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The Secretary of State for India Vs. Vasudeo Venkatesh Shetti - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai
Decided On
Case NumberFirst Appeal No. 224 of 1926
Judge
Reported in(1928)30BOMLR1494
AppellantThe Secretary of State for India
RespondentVasudeo Venkatesh Shetti
DispositionAppeal dismissed
Excerpt:
.....paragraph of section 8 of the bombay land customs act, 1857, must be read as if the words 'at any station established for the levy of duties and passing of goods' followed the words 'passed or attempted to be passed.' it does not, therefore, apply to the case of goods being passed or attempted to be passed at any other place at which no such station is established.;section 14 of the act is in express terms confined to an officer of customs employed at a station established under the act.;section 21 of the act is confined to cases where goods have been properly seized as liable to confiscation or properly detained as under-valued, that is for say, seized or detained under circumstances at least approximating to those where the act authorizes such seizure or detention. the question of..........that i am considering, except that section 10 refers to the case of a station officer permitting goods liable to duty to pass without payment of duty by any road or pass other than by those prescribed. that again contemplates the case of an officer of a station which is established under the act, then section 20 empowers certain officers to adjudicate confiscations. but this power is limited to cases 'in which under this act goods are liable to confiscation. 'that section can perhaps best be discussed later on; but at any rate, it does not extend the powers of confiscation that are conferred by the preceding sections, then section 21 provides for restoration of forfeited goods by the adjudicating officer on certain terms and conditions that can best be discussed later. but just as in.....
Judgment:

Fawcett Ag. C.J.

1. The facts out of which this appeal arises are fully stated in the judgment of the Court below, and need not be repeated, except that it should be mentioned that the quantities of matches, which are alleged to have been unjustifably seized, were in the shops of the plaintiffs at Ankola, which is a sea-port, a long way from the frontier of the Portuguese territory, and which is not one of the stations established under the Bombay Land Customs Act (XXIX of 1857). The Superintendent of Salt Revenue, Goa Frontier and Kanara, passed an order confiscating these matches, and the main questions are : (1) whether the suit is barred under the provisions of Section 21 of that Act because there had been a proper adjudication by the special tribunal set up in that Act for adjudicating upon confiscations, etc., and (2) whether, if the suit is not barred, the order of confiscation was ultra vires, not being authorised by the Act.

2. The questions at issue turn mainly upon the proper construction of Sections 8, 14, 20 and 21 of the Act, and these questions have been fully discussed in the judgment of the Court below.

