TMI Blog1959 (11) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned decision. Those facts are as follows: 3. Prior to April 10, 1958 one Shankarlal was in possession of two slabs of gold which were smuggled into India. It was arranged on behalf of Shankarlal that those two slabs of gold should be melted at the shop of the 1st petitioner who carries on business of running a metal melting workshop near Mumbadevi Post Office at Bombay. It was arranged that the 1st petitioner should send his employee to take delivery of these two slabs of gold at the shop of Messrs. B. Mohanlal and Co, at Jambli Moholla. In accordance with the arrangement the 1st petitioner deputed the 2nd petitioner to receive these two slabs of gold. One Shivlal who is known to both Shankarlal and the petitioners at the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivery of the smuggled gold and that for each such trip he was being paid ₹ 10/ by Shankarlal or by Shivlal. He also admitted, that he was aware that the gold in question used to be smuggled gold. 4. On these facts the respondent No. 1 has made a finding that the petitioners were liable to pay penalty of fine as mentioned in Section 167(8) or the Sea Customs Act. 5. In the petition the petitioners have raised several contentions but Mr. Dalai for the petitioners informed me that he was raising only two contentions at the hearing, viz., that on the facts as found by the 1st respondent in his decision he had no jurisdiction to levy any penalty against the petitioners and that accordingly the order was altogether without jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. 8. The question is whether this decision that the petitioners were the persons concerned in such an offence is in accordance with the provisions of Section 167(8). The relevant parts of the notification and the provisions of Section 167(8) run as follows: Notification : xx xx The Central Government is pleased to direct that except with the general or special permission of die Reserve Bank, no person shall bring or send into India from any place outside India (a) any gold coin, gold bullion, gold sheets or gold ingot, whether refined or not; or xxxx 8. If any goods, the importation x x x x x of which is for the time being prohibited or restricted xx xx xx be imported into xx xx xx India contrary to such prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riction imposed. The second item relates to attempts for doing the same. The fourth item relates to such restricted and prohibited goods being found before or after landing concealed on board of any vessel within the limits of the Port, That item is indicative of the fact that the offence relates to the time before completion of importation of the goods into India. It is apparent to me that the act of importation would be completed at the period of time when the goods cross the customs barrier. The act of importation contrary to restrictions and prohibitions would be complete once the customs barriers are crossed. It is at that moment of time that the restriction and prohibition are violated. Whatever is transacted with reference to the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of smuggling is complete when the melting is complete. That in my view cannot be the true construction of this penal provision. The provision of Section 167(8) is. a provision in respect of a charge of criminal nature and such provision in a Statute must be construed strictly. Apart from all other considerations I cannot take the view that acts and attempts to destroy evidence that the smuggled goods are smuggled should be considered as part and parcel of the transaction of smuggling. In my view the offence is complete as I have already mentioned at the period of time when the goods cross the customs barrier contrary to the restriction and prohibition imposed Whatever is done with the goods subsequent to that period of time, cannot for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the expression 'any person concerned in any such offence' occurring in the third column of Section 167(8) of the Sea Customs Act and the expression 'whoever contravenes any of the provisions of this Act' occurring in Section 23 of the Foreign Exchange Act. A person may be concerned in the importation of smuggled gold, without being a smuggler himself or without himself contravening any of the provisions of the Foreign Exchange Act, In this sense, the scope of Section 167(8), Sea Customs Act is different from that of Section 23 of the Foreign Exchange Act. 12. Now these observations certainly are indicative of tile fact that the individual bringing into India gold or other goods contrary to prohibition or restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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