TMI Blog1974 (4) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... cused No. 3 was at the wheel of the car and accused No. 4 was sitting by his side. On searching the car, the officers found three gunny bags containing in all 51 pieces of silver bars weighing about 92-556 Kg. These bags were lying on the foot-board of the rear seat of the car. The Officers took charge of these bags. In the presence of the panchas, who had witnessed the search of the car, the premises were searched. The premises consisted of two rooms. In the first room the Officers saw 67 gunny bags stacked together. Each gunny bag bore the marking 'EMS Dubai'. The gunny bags contained red coloured saw dust. On detailed examination, the Officers noticed that the 67 bags contained 406 silver bars collectively weighing 627-166 Kgs. These were concealed in the midst of the saw dust. In the second room similar 58 bags were stored. But they had no markings. The bags contained similar red coloured saw dust. But no silver was secreted inside the bags. The Officers came across gunny cloth hand-bags lying near the gunny bags. These cloth hand-bags were similar to the bags in the Ambassador car. These gunny cloth hand-bags contained 156 silver bars collectively weighing 257.117 Kgs. All the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until the date of the search of the said premises some goods were exported to the Middle East countries, from the said premises. Accused Nos. 1 and 2 had attended to the despatch work of those consignments . 3.The complainant says that all the accused i.e. accused Nos. 1 to 7 were concerned in the illegal transport and storage of the said silver in the said godown in contravention of the provisions of Sections 11J, 11K and 11-L of the Customs Act, 1962. This was done with a view to facilitate the export of silver outside India. The silver bars weighing 976,839 Kgs. were valued at Rs. 4,88,500/- at the local market rate. It was also mentioned in the complaint that by Ministry of Finance Notification No. G.S.R. 37 dated 3-1-1969 the Central Government had declared silver bullion to be specified goods under Section 11-I of the Customs Act of 1962. By Ministry of Finance Notification G.S.R. 38 dated 3-1-1969 the Central Government had declared, inter alia, that the inland area would be fifty kilometres in width from the coast of India falling within the territory of the State of Maharashtra as a specified area for the purposes of Chapter IV-B of the Customs Act, 1962 (as amended). I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exported. It would only mean that there is a likelihood of these goods being exported in violation of the Customs Act. To prevent the likelihood the provisions of Chapter IV-B are inserted in the Act by amendment. This is done to enable the Customs Officers to have control over the goods. He says that the wording of section 11-I of the Act will also indicate that special measures for the purpose of checking the illegal export or facilitating the detection of goods which are likely to be illegally exported are to be taken when the Central Government by notification in the Official Gazette specifies the goods of such class or description. In his view the porvision of Section 11-J cannot be considered as a prohibition, as that would lead to an unreasonable prosecution and punishment of persons only because there is a likelihood of exporting the goods. This is as good as punishing a person for a certain intention and that would be unreasonable. This will not even amount to a preparation to commit an offence. He proceeded to examine in detail the various provisions contained in Chapter IV-B of the Act. Then he concluded that tor non-compliance of the regulations, the only consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bearing on illegal exportation were never intended by the Legislature to be the subject-matter of prosecution. This legislature intent is evident from the omission of section 113 from Section 135(a). By contrast section 135(b) expressly refers to section 111 of the Act. Mr. Porus Menta and the other counsel support this view of the learned Magistrate. 8.If an attempt is to be made to understand the mind of the Legislature, then the omission appears to be for different reasons. The law-makers at all times have considered illegal importation a more serious evil than illegal exportation. There are practical considerations which may explain the different legislative approach. Illegally imported goods are readily absorbed in the trade and commerce throughout the country and will have lasting adverse effect on the economy. Besides it is easier to detect and control illegal exportation at places like Customs port, specified routes, vicinity of land frontier, coast, bay, gulf, breek or tidal river mentioned in section 113 of the Act. For curbing illegal exportation even preliminary activities which may be otherwise innocent from the point of view of exportation are now controlled by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other controlling measures which cannot come within the definition of prohibition mentioned in Section 135(a) of the Act. The expression 'prohibition' is not defined in the Act. The ordinary meaning of the expression 'prohibition' will certainly include any restriction which may be partial or total. Mr. Khandalwala says that there is no justification for restricting the connotation of the word 'prohibition' in any manner. He tried to derive some support from certain remarks of the word 'prohibition' in any manner. He tried to derive some support from certain remarks of the Supreme Court in (Sheikh Mohamed Omer v. Collector of Customs, Calcutta) [1983 (13) E.L.T. 1439 (S.C.) = A.I.R. 1971 S.C. 293]. My attention was drawn to the following observations of Hegde, J. at P. 295 :- ''According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947, as that statue deals with 'restrictions or otherwise controlling' separately from prohibitions. We