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M. Shaikh Dawood Vs. Collector of Central Excise, Madras - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 382 of 1958
Judge
Reported inAIR1961Mad1; 1961CriLJ96; (1960)IIMLJ230
ActsSea Customs Act, 1878 - Sections 167(8)
AppellantM. Shaikh Dawood
RespondentCollector of Central Excise, Madras
Appellant AdvocateS.M. Cassim, Adv.
Respondent AdvocateAdv. General and ;Addl. Govt. Pleader
DispositionPetition dismissed
Cases Referred and Venkatanarayana Iyer v. Collector of Central Excise
Excerpt:
sea customs act (viii of 1878), section 167(8)--imposition of penalty of five thousand rupees, confiscation of smuggled goods under section 5 read with section 3(2) of imports and exports (control) act (xviii of 1947) and import (control) order, 1955, section 167(8) of act viii of 1878--constitution--valid--one thousand rupees penalty specified therein not maximum amount of penalty ; the petitioner smuggled goods of the value of four thousand and odd rupees without a permit and was prosecuted and convicted under section 5 read with section 3(2) of the import and export (control) act (xviii of 1947) and import (control) order, 1955. the smuggled goods were seized and the collector of central excise, after giving notice to the petitioner, confiscated the goods and imposed a penalty of five.....1. on 13-10-1957 the petitioner shaik dawood landed in nagapattinam from penang. the customs officers searched his luggage and seized 84 wrist watches valued at about rs. 4200 which he had smuggled into the country without a permit. for this offence the petitioner was prosecuted before the sub divisional magistrate; nagapattinam who, accepting this plea of guilty, convicted him under section 5 read with section 3(2) of the import and export (control) act, 1947 and import (control) order, 1955, and sentenced him to undergo rigorous imprisonment for six weeks. the petitioner appealed to the sessions judge, east tanjore. but that appeal was dismissed.2. on 13-10-1957, that is to say, the very day on which the watches were seized from him, a notice was served on the petitioner by the.....
Judgment:
1. On 13-10-1957 the petitioner Shaik Dawood landed in Nagapattinam from Penang. The Customs officers searched his luggage and seized 84 wrist watches valued at about Rs. 4200 which he had smuggled into the country without a permit. For this offence the petitioner was prosecuted before the Sub Divisional Magistrate; Nagapattinam who, accepting this plea of guilty, convicted him under Section 5 read with Section 3(2) of the Import and Export (Control) Act, 1947 and Import (Control) Order, 1955, and sentenced him to undergo rigorous imprisonment for six weeks. The petitioner appealed to the Sessions Judge, East Tanjore. But that appeal was dismissed.

2. On 13-10-1957, that is to say, the very day on which the watches were seized from him, a notice was served on the petitioner by the Superintendent of Central Excise, Nagappattinam, to show cause (1) why the 84 wrist watches should not be confiscated under Section 167(8), of the Sea Customs Act read with Section 3(2) of the Import and Export (Control) Act, 1947, and (2) why a penalty should not also be imposed on him under Section 167(8) and (40) of the Sea Customs Act. To this the petitioner sent no reply. On 24-1-1958, while the petitioner was still in the Central Jail, Timchirapalli, serving out the sentence which had been imposed upon him by the Sub Divisional Magistrate, the Collector of Central Excise, Madras passed an order confiscating all the 84 wrist watches and imposing on him a penalty of Rs. 5000. The complaint of the petitioner is that the order of the Collector of Central excise, confiscating the 84 wrist watches and also imposing a penalty of Its. 5000 is contrary to law and beyond the jurisdiction of the Collector of Central Excise. He has therefore filed this petition for the issue of on appropriate writ to quash the order of the Collector of Central Excise, Madras.

3. This petition came on for hearing before Bajagopala Aiyangar J. Before him the ground that the order of confiscation of the watches was illegal was abandoned. It was, however, urged before him that under Section 167(8) of the Sea Customs Act the maximum penalty that could have been imposed upon the petitioner was only Rs. 1000 and that the imposition of a penalty of Rs. 5000 was in contravention of the law.

4. In Collector of Customs, Madras v. Rahiman , a Bench of this Court held,

"On a proper construction of the third column of Section 167(8) of Act VIII of 1878, the amount of Rs. 1000 specified therein is not the maximum limit of penalty which can be imposed by the customs authorities. The word 'or' makes it perfectly clear that the customs authorities are given the alternative and ft is left to them to impose a penalty, which satisfied either the first condition or the second."