3. Taking first Section 8, the contention of the learned Government '. Pleader is that the second paragraph of that section is not restrict- ed, as the lower Court has held, to the case of goods which are Passed or attempted to be passed at any station established under the Act for the levy of duties and passing of goods, but applies to a case of goods being passed or attempted to be passed at any place whatsoever. The District Judge has held that the natural interpretation to be given to the word 'passed' in this second paragraph is the name as is attached to it in the first paragraph of that section, namely, 'passed at any station established for the levy of duties and passing of the goods. 'That certainly is, in my opinion, the natural interpretation, because the second paragraph is, under the ordinary rules of construction, to be read in relation to tb. 9 context of the first paragraph; and it is clearly legitimate under ordinary rules of construction to read in as an ellipsis after the word 'passed' in the second paragraph, the words 'at any station,' etc., that follow that word in the first paragraph. The reference in the second paragraph to 'such an application in writing as is above described' brings in the application that is mentioned in the first paragraph; and with such a close connection between the two, the draftsman might have considered it unnecessary to add the words 'at any station established for the levy of duties and passing of goods' after the word 'passed' in the second paragraph, because the sentence sufficiently shows that it refers to cases where goods have been brought to be passed at such a station and such an application has to be made. But of course, there may be other parts of the Act which might justify a different construction of this second paragraph. I have carefully studied the Act with a view to see whether there is anything that would justify this, but I fail to find anything sufficient for not adopting the natural construction that I have already mentioned. This is an old Act, and its main provisions are based upon a still older Act, which was passed in Madras in 1844; and the conditions in those days were not quite the came as they are now. The Legislature perhaps would not have felt the need for passing an enactment to prevent smuggling of goods to the same extent as circumstances may require it now-a-days; and the general scheme of the Act seems to me to be very simple, namely, there are certain customs-stations established under Section 4 and for the levy of customs-duties on goods exported by land to, or imported by land from, foreign territories, which under the repealed Section 2 meant 'Foreign European settlements situated on the line of coast within the limits of the Presidency of Bombay,' and under the repealed Section 3 could be extended to cover Native States. In order to facilitate the levy of such duties, provision is made by Section 6 for power to notify particular roads or passes, by which alone goods coming from foreign territory into British India shall be allowed to pass. That section also says that after due notice goods which may be brought to any station established on other roads or passes than those so prescribed shall be detained and shall be liable to confiscation. Section 7 covers the case of goods attempted to be smuggled across any frontier guarded by stations between sunset and sunrise. That contemplates action by officers at the stations which have been established on or near the frontier. Then we come to Section 8, which says that when goods are brought to be passed at any station that has been so established, a written application about the goods must be made and that must contain certain particulars. The second paragraph, as I have already said, would ordinarily mean that if the goods are brought to a station and they are attempted to be passed without such an application, then they are liable to be seized and confiscated. There might, for instance, be goods concealed in carts; or there might be no attempt at concealment but the goods might be brought at a time when it was thought that the officer in charge of the station would not be on the look out. Then in Section 9 there is a provision that if there is a misdescription of goods brought to be passed at any such station, they shall be liable to confiscation. Sections 10 to 13 deal only with the question of fixing the value, etc., of goods for the purpose of levying the duties. Then comes Section 14, under which the officer at the station in which the goods are passed has to grant a certificate of the payment of duty. The second paragraph of that section authorises 'any officer of customs employed at a station established under this Act' to require production of that certificate, and says that if the goods are unaccompanied by a certificate or are found on examination not to correspond with the specification contained in the certificate produced, they shall be detained and shall be liable to confiscation. That no doubt does contemplate a case of an officer who is not necessarily employed at the station where the goods were passed; he may, for instance, be employed at a station on a road or pass other than those by which alone goods may pass into or out of foreign territory. But he has to be a public officer employed at a station established under the Act. It was, for instance, open to the Local Government to prescribe that the Customs office at Ankola should be such a station; but admittedly that has not been done. This section does not authorise any officer of customs, wherever he may be employed, to exercise this particular power, but only an officer of customs employed at a station established under the Act. The following Sections 15 to 19 contain nothing relevant to the point that I am considering, except that Section 10 refers to the case of a station officer permitting goods liable to duty to pass without payment of duty by any road or pass other than by those prescribed. That again contemplates the case of an officer of a station which is established under the Act, Then Section 20 empowers certain officers to adjudicate confiscations. But this power is limited to cases 'in which under this Act goods are liable to confiscation. 'That section can perhaps best be discussed later on; but at any rate, it does not extend the powers of confiscation that are conferred by the preceding sections, Then Section 21 provides for restoration of forfeited goods by the adjudicating officer on certain terms and conditions that can best be discussed later. But just as in the case of the preceding section, this does not extend the power conferred on a Customs-officer to detain and confiscate the goods, and it has a somewhat limited application. I can see nothing which is intended to authorise action in regard to examination, detention and seizure of goods by Customs-officers generally wherever they may be employed, for instance, Customs-officers at a sea-port, whose main duties are to see that goods arriving by sea are not imported without payment of the duty or that prohibited goods are not allowed to be imported by Section There is no reference to such officers in this self-contained Land Customs Act.

