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Baldeo Raj Bhatia Vs. Superintendent of Central Excise and Land Customs and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBaldeo Raj Bhatia
RespondentSuperintendent of Central Excise and Land Customs and anr.
Excerpt:
.....of the complaint even under section 5 of the imports and exports act, 1947. we also see that even after such long delay, the authorisation turned out to be..........imports and exports act, were set aside, but the conviction and sentence under section 7(3) of the land customs act were maintained by the sessions judge. against that the petitioner has come up in revision.2. the facts are beyond dispute. on 26-10-1957, the petitioner, who was a calcutta bound passenger from imphal was attempting to take a suit-case in the plane without it. being registered or checked by the customs officer. it was detected by the customs inspector - sri n.c. banerji at the koirengei airport when it was seen without any label under the postal mail, which was ready for despatch by the plane. when questioned by the customs inspector, the petitioner admitted his ownership of the baggage and when he was asked to open it for inspection he at first refused to open it, but.....
Judgment:

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

1. The petitioner was convicted by the Additional District. Magistrate, Manipur, under Section 7(3) of the Land Customs Act, 1924 and under Section 5 of the Imports and Exports (Control) Act, 1947 and sentenced to 3 months' R.I. and 6 months' R.1. respectively. On appeal to the Sessions Judge, his conviction and sentence under Section 5 of the Imports and Exports Act, were set aside, but the conviction and sentence under Section 7(3) of the Land Customs Act were maintained by the Sessions Judge. Against that the petitioner has come up in revision.

2. The facts are beyond dispute. On 26-10-1957, the petitioner, who was a Calcutta bound passenger from Imphal was attempting to take a suit-case in the Plane without it. being registered or checked by the Customs Officer. It was detected by the Customs Inspector - Sri N.C. Banerji at the Koirengei Airport when it was seen without any label under the postal mail, which was ready for despatch by the plane. When questioned by the Customs Inspector, the petitioner admitted his ownership of the baggage and when he was asked to open it for inspection he at first refused to open it, but ultimately it was opened and 405 Parker 51 pencils made in England were seen inside the suit-case for which the petitioner was not able to produce any satisfactory documentary evidence showing bona fide purchase or licit importation. The import of such pencil required a permit under Section 5 of the Land Customs Act and an import licence under the notification of the Government of India, issued under Section 3(1) of the Imports and Exports (Control) Act, 1947 and they were also liable to payment of doty, which for the 405 pencils would amount to over Rs. 4,000/-, The suit-case containing the pencils was therefore seized by the Customs Inspector and the matter was reported to the Higher Authorities.

3. Then the petitioner was given a show cause notice under Sections 5(3) and 7(i) of the Land Customs Act, TQ 24 and under Section 167(8) read with section to of the Sea Customs Act, 1878 as made applicable by Section 3(2) of the Imports and Exports (Control) Act, 1947, why penalty should not be levied on him and the goods confiscated. The petitioner filed a reply stating that he purchased the goods from a hillman, expecting a reasonable return by re-selling them, without any knowledge, that he was committing an offence and that his case may be considered sympathetically. But he did not appear at the time of the hearing of the murder before the Collector of Central Excise and Land Customs, Shillong, An order was passed by the Collector on 3-6-1958. confronting the gnnris and imposing a penalty of Rs. 1.000/- under Section 167(8) of the Sea Custom Act, 1878.

4. Thereafter, a letter of authority was given by the Collector of Central 'Excise and Land Cuctotnc to the Superintendent. Central Excise and Land Customs to institute a criminal case under Section 5 of the Imports and Exports (Control) Act, 1947 against the petitioner as it was left that the gravity of offence committed required prosecution under Section 5 of the said Act. Then a complaint was filed by the Superintendent, Central Excise and Land Customs on 21-6-1960, i.e. 2 years: and 8 months after the seizure of the goods against the petitioner under Section 7(3) of the Land Customs Act and Section 5 of the Imports and Exports (Control) Act, read with Section 9 of the Land Customs Act. Charges were framed under the two sections. The Additional District Magistrate, as I said, convicted the petitioner under both the sections. But the learned Sessions Judge acquitted the petitioner of the charge under Section 5 of the Imports and Exports (Control) Act on a technical ground, namely, that the letter of authorisation:- Ext. A/2 given by the Collector of Central Excise and Land Customs for the prosecution was not sufficient and that under Section 6 of the said Act, as it then stood, an Officer authorised by the Central Government had to file the complaint and there was no evidence that the Superintendent, Central Excise was so authorised. But the conviction under Section 7(3) of the Land Customs Act was confirmed by the Sessions Judge.

