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Thangdawla Lushai and anr. Vs. Assistant Collector, Central Excise and Land Customs and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantThangdawla Lushai and anr.
RespondentAssistant Collector, Central Excise and Land Customs and anr.
Prior history
T.N.R. Tirumalpad, J.C.
1. All the 3 petitioners were convicted under Section 167(81) of the Sea Customs Act, under Section 23(1A) of the foreign Exchange Regulation Act and under Section 7(3) of the Land customs Act by the Additional District Magistrate in a separate cases and sentenced to 18 months' R.I., one year's R.I. and 3 months' R.I. respectively. The petitioners in Criminal Revision Cases Nos. So and 37 of 1902, were in addition convicted under Section 5 of the imports and Exports (Co
Excerpt:
.....customs act including section 187a have been made applicable for the purpose of levy of duties of land customs under the land customs act in like manner as they apply for the purpose of the levy of duties of customs on goods imported or exported by sea. 13. we may here also refer to section 7(2) of the land customs act, which provides that where any dutiable goods or any goods in respect of which a notification under section 19 of the sea customs act, prohibiting the bringing or taking by land or goods into india or any specified part thereof has been issued, as passed by land out of any foreign territory, the land customs officer may make a complaint to a magistrate having jurisdiction, in the matters before us, the cases originated when the land customs officer seized these dutiable..........act, under section 23(1a) of the foreign exchange regulation act and under section 7(3) of the land customs act by the additional district magistrate in a separate cases and sentenced to 18 months' r.i., one year's r.i. and 3 months' r.i. respectively. the petitioners in criminal revision cases nos. so and 37 of 1902, were in addition convicted under section 5 of the imports and exports (control) act and sentenced to 3 months' k.i. each. the learned magistrate directed that the sentences should run consecutively. in the appeals filed by them, the learned additional sessions judge confirmed the convictions. but reduced the sentences of each of the petitioners under section 167(81) of the sea customs act, to 6 month's r.i., under section 23 (1a) of the foreign exchange regulation act.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. All the 3 petitioners were convicted under Section 167(81) of the Sea Customs Act, under Section 23(1A) of the foreign Exchange Regulation Act and under Section 7(3) of the Land customs Act by the Additional District Magistrate in a separate cases and sentenced to 18 months' R.I., one year's R.I. and 3 months' R.I. respectively. The petitioners in Criminal Revision Cases Nos. So and 37 of 1902, were in addition convicted under Section 5 of the imports and Exports (Control) Act and sentenced to 3 months' K.I. each. The learned Magistrate directed that the Sentences should run consecutively. In the appeals filed by them, the learned Additional Sessions Judge confirmed the convictions. But reduced the sentences of each of the petitioners under Section 167(81) of the Sea Customs Act, to 6 month's R.I., under Section 23 (1A) of the Foreign Exchange Regulation Act also to 6 months' K.I, and under Section 7 of the Land Customs Act to one month's R.I.

In respect of the two petitioners in Criminal Revision Cases Nos. 36 and 37 of 1962, the sentence under Section 5 of the imports and Exports (Control) Act, were also reduced to one month's R.I. The appellate Court further directed that all the sentences shall run concurrently and not consecutively. Against the said decision of the appellate Court, the present Revision Petitions have been filed.

2. The three petitioners were caught by P.W. 2, the Deputy Superintendent, Central Exise and Land customs on 27.8.1960 at about 2-00 a.m. in the passenger's waiting shed of the Manipur state Transport and they were taken to the Office of the M.S.T. and searched in the presence of witnesses. They were wearing Kabuli Chappals. It, was found that the Kabuli Chappals Had secret cavities.

