE find considerable force in the aforesaid contention of Mr. Raval. this is not a case in which allegedly poor judgment-debtor is being sought to be detained on account of his poverty. He is a foreign national having no moorings in India but he is found to have been involved in international racket of gold smuggling. Naturally he would have connections not only in this country but in various parts of the world. It is also an admitted position that he has Bank accounts at Dubai in Oman Bank Limited. Further details given in his statement before the tax recovery officer show that the petitioner was dealing in business of fishery and he used to go to Dubai ostensibly in connection with that business. It cannot be forgotten that the petitioner is clamouring from the house top that he wants to go to Pakistan moment he is released from detention. It is also not in dispute that the tax recovery certificate issued against him shows large arrears of more than Rs. 6 lacs. Under these circumstances, the tax recovery officer at least once has to give a finding as to whether requirements of Rule 73 (1) (a) or (b) are satisfied or not. If this request of the Revenue is not accepted, irreparable injury will be caused to public exchequer and so far as the petitioner is concerned, without facing any proper inquiry in that connection, though he is admittedly an income-tax defaulter, he would promptly go out of the country and there would be no possibility whatsoever of again tracing him back or to recover the tax arrears and they will, of necessity, will have to be treated as bad debt. On the other hand, if such an opportunity is given to the Revenue, the petitioner is not going to suffer any substantial loss as Mr. Raval for the revenue fairly stated that in the light of our decision on point No. 2, the maximum detention of the petitioner in civil prison in execution of the certificate in question would be for a period of six months from 5-3-1990. Raval for the revenue fairly stated that in the light of our decision on point No. 2, the maximum detention of the petitioner in civil prison in execution of the certificate in question would be for a period of six months from 5-3-1990. meaning thereby, on the midnight of 4-9-1990, that detention would come to an end and even though that order is being quashed and set aside by us, he agrees that if any fresh order of detention is passed against the petitioner under rule 76 (1) read with Rule 73 (1), in execution of the certificate for recovery of Rs. 6,69,635. 00, its life will not be beyond 5-9-1990, and it would stand exhausted accordingly. This fair concession on the part of the respondents allays any fear that the petitioner may have, viz. that if fresh detention order is passed, he will be further detained for six more months. In fact, such a fear would be totally uncalled for in the light of the express language of Rule 77 and the concession given by the learned Advocate for the Revenue which is not only fair but is well justified in the light of the statutory settings of the aforesaid provisions. Consequently, we deem it fit to pass the following order : (1) Even though the impugned order dated 5-3-1990 is quashed and set aside, the petitioner will not be released from the civil detention but in the first instance, from the date of our present order, he will be treated to be in interim custody as per Rule 75 of the Rules and the officer in charge of Civil prison at Bhadra, Ahmedabad will keep the petitioner in custody pending further orders of the tax recovery officer as indicated herein below. This interim custody will be for a period of two weeks from our present order. In the meantime, the tax recovery officer is directed to issue a show cause notice to the petitioner and to hear him both about need to continue him in detention by way of interim custody beyond the period of 2 weeks as per Rule 75 and also to hear him as per Rule 74 by giving him an opportunity to show cause why he should not be committed to civil prison as per Rule 76 (1) read with Rule 73 (1 ). This opportunity should be given to him within the aforesaid period of two weeks and thereafter, the tax recovery officer may pass appropriate orders both under rule 75 for continuing him in interim custody beyond the period of two weeks and also under Rule 76 (1) read with Rule 73 (1) in the light of the existing material on record and whatever additional material the petitioner may choose to bring on record or the material which the department may be able to gather in this inquiry. It is made clear that our present order directing interim custody of the petitioner for two weeks will be strictly without prejudice to the rights and contentions of both the sides and should not be given any weight by the tax recovery officer for passing appropriate order in exercise of his own discretion under Rule 75 nor will it come in the way of the tax recovery officer in passing appropriate final order under Rule 76 (1) read with Rule 73 (1) and such fresh order will be passed strictly on merits and in accordance with law after giving full opportunity to the petitioner as aforesaid in connection with both these orders. (2) It is clarified that if the tax recovery officer in his discretion thinks fit not to pass any further interim custody order under Rule 75, beyond the period of two weeks as directed by us in the present order, the detenu will be released from the interim custody and detention on the expiry of these two weeks. If on the other hand, interim custody order is extended by the tax recovery officer, till the completion of the inquiry, the said interim order subject to it being stayed or quashed by any competent Court when challenged by the petitioner in accordance with law, will operate till the inquiry is completed. (3) In case the tax recovery officer takes the view that no final order of detention is required to be passed under Rule 76 read with Rule 73 (1) (a) or (b) as the conditions mentioned therein are not satisfied the detenu will be released from detention. (3) In case the tax recovery officer takes the view that no final order of detention is required to be passed under Rule 76 read with Rule 73 (1) (a) or (b) as the conditions mentioned therein are not satisfied the detenu will be released from detention. If on the other hand, such detention order is passed under Rule 76 (1) read with Rule 73 (1), such order as and when passed shall have limited life upto midnight of 4-9-1990 and thereafter in any case, the petitioner will be released from detention in civil prison so far as execution of tax recovery certificate for Rs. 6,69,635. 00 for Assessment year 1984-85 is concerned. (4) Such final detention order is passed will be subject to the challenge which the petitioner may like to mount on it will also be subject to the decision of the competent Court before which such challenge is mounted. (5) The tax recovery officer is directed to complete the entire exercise and to pass final order under Rule 76 (1) read with Rule 73 (1) one way or the other on or before 10/08/1990. The third point is answered accordingly. (Rest of the Judgment is not material for the Reports.) .