5. It is now argued in revision for the petitioner that under Section 7(2) of the Land Customs Act, the Land Customs Officer, who seized the goods, had to apply his mind and decide whether the penalty provided under Section 7(1) of the Act was adequate or inadequate, that if he was of opinion that it was inadequate, he has to file the complaint before the Magistrate, that he has to do so immediately alter the seizure and before proceedings are taken under Section 7(1) of the Land Customs Act or Section 167(8) of the Sea Customs Act, to impose penalty, that the complaint filed by the Superintendent of Central Excise and Land Customs 2 years and 8 months after the seizure and two years after levying the penalty and forfeiture of the goods was not valid, that, in any case, after the amendment of Section 9 of the Land Customs Act, by which the provisions in Sections 167(81) and 187-A of the Sea Customs Act, have been made applicable, the penal provision in Section 7(2) and (3) of the Land Customs Act, must be treated as no longer in force, that, therefore, if at all, there was to be a prosecution, it can only be under Section 167(81) of the Sea Customs Act, that for such a prosecution under Section 167(81), the complaint had to be filed by the Collector of Land Customs or any other Officer of Customs not lower in rank than an Assistant Collector of Customs authorised in that behalf by the Chief Customs Officer and that the complaint filed by the Superintendent of Central Excise and Land Customs should not have been taken cognizance of by the Court and the whole prosecution was, therefore without authority. Lastly, it was argued that the serious delay in filing the criminal prosecution was not considered by either of the lower Courts in imposing the punishment of imprisonment which was unnecessarily severe under the circumstances.

6. I am not convinced with the petitioner's argument that a complaint for prosecution under Section 7(2) of the Land Customs Act can be filed only by the Land Customs Officer who actually seized the goods in question. My attention was drawn to Section 5(3) of the Land Customs Act, by which any Land Customs officer duly empowered by the Chief Customs authority may require any person to produce the permit granted for the goods and if the permit is not produced, any goods which are dutiable and which are not accompanied by a permit can be detained, as was done in the present case. My attention was next drawn to Section 7(1) of the Act authorising the imposition of the penalty of Rs. 1,ooo/- in the case of dutiable goods and confiscation of such goods. Section 7(2) of the same Act, provided that if the Land Customs Officer was of opinion that an offence under Section 7(1) had been committed in respect of such goods and that the penalty provided in that sub-section was inadequate, he may make a complaint to the Magistrate having jurisdiction.

7. It was argued that Sections 5(3) and 7(1) and (2) should be read together and that if they are read together, it would be clear that the Lane-Customs Officer had to make up his mind when seizing the goods whether it was sufficient to impose the penalty under Section 7(1) or not and if he was of opinion that, the penalty provided therein was not adequate, he has to make the complaint to the Magistrate and that he cannot first proceed under Section 7(1) and get the penalty imposed and that the Superintendent of Land Customs cannot subsequently proceed under Section 7(2) after the imposition of the penalty under Section 7 (i) and file a complaint for criminal prosecution.