3. From the said Chappals of the petitioner in Criminal Revision No. 35 of 1962, 10 gold tars and 3 pieces of gold weighing 175 and odd tolas of gold, nil of which except one had been hammerer to obliterate the markings were seized, while one far had Chinese markings. In addition, Indian currency notes of the value of Rs. 4,220/- were seized from the back pocket of the trousers. The petitioner gave the statement that he came from Nizo district with Rs. 24,000/- to Churachandpur, that at Churachandpur lie purchased one pair of Kabuli Chappals containing the said gold for about, Rs. 19,000/- and that he came to Imphal from Churachanapur with the said chappals and with the balance money. But in a later statement which he gave to the Collector of Central Excise and Land Customs, he made another statement that the seized gold belonged to one Bhungjapao Paite of Chin Hills and that the petitioner was enganged to carry the same from Churachandpur to Calcutta on a commission of Rs. 300/- and further that the currency notes of Rs. 4,000/- and odd belonged to Laljama Lashai of Churachandpur who gave it to him for buying motor tyres and spare parts from Caclutta.

4. From the Kabuli Chappals of petitioner in Criminal Revision Case No. 30 of 1962, 6 gold bars and pieces of gold weighing 112 tolas and odd which were also hammered to obliterate the markings were seized. In addition, 137 and odd of tolas of precious stones secreted in the pockets of a specially made Khaki belt and a Sowar Prima Wrist Watch and Indian currency notes of the value of Rs. 980/- were seized. He also gave tile statement that he came from Mizo District with Rs. 10,000/- to Churachandpur and that at Churachandpur ha purchased the Kabuli Chappals containing the said gold and the precious stones for Rs. 14,000/- from an unknown man of the Chin Hills, subsequently, he gave another statement to the Collector of Central Excise and Land Customs, Shillong, Baying that the seized gold and precious stones belonged to one Thangzakap, who engaged him to carry the same from Churachandpur to Calcutta on a commission of Rs. 250/- and the currency notes belonged to one Radanga of Churachandpur, who wanted Mm to buy some goods from Calcutta.

6. From the Kabuli Chappals of the petitioner in Criminal Revision Case No. 37 of 1962 also, 6 gold bars and two pieces of gold weighing 112 tolas all of which were hammered to obliterate the markings were seized and in addition 141 and odd tolas of precious stones from a specially made Khaki belt worn by him and a Titus wrist watch and Indian currency notes of Rs. 880/- were seized. He stated to the Customs officials that he came from Mizo District with Rs. 9,000/- to Churachandpur and while there he got the Chappals containing the gold and the precious stones from an unknown man of Chin Mills at Rs. 8,000/-. But later to the Collector of Central Excise, he made the statement that the seized gold belonged to one Thangzakup, who engaged him to carry the same from Churachandpur to Calcutta on a profit of Rs. 250/- and that the currency notes belonged to one Kaito Hmar of Churachandpur, who wanted him to purchase an ironsafe at Calcutta.

6. penalties under Section 167(81) of be Sea Customs Act were imposed on the petitioners by the Collector of Central Excise and orders of confiscation of the articles were also passed. The Collector of Central Excise and Land Customs gave latters of authority to the Assistant Collector in each of the cases to institute criminal case under Section 167(81) of the Sea Customs Act, against each of the petitioners. Then the petitioners were charge-sheeted under the various sections on the complaint tiled by the Assistant Collector of Central Excise and Land Customs.

7. The charges against the petitioners under the yea Customs Act, under the Foreign Exchange Regulation Act and the Land Customs Act were as follows:

(1) that they on 27.8.1960, in violation of the restriction imposed by Section 19 of the Sea Customs Act read with Sections 8(1) and 23(1A) of the Foreign Exchange Regulation Act, 1947 to avoid restriction imposed on the import and export were found in possession of contraband foreign gold and imported Indian currency notes without any permit from the Reserve Bank or the Customs Authority in India and that thereby they defrauded the Government of India and were guilty under Section 167(81) of the Bea Customs Act,

