TMI Blog1969 (11) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 and section 11 thereof. The Bihar Regulation I of 1951 is an instance of a valid piece of legislation emanating from the legislative authority in its plenitude of power and there is no aspect of delegated or conditional legislation. It will appear in volume 7 page 5792 of the Bihar Local Acts (1793 to 1963) published by Bharat Law House, Allahabad in the year 1966 that the Indian Tariff Act, 1894 is found to be one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation, 1872 and the Indian Tariff Act, 1894 which was repealed by the' Indian Tariff Act, 1934 was similarly declared to be in force in the Santhal Parganas. Cloves are goods the import of which is prohibited by the Imports and Exports Control Act, 1947 and they are dutiable goods by reason of that meaning of cloves in column 3 item No. 9 (3) of the First,-,Schedule to the Indian Tariff Act, 1934 having been attracted by the Imports Control Order, 1955. Cloves are, prohibited goods within the Imports and Exports Control Act, 1947A and are, therefore, deemed to be prohibited under section 19 of the Sea Customs Act, 1878. The circumstances indicated a reasonable suspicion and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged under section 147, 149, 333 and 379 of the Indian Penal Code for forming an unlawful assembly in assaulting Inspectors Uma Shankar and B. N. Jha and in rescuing accused Nazir Mian from their lawful custody and in removing two bags of seized cloves from their possession. The accused persons with the exception of Raghunath Prasad Yadav were further charged under section 332 of the Indian Penal Code for voluntarily causing hurt to Uma Shankar a public servant in the discharge of his public duties. The accused with the exception of Nazir Mian were charged under section 225 of the Indian Penal Code for intentionally offering resistance to the lawful apprehension of accused Nazir Mian. Nazir Mian was also charged under section 7 of the Land Customs Act, 1924 for contravention of section 5 of the, said Act and also under section 167 item 81 of the Sea Customs Act, 1878 for contravention of 'Section 19 of the said Act and also under section 5 of the Imports and Exports Control Act, 1947 for contravention of section 3(1) of the Imports Control Order, 1955. At the trial before the Assistant Sessions Judge, Dumka in Santhal Parganas, Raghunath Prasad Yadav was acquitted of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not dutiable articles. The third contention was that section 173 of the Sea Customs Act, 1878 had no application, because there was no evidence of reasonable suspicion that Nazir Mian was guilty of an offence under the Sea Customs Act, 1878. It was also contended that Inspector Uma Shankar was not an officer of the Customs. The High Court came to the conclusion that the Sea Customs Act, 1878 and the Imports and Exports Control Act, 1947 applied to the Santhal Parganas with the result that the import of cloves was prohibited; duty was payable on cloves; the Inspectors were officers of Customs within their respective jurisdiction, and, therefore, they could exercise power under section 173 of the Sea Customs Act, 1878 and they could seize the goods under section 178 of the Sea Customs Act, 1878. The High Court further held that under section 178A of the Sea Customs Act, 1878, the burden was on the appellant Nazir Mian to prove that cloves seized were not smuggled goods and that the appellant Nazir Mian failed to do so. The High Court held that the appellants had been rightly convicted for certain offences but the sentences under section 332 of the Indian Penal Code against Naz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried. (2) All goods to which any order under subsection (1)applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly". The first contention on behalf of the appellants is that sub section (2) of section 3 of the Imports and Exports Control Act, 1947 means that only section 19 of the Sea Customs Act, 1878 is applicable and the other section do not apply. The second contention on behalf of the appellants that the Bihar Regulation I of 1951 is in excess of the power of the Governor contained in the Fifth Schedule to the Constitution will be 'dealt with hereinafter. Counsel on behalf of the appellants contended that section 3(2) of the Imports and Exports Control Act, 1947 meant that goods to which sub-section (1) of section 3 of the Act of 1947 applied were deemed to be goods of which the import or ,export had been prohibited under section 19 of the Sea Customs Act, 1878, and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate to it by the creation of legal fiction". Counsel for the appellants extracted from these observations the proposition that only section 19 of the Sea Customs Act, 1878 would attracted in the present case to make effective the notifications under the Imports Control and Exports Control Act, 1947 and the Imports Control Order, 1955 and no other section of the Sea Customs Act, 1878 would be attracted. The decision of this Court in the Madras Customs case(')does not support that contention for the obvious reason that section 178A of the