8. There is nothing under Section 7(2) which states that the same Land Customs Officer, who detained the goods under Section 5(3) of the Land Customs Act, must file the complaint. Section 3(1) of the Act authorised the Central Government to appoint a person to be the Collector of Land Customs and such other persons, as it thinks fit, as Land Customs Officers. Among the Land Customs Officers so appointed, are the Superintendent of Land Customs, Deputy Superintendent of Land Customs, Inspector of Land Customs etc. Thus, the Superintendent of Land Customs is certainly a Land Customs Officer within the meaning of Section 7(2) of the Act and therefore a superintendent of Land Customs can certainly file a complaint under Section 7(2). There is nothing in the section to show that the same Land Customs Officer who detained the goods has to make up his mind as to whether the penalty provided under Section 7(1) of the Act was adequate or inadequate. On the report of the Officer who detains the goods, any other Land Customs Officer superior to him can also decide whether the penalty provided under Section 7(1) was adequate or not.

9. Nor is there anything in Section 7(1) and (2) which would indicate that the criminal prosecution must take place before proceeding under Section 7(1). Actually, I find in this case that no proceedings were taken under Section 7 (r) of the Land Customs Act, The penalty and confiscation were under Section 167(8) of the Sea Customs Act, which had been made applicable to the Land Customs Act by Section 9 of the Land Customs Act and the Schedule attached thereto. No doubt Section 7(3) of the Land Customs Act authorised the Magistrate before whom a complaint is filed to com-fiscate the goods in addition to convicting and sentencing the person found guilty of the offence under Section 7(1) and the power of confiscation is also given under Sections 5(3) and 7 (I) of the Land Customs Act; and under Section 3 : 67 (8) of the Sea Customs Act which has been made applicable) in addition to imposing the penalty. But this by itself does not mean that the criminal prosecution, if it is decided upon, should precede the departmental action under Section 7(1) of the Land Customs Act or Section 167(8) of the Sea Customs Act. Where the statute gives the right to proceed de-partmentally by imposing penalty and confiscation and also to file complaint for criminal prosecution, it is clear that both actions can be taken independently of one another, and where the statute does not specifically provide as to which of the actions should be taken first, the party affected cannot insist that any one action should be taken earlier than the other.

10. But my attention was specifically drawn to Section 7(2) of the Land Customs Act which provides that the complaint may be made to the Magistrate, if the Land Customs Officer is of opinion that the penalty provided in Section 7(1) was inadequate. From this it was argued that this opinion had to be formed even before proceeding under Section 7 (1) of the Act. It was pointed put that if that was not the intention of the Legislature and if criminal action was only to follow the imposition of the penalty, the provision would Have been under Section 7 (1) that the complaint may be filed if the Land Customs Officer was of opinion that the penalty imposed under Sub-section (1) and not 'provided' under Sub-section (1) was inadequate. I am unable to accept this contention. It only means that the criminal action has nothing to do with the actual imposition of the penalty under Section 7(1), but that criminal action may be taken if the penalty provided under Section 7(1) was found inadequate having regard to the gravity of the offence. In that connection I may refer to Section 186 of the Sea Customs Act, which has been made applicable to the Land Customs Act also by which the awarding of any confiscation, penalty or increased rate of duty under the Sea Customs 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. Section 186 would, therefore, mean that criminal action can be taken in addition to the imposition of any penalty and this would indicate that criminal action need not precede departmental action. This plea of the petitioner therefore has to fail.

11. Nor am I impressed with the arguments advanced for the petitioner that no criminal action could be taken under Sections 7(2) and 7(3) of the Land Customs Act after Section 167(81) and Section 187-A of the Sea Customs Act have been made applicable to the Land Customs Act. If that was the intention of the Legislature, Sections 7 (2) and 7 (3) of the Land Customs Act would have been repealed when Section 167(81) of the Sea Customs Act was made applicable to the Land Custorns Act also. If we read both Section 7(2) of the Land Customs Act, and Section 167(81) of the Sea Customs Act, It will be seen that the criminal action provided under Section 167(81) is far more serious and covers a much wider range of offences than what is provided under Section 7(2) of the Land Customs Act. Thus, it can only mean that after the amendment to Section 9 of the Land Customs Act, by which various sections of the Sea Customs Act were made applicable to the Land Customs Act, the Land Customs Authorities can proceed under Section 7 (2) of the Land Customs Act if they find that the penalty provided under Section 7(1) of the said Act, was not adequate and prosecute him and get him punished for imprisonment upto 6 months, but if they consider that even a higher punishment than six months' imprisonment of either description is necessary having regard to the gravity of the offence, they can proceed under Section 167(81) read with Section 187A of the Sea Customs Act and have a complaint filed in writing as provided under Section 187-A. It cannot be said that Section 7(2) and (3) of the Land Customs Act have Ceased to exist and no action could be taken thereunder. In the present case, all that we can say is that the Land Customs Authorities did not consider the offence in this case as of sufficient gravity to proceed under Section 167(81) of the Sea Customs Act, but only for a criminal prosecution under Section 7(2) and (3) of the Land Customs Act. This objection has therefore to fail.

