(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding, under the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 39, the court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion, or on the application of the Collector, take such order into consideration.
(2) If such Court, after such consideration is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 39 or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.
(3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such court, shall also send him such instrument.
(4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 46, or in section 47, prosecute any person for any offence against the Stamp Law which the Collector considers him to have committed in respect of such instrument:
Provided that,--
(a) no such prosecution shall be instituted where the amount which, according to the determination of such Court, was payable in respect of the instrument under section 39, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty;
(b) Except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under section 46.