Sea Customs Act, 1878 was held to be applicable there. If only section 19 of the Sea Customs Act, 1878 were attracted for the purpose of giving sanction to notifications under the Foreign Exchange Regulation Act section 178A of the Sea Customs Act, 1878 could not have been held to be applicable in Madras Customs case('). Further this Court in the Madras Customs case(') at page 799 of the Report held first, that on the law as it stood upto 1952 before section 23A of the Foreign Exchange Regulation Act was inserted, importation of gold in contravention of the notification of August, 1948 issued under section 8(l) of the Foreign Exchange Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it was desired to adopt. This Court said that there was no analogy between the manner in which the provisions of the, Land Acquisition Act had been incorporated in the Calcutta Improvement Trust Act, 1911 and the operation of the Sea Customs Act, 1878 as a result of section 23A of the Foreign Exchange Regulation Act. Section 23A of the Foreign Exchange Regulation Act was construed to mean that the restrictions imposed by section 8(l) of the Foreign Exchange Regulation Act shall be deemed to have been imposed under section 19 of the Sea Customs Act and all the provisions of the Sea Customs Act, 1878 shall have effect accordingly. At page, 837 of the Report this Court said that a notification issued under section 8(l) 'of the Foreign Exchange Regulation Act was deemed for all purposes to be a notification issued under section 19 of the Sea Customs Act and the contravention of the notification attracted to it each and every provision of the Sea Customs Act which was in force at the date of the notification. The ratio of the decision in the Madras Customs case([1962] 3 S.C.R. 786) is that the provisions of the Sea Customs Act, 1878 were attracted by relation to the provisions of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for invoking the penal provisions of the Sea Customs Act, 1878 to a contravention of a notification under section 8(l) of the Foreign Exchange Regulation Act. The ratio is that if the contravention of the, notification under the Foreign Exchange Regulation Act is equated with a contravention of the notification under section 19 of the Sea Customs Act, 1.878, the effacement of section 19 of the Sea Customs Act, 1 878 from the statute book would naturally remove the substratum of the Sea Customs Act, 1878. In the present case, the provisions of the Sea Customs Act, 1878 are attracted by reason of the provisions contained in section 3 of the Imports and Exports Control Act, 1947 and on the authority of the decision of this Court in the Madras Customs case(119621 3 S.C.R. 786) all that can be said is that if section 19 of the Sea Customs Act, 1878 were repealed then the Sea Customs Act, 1878 would not be attracted. Section 19 of the Sea Customs Act, 1878 has not been repealed and was extant and is now reenacted as section 11 in the Sea Customs Act, 1962 and there has been corresponding change in the Imports and Exports Control Act, 1947 by reference to the Sea Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That contention was not accepted. These words were held to embrace the widest power to legislate for the peace and good government for the area in question. The Fifth Schedule to the Constitution consists of 7 para- graphs and consists of Parts, A, B, C and D. Paragraph 6 in. Part C deals with Scheduled Areas as the President may by order declare and there is no, dispute in the present case that the Santhal Parganas falls within the Scheduled Areas. Paragraph 5 in the. Fifth Schedule deals with laws applicable to Scheduled Areas. Sub-paragraph 2 of paragraph 5 enacts that the Governor may, make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. Undersub-paragraph 3 of paragraph 5 the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or, any existing law which is for the time being applicable to the area. in question. It may be stated that a contention was advanced by counsel for the appellants that section 92 of the Government of India Act, 1935 was still in operation and the Governor could only act under that section. This contention is utterly devoid of any substance, because se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less they were declared by the Governor to apply to those areas. After the enactment of the Constitution, Article 244 and the Fifth Schedule deal with excluded or partially excluded areas. It was contended on behalf of the State that after the enactment of the Constitution the Land Customs Act, 1924 became applicable to excluded or partially excluded areas because first it was an existing law and secondly the restriction under section 92 of the Government of India Act, 1935 which required a specific declaration of the Governor to apply any legislation to the areas in question was no longer operative. Article 372(l) of the Constitution enacts that the law in force in the territory of India immediately before the commencement of the Constitution is to continue in force until altered or repealed or amended by a competent legislature or other competent authority. Explanation I to Article 372 is that law in