1. [His Lordship after considering the evidence in the case and upholding the convictions, proceeded.] Mr. Kode relying on the decision in B. Ultrich v. Asst. Collector of Customs : AIR1960Ker335 contended that the learned Magistrate was in error in convicting the accused both under Clause (81) of the Schedule to Section 167 of the Sea Customs Act and also under Section 8(1) read with Section 23(1-A) of the Foreign Exchange Regulation Act, 1947. It seems to us that the contention is not well founded.
2. Section 8(1) of the Foreign Exchange Regulation Act, 1947, enables the Central Government by notification to order that no person shall, except with the general or special permission of the Reserve Bank of India bring or send into India any gold or silver. Section 23, as it originally stood, provided for penalties and procedure for imposing the same and contained four sub-sections. Sub-section (1) provided a penalty of two years imprisonment or fine or both for any breach of any of the provisions of the Act or of any order, rule, direction made or issued under the Act. The other sub-sections are not necessary to be referred for the present purpose. By Act VIII of 1952 a new Section 23(A) was added. It is as follows:
Without prejudice to the provisions of Section 23 or to any other provision contained in this Act, the restrictions imposed by Sub-sections (1) and (2) of Section 8...shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878 and all the provisions of that Act shall have effect accordingly except that Section 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted.
3. It is evident that this section does not repeal Section 8(1) of the Act and introduce it in the Sea Customs Act or affect the penalty provision of Section 23(1). Maintaining the status quo it only introduces a fiction by which all restrictions introduced under Section 8(1) are deemed to be restrictions under the Sea Customs Act and the reasons arc not far to seek. To discover any breach of such restrictions proper machinery is needed and this existed under the allied provisions of the Sea Customs Act and did not exist under the Regulations. In order to facilitate investigation of such breaches without the necessity of creating separate machinery, the restrictions were fictionally imported into the Sea Customs Act. But the breach of restrictions still continued to be an offence under Section 8(1) read with Section 23(1) which is made clear by the introductory saving clause 'without prejudice to...Section 23 or...Act'.
4. It would seem that any breach of the restrictions under Section 8 of the Foreign Exchange Regulation Act which were deemed to be made under Section 19 of the Sea Customs Act, would be an offence under the latter Act, under Clause 8 of the schedule in Section 167 under which the penalty is one of fine and confiscation. By Act X of 1963, Clause 81 was introduced in the schedule to Section 167 of the latter Act, The clause is complicated and provides for a large many matters. It may be broken up into its constituent parts as follows:
(1) If any person knowingly or with intent to defraud the Government of any duty payable thereon acquires possession or is concerned in carrying or removing, depositing, harbouring or concealing or in any manner dealing with goods (a) which have been unlawfully removed from a warehouse (b) or which are chargeable with a duty which has not been paid (c) or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force. (2) If any person knowingly and with intent to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession or is concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods (a) which have been unlawfully removed from a warehouse (b) or which are chargeable with a duty which has not been paid (c) or with respect to the importation or restriction of which any prohibition or restriction is for the time being in force as aforesaid. (3) If any person is in any way knowingly concerned in any fraudulent evasion or attempt at evasion (a) of any duty chargeable as aforesaid (b) or of any prohibition of this Act applicable to those goods.
5. Under this clause in all the offences intention is a necessary ingredient of the offence, which may be to evade duty or prohibition and restrictions. Moreover it is any one of the physical act in connection with the goods there referred to that is made an offence but it does not deal with the actual importation of gold contrary to the restrictions, for one may do any of the acts mentioned in the clause in connection with the articles without himself actually importing them into India which is an offence under the Foreign Exchange Regulation Act. For the reasons stated above if the acts and omissions of the accused satisfied the requirement of each one of the enactments then he could be convicted under both since each one of the Acts continued to operate.
6. But by Section 10 of Act XXXIX of 1957, Section 23 of the Foreign Exchange Regulation Act was amended which recast Sub-section (1). The scheme under the amendment is to provide penalty for some offences separately. By Sub-section (1) two kinds of penalties for offences under Sections 4, 5, 9 and Sub-section (2) of Section 12 are prescribed and provision for its levy is made. Sub-section (1-A) is almost similar to original Sub-section (1). Clause (a) provides a penalty of two years' imprisonment and. fine or both for contravention of any provisions of the Act or direction, rule etc. except of those referred in Sub-section (1) and Section 19 and as to the latter provided by Clause (b) only a penalty of a fine not exceeding- two thousand rupees. By Sub-section (1-B) power is given to the Court or authority to make an order for confiscation.
7. Section 8 of the General Clauses Act provides that any references in any Act or instrument to any of the provisions of an enactment which is repealed, and re-enacted with or without modification by another enactment shall be construed, unless a contrary intention appears, as references to the re-enacted provision. There is nothing in the amending Act XXXIX of 1957 indicating that reference to Section 23 in Section 23-A should not be read as references to the substituted Sub-section 23(1-A), The position, therefore, even after the amendment of Section 23 continued the same as before. In the case referred to by Mr. Kode the only question before the Court was whether a breach of regulation issued under Section 8(1) of the Foreign Exchange Regulation Act would be punishable under Clause (81) of schedule of Section 167 which the Court answered in the affirmative and indeed rightly. It is apparent that the decision in Secy, of State v. H.G.I. Society can apply to cases of incorporation of the provisions of an earlier statute in another and the earlier is thereafter amended. On the other hand, it may be regarded as well settled that a deeming provision must have its full effect including all logical consequences flowing from it. In our view, therefore, apart from anything- else, there can be separate convictions and sentences under both Acts.
8. Mr. Kode relies on Section 26 of the General Clauses Act in support of the same contention. For its application the section requires that 'an act or omission constitutes an offence under two or more enactments' which means that the same set of facts must constitute offence under both the Acts. If the ingredients of the offences in each act are different then even if the offence is committed in relation to the same article or thing the section cannot apply. This interpretation has been accepted in Reoti v. Emperor : AIR1933All461 . We have explained above that the ingredients for offences under each Act are different. In one case mere carrying1 or dealing with an article with the necessary intent is an offence while in the other bringing into India.
9. The charges against the accused are: (1) they conspired to bring gold into India with intent to defraud the Government and to evade the prohibitions and restrictions; (2) that for these purposes they acquired possession or were concerned in acquiring possession of gold; (3) that they were concerned at several places in fraudulent evasion or attempt at evasion of the duty chargeable thereat and prohibitions and restrictions relating to it; (4) that they imported the gold into India without the permission of the Reserve Bank of India. The charges being in respect of separate acts respecting evasion of duty and importation of gold, in our view separate sentences on both the counts are proper, though in the second and the third -charges the words 'in relation to evasion of restrictions' may as well have been omitted. In any case, the learned Magistrate has directed that (sentences regarding conspiracy and the main offences under the Sea Customs Act the subject matter of the second and the third charges run concurrent. If separate sentences could not be passed respecting the second and the third charges and the fourth charge, sentences regarding the first charge and that regarding the second, third and fourth could, in our view, have been directed to be consecutive in view of the gravity of the offence. The sentences are, therefore, legal.
10. We also cannot accede to the plea, of Mr. Kode for reduction of sentence as the circumstances justify the sentences which in our view are not excessive.
11. Both appeals, therefore, fail and are dismissed. The accused to surrender to their bail.