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Smt. Pritam Kaur Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1961CriLJ271
AppellantSmt. Pritam Kaur
RespondentThe State
Cases ReferredSewpujanrai Indrasanrai Ltd. v. Collector of Customs
Excerpt:
.....whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - chawla, and this petition for revision, in my opinion, must fail and is accordingly dismissed......for the time being in force.4. by a notification issued under sub-section (1) of section 8 of the foreign exchange regulation act, 1947 no. 12 (11-f 1/48, dated the 25th august, 1948, as amended up to 8th february, 1957, it was directed by the central government that except with the general or special permission of the reserve bank, 'no person shall bring or send into india from any place outside india:(a) any gold coin, gold bullion, gold sheets or gold ingot, whether refined or not; or(b) * * * *it is contended by mr. chawla that the petitioner having contravened a notification under the foreign exchange regulation act, her conviction under section 167(81) of the sea customs act is unsustainable. sub-section (1) of section 8 of the foreign exchange regulation act vii of 1947 empowers.....
Judgment:
ORDER

Shamsher Bahadur, J.

1. This is a petition for revision on behalf of Pritam Kaur who has been found guilty under Clause (81) of Section 167 of the Sea Customs Act VII of 1878 both by the trial Magistrate and the learned Additional Sessions Judge in appeal'. The sentence of nine months' rigorous imprisonment awarded by the Additional District Magistrate has, however, been reduced by the appellate Court to three months,

2. Mr. Bhagat Singh Chawla, the learned: counsel for Pritam Kaur, has assailed the conviction only on legal grounds. Before I discuss the arguments which have been advanced by the learned counsel, I may very briefly set out the facts which led to the prosecution of the petitioner.

3. On receipt of information the Deputy Superintendent of Customs, Amritsar Shri Prashter on 22nd of February, 1958, organised a raid party at the platform of the Railway Station, Amritsar, soon after midday. Pritam Kaur boarded the train and a little later the waitress in charge of the Waiting Room was asked to search her person. She was found in possession of 14 bars of gold with foreign markings. The unalloyed gold which was found to be in her possession weighed 139 Tolas, 11 mashas and 5 Rattis.

There was no permit with the petitioner to justify her carrying this gold on her person. On the basis of this recovery she was charged sunder Clause (81) of Section 167 of the Sea Customs Act, which prescribes an imprisonment for a term of two years or a fine or both for a person who

knowingly, and 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 this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force.

4. By a notification issued under Sub-section (1) of Section 8 of the Foreign Exchange Regulation Act, 1947 No. 12 (11-F 1/48, dated the 25th August, 1948, as amended up to 8th February, 1957, it was directed by the Central Government that except with the general or special permission of the Reserve Bank, 'no person shall bring or send into India from any place outside India:

(a) any gold coin, gold bullion, gold sheets or gold ingot, whether refined or not; or

(b) * * * *It is contended by Mr. Chawla that the petitioner having contravened a notification under the Foreign Exchange Regulation Act, her conviction under Section 167(81) of the Sea Customs Act is unsustainable. Sub-section (1) of Section 8 of the Foreign Exchange Regulation Act VII of 1947 empowers the Central Government by notification in the Official Gazette to order that no person shall, except with the general or special permission of the Reserve Bank * * * *, bring or send into India any gold or silver or any currency notes or bank notes or coin whether Indian or Foreign. Section 23 of the Foreign Exchange Regulation Act relates to the penalty which can be imposed, and the unamended Sub-section (1) of Section 23 says:Whoever contravenes any of the provisions of this Act or of any rule, direction or order made thereunder shall be punishable with imprisonment for a term which may extend to two years or with fine or with both * * *

In advancing this argument the learned counsel appears to have overlooked the provisions of Section 23-A 'of the Foreign Exchange Regulation Act inserted by Act VIII of 1952. Section 23-A is to this effect:

Without prejudice to the provisions of sec-lion 23 or to any other provision contained in this Act, the restrictions imposed by Sub-sections (1) and (2) of Section 8, Sub-section (1) of Section 12 and Clause (a) of Sub-section (1) of Section 13 shall be deemed to have been imposed under Section 19 of the Sea Customs Act 1878 VIII of 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.

Section 23-A manifestly was intended to bring the breaches and contraventions of the Foreign Exchange Regulation Act within the mischief of the Sea Customs Act. The petitioner having been found in possession of an unauthorised gold can, therefore, be rightly convicted under Clause (81) of Section 167 of the Sea Customs Act.

5. The learned counsel for the petitioner invited my attention to the Supreme Court authority of Sewpujanrai Indrasanrai Ltd. v. Collector of Customs : 1958CriLJ1355 , for the proposition that the provisions of See, 23-A of the Foreign Exchange Regulation Act cannot be pressed into service for upholding the conviction of the petitioner. In particular, the learned counsel brought to my notice the observations of Mr. Justice S. K. Das, who delivered the leading judgment in the Supreme Court case, in paragraph 15, where his Lordship stated thus:

In substance it is a proceeding against a person for the purpose of penalising him for a contravention of the provisions of the Foreign Exchange Act, and such a proceeding is available when the offender is known. Section 167(8) of the Sea Customs Act, however, contemplates a case where the offender (the smuggler, for example) is not known, but the goods in respect of which the contravention has taken place are known and have been seized.

I cannot read this passage to support the contention which has been canvassed by the learned counsel, It appears that the petitioner was regarded as a mere smuggler in the employ of the actual offender. The charge which was framed against the petitioner mentions that she knowingly 'and with intent to defraud the Government of the custom duty payable thereon, and to evade the prohibition, in force, against the import of gold into India, from foreign territories, acquired possession, carried, kept and concealed the recovered gold of foreign origin.

The scope of Section 167 of the Sea Customs Act is much wider than that of Section 23 of the Foreign Exchange Regulation Act. Under the Foreign Exchange Regulation Act the person who can be penalised is one who contravenes any provisions of the Act or the rules whereas under the Sea Customs Act, a person would be liable to the penalty if he acquires possession of or is in any way concerned in carrying or removing an article for the importation or exportation of which any restriction exists. Section 23-A of the Foreign Exchange Regulation Act enables a Court to apply the provisions of the Sea Customs Act to breaches made under the former Act. The words 'without prejudice to the provisions of Section 23' can only mean 'in derogation of the provisions of Section 23 of the Foreign Exchange Regulation Act.' These words, in my opinion, cannot take away the power which has been specially conferred by Section 23-A.

6. No other point has been urged by Mr. Chawla, and this petition for revision, in my opinion, must fail and is accordingly dismissed.


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