The same question came up again in Venkatanarayana Iyer v. Collector of Central Excise, Madras,1958-2 Mad LJ 115 : (AIR 1938 Mad 306), where the same view was taken. So far as we can ascertain this view has been consistently followed in this court. But, in the cases, to which we shall presently refer, the Supreme Court has made certain observations in view of which Rajagopala Aiyangar J. was inclined to think that the decision in requires reconsideration and so he

referred this case to a Full Bench. That is how the matter comes up before us.

5. We may mention here that the same question has been raised in W. P. Nos. 924, 928, 979 and 980 of 1959 and we have also heard the learned counsel for the petitioners in these Petitions as to the proper interpretation of Section 167(8) of the Sea Customs Act. That section runs as follows:

"The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively: __________________________________________________________________

Offences. Section of this Act to which offence has reference. Penalties.

__________________________________________________________________

8. If any goods, the Importation or ex-portatton of which is for the time beingprohibited or restricted by or under Ch. IV ot this Act, be imported intoIndia contrary to such prohibition or restriction, or 18 and 19

Such goods shall be liable to confiscation; airy-person concerned in any such offence shall be liable to a pen-alty not exceeding three times the value Of the goods, or not exceeding one thousand rupees.

It any attempt be made so to import or export any such goods, or

If any such goods be found in any package produced to any Officer or Cus. toms as containing no such goods, or

If any such goods, or any dutiable goods be found either before or after landing or shipment to have-been concealed In any manner on board ot any vessel within the limits of "ny port in India, or it any goods, the exportation of which is prohibited or restricted as aforesaid be brought to any wharf in order to be put on board of any vessel for exportation contrary to such prohibition or restriction. __________________________________________________________________

We shall immediately refer to the decisions of the Supreme Court on the strength of the observations in which the contention was put forward that Rs. 1000 is the maximum penalty that can be imposed under any circumstances whatever for a contravention of the provisions of Section 167(8) of the Sea Customs Act. The earliest Of these is Maqbool Hussain v. State of Bombay, . The facts of that case, so far as they are at present material, were as follows. On 6-11-1949 one Maqbool Hussain, a citizen of India, arrived in Santa Cruz airport from Jaddah. On landing he did not declare that he had brought any gold with him, but on search it was found that he had brought in 107-2 tolas of gold in contravention of a notification of the Government of India dated 25-8-1948.

The customs authorities confiscated the gold by an order dated 10-12-1949. The owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12000; That option was not exercised. In March 1950 a complaint was filed in the court of the Chief Presidency Magistrate, Bombay against Maqbool Hussain charging him with having committed an offence under Section 8 of the Foreign Exchange Regulation Act of 1947, read with the notification dated 25-8-1948. Maqbool Hussain took the contention that the prosecution was barred in view of the fact that the customs authorities had already passed an order confiscating the goods.

He filed a petition in the High Court of Bombay under Article 228 of the Constitution praying that the case be withdrawn from the file of the Chief Presidency Magistrate to the High Court and that the High Court might either dispose of the case itself or determine the question of law which he had raised. After various proceedings which are not of present interest, the High Court of Bombay dismissed the petition of Maqbool Hussain. Maqbool Hussain then obtained special leave and appealed to the Supreme Court. In the course of a long judgment, Bhagwati J. observed,

"Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty which can be inflicted is Rs. 1000."

Now it is perfectly clear that the question what the maximum penalty is which can be imposed under Section 167(8) of the Sea Customs Act was never before their Lordships at all. The question which the court had to decide was thus formulated. See pages 733 and 734 of the report (SCR): (at p. 327 of AIR):

"The question that arises for our determination in this appeal is whether by reason of the proceedings taken by the Sea Customs authorities the appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the court of the Chief Presidency Magistrate. Bombay".

That was the only question before the court it was answered in the negative. The passage on page 742 (of SCR): (at p. 330 of AIR) on which learned counsel for the petitioner placed so much reliance was only a casual observation,

6. The same view of this decision was taken in Messrs. Mohandas Issardas v. A. M. Sattanathan, ILR 1955 Bom 318. At page 327 (of 1LR Born) : (at p. 118 of AIR) Chagla C. J. observed as follows:

"Therefore, with respect, his observation is not on obiter dictum in the sense in which we have indicated. It was not an expression of opinion on a point that arose before the Supreme Court. It is again with very great respect -- a casual observation made in considering the whole scheme of the Sea Customs Act."