(ii) that in violation of tile restriction imposed by Ministry of Finance Notification No. 12(11)-F-1/18 dated 25.8.1948 and No. 12 (11)-F-1/51 dated 27.2.1951, as amended by Notification No. 2(36)EF.VII/53 dated 5.2.55 framed under Section 8(1) of the Foreign Exchange Regulation Act, they Drought the gold into India from a place outside India without my special or general permit from Reserve Battle of India and thereby committed an offence under Section 23(1A) of the Foreign Exchange Regulation Act,

3. that in violation of Section 5 of the Land Customs Act, they conveyed or aided in conveying the goods or passing them from foreign territory into the territory of Manipur by a route other than the prescribed route or knowing that the goods have been so passed Kept and concealed the contraband foreign gold and imported Indian currency and thereby committed an offence under Section 7(3) of the Land Customs Act.

In addition to these charges, a charge was framed against the petitioners in Revision. Case Nos. 86 and by of 1902, under Section 5 of the imports and Exports (Control) Act that they exported contraband precious stones and wrist watch made in Switzerland without any permit into India, violating the restriction imposed by the imports Control (Order) 1955 and thereby were punishable under Section 5 of the imports and Exports Act.

8. In the trial, all the petitioners went back on the statements given by them to the Customs officials at the time of seizure and to the Customs Collector. They Bet up a third case that the gold bars and precious stones were not seized from them at all. with regard to the currency notes, the petitioner in Criminal Revision No. 35 of 1962, stated that the currency notes amounting to Rs. 4,000/- and odd belonged to him and were forcibly taken from him. The petitioners in Criminal Revision Case Nos. 36 of 1062 and 37 of 1962, even denied that any currency notes were seized from them.

9. Both the Courts below have found that the gold and precious stones were of foreign origin end that they were imported into India front outside in violation of the restriction and without any valid permit and further that they were taken to Imphal through a route other than the prescribed route and hence both the lower Courts found them, guilty of all the charges framed against them. The appellate Court, however, found that there was no proof that the currency notes were smuggled from outside by each of the petitioners. But we are not very much concerned with the currency notes as far as the convictions under the various charges are concerned.

10. What was argued before me for the petitioners was that the sanction to prosecute under the various enactments was not proper and hence the complaint flied was vitiated. Secondly, it was pointed, out that mere cannot the a joint trial of the petitioners under all the 4 enactments. Thirdly, It was argued that as far as the prosecution under Section 107(81) of the Sea Customs Act was concerned, Section 186 of the Sea Customs Act provided that the award of any confiscation, penalty etc., under the said Act, by an Officer of customs shall not prevent the infliction of any punishment to Which the person affected thereby is liable under any other law and hence the prosecution under Section 167(81) of the Sea Customs Act was prohibited.

Next, it was argued that Section. 178A of the Sea Customs Act, relating to the burden of proof threw the burden of proving that the goods were not smuggled goods on the person from whose possession the goods were seized in respect of gold and precious stones, but that this was only intended for the purpose of imposing penalty under Section 167(8) of the said Act, but that in a criminal case the duty of proving that the accused person smuggled the goods into India from outside was on the prosecution that this burden has not been discharged by the prosecution in this case. Lastly, It was argued that the sentences imposed on the petitioners were very severe and that they should be reduced. I shall deal each of these arguments seriatim.

11. With regard to the complaint filed under the Foreign Exchange Regulation Act, the Land Customs Act and the imports and Exports (Control) Act, there does not seem to be any difficulty at all. By the notification referred to in the charge relating to the Foreign Exchange Regulation Act, which is also referred to by the Additional Sessions Judge in his judgment, the Central Government has authorised the Assistant Collector of Customs or Central Excise to make the complaint in writing in cases of import or export of gold or silver in contravention of Section 8 of the said Act. Here, the complaint has been tiled by the Assistant Collector of Central Excise. Hence, no objection can be taken to the complaint. Coming to the Land Customs Act, Section 7(2) provides that where the Land customs officer is of opinion that an offence under Sub-section (1) has been committed in respect of the goods and that the penalty provided in that Sub-section was inadequate, he may make a complaint to a Magistrate having jurisdiction. What was argued was that the Land Customs Officer who seized the goods has to make the complaint.

