John Beaumont, C.J.
1. This is an appeal by the accused against his conviction by the Chief Presidency Magistrate under Rule 90B(7) of the Defence of India Rules, 1939, framed under the Defence of India Act, 1939.
2. The facts giving rise to the prosecution are that the accused landed in Bombay in February, 1941, from Aden, where he had sold a quantity of dates for a sum of Rs. 8,956, for which he had a draft on a Bombay bank, which in due course he cashed. On March 3 he was proposing to leave Bombay by a ship bound for the Persian Gulf, but which was to stay for a day in Karachi, and he had on him Rs. 8,900 in Government currency notes, being part of the money which he had received in respect of the bank draft. The accused's case is that he is an inhabitant of Kuwait, which is either in Persia or in Arabia, the evidence does not show which, and he says that the only language he understands is Persian. When he was going on board the ship, he was searched by the Preventive Officer, and this sum of Rs. 8,900 in currency notes was found on his person, and was seized by the Preventive Officer. He was prosecuted before the Chief Presidency Magistrate in that he failed to declare with full details his possession of the currency notes when asked by the Customs Officer under Rule 90B(3)(a) of the Defence of India Rules.
3. Now, Rule 90B(1) of the Defence of India Rules defines 'money' as including currency notes which are legal tender in British India or elsewhere; and Sub-rule (2) provides that no person shall, except with the permission of the Reserve Bank of India, take or send out of British India to a place or country outside India and Burma money in excess of such amount as may be specified in that behalf by the said bank. It is admitted that the bank has specified Rs. 1,000 as the amount which may be taken. Then Sub-rule (3) provides:
Any person who on any occasion is about to leave British India for a place outside India and Burma (which person is hereafter in this rule referred to as 'the traveller') shall, if on that occasion he is ordered so to do by an officer of Customs,--(a) declare with full details the money and gold he has with him.
That is the sub-rule under which the accused has been convicted, and the first question is whether the conviction is right. There is a further question arising under Sub-rule (4), which is not really the subject of the prosecution, and with which I will deal separately.
4. Now, the offence under Sub-rule (3)(a) of Rule 90B is that a person has failed to declare with full details the money and gold he has with him, if ordered so to do by an Officer of Customs. Unfortunately the learned Chief Presidency Magistrate in framing the charge did not pay attention, to the language of the rule, with the breach of which the accused was being charged. The charge is failure to declare with full details the money the accused had in his possession when asked by the Customs Officer. The rule does not say 'asked,' but 'ordered,' and 'ordered' is a stronger word than 'asked'. It is a condition precedent to liability under Sub-rule (3)(a) that the Officer of Customs should order a traveller to declare with full details the money and gold he has with him. Now, the Customs Officer, Mr. Bhide, in his evidence says that he searched the accused and found a bundle of Government currency notes worth Rs. 8,900. He admits that a person is entitled to carry Rs. 1,000 out of Bombay. Then he says in cross-examination: 'I stopped the accused on the gangway. I did not ask the accused to make a declaration.' In the face of that evidence I am quite unable to see how the learned Chief Presidency Magistrate was justified in convicting the accused. There is no evidence of a request, much less an order. In his judgment the learned Chief Presidency Magistrate refers to evidence which he has not recorded, but as he was imposing an appealable sentence he was bound to record all the evidence, and we cannot have regard to evidence which is not on record. But what the learned Chief Presidency Magistrate says is:
The Officer is however quite emphatic in saying that the accused understood him perfectly inasmuch as he made a gesture by rubbing the thumb and the first finger of his right hand which the accused immediately understood and took out his purse containing Rs. 13. He however failed to produce Rs. 8,900 which he had concealed.
There is no evidence before the Court that a man understanding only the Persian language will construe a gesture of rubbing the thumb and the first finger together as constituting an order upon him to declare with full details the money he has with him, and in the absence of evidence to that effect I am certainly not prepared to assume that anyone would understand such a gesture in that sense. In my opinion, there was no evidence on which the learned Chief Presidency Magistrate could convict the accused of an offence under Rule 90B(3)(a).
5. The conviction must, therefore, be set aside.
6. But, then, a further question arises under Sub-rule (4), because the learned Chief Presidency Magistrate made an order that the sum of Rs. 8,900 was to be confiscated and held subject to the orders of the Government of India, In my opinion, there was no jurisdiction to make any such order. Under Sub-rule (4)(a) any Officer of Customs may examine any article which a traveller has with him, for the purpose of ascertaining whether he is conveying or has in his possession any money or gold in contravention of the provisions of this rule; and, under Sub-rule (4)(b), if he has reasonable ground for suspecting that the traveller has about his person any money of gold which he has not: produced for inspection, he may search the person of the traveller. I think that the search of the accused, and of his wallet in which he was carrying these notes, was justified under one or the other of those two sub-rules. Then Sub-rule (4)(c) provides that any Officer of Customs may seize any money or gold produced for inspection under Sub-rule (3) or found upon examination or search under this sub-rule, being money or gold which the traveller has. in his possession in contravention of the provisions of this rule. That refers back to Sub-rule (2), which makes it an offence to take or send money out of British India. Now, if the rule stood alone, it might be said that the only illegal act in contravention of the rule was taking or sending money out of British India, which the accused was prevented from doing. But then Rule 121 provides that any person who attempts to contravene, or does) any act preparatory to a contravention of, any of the provisions of the rules, shall be deemed to have contravened that provision. It seems to me that it is correct to say that the accused was properly searched by the Customs Officer, and that he had in his possession money in contravention of the provisions of Rule 90B(2) read with Rule 121. Therefore, I think that the Customs Officer was entitled to seize the currency notes in excess of Rs. 1,000. It is admitted by the learned Government Pleader that there was no right to seize the Rs. 1,000, and that must be refunded to the accused. The balance of the money, under Sub-rule (6) of Rule 90B, has to be disposed of in such manner as the Central Government may by general or special order direct; and, in my opinion, money properly seized never becomes subject to the jurisdiction of the Court, and neither the learned Chief Presidency Magistrate nor this Court has jurisdiction to make any order as to the disposal of such money. Section 3 of the Defence of India Act provides that any rule made under Section 2 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act; so that, the rule clearly prevails over Section 517 of the Criminal Procedure Code, under which property produced in the course of a criminal trial may be dealt with by order of the Court. In my opinion, the Court has jurisdiction to determine whether property has been rightly seized under Rule 90B(4); but if it comes to the conclusion that property was rightly seized, it has no jurisdiction to make any order as to its disposal. That is entirely a matter for the Central Government.
7. Therefore, we must set aside the order of the learned Chief Presidency Magistrate confiscating the sum of Rs. 8,900; but we are not in a position ourselves to make any order as to how that money is to be disposed of. That is for the Central Government.
8. We set aside the conviction, and direct the fine, if paid, to be refunded.