are not impressed with this argument. What clause (d) of section 111 says is that any goods which are imported or attempted to be imported contrary to 'any prohibition impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating prevention or detection of illegal export of goods. They cannot be considered to be mere regulations, which will entail confiscation of the goods under Section 113(L) of the Act. When Chapter IV-B was inserted Section 113 was suitably amended by adding the following item 'L' "any specified goods in relation to which any provisions of Chapter IV-B or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened." The word 'contravened' suggests that the provisions of Chapter IV-B in fact contain prohibitions. Apart from the wording of the various sections in the Chapter, the consequential amendment of section 113 will also support the view that the Chapter contains prohibitions The learned Magistrate was not right when he held that all these provisions contained in the Chapter including sections 11J, 11K and 11-L are not prohibitions but are mere regulations. 13.If these are prohibitions, then the next question to be considered is whether the mere contravention of these provisions will amount to the commission of an offence punishable under Section 135(a) of the Customs Act. As set out above, Section 135 (a) refers to three distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r certain other reasons which follow, I do not propose to express any opinion on this point. But I must mention one or two submissions made by counsel on either side regarding the decision of Hajarnavis, J. 16.Mr. Khandalwala submitted that the learned judge was not right when he held that the words "such goods" must in all cases include goods, which are chargeable to duty or which are dutiable. Mr. Mehta pointed out that the learned Judge was driven to this conclusion as any other interpretation would lead to certain absurd results pointed out by the learned Judge. Prohibitions under any other law for the time being in force, if so interpreted will include prohibitions which are not germane to the provisions of the Customs Act, 1962. Even possession of arms without a licence under the Indian Arms Act or possession of liquor without a permit under the Bombay Prohibition Act would be prohibitions in respect of goods within the meaning of section 135(a) of the Customs Act. 17.In the present case the short question to be considered is whether the learned Chief Presidency Magistrate was justified in discharging the accused particularly on the ground that they are responsible only f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force, there is a further controversy which needs to be resolved. 21.According to Mr. Khandalwala, the words 'any other law for the time being in force' will have lo be considered as law which is analogous to the Customs Act. Any literal interpretation of these words will lead to absurd results. He referred to the recognised cannas (sic) of construction of statutes. He relied on the following head-note of the case (Bengal Immunity Co. Ltd. v. State of Bihar) A.I.R. 1955 S.C. 661. "(g) Interpretation of statutes—Things to be considered. (Per S. R. Das, Ag. C. J., Bose, Bhagwati Iman, JJ.) : "For the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered. First, what was the common law before the making of the Act : Second, what was the mischief and defect for which the common law did not provide; third, what remedy the Parliament has resolved and appointed to cure the disease and fourth, the true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress subtle inventions and evasions for continuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence." 24.If the last words in Section 135 (a) are literally construed, then any other law for to time being in force with respect to such goods may include various other prohibitions under various other laws which may have no connection with the aims and objects of the Customs Act. It cannot be suggested that the Legislature ever intended that the contravention of all the prohibitions under all the laws in the country should be made punishable under section 135(a) of the Customs Act. In view of the recognised cannons of construction, a departure will have to be made in the present case from the literal meaning of the words 'any other law for the time being in force.' Only those laws which are germane to the main objects and purposes of the Customs Act or the laws which were in the mind of the Legislature when these words were enacted will have to be considered. If instances are to be given then reference may be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed as preliminary or preparatory acts. This may not be preparatory to export of goods. But if the definition of smuggled goods is considered with the title of section 113 of the Act, then the goods, which are the subject matter of contravention of the prohibition within the meaning of Section 113(L) of the Act will be smuggled goods. Preparation by itself is not a criminal offence unless there is specific statutory provision to the effect. Till 1969 or even thereafter preparatory acts per-se were not made punishable under any of the provisions of the Act. The various prohibitions contained in Chapter IV-B of the Act cannot be considered as prohibitions in respect of acts which are preparatory to export. Even the contravention of such prohibitions will only be subject matter of adjudication for confiscation under the provisions of the Act. Although the definition of "smuggled goods" is now artificially extended to goods, which are not properly the subject-matter of exportation, the prosecution will have to prove that the person charged with the commission of an offence under Section 135 of the Act is knowingly concerned himself in any fraudulent evasion or attempt at evasion of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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