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TMI Blog1969 (11) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in Santhal Parganas in Bihar. The appellant Nazir Mian was travelling by Barauni passenger train. When the train stopped at Pakur the excise staff found Nazir Mian in the latrine of one of the compartments of the train with two bags of cloves weighing about 2 pounds 10 seers. The door of the latrine was closed. Inspector Uma Shankar pushed the door when it was opened from inside. Uma Shankar disclosed his identity and asked if duty had been paid for the cloves. Nazir Mian answered in -the negative. Inspector Uma Shankar thereupon seized the bags and arrested Nazir Mian. While this was being done, the train started. Shortly after the train had started it stopped at a level crossing in consequence of one of the persons of the excise staff pulling the alarm chain. The excise staff got down,with Nazir Mian. The two bags of cloves were also brought down. Certain persons collected on the spot. Nazir Mian is alleged to have been rescued by other appellants and the bags of cloves were taken away. In the scuffle that ensued, one of the Inspectors received simple injuries and the other a grievous injury. The three appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah and two ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he had no jurisdiction to take cognizance of the offence under this Act. The Assistant Sessions Judge, Dumka, also held that section 187A of the Sea Customs Act, 1878 laid down that' cognizance as to offence was to be taken upon a complaint in writing made by the Chief Customs Officer or any other officers of customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs Officer. The Assistant Sessions Judge, Dumka, found that in the present case there was no such complaint, and, therefore, he did not take cognizance for the contravention of section 19 of the Sea Customs Act, 1878. The appellants and Jhaman Mian thereafter preferred an appeal to the High Court. In the High Court the appellant Nazir Mian contended that Inspector Uma Shankar had no power to arrest him and seize the cloves, and, therefore, the Inspector could not be held to have acted in the discharge of his public duties. In aid of that contention it was submitted first, that the Imports and Exports Control Act, 147, the Land Customs Act., 1924, the Sea Customs Act, 1878 and the Indian Tariff Act, 1934 were not extended to Santhal Parganas and were not, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of occurrence, namely, Pakur in Santhal Parganas in Bihar. The fourth contention was that section 178A of the Sea Customs Act, 1878 could not apply, because there was no notification to attract the application of the said section. The first question which falls for decision is whether the Sea Customs Act, 1878 applies. In order to appreciate this contention it is necessary to refer to the statutes by virtue of which the Sea Customs Act, 1878 is said to apply to the place of occurrence. The Bihar Regulation I of 1951 enacted that the Imports and Exports Control Act, 1947 was applicable to Santhal Parganas. The relevant sections under the Imports and Exports Control Act, 1947 in the present case are the two sub-sections in section 3 which are as follows: "3. Powers to prohibit or restrict imports and exports. (,'I) The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order:- (a) the import, export, carriage coastwise or shipment as ships stores of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estrictions imposed by sub-sections (1) and (2) of section 8, sub-section (1) of section 12 and clause (a) of sub- section (1) of section 13 shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1878 and ail the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted". Section 178A of the Sea Customs Act, 1878 was introduced into the Act in the year 1955. It was, therefore, contended that -when the Foreign Exchange Regulation Act, 1947 was enacted -the provisions of the Sea Customs Act, 1878 were not at all -attracted, and secondly. when section 23A was introduced in 1952 as a part of the Foreign Exchange Regulation Act, 1947 it would have the effect of bringing into operation only those sections of the Sea Customs Act, 1878 which were part of the Sea Customs Act, 1878 in 1952. Counsel for the appellants relied on the observations at -page 834 of the Report in the Madras Customs case(,) that "the effect of section 23 A is to treat the text of the notification by -the Central Government under section 8(l) as if it had been issued under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old. In dealing with the contention in the Madras Custom case that section 178A of the Sea Customs Act, 1878 did not apply because it was not a part of the Sea Customs Act, 1878 when section 23A of the Foreign Exchange Regulation Act was en- (1) [1962] 3 S.C.R. 786. acted in 1952, the decision of the Judicial Committee in The Secretary of State for India in Council v. Hindustan Co- operative Insurance Society Ltd.( 59 4A. 259) was referred to by this Court for the purpose of showing that in the Hindustan Co- operative Insurance Society case the Calcutta Improvement Trust Act, 1911 referred to the provisions of the Land Acquisition Act by enacting that "the provisions of the Land Acquisition Act shall apply as if they were herein re- enacted" to mean that the Calcutta Improvement Trust Act 1911 in adopting the provisions of the Land Acquisition Act did not intend to bind themselves .to any future additions which might be made to the Land Acquisition Act. The other consideration which weighed with the Judicial Comniittee was that the Calcutta Improvement Trust Act did nothing more than incorporate certain provisions from an existing Act, and for convenience of drafting did so by refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Act shall have effect only" otiose but also nugatory. When the statute enacts that all the provisions of that Act shall have effect accordingly, it will be an error to hold in spite of the language of such legislation that the provisions of the Sea Customs Act shall not have effect. The effect of bringing into an Act the provisions of an earlier Act is to introduce the incorporated sections of the earlier Act into the subsequent Act as if those provisions have been enacted in it for the first time. The nature of such a piece of legislation was explained by Lord Esher M.