I do not think that this argument has any substance. The seizure was made by P.W. 2, the Deputy superintendent of Land Customs. The Assistant Collector of Central Excise and Land Customs, who flied the complaint is also a Land Customs Officer and is the superior authority to the Deputy Superintendent, who made the seizure. The superior authority, who is also a Land customs Officer can certainly decide whether an offence has been committed in respect of the goods under Section 7(1) and whether the penalty provided therein was inadequate and if he of opinion that the penalty is inadequate, he can certainly the a complaint. There is again no difficulty about the prosecution under Section 5 of the imports and Exports (Control) Act. Section 6 therein authorizes a complaint is writing to be made by an Officer of Customs authorized in writing in this-behalf.

Notification No. 11 of 1900 under the import Trade Control Act, 1955 authorizes all Officers of Customs under the Sea Customs Act, 1878 to make complaints in writing courts, respect of any offence punishable under Section 5 of the imports, and Exports (Control) Act, 1947. This order has been issued in exercise of the powers conferred bisection 6 of the said Act. Again, notification No. 69-Cus dated 29.9.1951, appoints all the Lara Customs Officers who have been appointed or maybe appointed from time to time under the Land Customs Act to be Officers of Custom under the Sea Customs Act. Hence, the Assistant Collector of Central Excise and Land Customs is an Officer of Customs under the Sea Customs Act and he is authorized to file a complaint under Section 5 of the imports and Exports (Control) Act.

12. The learned Advocate for the petitioners did not so seriously stress that the complaint filial in respect of the above 3 enactments was invalid. But his main argument related to the complaint filed under Section 167(81) of the Sea Customs Act what was pointed out was that under Section 187A of the Sea Customs Act, no Court can take cognizance of any alliance relating to smuggling of goods under Section 167(81) 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 authorized in this behalf by the Chief Customs Officer. It was pointed out that in this case the Assistant Collector of Customs was authorized by the Collector of Land Customs an Central Excise, who is not the Chief Customs Officer referred to in Section 187A of the Sea Customs Act.

But in that connection we may refer to Section 9 of the Land Customs Act, by which the provision's of the Sea Customs Act including Section 187A have been made applicable for the purpose of levy of duties of land customs under the Land Customs Act in like manner as they apply for the purpose of the levy of duties of customs on goods imported or exported by sea. Sub-section (b) of Section further provides that references to a Chief Customs Officer in the Sea Customs Act shall be deemed to be references to a Collector of Land Customs. This will mean that the references to the Chief Customs Officer in Section 187A has to be treated as references to a Collector of Land Customs.

13. We may here also refer to Section 7(2) of the Land Customs Act, which provides that where any dutiable goods or any goods in respect of which a notification under Section 19 of the Sea Customs Act, prohibiting the bringing or taking by land or goods into India or any specified part thereof has been issued, as passed by land out of any foreign territory, the Land Customs Officer may make a complaint to a Magistrate having Jurisdiction, in the matters before us, the cases originated when the Land Customs Officer seized these dutiable goods like gold and precious stones from Impair and thus the case originally arose under the Land Customs Act on the ground that the goods were brought by land out of foreign territory through a Land Customs Station without any permit and they were conveyed from the foreign territory by a route other than the route prescribed for the passage and further that in conveying the goods they were Kept concealed.

Here, it may the mentioned that the route prescribed for carrying dutiable goods as far as Manipur is concerned is the Moreh-lmphal route and these goods were admittedly not brought along that route, but from Churachandpur to lmphal, which is a totally different route. The cases thus having arisen under the Land Customs Act, it was found that there was violation, of the restriction imposed under the Foreign Exchange Regulation Act and under the imports and Exports (Control) Act and the Sea Customs Act. It was not denied that gold and precious stones were dutiable goods and that notifications under Section 19 of the Sea Customs Act, prohibiting the bringing or taking by land of the goods into India, have been issued in respect of the goods in the present case. Thus, the Land Customs Officer noticed that there was a violation of Section 19 of the Sea Customs Act also and so it was decided to tile a complaint under Section 107(81) of the Sea Customs Act.