The next case referred to by counsel for the petitioner is reported in Babulal Amthalal Mehta v. Collector of Customs, Calcutta, . The facts there were as follows: On 4-5-1955 the Rummaging Inspector (Intelligence), Customs House, Calcutta, searched the residential room of one Babulal Amthalal Mehta and in a wait almirah there discovered an old jacket wherein had been concealed 475 pieces of diamonds. The explanation of Babulal that he had received them from Messrs. Ratilal Aniritlal not having been accepted the Collector of Customs issued a notice to the petitioner and, after considering the entire material, he passed an order on 12-9-1955 the scope and effect of which are thus set out in the judgment:

"Since the petitioner had failed to discharge the onus under Section 178-A of the Sea Customs Act in respect of the diamonds seized on May 4, 1955, orders had been passed confiscating the same under Section 167(8) and 167(39) of the Sea Customs Act and that the confiscation would be absolute in terms of the provisions of Section 3(2) and (4) of the Imports and Experts (Control) Act, 1947. The reasons given in the above order were that the subsequent statements were contrary to what had been stated in the first instance, that at the time of the raid, an attempt was made to hide the diamonds in a suspicious manner and lastly that the petitioner was making statements which were in the nature of an afterthought, and not supported by_ facts. On account of these and other reasons the Collector was of the opinion that the presumption under Section 178-A had not been rebutted. The order stated that an appeal against it lay to the Central Board of Revenue within three months of the date of the despatch and also contained information as to the court-fee, stamps etc, which would have to be affixed. Without availing himself of that remedy the petitioner has come up to this court by way of an application for a writ under Article 32 of the Constitution."

7. The Court dismissed the petition. In the course of the judgment Govinda Menon J. referring to Section 167(8) of the Sea Customs Act, observed:

"It lays down that in addition to the confiscation of the goods, the persons concerned shall be liable to a penalty not exceeding three times' the value of the goods, or not exceeding one thou-sand rupees. This court has held that the minimum is the alternative; see ."

It will be noticed that the scone of Section 167(8) of the Sea Customs Act was never before the Supreme Court at all in this case either. The only question before the court was whether the provisions of Section 178-A offend against Art. 14 of the Constitution, and that question was answered in the negative. The passage from the judgment of Govinda Menon J. which we have quoted and on which the learned counsel for the petitioner naturally laid emphasis was only a passing reference to an earlier case in which too the question did not arise. Further it is apparent from an examination of the earlier case in , that this observation of Govinda Menon J, is not very accurate and is possibly the result of a misapprehension.

8. The third case referred to by the learned counsel is reported in F.N. Roy v. Collector of Customs, Calcutta, . F. N. Roy, the petitioner in that case, imported from Japan Zip chains of the value of Rs. 11000 and Odd. He paid for the goods, but before he could clear them, the Assistant Collector of Customs for Appraisement, served on him a notice that he did not possess a valid import licence for the goods in question and required him to show cause why the goods should not be Confiscated and action taken against him under Section 167(8) of the Sea Customs Act. Eventually after considering the representations of the petitioner, the Collector of Customs, made ah order contiscating the goods and imposing a penalty of Rs. 1000. The petitioner exhausted his departmental remedies and thereafter went up to the Supreme Court. The point taken before the Supreme Court will appear from the following passage which we quote from the judgment of Sarcar J:--

"The petitioner has now applied to this court under Article 32 of the Constitution challenging the validity of the order made against him: Learned counsel for the petitioner did not challenge the decision" of the Customs authorities that the goods were not covered by the notification of March 16, 1953. He conceded that he could not do so in this application. Nor did he challenge the Customs authorities' power to confiscate the goods. Learned counsel however challenged the order of Confiscation because it did not give the petitioner an option to pay in lieu of confiscation."

It will be noticed that in that case the amount of penalty imposed was only Rs. 1000 and so the question whether the appropriate customs officers could impose a penalty in excess of Rs. 1000 did not arise for consideration at all. The only point the court had to decide was whether the petitioner was entitled to the option of paying a fine in lieu of confiscation. It is no doubt true that on page 11158 (of SCR): (at p. 651 of AIR) the learned fudge observed.

"The section makes it clear that the maximum penalty that might be imposed under it is Rs. 1000. The discretion that the section gives must be exercised within the limit so fixed. This is not an uncontrolled or unreasonable discretion. Furthermore, the discretion is vested in high Customs officers and there are appeals from: their order."

From what we have just said it will have become apparent that the only question before the court was as regards the scope of Section 183 and that the scope of Section 167 (8) was not before the court at all.

