TMI Blog1961 (2) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... n the petitioner and of ₹ 25,630/- on the appellant for these offences, under item 8 of the schedule to s. 167 of the Act. The Customs authorities further confiscated the petitioner's gold under the same provision. There was no order of confiscation of the steel pipes for reasons to which it is unnecessary to refer. The appeal is against an order the result of which was to direct realisation of the penalty imposed on the appellant, by execution of a distress warrant. The petition challenges the validity of the order imposing the pecuniary penalty. Neither the petitioner nor the appellant, however, questions the decisions of the Customs authorities that they had been guilty of breach of a. 19 or that penalties could be imposed on them under item 8 in a. 167. The petitioner does not, further, challenge the order confiscating the gold. The only contention of the petitioner and the appellant is that the orders of the Customs authorities are invalid as they impose penalties in excess of ₹ 1,000/-. They contend that the maximum penalty that can be imposed under item 8 in s. 167 is ₹ 1,000/-. This contention is based on two grounds. First it is said that, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Customs Act, which placed on the person from whose possession any goods mentioned in the section and reasonably believed to have been smuggled were seized, the burden of proving that they were not so, was void as offending Art. 14 of the Constitution. In discussing the scheme of the Act, it was observed in connection with item 8 in s. 167 that This Court has held that the minimum is the alternative: see Maqbool Hussain v. The State of Bombay [1953] S.C.R. 730 . Here again, it is clear that the Court was not deciding the question that has now arisen before us. It only made a passing reference to the observation in Maqbool Hussein's case [1953] S.C.R. 730 . It was not necessary for the decision of Babulal's case [1937] S.C.R. 1110, 1116 to have pronounced on the correctness of the observation in Maqbool Hussain's case [1953] S.C.R. 730 and no such pronouncement was clearly intended. Nor was it necessary in Babulal's case [1937] S.C.R. 1110, 1116 to express any view as to the maximum penalty that could be imposed under item 8 in s. 167. The last case referred to is F. N. Roy v. The Collector of Customs,Calcutta [1957] S.C.R. 1151 That was a case where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was sought to be made in the judgment was that there was a limit and that that was a reason for saying that the discretion given was not uncontrolled and, therefore, there was no violation of Art. 14. For this purpose, it made no difference what the limit was Some of the High Courts have thought that this Court had decided in these cases that the maximum penalty permissible under the provision is ₹ 1,000/-. The fact is that the question was never required to be decided in any of these- cases and could not, therefore, have been, or be treated as, decided by this Court. In Leo Boy Frey v. The Superintendent, 'District JailAmritsar [1958] S.C.R. 822, 827, this Court observed that No question I has been raised as to the maximum amount of penalty that can be imposed under s. 167(8) and we are not called upon to express any opinion on that point. This would show that this Court had taken notice of the fact that the High Courts were interpreting the judgment in F. N. Roy's case [1957]S.C.R. 1151 and the other case,% in a manner which was not intended and desired to strike a note of warning against the misconception. None of these cases is authority for the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word or between the two clauses would then spread the negative influence over the clause following it. This rule of grammar is not in dispute. In such a case the conditions of both the clauses must be fulfilled and the result would be that the penalty that can be imposed can never exceed ₹ 1,000/-. The question then really comes to this: Is the sentence before us a negative or an affirmative one ? It seems to us that the sentence is an affirmative sentence. The substance of the sentence is that a certain, person shall be liable to a penalty. That is a positive concept. The sentence is therefore not negative in its import. The learned counsel for the petitioner and the appellant said that the sentence began with a negative, namely,the words not exceeding and therefore it is a negative sentence and the word or occurring later in the sentence must spread the negative influence over that part of the sentence which follows it. This contention is clearly fallacious. The word not refers only to the word exceeding following it and the two together constitute a qualifying clause limiting the amount of the penalty that can be imposed. There is no negative sense to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has a different sense from that which it has when it is preceded by an affirmative provision., For instance, suppose an order that 'you must have your house either drained or ventilated. The word I or' would be clearly used in the alternative. Suppose again, the order was that I you must have your house drained or ventilated, that conveys the idea to my mind that you must have your house either drained or ventilated. But supposing the order were that 'you must not have your house undrained or unventilated.' The second negative words are coupled by the word I or', and the nega- tive in the preceding sentence governs both. In a. 98 there is a negative preceding a sentence no existing road' shall be formed. It is obvious that the sentence before us contains, no negative or prohibitory provision. It only contains a positive provision empowering one of the two alternative penalties laid down to be imposed. The fact that the penalties are directed not to exceed a certain limit does not change the sentence from affirmative to negative; the sentence remains permissive and does not become prohibitory. It follows that any of the. alternative penalties provided m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of the goods with which the offence is concerned, exceeds ₹ 1,000/-. Then that would be larger of the two penalties that can be awarded in that case and the present argument does not establish that this larger penalty cannot be imposed. Which is the maximum in a particular case, would depend on the value of the goods. Further, there seems to us to be good reason why two alternative penalties were provided. Where the value of the goods is very large, it may be that a penalty of ₹ 1,000 /- would be too inadequate a punishment. Again, it may be that three times the value of the goods may be 'Much smaller than ₹ 1,000/-. It may conceivably be necessary in such a case by reason, for example, of the person concerned having on earlier occasions committed the same offence or having shown a determined state of mind to commit the offence, to inflict a penalty higher than three times that value. Then it may also happen that the value of the thing concerned may, in conceivable circumstances, not be properly ascertainable. In such a case the alternative penalty up to ₹ 1,000/- has to be adopted if any penalty at all is to be awarded. The learned counsel then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... package. In these the amount of the penalty might easily exceed ₹ 1,000/-: see items 17, 36, 49, 56. There is another group of items which permits the imposition of penalty calculated on the value of the goods, and such penalty may, of course, be far in excess of ₹ 1,000/- : see items 58, 59 and 73. It would indeed be strange if a statute like the Sea Customs Act, on the proper working of which the finances and commerce of the country largely depend, considered a pecuniary penalty of ₹ 1,000/- enough for a breach of any of its provisions. We feel no doubt that the Act did not intend this. It was also argued that a penal statute like the one before us, must be construed in favour of a citizen and therefore item 8 should be construed as permitting the imposition of a penalty up to ₹ 1,000/- and no more. This rule of construction of a penal statute is applicable only where the meaning of the statute is not clear. This is not the case with the present statute. The appellant and the petitioner can therefore derive no assistance from this rule. The learned counsel for the petitioner and the appellant also said that the Sea Customs Act was modelled on 39 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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