It is in such a case that Section 9(2)(b) of the Land customs Act is relevant. The sanction in such a case has to be given by the Collector of Land Customs under Section 187A of the Sea Customs Act as reference to the Chief Customs Officer in Section 187A has to be treated as reference to the Collector of Land Customs. Thus, the authority granted to the Assistant Collector of Central Excise and Land Customs in this case has to be treated as quite valid.

14. But Mr. R.K. Manisana Singh, stressed before me that the charge framed under Section 107(81) does not mate any reference to any violation of the Land Customs Act, but only to the violation of the restriction imposed by Section 19 of the Sea Customs Act read with Sections 8(1) and 23(1)(a) of the Foreign Exchange Regulation Act and hence the charge framed was defective and so the petitioners should not have been convicted under the said charge. But I do not find any defect in the charge. The penalty prescribed under Section 167(81) of the Sea Customs Act is for a person who knowingly or with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of the said Act with respect thereto acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping or concealing or in any manner dealing with any goods which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid.

It is not disputed that the goods are dutiable goods. It has also been found that the petitioners were concealing the said goods and were found in possession of the goods and their intent must be treated as one to defraud the Government of the duty payable thereon. The restriction imposed under Section 19 of the Sea Customs Act is referred to therein, it would have been better, of course. If the Magistrate had also referred in the charge to the violation of Section 7(1) of the Land Customs Act. But the absence of any such reference to the Land Customs Act in the charge has not resulted in any failure of justice in the present case. At present we are concerned with the question whether the authority granted by the Collector of Land Customs is proper or not and whether the petitioners have been in any way prejudiced by any defect in the charge. As far as the authority is concerned, it cannot be disputed that the authority granted by the Collector of Land Customs is quite valid.

15. The next point argued was about the joinder of the trials under the 4 enactments. In that connection certain observations made by this Court in the decision Neithanga Hmar v. Assistant Collector of Central Excise and Land Customs, Assam AIR 1963 Manipur 1, were brought to my notice. No doubt in that decision 1 have stated that the presumption under Section 178A of the Sea Customs Act which throws the burden of proof to show that the goods were not smuggled on the person from whose possession the goods were seized would not be available to the prosecution, under the Land Customs Act or the Foreign Exchange Regulation Act or the imports and is Exports. (Control) Act and that it will not be proper to join in the same prosecution, the offences under those enactments as it will prejudice the trial tinder the said enactments and hence stated that it. would be better if the Customs Authorities continue the prosecution to one under Section 167(81) of the Sea Customs Act if they want to make use of the burden of proof under Section 178A of the Sea Customs Act.

But the said observations would apply to a case where the prosecution was simply based on the burden of proof being on the accused. But in this case, the prosecution has not so much relief on the burden of proof being on the accused. They have let in evidence to show that the accused smuggled the goods and the said evidence has been accepted by both the lower Courts. may here point out that in all the 3 cases, the gold bars and precious stones had been hammered to obliterate the markings thereon and in the case of the petitioner in Criminal Revision Case No. 33 of 1962, one gold bar was seen with Chinese inscriptions thereon showing it to be of Chinese origin. Again, the manner in which they were concealed in secret cavities in the Kabuli Chappals of the petitioner clearly showed their attempt to conceal the gold, if proper duty had been paid for the goods, the petitioners could have proved the fact by producing; the receipt for payment of duty and in that ease they would also not have had the necessity to conceal them in the manner they did. Manipur is a border State and a land route is prescribed for bringing such goods to lmphal. According to the petitioners' own admission, these goods were not brought, along the said land route which again showed that the attempt was to smuggle them.