9. It will be convenient at this stage to refer to two other decisions of the Supreme Court. Of these one is reported in Leo Roy Frey v. Supdt. Dist. Jail, Amritsar, 1958 SCR 822: (AIR 1958 SC 1119). The relevant facts of that case were as follows: One Leo Roy Frey and another Thomas Dana arrived in India on 11-6-1957. After staying in various places in India they left Delhi in a car for Amritsar on 22-6-1957. On 23-6-1957 they arrived at a Customs Station between India and Pakistan. The Customs officers required the petitioners to fill in the usual declaration forms. Thereafter a very intensive search was carried out and then a pocket radio and a time-piece were recovered from Dana and a pistol with 48 live cartridges was recovered from Frey.

Both of them were then placed under arrest. On 30-6-1957; they were further interrogated and their car was thoroughly searched. It was then discovered that there was a " secret chamber in that car containing Indian currency of the value of Rs. 8,50,000, and U. S. dollars "amounting to 10000". Notices were served on Frey and Dana, and, after hearing their representations, the Collector of Central Excise made an order confiscating the currency notes and the motor car. The petitioner Dana was given an option to redeem the car on payment of Rs. 50,000.

A penalty of Rs. 25,00,000 was imposed on each of the petitioners under Section 167(8). Thereafter the petitioners were prosecuted before the Additional District Magistrate, Amritsar under Section 23 read with Section 8 of the Foreign Exchange Regulation Act, 1947, and Section 167(81) of the Sea Customs Act, 1878. The legality of the prosecution was thereupon questioned. It was contended on hehalf of the petitioners that in view of the provisions of Article 20(2) of the Constitution, they could not be prosecuted and punished twice for the same offence,, once before the customs authorities and again before the magistrate. This contention was overruled. The court observed on page 828 (of SCR): (at p; 121 of AIR),

"It is true that the Collector of Customs has used the words 'punishment' and 'conspiracy' but those words were used in order to, bring out that each of the two petitioners was guilty of the offence under Section 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Article 20(2) cannot be invoked. In this view of the matter it is not necessary for as, on the present occasion to refer to the case of , and to discuss whether the words used in Article 20 do or do not contemplate only proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal as ordinarily understood. In our opinion, Article 20 has no application to the facts of the present case. No other points having been urged before us, these applications must be dismissed."

10. On page 827 (of SCR); (at p 121 of AIR) the following observations however appear:

''No question has been raised as to the maximum amount of penalty that can he imposed under Section 167(8) and we are not called upon to express any opinion on that point."

This passage is significant for two reasons. It is clear that the decision of this court in , was cited before their Lordships. The other is that in spite of the penalty which was imposed was so large a sum as twenty five lakhs of rupees, counsel did not consider it worthwhile raising the point that it contravened Section 107(8) of the Act.

11. The last decision cited before us was Thomas Dana v. State of Punjab, . Here too the petitioners were the same

individuals as in The Tiestion now was whether

Article 20(2) of the Constitution barred the prosecution of the petitioners under the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act a question which had been previously left open but which as the court observed,

"In view of the events that have happened since after the passing of the order of this court, dated October 31, 1957 it has now become necessary to determine."

The Court finally held that the proceedings before the Sea Customs authorities even though they might result in the confiscation of the goods and increased rate of duty or penalty did not constitute 'prosecution' within the meaning of Article 20(2) of the Constitution. Subba Rao J. dissented and expressed this opinion :

"I have, therefore, no hesitation to hold that the Customs Officers in so far as they are adjudicating upon the offences mentioned under Section 167 of the Act are functioning as judicial tribunals. If the other view, viz, that an authority is not a judicial tribunal be accepted, it will lead to an anomalous position, which could not have been contemplated by the Legislature. To illustrate, a Customs Collector may impose a penalty of Rs. 25,00,000, as in this case or his finding that a person has committed an offence under Section 167(8) of the Act, and the accused can be prosecuted again for the same offence before a magistrate. On the other hand, if the prosecution is first laid before a magistrate for an offence under Section 167(8) and he is convicted and sentenced to a fine of a few rupees, he cannot be prosecuted and punished again before a magistrate."

12. The point here is this. Notwithstanding incidental or passing expressions of opinion that had been made on three earlier occasions, the Supreme Court expressly refrained from saying anything on the matter in Leo Roy Frey case and in Thomas Dana's case, Subba Rao J. definitely expressed the opinion that a penalty of Rs. 25,00,000, would be permissible under the statute.

