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Public Prosecutor, Madras Vs. M.L. Modi - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case Nos. 842 and 843 of 1959 and Crl. Revn. Petn. Nos. 822 and 823 of 1959
Judge
Reported inAIR1961Mad368; 1961CriLJ349
ActsSea Customs Act, 1878 - Sections 167 (8-one), 178A and 178A(2)
AppellantPublic Prosecutor, Madras
RespondentM.L. Modi
Appellant AdvocateR.M. Seshadri, Adv.;Public Prosecutor
Respondent AdvocateN. Narayanamurthi, Adv.
Excerpt:
.....customs act, 1878 - prosecution of petitioner under act of 1868 for reason of recovery of wrist watches - wrist watches not included in list of presumed smuggled goods under section 178a - since purchase of watch not prohibited petitioner could have acquired goods legitimately from india - identity of watches not made out - nothing to prove illegal import - held, prosecution of petitioner under act of 1878 unjustified. - - section 167 (8-one) is itself, something of an omnibus provision, the wording of which is not particularly happy. secondly, even if it is to be acted upon, such an admission clearly cannot form the basis for any conviction of the revision petitioner. the prosecution must prove, by, some other dependable evidence, that these watches had been imported into india..........was in possession of so large a quantity of wrist watches as 247 they were smuggled goods or goods imported into india from abroad without duo payment of duty. since the purchase of these goods was not prohibited, even 'on a large scale, and duty was payable in respect of such goods only on the occasion of import into the country, the revision petitioner could obviously have acquired these goods quite legitimately at bombay or elsewhere. the lad that bills were not produced or that he failed to satisfactorily account for the acquisition, will not raise any presumption against him, unless the goods fall within the scope of section 178-a of the act. with regard to penal provisions of this character, it is the imperative duty of courts to interpret them narrowly, with regard to the.....
Judgment:
ORDER

Anantanarayanan, J.

1. Crl. R. C. No. 843 of 1959, to take up these related proceedings in their logical order, is a proceeding in revision against the conviction of the revision petitioner (H. L. Modi), under Section 167 (8-one) of the Sea Customs Act which conviction was confirmed in appeal by the learned Sessions Judge of Chingleput Crl. R. C. No. 842 of 1959 is a revision proceeding by the Public Prosecutor against the sentence in the case, which was reduced on appeal by the learned Sessions Judge of Chingleput to a fine of Rs. 1000 alone, setting aside the sentence of rigorous imprisonment for three months imposed by the trial Court.

2. The facts arc very simple, though the matter reveals a somewhat tangled history with regard to the facts of trial. On 14-12-1957 this revision petitioner (H. L. Modi) disembarked at Meenam-bakkam, Aerodrome from an aeroplane which flew from Bombay to Madras. He was interrogated by certain Customs officials, and his trunk was searched; with the result that underneath certain articles of clothing a tin box was found containing 247 wrist watches of 'Record' manufacture, most of them new.

A mahazar was duly drafted for the seizures, and, in the office of the Collector of Central Excise where the petitioner was detained for sometime, he made a statement admitting the broad facts, which is Ex, P. 2 in the case. Subsequently, the petitioner was charge-sheeted under Section 167 (8-one) of the Sea Customs. Act. At a later stage of the proceedings Section 5 of the Imports and Exports (Control) Act, 1947, was added as a supplemental charge, and the case was transferred to the file of the learned Sub-Divisional Magistrate, Poonamailee, as offence triable by a First Class Magistrate was involved.

3. But, when the case reached the stage of arguments before the learned Sub-Divisional Magistrate, it was virtually conceded that the charge relating to Section 5 of the Imports and Exports (Control) Act, 1947 could not be sustained; it was accordingly dropped. The essence of the case, as far as this charge is concerned, was that the revision petitioner, a businessman residing at Pondicherry, illicitly imported these identical watches prior to 1-11-1954 and later illicitly smuggled them into Indian Union limits, after the merger of Pondicherry. But frankly, the prosecution were unable to establish the identity of the watches upon which this charge depended. The charge was relinquished and, as I already stated, the revision petitioner was convicted under Section 167 (8-one) of the Sea Customs Act alone.