4. The preamble can of course be referred to for the purpose of clearing up any ambiguity but that does not help the Government case. It merely refers to the expediency of making better provision for the collection and management of land customs on certain foreign frontiers of the Presidency of Bombay. That supports the contention that the scope of the Act is mainly directed to action on or near the frontier of British India and foreign territory and that the Act does not contemplate action by a Customs-officer a long way from that frontier, at any rate unless there is a customs-station established under the Act, where those Customs-officers are employed, so as to bring their dutie within the range of the Act. There is, for instance, no such wide power of detention and confiscation of goods as is conferred in the case of excise articles in the possession of any person without a license by Section 36, Clause (d), and as. 43 and 54 of the Bombay Abkari Act, V of 1878. Nor is there a general provision in this v Act that goods that have been attempted to be passed or have been passed without payment of the prescribed duty shall be liable to seizure and confiscation wherever they may be found. This Act has recently been supplemented by the Government of India Act, XIX of 1924, which received the assent of the Governor General on September 30, 1924, but which only came into force on such date as the Governor General in Council might, by notification in the Gazette of India, appoint. If that Act had applied to the seizure complained of in this case, then possibly that seizure might be justified by that Act, which is considerably wider than the Act of 1857. For instance Section 7 provides that 'any person who conveys or attempts to convey to or from any foreign territory or to or from any land customs-station any goods by a route other than the route, if any, prescribed for such passage under this Act, or aids in so passing or conveying any goods, or, knowing that any goods have been so passed or conveyed, keeps or conceals such goods or permits or procures them to be kept or concealed, shall be liable to a penalty...and any dutiable goods in respect of which the offence has been committed shall be liable to confiscation.' Afieordingly if the plaintiffs were proved to have kept goods which to their knowledge had been smuggled from Goa territory without a permit, they would be liable to punishment under this section and the goods would be liable to confiscation. But we have no provisions of the same kind in the Act of 1857, which must be interpreted without undue straining.

5. It seems to me, therefore, that Section 8 should be construed in this natural meaning that I have mentioned, and, accordingly, I agree with the view taken by the lower Court that the second paragraph of Section 8 must be read as if the words 'at any station established for the levy of duties and passing of goods' followed the words 'passed or attempted to be passed,' so that, it does not cover the action of the Customs-officer at Ankola in seizing the matches. I may add that, even supposing that this second paragraph is read in the wider meaning that the learned Government Pleader has asked us to adopt, there would still be a doubt in my mind as to whether it would cover a case of goods whose onveyance from foreign territory had been completed, so that they could not be said to be in the process of being passed or attempted to be passed. The goods were not actually 'passing,' but were inside the plaintiffs' shops, when they were found by the Customs-officer who seized them, Therefore, so far as the merits of the case are concerned, I see no sufficient reason to differ from the view taken by the lower Court that the seizure was wrongful.

6. Section 14 has also been referred to as one that would justify the seizure. I have already mentioned that that section is in express terms confined to an Officer of Customs employed at a station established under the Act, and, therefore, it would not cover the case of the seizure by this particular officer, who was not so employed. I entirely agree on this point with what the District Judge has said in his judgment.

7. We have next to consider, whether in spite of that the suit is barred for the reasons I have already mentioned. Section 20 is the main section authorising adjudication, and (as I have said) is confined to cases 'in which under this Act goods are liable to confiscation.' The sections of the Act under which goods are liable to such confiscation are Sections 6, 7, 8, 9 and the second paragraph of Section 14, and in my opinion, this section can only operate is cases which properly fall under those sections. For the reasons I have given, this cage does not fall under any of those sections, including Sections 8 and 14 which have been relied upon, and accordingly the suit is not barred on the principle that has been fallowed in Ganesh Mahadev v. The Secretary of State for India (1918) I.L.R. 43 Bom. 221, s.c. Bom. L.R. 27. In that case, no doubt, the question was whether the adjudication was a proper one. The present case is really stronger because there has been an adjudication in a case which is not one of those where such an adjudication is authorized Section 21 is confined to a case where any goods shall be seized as liable to confiscation or detained as under-valued under this Act. It might possibly be construed as covering cases where goods are bona fide, though wrongly, seized as liable to confiscation by a Customs-officer. In the present case, I am ready to believe that the action of the Customs-officer at Ankola was bona fide, but it is a case, where, to use the phrase in Spooner v. Juddow (1848) 4 M.I.A. 353, the officer in question 'absurdly' believed that he was acting in pursuance of statutes and according to law. He no doubt followed past practice, which had the sanction of his superior officers; but it cannot be said that, if he used proper intelligence, he could reasonably believe that he was authorised by the Land Customs Act of 1857 to act in the way he did. But I do not think that the question of good faith can be brought into the construction of Section 21. That section must be confined to cases where goods have been properly seized as liable to confiscation or properly detained as under-valued, that is to say, seized or detained under circumstances at least approximating to those where the Act authorised such seizure or detention. The words 'under this Act' must be given due weight. Therefore, though otherwise the payment of the sums fixed in the Adjudicating Officer's order would operate as an acceptance of the terms and conditions laid down by the Adjudicating Officer, so as to bar any action for recompense or damage on account of the seizure and detention of the plaintiffs' goods, yet, inasmuch as there was not an authorised adjudication upon which to base a subsequent offer under Section 21, that aection cannot be availed of by Government. I agree, therefore, with what the District Judge has held on this point.