force in the Article shall include a law passed or mad by the legislature or other competent -authority in the territory of India before the commencement of the -Constitution not withstanding that it or parts of it may not be then in operation either at all or in particular area o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. Prior to the Constitution section 92 of the Government of India Act, 1935 conferred power oil the Governor to make regulations for excluded and partially excluded areas which included the Santhal Parganas. In making such regulation the Governor could repeal or amend any Central law or any Provincial Acts and the regulations were to be submitted to the Governor General for assent. The Central or the Provincial Acts under sub-section (1) of section 92 of the Government of India Act, 1935 however were not applied to excluded and partially excluded areas unless the Governor so directed. Prior to the Government of India Act, 1935 the Governor- General-in-Council in 1872 promulgated the regulation known as "Santhal Parganas Settlement Regulation" and section 3 of the said Regulation provided the enactments specified in the Schedule thereto which would be in force in the Santhal Par- ganas. Section 3 (2) of the Santhal Parganas Settlement Regulation of 1872 in so far as it seeks to affect future legislation would not have any force after 26th January, 1950. In this background it appears that the Sea Customs Act, 1878 and the Land Customs Act, 1924 were not made applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1934 was similarly declared to be in force in the Santhal Parganas. The Inspectors, Uma Shankar and B. N. Jha were Customs Officers engaged in public duty. They arrested the appellant Nazir Mian under section 173 of the Sea Customs Act on a reasonable suspicion. The Inspectors further arrested the appeallant Nazir Mian under section 178 of the Sea Customs Act, 1878. Section 178 of the Sea Customs Act, 1878 empowered the A Customs Officer to seize smuggled goods under the Act. The questions which have to be decided in the present case are: first, whether the Inspectors Uma Shankar and B. N. Jha were acting in the discharge of public duties, secondly, whether they could arrest the appellants, and thirdly, whether they could seize the cloves. The oral evidence of Inspector Uma Shankar is that he B was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence Section. He said that he was posted at Barharwa since the month of January, 1961 and his jurisdiction was Pakur, Dumka and Sahibganj. He also said that his duty was the prevention of smuggling of contraband commodities. Inspector B. N. Jha in his oral evidence'said that he was an Inspector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications. The first is a notification No. 69-Cus. dated 28 September, 1951 under section 6 of the Sea Customs Act, 1878 which is set out as follows :- "In exercise of the powers conferred by section 6 of the Sea Customs Act, 1878 (VIII of 18778) and in supersession of the Government of India in the Ministry of Finance (Revenue Division) Notification No. 71, dated the 12th August, 1950,. the Central Government hereby appoints all the Land Customs Officers who have been appointed or may be appointed from time to time to be such under sub-section (1) of section 3 of the Land Customs Act, 1924 (XIX of 1924)D to be Officers of Customs for their respective jurisdiction and to exercise the powers conferred and to perform the duties imposed on such officers by the first named Act". The second is a notification No. C.B.R. Notification 1 ' L.Cus.E dated 25th January, 1958 as amended by No. 8- L.Cus. dated 117th May, 1958 under the Land Customs Act which is set out as follows "In exercise of the powers conferred by sub-section (1) of section 3 of the Land Customs Act, 1924F (19 of 1924) read with the notification of the Government of India in the late Finance Department (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport of those goods. Fourthly, Pakur was at a distance of only 1 1 and 12 miles from the East Pakistan border. Fifthly, -cloves are not grown in India. These circumstances indicated a reasonable suspicion and, therefore, the Officers were justified in arresting the appellant Nazir Mian under section 173 of the Sea Customs Act, 1878. It was contended on behalf of the appellants that though under section 178 of the Sea Customs Act, 1878, the Customs Officers could seize the goods there was no notification under section 178A of the Sea Customs Act, 1878 imposing restrictions on import of cloves, and, therefore. the onus of proof could not be shifted to the appellants under section 178A of the Sea Customs Act, 1878. The correct legal position is that in the absence of special notification under section 178A specifying goods to which the section applies, the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the Sea Customs Act, 1878. In view of the fact that in the present case the seized articles were removed by the accused it is unnecessary to deal any further with this aspect of the case because if any order we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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