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Chander Parkash Tyagi Vs. Department of Customs (Preventive), Central Excise Collectorate, New Delhi - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCrl. Misc. (M) 1090/83
Judge
Reported in1984(17)ELT240(Del)
ActsCustoms Act, 1962 - Sections 4, 4(1), 135, 137 and 160
AppellantChander Parkash Tyagi
RespondentDepartment of Customs (Preventive), Central Excise Collectorate, New Delhi
Cases ReferredUnion of India v. Vinod Bhardwaj
Excerpt:
.....could be read as 'or' in the circumstances of the case - - 'collector of customs',collector of 'central excise' and 'collector of customs and central excise'.but there is no evidence whatever to show that there was ever in existence posts such as collector of 'land customs and central excise' at delhi or shillong and evidence to that effect ought to have been produced by the accused persons or ought to have been got produced by them from the state through interrogatories/or otherwise which they failed to...... note: the jurisdiction of these officers shall extend to the whole of india. 2. collectors of land customs and central excise, cochin. 3. collectors of land customs and central excise, delhi and shillong. 4. collectors of central excise, baroda, bombay, poona, bangalore, madras, hyderabad, nagpur, patna, allahabad and kanpur. (b) the deputy collectors posted under the collectors specified in clause (a) to be deputy collectors of customs within their respective jurisdictions; (c) the assistant collectors posted under the collectors specified in clause (a) to be assistant collectors of customs within their respective jurisdictions. [m.f.(d.r.) notification no. 37-cus., dated the 1st february, 1963 as amended by notifications no. 137-cus., dated the 25th may, 1963 and no. 237-cus.,.....
Judgment:

Jagdish Chandra, J.

1. This order shall dispose of the following petitions brought under Article 227 of the Constitution of India as also under Section 482 of the Code of Criminal Procedure, 1973 :-

1. Chander Parkash Tyagi v. Deptt. of Customs, Crl. M (M) 1090/83

2. Shankar Lal Aggarwal v. Deptt. of Customs etc., Crl. M (M) 1149/83

3. Azhar Ali Zai v. Deptt. of Customs etc., Crl. M (M) 1150/83

4. Sriniwas Jain v. Deptt. of Customs etc., Crl. M (M) 19/84

5. Baldeep Singh v. Deptt. of Customs etc., Crl. M (M) 1151/83

6. Union of India v. Vinod Bhardwaj etc., Crl. M (M) 263/84

2. In the first five above mentioned petitions the impugned orders have been passed by Shri Mahesh Chandra, Additional Sessions Judge, New Delhi in criminal revisions whereby the orders passed by the learned trial courts holding the sanctions for prosecutions as valid, were upheld. In the aforesaid sixth petition the impugned order was passed by Shri B. B. Gupta, Additional Sessions Judge, New Delhi on 3-11-1983 wherein he disagreed with the order dated 6-1-1983 of the learned trial court of Shri J. M. Malik, then Additional Chief Metropolitan Magistrate, New Delhi holding the sanction for prosecution as valid.

3. In all these petitions excepting Crl. M (M) 1151/83 Baldeep Singh v. The State and another the question for determination is whether the sanction for prosecution granted by Shri B. B. Julka purporting to be Collector of Customs and Central Excise, New Delhi is valid or not. In the petition of Baldeep Singh v. The State and another that very question pertains to Shri K. P. Anand who gave the sanction for prosecution. Prosecutions in all these cases were for offences, inter alia, under Section 135 of the Customs Act, 1962 and in terms of Section 137 thereof no court shall take cognisance of the said offences without a valid sanction from the Collector of Customs.

