TMI Blog1977 (7) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... harbouring, keeping, concealing etc. goods which they knew or had reason to believe, were smuggled goods liable to confiscation under the Act. Copies of the notice were addressed to the appellants before us. The notice recited that a party of Preventive Staff, on receipt of information, and in pursuance of a search had proceeded to search the premises of the appellants and had found the goods and documents specified in the notice and recovered the same from the premises under a search-list, in the presence of the 2nd appellant, the Managing Partner of the 1st appellant-firm, and two independent witnesses. This was replied to, by Ext. P3, dated 11-5-1970, Exts. P. 3(a) and P 1(b) being the Explanations of the different writ-petitioners). It was pointed out, inter alia, that the 1st appellant-firm consisted of persons whose names had been disclosed. Various other objections, lengthy in nature and varying in their import, were taken, which, it is unnecessary to detail. By Ext. P6 order, the contravention of Section 112(b) of the Customs Act was found established. It was recorded that the cloves seized from the 1st appellant were all of foreign origin brought into India in contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petitioners, namely that the respondents had acted illegally in imposing separate penalties against the firm as well as against its Managing Partner. The learned Judge answered this objection by pointing out that the firm would fall within the definition of "person" and that the levy of penalty against it was warranted under Section 112 of the Act; and further, that the second writ petitioners as the person in active charge of the firm as Managing Partner, was one "directly concerned in the purchase and also the subsequent dealing with the contraband goods in question". As such he was also held liable. 4. Before us, argument regarding the liability of the firm was raised at considerable length. Counsel for the appellant contended that without issuing notice to all the partners of the firm, the firm as such cannot be made liable for the contravention. Counsel for the respondents replied that in the absence of any definition of the term "person" in the Customs Act, the definition of that expression in Section 3(42) of the General Clauses Act, 1897, could be resorted to. The said definition reads : "`person' shall include any company or association or body of individuals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. Attention was also called to the decision of the Supreme Court in Agarwal Trading Corporation v. Collector of Customs (1972), 1 SCC 553; (A.I.R. 1972 S.C. 648). The proceedings were thereunder the provisions of the Foreign Exchange Regulations Act, 1947, read with the provisions of the Sea Customs Act, 1878. Criminal prosecutions and penalty proceedings were launched against the partners and also against the firm constituted by them. It was observed ; (at p. 654 of A.I.R.). "The second contention that because the firm is not a legal entity, it cannot be a person within the meaning of Section 8 of the Foreign Exchange Regulation Act or of Section 167(3), (8) and (37) of the Sea Customs Act, is equally untenable. There is of course, no definition of `person' in either of these Acts but the definition in Section 2(42) of the General Clauses Act, 1897, or Section 2(3) of the Act of 1868 would be applicable to the said Acts in both of which `person' has been defined as including any company or association or body of individuals whether incorporated or not. It is of course contended that this definition does not apply to a firm which is not a natural person and has no legal exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the person committing an offence under this Chapter is a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any such person liable to such punishment provided in this Chapter if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. * * * * * There is an Explanation to the Section, clause (a) of which enacts : "Explanation. - For the purposes of this section, - (a) "Company" means a body corporate and includes a firm or other association of individuals; and * * * * * Counsel for the respondents placed reliance on this provision; but, for the appellants, it was promptly pointed out that the Section applies only in respect of offences, "under this Chapter", namely, Chapter 16, commencing from Section 132; and we are concerned in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operate as a prohibition if the conditions are not conformed to. There is thus judicial authority that a prohibition will include restriction, just, as, in the sphere of fundamental rights, there is authority that a restriction will include prohibition as well. In the light of these, there is no force in the contention of counsel for the appellants. 9. We have so far dealt with the argument on the merits. Counsel for the respondents raised a preliminary objection that in view of Clause (3) of Article 226 after its amendment by the Constitution 42nd Amendment, alternative remedy of revision under Section 131 of the Customs Act is available to the Appellants and therefore the writ petition is not entertainable, and should abate under Section 58 of the Constitution Amendment Act. On the terms of the provisions, the argument appears to be well founded, and we are inclined to accept the same. Counsel for the appellants drew our attention to the decision of the Gujarat High Court in A'bad Cotton Mfg. Co. v. Union of India (A.I.R. 1977 Guj. 113) to the effect that the alternative remedy, in order to bar the entertainment of a writ petition under Article 226(3), must be adequate and eff ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