4. Learned counsel for the revision petitioner, (Mr. R. M. Seshadri) has pressed before me, the main argument that, once the charge under Section 5 of the Imports and Exports (Control) Act, 1947, was dropped, the charge under Section 167 (8-one) of the Sea Customs Act did not survive, viewed broadly with reference to the facts of the record. In the revision proceeding itself other matters are mooted, such as the request of the revision petitioner to examine himself under Section 342-A Crl. P. C. as, at one stage of the proceedings in this court, Soma-sundaram J. was inclined to record the further evidence of the person from whom the revision petitioner claimed to have purchased these watches at Bombay.

But, admittedly, nothing else was done. The question now is whether the charge under Section 167 (8-one) of the Sea Customs Act can be said to survive at all, upon the established facts. If it does not survive, there is obviously no further question of recording of evidence, or the rights of the revision petitioner (accused) to examine himself, flowing from that supplemental evidence.

5. On a careful consideration of the facts of the present matter, I am inclined to agree that no offence separately punishable under Section 16T(8-one) of the Sea Customs Act has been made out in this case, once it is conceded that the identity of the watches was not established. Section 167 (8-one) is itself, something of an omnibus provision, the wording of which is not particularly happy. But even a careful dissection and analysis of its terms fails to reveal any offence which the revision petitioner could be said to have committed upon the proved facts.

It is claimed by the learned Public Prosecutor that, in his statement, Ex. P. 2, the revision petitioner admitted that he was aware that there were watches upon which duty had not been paid. First of all, I am not at all certain how far Ex. P. 2 could be safely accepted and acted upon. Secondly, even if it is to be acted upon, such an admission clearly cannot form the basis for any conviction of the revision petitioner. The prosecution must prove, by, some other dependable evidence, that these watches had been imported into India without duty, and were, in fact, smuggled goods. Actually, the Legislature has been very well aware of the difficulty of proving this, and has enacted Section 178-A(i) of the Act by virtue of Amending Act 21 of 1955.

Under Section 178-A (1) and (2) there is a presumption that certain categories of goods are smuggled goods, when they are seized under the Act in the reasonable belief that they were of that character. Section 178-A(2) refers to these categories, and also refers to a notification which the Central Government may make. Neither under the Sub-section, nor under any such notification, are wrist watches goods of that description. This matter is not in dispute Hence, there was no presumption that, even when the revision petitioner was in possession of so large a quantity of wrist watches as 247 they were smuggled goods or goods imported into India from abroad without duo payment of duty.

Since the purchase of these goods was not prohibited, even 'on a large scale, and duty was payable in respect of such goods only on the occasion of import into the country, the revision petitioner could obviously have acquired these goods quite legitimately at Bombay or elsewhere. The lad that bills were not produced or that he failed to satisfactorily account for the acquisition, will not raise any presumption against him, unless the goods fall within the scope of Section 178-A of the Act.

With regard to penal provisions of this character, It is the imperative duty of courts to interpret them narrowly, with regard to the specific language employed, and not to extend their boundaries by some mode of construction designed to aid the administration. On the contrary, in all such cases, where the administration experiences any real difficulty, its true remedy is to seek the aid of the Legislature in tightening the provisions of the law. The construction of Courts with regard to penal provisions will always be strict, and mindful of the liberties of the subject.

6. In this connection, Mr. Seshadri has drawn my attention to certain observations in W. P. No. 786 of 1957 (Mad) dealt with by a Bench of this court (Rajagopalan & Balakrishna Aiyar,JJ.) wherein the learned Judges have observed, with regard to very similar facts, that even where goods appear to have been acquired not through the normal trade channels in the open market, there was no inference (that 'the goods had been illegally imported or even that the petitioner knew at the time of the acquisition of these goods that they had been illegally imported into the country.

The learned Judges proceeded to point out that 'it was certainly not the case of the Department that the articles mentioned in the list or any of them were not available in the market in India, though import of these articles was restricted'. . In the present case, there is not even evidence that the import was greatly restricted, and such data as are available seem to prove, on the contrary that any person who was willing to lay out the necessary capital could have acquired these watches in a perfectly legitimate manner.

7. Under the circumstances, I am constrained to conclude that the charge under Section 167 (8-one) of the Sea Customs Act was not at all established against the revision petitioner. Since that is only conviction, the proceeding will have to be allowed by acquitting the revision petitioner upon the charge, and setting aside the sentence of fine. The fine if paid, will be refunded.

Crl. R. C. No. 843 of 1959 is hence allowed. Cri. R. C. No. 842 of 1959 filed by the learned Public Prosecutor is dismissed.


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