4. Admittedly vide order no. 12/80 dated 25-1-1980 passed by Government of India, Ministry of Finance, Department of Revenue Shri B. B. Julka then Director (Prev. Operations) was posted and transferred as 'Collector of Central Excise, Delhi.' Again it is the common case of the Parties that Shri B. B. Julka could, if at all, be deemed to have been appointed as Collector of Customs under sub-section (1) of Section 4 of the Customs Act, 1962 in pursuance of notification No. 37-Cus. dated 1-2-1963 as amended by notification No. 136-Cus. dated 25-5-1963 and No. 237-Cus. dated 27-11-1963. In order to understand the implications of this notification it is reproduced below :-

'2. In exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962 (52 of 1962) the Central Government hereby appoints :-

(a) the officers specified below to be Collectors of Customs within their respective jurisdictions, namely :-

1. Director of Revenue Intelligence, New Delhi and the Director of Inspection, Customs and Central Excise, New Delhi.

NOTE: The jurisdiction of these officers shall extend to the whole of India.

2. Collectors of Land Customs and Central Excise, Cochin.

3. Collectors of Land Customs and Central Excise, Delhi and Shillong.

4. Collectors of Central Excise, Baroda, Bombay, Poona, Bangalore, Madras, Hyderabad, Nagpur, Patna, Allahabad and Kanpur.

(b) The Deputy Collectors posted under the Collectors specified in clause (a) to be Deputy Collectors of Customs within their respective jurisdictions;

(c) the Assistant Collectors posted under the Collectors specified in clause (a) to be Assistant Collectors of Customs within their respective jurisdictions.

[M.F.(D.R.) Notification No. 37-Cus., dated the 1st February, 1963 as amended by Notifications No. 137-Cus., dated the 25th May, 1963 and No. 237-Cus., dated the 27th November, 1963.]

