TMI Blog1959 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned decision. These facts are as follows : - 3.Prior to April 10, 1958 one Shankarlal was in possession of two slabs of gold which were smuggled into India. It was arranged on behalf of Shankarlal that these two slabs of gold should be melted at the shop of the Ist petitioner who carried on business of running a metal melting workshop near Mumbadevi Post Office at Bombay. It was arranged that the Ist petitioner should send his employee to take delivery of these two slabs of gold at the shop of Messrs. B. Mohanlal and Co. at Jambli Mohalla. In accordance with the arangement the Ist petitioner deputed the 2nd petitioner to receive these two slabs of gold. One Shivlal who is known to both Shankarlal and the petitioners at the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggled gold and that for each such trip he was being paid Rs. 10 by Shankarlal or by Shivlal. He also admitted that he was aware that the gold in question used to be smuggled gold. 4.On these facts the respondent No. 1 has made a finding that the petitioners were liable to pay penalty of fine as mentioned in section 167(8) of the Sea Customs Act. 5.In the petition the petitioners have raised several contentions but Mr. Dalal for the petitioners informed me that he was raising only two contentions at the hearing, viz. that on the facts as found by the 1st respondent in his decision he had no jurisdiction to levy any penalty against the petitioners and that accordingly the order was altogether without jurisdiction. For that contention h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether this decision that the petitioners were the persons concerned in such an offence is in accordance with the provisions of section 167(8). The relevant parts of the notification and the provisions of section 167(8) run as follows :- Notification :- "…… The Central Government is pleased to direct that except with the general or special permission of the Reserve Bank, no person shall bring or send into India from any place outside India (a) any gold coin, gold bullion, gold sheets or gold ingot, whether refined or not; or ……". 167(8). If any goods, the importation ….. of which is for the time being prohibited or restricted ……. be imported into …… India contrary to such prohibion or restriction; or if any attempt be made so to impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed on board of any vessel within the limits of the port. That item is indicative of the fact that the offence relates to the time before completion of importation of the goods into India. It is apparent to me that the set of importation would be completed at the period of time when the goods cross the customs barrier. The act of importation contrary to restrictions and prohibitions would be complete once the customs barriers are crossed. It is at that moment of time that the restriction and prohibition are violated. Whatever is transacted with reference to the goods subsequent to that period of time would be dealing with smuggled goods and/or goods imported contrary to prohibition and restriction. That dealing cannot be an act of importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal nature and such provision in a Statute must be construed strictly. Apart from all other considerations I cannot take the view that acts and attempts to destroy evidence that the smuggled goods are smuggled should be considered as part and parcel of the transaction of smuggling. In my view the offence is complete as I have already mentioned at the period of time when the goods cross the customs barrier contrary to the restriction and prohibition imposed. Whatever is done with the goods subsequent to that period of time cannot form part of the offence as mentioned in section 167(8). In that view of the matter I must hold that penalty that is levied against the petitioners was without any jurisdiction and that the same must be set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travenes any of the provisions of this Act" occurring in Section 23 of the Foreign Exchange Act. A person may be concerned in the importation of smuggled gold, without being a smuggler himself or without himself contravening any of the provisions of the Foreign Exchange Act. In this sense, the scope of Section 167(8), Sea Customs Act is different from that of Section 23 of the Foreign Exchange Act." 12.Now these observations certainly are indicative of the fact that the individual bringing into India gold or other goods contrary to prohibition or restriction imposed is not the only person covered by the phrase ''person concerned" as contained in third column of Section 167(8). As I have already indicated a purchaser who arranges to have t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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