TMI Blog1963 (2) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The fact that Warden & Co., did pay over ₹ 5,000/- to the Association indicates that the goods did fetch a price higher than the price paid for their importation. The case appears to be a deliberate case of securing import licence with a view to mis-apply the goods imported. Appeal Dismissed - 168 of 1961 - - - Dated:- 7-2-1963 - S.J. Imam, K. Subba Rao, Raghubar Dayal and J.R. Mudholkar, JJ. [Judgment per : Raghubar Dayal, J.]. - This appeal, by special leave, is against the order of the High Court of Bombay allowing the State appeal and convicting the appellant of the offence under Section 5 of the Imports and Exports (Control) Act, 1947, hereinafter called the Act, for having contravened the Imports (Control) Order, 1955, hereinafter called the Order, and sentencing him to three months' rigorous imprisonment and a fine of Rs. 2,000/-. 2.The appellant was the Chairman of the Malegaon Powerloom Sadi Manufacturer's Cooperative Association Ltd., hereinafter called the Association. There were six other members of the Association. All the members were powerloom weavers. The appellant, as Chairman of the Association, applied for and obtained the licence dated Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The Order does not provide for the imposition of the condition in the licence that the licensee is not to sell the imported goods. (iii) The contravention of any condition of the licence does not amount to a contravention of the provisions of the Act or an Order made thereunder and therefore is not punishable under Section 5 of the Act. (iv) The Association was the licensee and therefore any contravention of the condition of the licence would be committed by Association and not by its Chairman and consequently it would be the Association which should have been tried for the alleged offence under Section 5 of the Act and not the Chairman. (v) The possession of the goods had not passed to the Association and therefore the Association could not be guilty of the offence. (vi) The appellant has no mens rea to commit the offence and therefore could not be guilty of the offence. (vii) Lastly, the sentence is severe. 5.The relevant provisions of the Act and the Order to which reference is necessary may now be quoted. The preamble of the Act reads : "An act to continue for a limited period powers to prohibit or control imports and exports. Whereas it is expedient to continue for a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter. It related to the powers under the Bombay Prohibition Act, 1949. The contention was that the Provincial Legislature could not make a law regarding production, manufacture, possession, transport, purchase and sale of intoxicating liquor in the exercise of the powers under Entry 31 of List II, Seventh Schedule to the Government of India Act, 1935, as the word `import' used in Entry 19 of List I of the same Schedule did not end with mere landing of the goods on the shore or their arrival in the Customs House but did imply that the imported goods must reach the hands of the importer and he should be able to possess them. It was argued that the impugned Act dealt with import of goods and therefore encroached upon the legislative powers of the Central Legislature. It was in this context and in view of the principles applicable to the construing of the provisions laying down the legislative limits of different legislature that it was said at p. 700. "Under the provisions of the Government of India Act, a limited meaning must be given to the word `import' in entry 19 of List I in order to give effect to the very general words used in entry 31 of List II." This observation can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having those goods in the country and that again, would depend on the use to be made of those goods. It follows therefore that the persons licensed to import goods up to a certain quantity should be amenable to the orders of the licensing authority with respect to the way in which those goods are to be utilised. If the licensing authority has no such power, its control over the import cannot be effective. It may have considered it necessary to have goods imported for a particular purpose. If it cannot control their utilisation for that purpose, the imported goods, after import, can be diverted to different uses, defeating thereby the very purpose for which the import was allowed and power had been conferred on the Central Government to control imports. It is therefore not possible to restrict the scope of the provision about the control of import to the stage of importing of the goods at the frontiers of the country. Their content is much wider and extends to every stage at which the Government feels it necessary to see that the imported goods are properly utilised for the purpose for which their import was considered necessary in the interests of the country. 11.We are therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to impose the condition that the imported goods be not sold to any person and thus to affect the ordinary rights of the importer. 13.The third contention too has no force. Sub-clause (4) of clause 5 provides that the licensee shall comply with all conditions imposed or deemed to be imposed under that clause. The contravention of any condition of a licence thus amounts to the contravention of the provisions of sub-clause (4) of clause 5 of the Order and consequently to the contravention of the Order made under the Act. It follows that if the Association, the licensee, does not comply with the conditions of the licence about use of the goods to be imported, it contravenes the Order made under the Act and makes itself liable to punishment under Section 5 of the Act. 14.The cases reported as C.T.A. Pillai v. H.P. Lohia - AIR 1957 Cal. 83 and East India Commercial Co. v. Collector of Customs - 1983 (13) E.L.T. 1342 (S.C.) = (1963) 3 SCR 338, holding that the infringement of a condition in the licence not to sell goods imported to third parties is not an infringement of the Order, are not of help as they deal with the contravention of the conditions of the licence granted under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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