12. It follows that the conviction of the petitioner under Section 7 (3) of the Land Customs Act has to be upheld. It was not argued before me that the offence committed by the petitioner did not come under Section 7(1) of the Land Customs Act. The matter has been elaborately discussed by both the lower Courts and it is unnecessary for me therefore to go into the details of the evidence. It is clear that the petitioner was trying to carry the said goods containing dutiable goods without a permit clandestinely by placing the said goods along with the postal mail to be boarded in the Plane. His plea that he did not know that the goods cannot be taken without a permit and without payment of duty was rightly rejected by both the lower Courts. The petitioner is clearly guilty.

13. It was next argued that there has been very serious delay in filing this complaint. For the Government, it was stressed that Manipur being a border State, such offences of attempting to convey dutiable goods without declaration and without payment of duty and without valid licence or permit have became common offences which have to be put down with a firm hand and hence deterrent punishment was, therefore, necessary to prevent such offence being committed. I quite agree that such offences have to be discouraged by deterrent punishment. But, if that was the object of this prosecution, the very delay of 2 years and 8 months after the commission of the offence to file the complaint completely negatives the whole purpose of the prosecution. If the object is to dete : others, promptness in taking action is absolutely necessary. Otherwise., it will only mean harass ment or punishment for the particular person con cerned. As I said, the offence in this case tool place on 26-10-1957. The departmental action was itself over on 3-6-1958. For more than 2 years after the departmental action was over, the petitioner was kept in the dark as to whether the Land Customs Authorities contemplated taking any criminal action against him. The complaint was filed only on 21-6-1960, Such long delay in filing a criminal complaint which did not require the permission of any Higher Authority and which could have been filed by the Land Customs Officer himself has to be taken into account by a Court in deciding what punishment should be awarded, It was contended for the Government that the delay was to get the necessary authority to proceed under Section 5 of the Imports and Exports (Control) Act, 1947 and that the complaint itself was filed not only under Section 7(3) of the Land Customs Act, but also under Section 5 of the Imports and Exports Act, 1947. I fail to understand why there should have been such delay in authorising the filing of the complaint even under Section 5 of the Imports and Exports Act, 1947. We also see that even after such long delay, the authorisation turned out to be invalid. An accused person has a right to expect that the authorities concerned would decide as expeditiously as possible whether they would proceed against him in a criminal Court. It is atrocious that a criminal complaint should be filed 2 years and 8 months after the commission of the offence. It will look as if the authorities had originally decided not to proceed against him criminally and after very long delay were trying to resuscitate the matter by filing this much delayed complaint. Section 7(3) of the Land Customs Act provides for imprisonment upto 6 months or for fine not exceeding Rs. 1,000/,-or for both. It seems to me that after such a long delay, it will be too much of an harassment to the petitioner to make him suffer imprisonment for an offence which he committed years ago. Under the circumstance, a punishment of fine will meet the ends of justice. If the Land Customs Authorities desire punishment of imprisonment to be given, they will have to be more alert in such matters and come forward with criminal prosecutions promptly. The sentence of imprisonment passed on the petitioner is, therefore, set aside and a sentence of fine of Rs. 500/- is imposed upon him in modification. In default of payment of fine, the petitioner will suffer R.I. for 3 months.


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