TMI Blog1970 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... igation has been pending since a long time it would meet the ends of justice if we impose merely fine and do not sentence anyone to imprisonment. The final result is that the order of the High Court is set aside and accused Nos. 1, 2, 3 and 5 are convicted under Section 120-B, I.P.C. and Section 5 of the Imports & Exports Act, 1947 read with Clause 5 of the Import Control Order 1955 and each of the accused Nos. 2, 3 and 5 are sentence to pay a fine of ₹ 2,000/- under each count. Accused No. 1 who is the principal culprit and who was sentenced by the trial court to imprisonment and fine is sentenced to pay a fine of ₹ 5,000/- under each count. In default of payment of fine the defaulting accused persons will undergo rigorous imprisonment for three months. The Company is convicted only under Section 5 of the Imports & Exports Act read with Clause 5 of the Import Control Order and sentenced to pay a fine of ₹ 2,000/-. - 178 of 1967 - - - Dated:- 29-9-1970 - V. Bhargava and I.D. Dua, JJ. [Judgment per : I.D. Dua, J.]. - A complaint under Section 6 of the Imports and Exports (Control) Act, 1947 dated 24th February, 1964 was presented by the Chief Controller o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Ex. P-12). The number of this licence was A-759626/60/AU/CCI/HQ and it was dated September 19, 1960. Later, on the request of accused No. 2 on behalf of the Company, the value of this licence was raised to Rs. 3 lakhs on the recommendation of the Press Registrar of India. The licence was returned to the Company on December 16, 1960. The original period of validity of the licence having expired on June 19, 1961 accused No. 2 requested the Licensing Authority on behalf of the Company to extend the period on the ground that the machinery could not be fixed up by the Company's Directors. Under the orders of the Controller incharge of the newsprint sale, the validity of the licence was extended upto March 19, 1962. On July 2, 1961 accused No. 1 sought permission of the Licensing Authority on behalf of the Company to import two secondhand rotary presses instead of one already permitted within the licence valued of Rs. 3 lakhs under the import licence Ex. P/12 on the ground that one more printing press was required for the proposed office at Madurai (Ex. P/15). After securing further necessary information about the machinery proposed to be imported the Chief Controller approved the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst quarter of 1961 he learnt that Dr. Thomas was desirous of securing a secondhand rotary printing press. Sometime in April or May, 1961 accused Nos. 2 and 5 visited Kottayam and on meeting Dr. Thomas they told him that accused No. 1 was going to have an import licence for two rotary printing presses but he needed only one, with the result that one R. Hoe Co. eight-page rotary printing press would be available for sale. After some correspondence and discussion between accused No. 5 and C.J. Mani and Dr. Thomas and after a personal meeting between Dr. Thomas and accused No. 1 (at the instance of accused No. 5) the terms of sale of rotary press to Dr. Thomas were finally settled on July 17, 1961. The price was settled at Rs. 2 lakhs ex-godown, Madras. The same day Dr. Thomas paid to accused No. 5 Rs. 15,000 by means of a cheque by way of advance money. Accused No. 5 issued a stamped receipt which was also signed by accused No. 1. On July 19, 1961 the photo prints of the press offered for sale were forwarded by accused No. 5 to Dr. Thomas. On the reverse of these prints were the rubber stamp impression of the Company. On August 2, 1961 a further sum of Rs. 25,000 was paid by Dr. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s imported by accused No. 1 on behalf of the Company was found at its (the Company's) premises. The amount received by cheques and drafts from Dr. Thomas were credited to the account of Messrs Mohan Ram Press of which Smt. Gomati Devi, wife of accused No. 1, was the sole proprietress. On these broad averments it was prayed in the complaint that accused Nos. 1 to 3 and 5 and 6 be proceeded against for offences under Section 120-B, I.P.C. read with Section 5 of Imports and Exports (Control) Act, 1947 and also for an offence under Section 5 of the said Act. The Company was alleged to be guilty under Section 5 of the said Act read with Clause (5). Sub-clause (iv) of Imports (Control) Order, 1955. 3.The Chief Presidency Magistrate who tried the complaint acquitted accused No. 6 holding that he had nothing to do with the impugned transaction but convicted the rest. The Company was sentenced to fine only and so were accused Nos. 2, 3 and 5; three individual accused persons were directed, in case of default to undergo rigorous imprisonment for three months on each count. Leniency was shown to accused Nos. 2, 3 and 5 because they had acted under the directions given by accused No. 1 who w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td., Kanpur v. Bhagwandass - (1965) (2) SCR 265. There the appellant had secured from this Court ex parte special leave to appeal under Article 136 of the Constitution without first moving the High Court for the necessary certificate and this Court, on objection by the respondent, revoked the special leave as being in contravention of O. 13, r. 2 of the Supreme Court Rules. The respondents' contention before us is that the Public Prosecutor and not the Deputy Chief Controller of Imports Exports had applied to the High Court for the necessary certificate and, therefore, the Deputy Chief Controller has no locus standi to apply for special leave. Having been granted on an incompetent petition the special leave deserves to be revoked, argues Shri Gokhale. We are unable to uphold this objection. The complaint was filed in the court of the Chief Presidency Magistrate by the Deputy Chief Controller of Imports and Exports under Section 6 of the Imports and Exports (Control) Act, 1947. It is not disputed that this officer was, as stated in Para 1 of the complaint, duly authorised to make the complaint within the contemplation of Section 6. In the appeals filed by the accused