TMI Blog1971 (4) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr. Justice A.N. Grover and Mr. Justice P. Jaganmohan Reddy [Judgment per : Grover, J]. - This is an appeal by certificate from a judgment of the Bombay High Court upholding the conviction and sentence of the appellant under Section 167(81) of the Sea Customs Act, 1878, hereinafter called the `Act' and Section 120B of the Indian Penal Code read with the aforesaid section and Section 5 of the Imports and Exports (Control) Act, 1947. The main point for determination is whether Section 187A of the Act is unconstitutional on the ground that it is violative of Article 14 of the Constitution. The facts to the extent they are necessary may be set out. 2. The appellant carried on business in the name of M/s Jaihind Ex-Import Corporation as its sole proprietor. He also carried on business as a partner in another firm run under the name and style of Alran Optics (India) Corporation. The offices of the two firms were situate at New Charni Road, Bombay. According to the case of the prosecution the appellant with the object of defrauding the Government of customs duty payable on certain goods and with a view to evading prohibition imposed on the import of such goods was a party to cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een contended inter alia that the offences of smuggling of goods and in particular the acts with which the appellant has been charged could be dealt with by the Customs authorities by proceeding under Section 167(8) of the Act as well as in the alternative or in addition by instituting a prosecution in a criminal court by filing a complaint under Section 187A read with Section 167(81) of the Act. The former can result only in the imposition of a fiscal penalty not exceeding three times the value of the goods and confiscation of the goods themselves. The latter can result in a sentence of imprisonment upto two years or fine or both. Thus it has been left to the unfettered and unguided discretion of the Customs authorities to proceed against certain persons under Section 167(8) and others under Section 167(81) or under both the sections. In a large number of cases no criminal prosecutions were filed at all and proceedings under Section 167(8) alone were taken which resulted in imposition of penalties. This leads to discrimination and has actually resulted in discrimination. 5. We may now refer to Section 187A of the Act. It provides that no court shall take cognizance of any offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting that the power to give sanction or to make a complaint without any guidelines would itself be hit by Article 14. 6. Our attention has been invited to Rayala Corporation (P) Ltd. v. Director of Enforcement, New Delhi, (1970) 1 SCR 39, in which one of the points canvassed was that Section 23(1)(b) of the Foreign Exchange Regulation Act, 1947 as amended by the Foreign Exchange Regulation (Amendment) Act, 1957 was violative of Article 14 of the Constitution inasmuch as it provided for punishment severer than the punishment or penalty, provided for the same acts under Section 23(1)(a) of that Act. It was pointed out in the judgment of this Court that two different proceedings could be taken for contravention of certain provisions of the aforesaid Act. Under Section 23(1)(a) a person was liable to a penalty only and that penalty could not exceed three times the value of foreign exchange in respect of which contravention had taken place or Rs. 5,000/- whichever was more. That penalty could be imposed by adjudication made by the Director of Enforcement in the manner provided in Section 23D of the said Act. The alternative punishment provided by Section 23(1)(b) upon conviction by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raraka v. The King, AIR 1948 PC 82. Under clause 23 of the Cotton Cloth and Yarn Control Order, 1943 no prosecution for contravention of any of the provisions of the Order could be instituted without the previous sanction of the Provincial Government etc. It was laid down that in order to comply with the provisions of Clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. Counsel for the appellant has relied a great deal on the following observations of their Lordships : "They can refuse sanction on any ground which commends itself to them, for example that on political or economic grounds they regard a prosecution as inexpedient." 9. It is argued that if the same wide latitude is given to the Customs Officers mentioned in Section 187A they can import even political or economic considerations for not filing a complaint although a person is liable to criminal prosecution for an offence under Section 167(81). We consider it unnecessary to pronounce, with respect, on the correctness or otherwise of the above observations. We have no doubt that the authorities concerned are expected to take into account the changed conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government gives sanction against one public servant but declines to do so against another, then the Government servant whom sanction is given may possibly complain of discrimination. But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant. It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official." The officer who is authorised to make the complaint under Section 187A of the Act is the Chief Customs Officer or any other officer of customs not lower in rank than the Assistant Collector of Customs authorised by the Chief Customs Officer. These officers cannot be regarded to be minor officials and they hold responsible positions in the hierarchy of customs authorities, in Niemla Textiles Finishing Mills Ltd. v. The 2nd Punjab Tribunal, 1957 SCR 335 the validity of the Industrial Disputes Act, 1947 including Section 10 was challenged, inter alia, on the ground that the appropriate Government had unregulated and arbitrary power to discriminate between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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