13. It will be seen that the passages on which learned counsel for the petitioner laid stress do not form the ratio decidendi to any of the decisions. Nor do they appear to be even considered expressions of opinion. The same view was taken by a Judge of the Calcutta High Court in Palriwala Bros Ltd v. Collector of Customs, where the learned Judge says,

"But those cases did not however in my view go into the question of maximum limit and actually decide the point."

It is occasionally helpful to remind oneself of basic principles and we therefore make no apology for quoting the following passages from Salmond on Jurisprudence. On pages 223 and 224 of the 11th Edn. the following passages appear:

''A precedent, therefore, is a judicial decision which contains in itself, a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decide (sic) which alone has the force of law as regards the world at large. The only use of authorities or decided cases says Sir George Jessel, 'is the establishment of some principle, which the Judge can follow out in deciding the case before him.' 'The only thing' says the same distinguished judge in another case, 'in a Judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided." .....The only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not true rationes decidendi, and are distinguished from them under the name of dicta or obiter dicta, things said by the way. The preprogativc of judges is not to make law by formulating and declaring it -- this pertains to the legislature -- but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is not of binding authority."

14. The footnote is also of interest:

"The weight to be given to obiter dicta depends upon the circumstances. Sir Carleton Allen's conclusion is that 'if the eminence of the tribunal, the consensus of judicial opinion, and the degree of deliberation all combine to lend a special weight and solemnity to dicta, then their authority is for all practical purposes indistinguishable from than of rationes decidendi".

15. In Flower v. Ebbw Vale Steel Iron and Coal Co., 1934-2 KB 132, the following passage appears at page 154:

"It is of course perfectly familiar doctrine that obiter dicta, though they may have great weight as such, are not conclusive authority. Obiter dicta in this context mean what the words literally signify -- namely, statements, by the way. If a Judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case and the reasons for the decision."

Wo should remark in passing that this passage has been incorporated in Stroud's Judicial Dictionary under the heading Obiter Dicta.

16. It has been explained that the observations made by the Supreme Court in none of the first three cases which we have cited constitute the rea sons for the decisions of any of those cases; nor are they deliberate pronouncements on the matter in question. They are passing observations, incidental and casual in their nature.

17. The position therefore is that the Supreme Court has riot given any clear guidance or expressed any considered opinion on the question and the matter remains to be examined more fully.

18. In order properly to produce the meaning which the learned counsel for the petitioner invited us to put on the words appearing in column 3 against item 8 in Section 167 of the Sea Customs Act, it is necessary that the words should run as follows:

"Any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees, whichever is less."

19. But, the words 'whichever Is less' are not in the statute. A construction which would require fresh words to be introduced into a statute is not to be readily adopted. There are numerous statutes which specify punishments in the alternative for defined offences. Of these statutes the most familiar is the Indian Penal Code. Section 802 of that Code enacts that a person guilty of murder shall be punished with death or imprisonment for life. Section 304 provides that whoever commits culpable homicide shall be punished with transportation for life or imprisonment of either description for a term which may extend to ten years. Section 313 provides that whoever commits the offence defined in Section 312 shall be punished with transportation for life or with imprisonment of either description which amounts to ten years. Similarly Section 329 I. P. C. Similar alternative provisions are to be found in various other sections of the Code.

20. Now, this Code has been on the statute book for close on one hundred years and thousands of cases under these sections must have been dealt with during this period. Yet, so far as we are aware, it has not even been suggested that since the punishment provided in these sections is in the alternative only the lesser penalty can be imposed by the courts. Imprisonment for life is a less severe form of punishment than death. But, it has not been suggested that because Section 302 I. P. C. enacts that a person guilty of murder shall be punished with death or imprisonment for life he cannot be sentenced to death and can be sentenced only to imprisonment for life.:

Similarly, imprisonment for ten years is less severe than transportation for life; yet it has never been held that where the imposition of these penalties in the alternative is provided for transportation for life cannot be imposed. The long history of the Penal Code is also sufficient to dispose of the further contention that since Section 167 of the Sea Customs Act is penal in its nature, courts must on principle adopt the construction more favourable to the person sought to be proceeded against.

21. The Penal Code is not the only statute which provides for alternative punishments for the same offence. Another statute which can be called up, from memory and without research is the Indian Navy (Discipline) Act, 1934. Section 4 of that Act provides that for the offences specified therein the offender may be punished with 'death or such other punishment as is hereinafter provided.' Section 5 provides that if the offence referred to therein is committed from cowardice the offender Shall suffer 'death or such other punishment as is hereinafter mentioned'. Similar alternative provisions appear in various other sections which follow.