- R. in Re Wood's Estate((1881] 31 Ch. D. 607) that "if some clauses of a former Act were brought into the subsequent Act the legal effect was to write those sections into the new Act just as if they had been written in it with the pen". This Court noticed in the Madras . Customs case 2 the distinction between a mere reference to or a citation of one statute in another on the one hand and an incorporation on the other, for the purpose of showing as to what would be the effect of the repeal of the former statute on the latter statute. It is in that context that this Court observed that if section 19 of the Sea Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted. Sub-section (2) of section 92 of the Government of India Act, 1935 conferred power on the Governor to make regulations for the peace and goods government of any area in a Province which was an excluded or a partially excluded area and any regulations so made might repeal or amend any Act of the Federal Legislature or the Provincial Legislature or any existing Indian law which was for the time being applicable to the area in question. The extent of the legislative power of the Governor under- section 92 of the Government of India Act, 1935 in making regulations for the peace and good government of any area conferred on the Governor in the words of ]Lord Halsbury "an utmost discretion of enactment for the attainment of the objects pointed to". (See Riel v. The Queen) (L.R. 10 A.C. 657 at 658). In that case the words which fell for consideration by the Judicial Committee were "the power of the Parliament of Canada to make provisions for the administration, peace, order and good government of any territory not for the time being included in any province" It was contended that if any legislation differed from the provisions which in England had been made for the administration, pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof in a piece of legislation as the law which shall apply. It was said by, counsel for the apppellants that the power to applv laws under the Fifth Schedule was synonymous with conditional legislation. In the present case, it cannot be said that the Bihar Regulation I of 1951 is either a piece of delegated legislation or a conditional. legislation. The Governor had full power to make regulations which are laws and just as Parliament can enact that a piece of legislation will apply to a particular State, similarly, the Governor under paragraph 5 of the Fifth Schedule can apply specified laws to a Scheduled area. 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. The question which next arises for consideration is whether the Land Customs Act, 1924 applied on the relevant date of occurrence namely 13 December, J961 to the Santhal Parganas. The Land Customs Act was enacted in the year 1924 and it was declared to apply to the Santhal Parganas. Prior to the Constitution the Central Acts or Federal Acts or Acts of the Dominio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1924 cannot therefore be said to apply to Santhal Parganas as an existing law. The present day sources of law making in the Santhal Par- ganas which are included in the Scheduled Areas are Article 244 and the provisions in the Fifth Schedule to the Constitution. Clause 5 of the Fifth Schedule has two sub- clauses. Under subclause (1) the Governor is empowered notwithstanding anything in the Constitution to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply to a Scheduled Area subject to such exceptions and modifications as the Governor may specify -in the noti- fication. Sub-clause (1) of clause 5 of the Fifth Schedule to the Constitution speaks of Acts of Parliament or of the Legislature of the State and therefore Central Acts or Provincial Acts, prior to the Constitution are not contemplated within sub-clause (1) of clause 5. Sub-clause (2) of clause 5 of he Fifth Schedule confers power on the Governor to make regulations for the peace and good Government of any area in a State which is a Scheduled Area. Under sub-clause (2) the Governor has power to make laws which will include the power to apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act are treated as Customs Officers having jurisdiction in the Santhal Parganas. The Central Excise and Salt Act, 1944 was however made applicable to the Santhal Parganas by a notification dated 14 September, 1944 but the application of that Act is not in issue in the present appeal. One of the questions in the present appeal was whether the Indian Tariff Act, 1934 applied to the Santhal Parganas. The articles.which were seized in the present appeal, viz., cloves were dutiable articles being item 9(3) in column 3 in the First Schedule to the Indian Tariff Act, 1934. We have already indicated as to how by reason of operation of section 3 of the Imports and Exports (Control) Act, 1947 cloves became an article the import or export of which was prohibited under section 19 of the Sea Customs Act. No notification of application of the Indian Tariff Act, 1934 to the Santhal Parganas was shown to the High Court. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Control Order, 1955 mentions that each entry in column 2 of Schedule I to the said Order has the same meaning as specified against the said item in column 3 of the First Schedule to the Indian Tariff Act. Schedule I to the Imports Control Order, 1955 gives in a tabular form the names of articles as also G the corresponding items to the Indian Tariff Act. Cloves which are mentioned as item No. 23 of Schedule I of Part IV of the Imports Control Order, 1955 have the same meaning corresponding to item -No. 9(3) in column 3 in the First Schedule to the Indian Tariff Act, 1934. It, therefore, follows that 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 Inspectors who arrested the appellant Nazir Mian and the other accused and seized the articles were Officers of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is manifest the provisions of the Sea Customs Act, 1878 apply, and, therefore, the Land Customs Officers are appointed Officers of Customs under the Sea Customs Act, 1878. Secondly, the notification under the Land Customs Act is that all the Officers mentioned therein including the Inspectors of the Central Excise employed on the Central Excise or Customs Preventive Intelligence work and attached to the Headquarters are Land Customs Officers. The combined effect of both the notifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as a 'result of the application of the Sea Customs Act, 1878. Counsel on behalf of the appellants contended that there was no evidence to warrant the Customs Officers to arrest the appellants under section 173 of the Sea Customs Act, 1878 because such an arrest could be made only if there was a reasonable suspicion in existence. The evidence in the present case established the following facts. First, the appellant Nazir Mian had in possession two bags of cloves and no duty was paid on those cloves. Secondly, the appellant Nazir Mian kept the cloves. in two bags and concealed the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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