against their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act. Clause (3) of this Order provides for restriction on import of certain goods in these words : "Save as otherwise provided in this Order, no person shall import any goods of the description specified in Schedule I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II." Clause 7 of this Order empowers, the Licensing Authority suo motu or on application by the licensee to amend the licences granted under this Order in such manner as may be necessary to make them conform to the aforesaid Act or this Order or any other law in force or to rectify any error or omission in the licence : on the licensee's request, however, the licence may be amended in any manner consonant with the Import and Export Control Regulations. Item No. 67(1) in Schedule I, Part V, which appears to us to be relevant for this case read : "Printing and Lithographic material, namely, presses, lithographic plates, composing sticks, chases, imposing tables, lithographic stones, stero-blocks, wood blocks, half-tone blocks, electro-type blocks, process blocks, roller moulds, roller frames and stocks, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and export legislation and of the Import Control Policy formulated by the Government leaves no doubt that the argument is unfounded. Clause (c) reads : "(c) The goods will be utilised only for consumption as raw materials or accessories in the licence holders' factory and that no portion thereof will be sold to or be permitted to be utilised by any other party or pledged with any financier other than Banks authorised to deal in foreign exchange provided that particulars of goods so pledged are reported in advance to the licensing authority." The respondents have sought assistance for their argument principally from the dictionary meaning of the words "consumption", "raw material" and "utilised" used in this clause. "Consumption", it is argued, conveys the idea of destruction of the commodity consumed and "raw material" according to this submission, must be "utilised" in this sense. In our opinion dictionary meanings, however helpful in understanding the general sense of the words cannot control where the scheme of the statute of the instrument considered as a whole clearly conveys a somewhat different shade of meaning. It is not always a safe way to construe a statute or a cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of licences for different classes of goods, the validity and use of import licences and other similar matters. In the Handbook of 1956, which is the relevant Handbook for this case which relates to the licence originally granted in 1960, Schedule I commonly known as the ITC Schedule serves boardly to classify the articles that enter into the import trade. Part V of the Schedule covers industrial requirements and it is in this part that the printing and lithographic material including and other items are entered at Sl. No. 67(1), already noticed by us. This Handbook emphasises the importance of correct classification with reference to the serial number and part of the ITC Schedule. In Appendix III of the Handbook application forms are prescribed. From B is the one which was used by the respondents. This form is meant for the import of goods by actual users not borne on the registers maintained by the Industrial Advisers, Ministry of Commerce and Industry, when licence is sought for import of goods (other than those falling under the capital goods licensing procedure) vide : Government of India, Ministry of Commerce and Industry Order No. 17/55, dated 7th December, 1955. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported goods were required to meet the increasing demand of circulation of their newspaper. This indeed was the sole ground for importing the press. The amended licence was also secured by the respondents so as to enable them to import two printing presses on the ground that one press was required for their Madurai office as well. Licence for both the printing presses was obtained for actual use by them for their newspapers. Had they not complied with the procedure meant for the import of goods by actual users, they might not have secured the necessary licence. Having secured a licence expressly for the import of goods for their use they may not be permitted to ignore the condition of actual user on the plea (which by no means seems to be virtuous) that Clause (c) is inapplicable to actual users. 12.The respondents on their own showing clearly knew their disability under the condition imposed by Clause (c) of the licence. Knowing full well the condition prohibiting the transfer of the press to other persons the respondents as the correspondence to which our attention has been drawn shows were actually negotiating for the sale of one of the presses during the period when the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with the object and purpose of its resale the breach of the licence was, therefore, fully intended and designed. The respondents are guilty of malpractices and of abuse of the import licence with the object of making money. We, however, think that in view of the fact that this litigation has been pending since a long time it would meet the ends of justice if we impose merely fine and do not sentence anyone to imprisonment. The final result is that the order of the High Court is set aside and accused Nos. 1, 2, 3 and 5 are convicted under Section 120-B, I.P.C. and Section 5 of the Imports Exports Act, 1947 read with Clause 5 of the Import Control Order 1955 and each of the accused Nos. 2, 3 and 5 are sentence to pay a fine of Rs. 2,000/- under each count. Accused No. 1 who is the principal culprit and who was sentenced by the trial court to imprisonment and fine is sentenced to pay a fine of Rs. 5,000/- under each count. In default of payment of fine the defaulting accused persons will undergo rigorous imprisonment for three months. The Company is convicted only under Section 5 of the Imports Exports Act read with Clause 5 of the Import Control Order and sentenced to pay a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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