8. To avoid misunderstanding, I may add that I do not in any way intend to say that the adjudication order was not otherwise a proper one. All I decide is that, unfortunately for Government, Act XXIX of 1857 does not justify the action that was taken in this case. If such action is to be justified, either the Act must be amended or other provisions of law availed of. Accordingly I would dismiss the appeal with costs.

Murphy, J.

9. In my opinion also the judgment and decree of the learned District Judge of Kanara are correct and must be confirmed and the appeal dismissed.

10. The findings in the suit, so far as they are relevant to the point raised in the appeal, were (1) that the order of confiscation was wrong and unjustifiable, and the procedure adopted was illegal, and (2) that there was no adjudication within the meaning of the Act, and the jurisdiction of the Court is not barred by its provisions. The Adjudicating Officer's proceedings purported to have been held under Section 8 of the Land-Customs Act, but it does not appear to have been a proper adjudication under the section. This section seems to contemplate, not a seizure of goods on suspicion of having been smuggled, at any place, irrespective of that place being a station established for the levy of duties and the passing of goods or not, but a seizure at one of the places indicated under the Act. The frame of the section, as I read it, is to provide for goods being brought to a station so established. Admittedly the place where the goods in this case were seized is not such a station. It is further provided that there shall be a written application accompanying such goods and asking for permission to pass them, the application being required to contain a true description of the goods with a statement of their value and the marks, numbers, and description of the packages necessary for their being identified, The second paragraph of the section clearly refers to the language used in the first paragraph. It says, 'If any, goods shall be passed or attempted to be passed without such an application in writing as is above described, they shall be liable to be seized and confiscated'. The whole construction of the section seems clearly to contemplate proceedings at one of the stations established under the Act and not proceedings in respect of goods seized at any place whatever on suspicion of having been smuggled.

11. The next section under which the seizure of these goods has been sought to be justified is Section 14. This refers to a certificate of payment of duty. It requires that when goods are passed 'at any such station'-meaning a station established under the Act-the Officer authorised to receive customs-duties shall grant a certificate of the payment of such duty or (if the case so require) of the goods having been passed free of duty. The second paragraph empowers an officer employed at a station to require any person in charge of dutiable goods which have been passed across the frontier, to produce the certificate granted for such goods; and any goods which are unaccompanied by a certificate, or which on examination do not correspond with the specification contained in the certificate produced, shall be detained and shall be liable to confiscation. The language of this section also seems to contemplate the detention and confiscation of goods by an officer appointed at a station determined under the Act. I think that it cannot be applied to goods found at any other place by an officer not so appointed, as was the case in this instance.

12. The only other point I need refer to is the application of Section 21 of the Act. This provides that when any goods have been seized as liable to confiscation, or detained as under-valued, under this Act, the Adjudicating Officer may order the same to be restored to the owner, on such terms and conditions as he may think fit to direct; and where the owner of the goods accepts these terms and conditions then he shall not have or maintain any action for recompense or damage on account of such seizure or detention. The learned Judge's view as to the application of this section is, that had there bsen a proper and legal adjudication, this provision would have been a good defence to the suit. But in his view there was no legal adjudication. For the reasons already stated as to the inapplicability of as. 8 and 14 to the circumstances of this case, I agree that there was here no adjudication according to law, and it follows that, Section 21 is not available to Government as a defence.

13. I agree with the learned Chief Justice that the District Judge's decree should be confirmed, and that the appeal should be dismissed with costs.


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