9911796707
TMI Blog1971 (4) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 criminal conspiracy, some of the other parties being M/s O & K Heydegger and M/s Winter Optics in West Germany. The conspiracy was stated to have been entered into for the purpose of acquiring possession of contraband goods such as spectacle frames, welding glasses etc. The import of spectacle frames was totally prohibited and the import of welding glasses was greatly restricted. It was alleged that in pursuance of the conspiracy the appellant imported three consignments by three different ships; the first one arrived by s.s. Bialystock and the other two came on September 22, 1960 and March 5, 1960 by two other ships s.s. Fraunfels and s.s. Laurensherk. Out of the four cases which arrived in the first consignment two cases contained contraband goods. As regards the other two consignments one case in each consignment contained goods the import of which was prohibited. The modus operandi was highl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 offence relating to smuggling of goods punishable under Item 81 of the Schedule to Section 167 except upon complaint in writing made by the Chief Customs Officer or any other officer of customs not lower in rank than an Assistant Collector of Customs. Items 8 and 81 of Section 167 to the extent they are material are as follows :- Offences Section of this Act which offence has reference Penalties (1) (2) (3) 8. If any goods the importation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction; or Such goods shall be liable to confiscation; and Such person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years, or to fine, or to both." If any attempt be made so to import or export any such goods; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 court was a sentence of imprisonment for a term which could extend to two years or with fine or with both. The argument that the section laid down no principles for determining when a person concerned should be proceeded against under Section 23(1)(a) and when under Section 23(1)(b) and that it was left to the arbitrary discretion of the Director of Enforcement to decide which proceeding should be taken was repelled by relying on the provisions of Section 23D. Under that section the Director of Enforcement was first to hold an inquiry for the purpose of adjudging whether there had been contravention under Section 23(1)(a) and if he was satisfied that the person had committed a contravention he could impose a penalty provided thereby. According to the proviso, however, if at any stage of the enquiry he was of the opinion that having regard to the circumstances of the case the penalty would not be adequate he was bound to make a complaint in writing to the court instead of impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conditions obtaining after the enforcement of our Constitution which guarantees fundamental rights including Article 14. They are bound to examine the facts of a particular case and then decide whether prosecution should be launched or not. 10. Even if any policy or guidelines have to be found they can certainly be discovered from the object, purpose and scheme of the Act. The preamble reads : "Whereas it is expedient to consolidate and amend the law relating to the levy of Sea Customs duties it is enacted as follows". Chapter IV deals with prohibitions and restrictions on importation and exportation and Chapter V, with levy of and exemption from customs duties. Elaborate provisions have been made to ensure that goods do not escape the levy of duty and that the prohibition and restriction which have been imposed on importation and exportation are rigidly enforced. Chapter XVI provides for offences and penalties and Section 167 therein is an omnibus section which contains 81 items dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 different parties and it was open to it to refer the industrial dispute to a Board for promoting the settlement or a Court of Inquiry or the Industrial Tribunal and that there were no guidelines as to which class of cases were to be referred to one or the other. It was pointed out by this court that the purpose sought to be achieved by the said Act had been well defined in the preamble to it. The provisions sufficiently indicated the purpose and scope of the enactment as also the industrial dispute which might arise between the employers and their workmen which had to be referred for settlement to the various authorities under the Industrial Disputes Act. The achievement of one or other objects in view by such reference to the Board of Conciliation or Court of Enquiry or Industrial Tribunal must guide and control the exercise of the discretion and there was no question of the Government being in a position to discriminate between one party and the other. In our judgment the ratio of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
