(1) This is a petition that seeks for review by way of Causation, the judgment of the Tribunal Superior d' Appeal at Pondicherry which in turn confirmed the judgment of the Tribunal de Premiere Instance de Karikal, under which the first accused, the petitioner herein, a driver, was convicted and directed to pay a fine of Rs. 20 for causing obstructions to the officers of the Customs Department, involving a contravention of S. 167(78) of the Sea Customs Act, which reads:
'If any person intentionally obstructs any officer of customs or other person duly employed for the prevention of smuggling, in the exercise of nay powers given under this Act to such officer or person, such person shall, on conviction before a Magistrate, be liable to imprisonment for nay term not exceeding six months, or to a find of not exceeding one thousand rupees, or to both.'
Applying at the same time the principle enunciated in S. 1384 of Chapitre II of Code Civil which deals with delits and quasi-delits and which makes a person responsible not only for the damage committed through his own default, but also to such damage that is caused by the default of persons for whom he can be made responsible, the courts in Pondicherry made the owner of the said vehicle, who is the second accused in the case, also liable for payment of the same amount of fine. The petitioners thus convicted and sentenced appealed for review in Cassation of he said judgment to this court. But, unfortunately they have not alleged, in their petition for Pourvoi en Cassation, any of the grounds on which they seek relief and they have also not made their appearance before this court at the time of the hearing the learned Public Prosecutor, I am of opinion that he judgments of the courts at Pondicherry cannot be supported for two principal reasons, which appear to me to be questions of law, and as such justifying interference by this court.
(2) The first point arises out of proved facts themselves. The proved facts are that, when the first accused was driving a car, the customs officers, suspecting that the car contained contraband, directed the car to stop. The first accused stopped the car momentarily and then shortly afterwards accelerated and drove away. Now, the section of the Sea Customs Act which has been already extracted, deals with intentional obstruction of an officer of the customs or other persons duly employed for the prevention of smuggling, in the exercise of his powers. There is the authority of the judgment of Pandrang Row J. reported in Pattanathan, IN re : (1937)1MLJ178 dealing with the identical section of the Sea Customs Act, wherein the learned Judge observed, on facts closely analogous to those in this case:
'Obstruction implies some actual resistance offered to the public servant in the discharge of his duties. Mere evasion or disobedience to lawful order (the order to shop the vehicle issued by the Customs Officers) is not an obstruction to the officer who issues the order.'
The learned Public Prosecutor concedes fairly that the said decision is applicable to the facts of this case. It would therefore follow that he proved facts could not amount, in law, to an offence under S. 167(78) of the Sea Customs Act.
(3) The second point which also appears from the record is that at the time of the alleged obstruction, the Customs Officers were not in their uniform, nor did they disclose that they were customs officers. It would have been, therefore, quite possible that the driver apprehended that some unknown persons were attempting to stop the car with questionable motives. The section clearly requires that the Customs Officers should be acting in their official capacity. Therefore the offence involves knowledge on the part of the accused or the likelihood of knowledge on the part of the accused that the persons whom they are alleged to have obstructed, were customs officers engaged in the performance of their duties. When the proved facts give no basis for drawing such an inference of intention to obstruct Customs Offices in the mind of the accused, that again would be a factor vitiating the conviction. I therefore set aside the conviction of the appellants and direct that the fine, if paid by them be refunded.
(4) Appeal allowed.