No doubt, there was no proof of actual entry from a foreign country in these cases. But such evidence is impossible to be obtained, as smuggled goods will be brought in a clandestine manner. But the circumstances, which I have mentioned are sufficient proof that the goods were smuggled into India from outside, if however, the, case of the, petitioners was that they sad no and in the smuggling, but that they purchased the articles inside India, it is a fact well within their knowledge and they could easily have proved it by pros clueing the receipts for such purchase. It is a fact within their knowledge and under Section 106 of the Evidence Act, the burden is on them to prove the said fact. But the petitioners had no consistent case as to how they got the gold and precious stones. They first stated that they purchased the gold and precious stones at Churachandpur from some unknown person.

Next they said that certain persons had entrusted the articles to them for transporting to Calcutta on commission. But at the time of the trial in the case, they denied that the articles were taken, from them at all. Such, inconsistent case set up fly the petitioners will only further prove that they were guilty of smuggling the articles into India, or this reason, both the lower Courts accepted the prosecution evidence that the articles were smuggled and they did not rely merely on the burden of proof being on the accused under Section 178-A of the Sea Customs Act. That being the case, there has been no prejudice in having a joint trial in respect of the 4 offences against the petitioners. Hence, I am not prepared to say that there should not have been joiner of trials into these 4 offences. What I have stated above will also dispose of the argument of the petitioners that even for a prosecution under Section 107(81) of the Sea Customs Act, tee burden of proof in Section 178A of the avail Act will not be available to the prosecution. That question would arise for decision only if the prosecution had relied on that burden of proof.

16. The next argument of the petitioners was that in view of the fact that the goods were confiscated and penalty imposed under Section 167(5) of the Sea Customs Act, they should not have been tried under Section 107(81), They placed reliance on Section 187 of the Sea Customs Act, which is to the effect that the award of any confiscation or penalty under the Act by an Officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. They argued that under any other law would mean that they can. be prosecuted only under any other enactment, but not under the Sea Customs Act. This same point was raised before the Madras High Court in A.M.S. Mohammed Kasim v. Assistant Collector of Central Excise Madurai : AIR1962Mad85 .

The Madras High Court repelled the argument and stated that it will not be correct to say that where civil penalties are imposed by Customs officers, the offender may be liable to he proceeded against under the penal provisions of some other statute such as the penal Code etc, but not for infringements under the sea Customs Act, such as Section 167(81) of the Act, which are punishable by a proceeding before a Magistrate and further that Section 186 of the Act relates to a totally different principle, and there is no inference whatever, by means of any implication, from the use of the words 'under any other law', excluding proceedings under Section 167(81) in cases where the goods have been confiscated and civil penalty has been levied and further that Section 186 does not preclude proceedings under Section 187(81) in those cases where the customs Officers have levied the penalties of confiscation or the.

I certainly agree with the said observations of the Madras High Court. The words 'under any other law' do not exclude the infliction of any punishment provided in the sea customs Act for the criminal offence involved. The confiscation and the penalty under Section 187(8) are civil penalties and what was meant by Section 186 was that if the person on whom the civil penalties were imposed were liable under the criminal law, the infliction of any punishment on them will not be prevented by the imposition of the civil penalties. The distinction is between penalties under the civil law and punishment under criminal law. Hence, the prosecution under Section 167(81) was certainly not illegal.

17. The only other point raised was that question of sentence. The petitioners have been guilty of a very serious offence, namely, of smuggling dutiable goods with a view to defraud the Government and of concealing the goods and bringing them through unauthorized route for the purpose of such defrauding. Manipur being a border state, such offences appear to be quite common and they have to be put down by giving deterrent punishment. The Magistrate had given stiff sentences, suit the sessions Judge took into account the fact of the heavy penalties imposed upon them and hence reduced the sentences to mild ones. I see no reason at all to interfere with the mild sentences.

18. For the above mentioned reason, all the 3 Revision petitions are dismissed and the conviction and sentence are confirmed.


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