5. It is also the admitted case of the parties that the answer to the aforesaid question shall depend upon the interpretation to be given to sub-clause (3) of clause (a) of this notification. According to the learned counsel for the accused persons who have challenged the validity of the prosecution, the interpretation for sub-clause (3) is that the word 'and' used therein between the words 'Land Customs' and 'Central Excise' should be taken to be a conjunctive and not disjunctive whereon the contrary, the interpretation sought to be given by the learned Additional Solicitor General Mr. Banerjee appearing for the State is that the aforesaid word 'and' is to be taken as a disjunctive. Some of the courts below have accepted one interpretation and the others the other interpretation. According to the former interpretation, in order to be vested with the powers of the Collector of Customs at Delhi and Shillong under the aforesaid notification it was necessary that an officer ought to have been clothed with the duel capacity of Collector Land Customs and Collector Central Excise and only such a Collector possessing simultaneously both these capacities could be vested with designation of Collector of Customs under Section 4(1) of the Customs Act, 1962 necessarily meaning thereby that neither a Collector of Land Customs nor a Collector of Central Excise alone could be appointed a Collector of Customs under this notification. But according to the State the aforesaid word 'and' is to be read as 'or' meaning thereby that in order to be appointed a Collector of Customs under the said notification it is sufficient if the officer to be so appointed was either a Collector of Customs or a Collector of Central Excise, at Delhi or Shillong and further that the word 'Collectors' used in sub-clause (3) in its plurality referred to both these categories of Collectors, i.e. Collector of Land Customs and Collector of Central Excise. On the other hand, the word 'Collectors' according to the learned counsel for the accused persons refers in its plurality to the places i.e. Delhi and Shillong. In view of Section 160 of the Customs Act, 1962 read with the Schedule annexed to the said Act, the whole of the Land Customs Act, 1924 stood repealed in its entirety on 1-2-1963 and the aforesaid notification No. 37-Cus. was also issued on that very date. It meant that the Collectors of Land Customs under the Land Customs Act also had their authority and capacity repealed as such. But anyhow they could be still identified as having once been Collectors of Land Customs under the Land Customs Act and could be clothed with the powers of Collector of Customs. According to the learned counsel for the accused persons such officers could be appointed under the aforesaid notification as Collectors of Customs only if at the time of their appointment under this notification they also possessed the capacity as Collector of Central Excise but not otherwise, which contention, however, is not acceptable to the state. Under these circumstances, the most important and the clinching question which comes up is whether there were in existence any Collectors exercising both the powers and enjoying both the capacities as Collectors of the Land Customs and Collectors of Central Excise at the time when the aforesaid notification was issued by the Central Government making appointments under Section 4(1) of the Customs Act, 1962 as Collector of Customs, inasmuch as if such officers were in existence at that time, the contention and interpretation put forth on behalf of accused persons can have a meaning but not otherwise. The persual of the impugned order passed by Shri Mahesh Chandra, Addl. Sessions Judge, New Delhi, in revision is quite instructive on this point as during the course of arguments he had called upon the learned counsel for the accused persons to tell if at any point of time any post known as 'Collector of Land Customs and Excise' existed in Delhi or Shillong or for that matter anywhere in India under any enactment and it was frankly conceded by the learned counsel for the accused persons that not such post existed, although it was submitted by them that on 1-2-1962 the officer holding the post of Collector of Central Excise was also holding the post of Collector of Land Customs and consequently both the offices stood merged in him and this was the reason why reference in Clause (a)(3) was made in the said notification to Collector of Land Customs and Central Excise for the areas of Delhi and Shillong. Thus, when there was no such joint post of 'Collector of Land Customs and Excise', the interpretation sought to be put by the learned counsel for the accused persons becomes unacceptable and merely because some officers happened to discharge both the functions, i.e. Collector of Land Customs and Collector of Central Excise, would not go to show the existence of a joint post off 'Collector of Land Customs and Excise,' even though there was either a Collector of Customs or a Collector of Central Excise. In the office order No. 20/76 (F. No. 22012/2/76-Ad-II Government of India, Ministry of Finance, Department of Revenue and Banking) it would be seen that certain officers have been promoted, posted or transferred as Collectors of 'Central Excise' or Collectors of 'Customs and Central Excise' Seriall items 2 and 3 therein illustrate the former and the remaining Seriall numbers 1, 4, 5 and 6 illustrate the latter. Also in office order No. 12/80 dated 25-1-1980 (F. No. A22012/24/79-AJ. II, Government of India, Ministry of Finance, Department of Revenue) we find some officers promoted, posted or transferred as Collector of 'Customs' or Collector of 'Central Excise' or Collector of 'Customs and Central Excise'. Thus, it means that there were three categories of posts viz. 'Collector of Customs', 'Collector of 'Central Excise' and 'Collector of Customs and Central Excise'. But there is no evidence whatever to show that there was ever in existence posts such as Collector of 'Land Customs and Central Excise' at Delhi or Shillong and evidence to that effect ought to have been produced by the accused persons or ought to have been got produced by them from the State through interrogatories/or otherwise which they failed to.

6. It is permissible to look upon the word 'and' as 'or' in some cases and vice versa in some cases each depending upon the facts and circumstances of a particular case. The authorities upon this point are Iswar Singh Bindra and others v. State of U.P., : 1969CriLJ19 and Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and others, : [1964]1SCR561 .

7. The position of Shri K. P. Anand who gave the sanction in the petition Baldeep Singh v. The State and Another also suffers from the same infirmity as was with Shri B. B. Julka, even though while granting sanction for prosecution both these officers purported to act as Collector of Customs and Central Excise, New Delhi.

8. Both Shri B. B. Julka and Shri K. P. Anand were holding the office as Collector, Central Excise when they granted sanctions for prosecution and in view of the interpretation of clause (a) (3) of the aforesaid notification, both of them were Collectors of Customs and thus had the authority to grant the requisite sanctions.

9. So, as a result of the above finding the petitions of Chander Parkash Tyagi, Shanker Lal Aggarwal, Azhar Ali Zai, Sriniwas Jain and Baldeep Singh are dismissed. But the petition of Union of India v. Vinod Bhardwaj etc. is accepted and the impugned order dated 30-11-1983 of Shri B. B. Gupta, Addl. Sessions Judge, New Delhi reversing the order dated 6-1-1983 of Shri J. M. Malik then Addl. Chief Metropolitan Magistrate holding the sanction of prosecution valid, is quashed and set aside.


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