22. If the contention of learned counsel for the petitioner were right then in every one of these cases only the lesser penalty can be imposed. That surely could not have been the intention of the legislature, for in that ease, by prescribing a higher alternative penalty the legislature would be stultifying itself.

23. There is yet another difficulty in the way of the contentions of the learned counsel for the petitioner. On the basis that Rs. 1000 is the maximum penalty that can be imposed on a person concerned in smuggling goods that maximum would be reached in the case of goods of the value of Rs. 833-1/3 since three times this figure is Rs. 1000. So if a person smuggles goods of the value of say three lakhs or even three crores of rupees no penalty can be imposed on him in excess of that which can be imposed upon a person who is concerned in the smuggling of goods of the value of only Rs. 333-1/3. Ordinarily in fixing punishments and penalties the legislature attempts to make the penalty appropriate to the offence. The more serious the offence the greater is the penalty provided. The milder the contravention the milder the penalty. An argument which would make serious inroads into so well established and salutary a principle cannot be accepted except where the language of the statute is plain.

24. At no time have legislatures been inclined to be indulgent to smugglers, and, the penalties provided in Section 167 show that the punishments arc intended to be deterrent. Item 4, as it originally stood, provided for the confiscation of the vessel concerned where it "has been within the limits of any port in India, with cargo on board" should it be afterwards found in any other port, bay, river, creek or arm of the sea in India, light or in ballast if the Master be unable to give a due account of the customs-poll where such vessel lawfully discharged her cargo. Item 3-A provides that the vessel shall be liable to be confiscated if any part of the cargo of a vessel is thrown overboard or is staved Or destroyed so as to prevent its seizure by any officer of customs while the vessel is within Indian customs waters or while the vessel having been summoned while in India watery fails to do so and chase is given.

25. It is perfectly clear that when the legislature prescribed that the penalty shall not exceed three times the value of the goods it was making a deliberate effort to make the penalty proportionate to the value of the goods involved. To fix the ceiling at Rs. 1000 would be to defeat this effort of the legislature.

26. Two other contentions put forward by learned counsel remain to be considered. Section 167 of the Sea Customs Act is cased upon Section 186 of the Customs Laws Consolidation Act of the British Parliament (Ch. 36, 39, and 40 Vict. 1876) which ends as follows:

''Every person .....shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or one hundred pounds at the election of the Commissioners of Customs."

It was argued that the English statute expressly conferred the power to choose on the Commissioners and that no corresponding words are to be found in the Indian statute. The omission, it was said, must have had a purpose and it was further said that that purpose could only have been to make the lesser penalty the maximum penalty.

27. We are unable to agree. When a statute provides for alternative punishments, a choice between the two punishments must naturally be made. But, we do not suppose that it was ever intended that the choice of the punishment should be left to the person who has been found guilty of having transgressed the law. That option must naturally vest in the person administering the law. That goes without saying. The freedom of choice would even without the words in question have remained with the Commissioners. The omission of corresponding words in the Indian statute is therefore of no consequence: Besides, though the Indian Act is based on the English Act the drafting is not on parallel lines at all.

28. Yet another argument was based on Section 23 of the Foreign Exchange Regulation Act, 1947. Sub-section (1) of that section was amended in 1957 and then it was provided that a person contravening certain other: sections of the Act shall be liable "to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more." The argument was that when the legislature thought fit to add the words 'whichever is more' in Section 23 of the Foreign Exchange Regulation Act, 1947 and omitted to do so in Section 167 of the Sea Customs Act one must presume that the intention of the legislature was that only the lesser penalty should be provided.

Now, on this we would make only two observations. One is that the amendment made in Section 23 did not consist merely of the addition of the words "whichever is more". The whole of that subsection was re-written to provide for various Other matters also. Besides, however legitimate it may be to interpret the mind of the legislature by looking into the words of a statute it has subsequently enacted, we have not heard that the intention of the legislature as expressed in a particular statute can be gathered by its inactivity in relation to that statute.

29. It seems to us that the view taken by this Court in , and Venkatanarayana Iyer v. Collector of Central Excise, Madras, 1958-2 Mad LJ 115; (AIR 1958 Mad 306), is right and that view cannot be regarded as having been overruled or disapproved of by the Supreme Court.

30. In the result, this writ petition fails and is dismissed with costs. Advocate's fee Rs. 250/-.


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