(1) The petitioner was tried by the Sub-Divisional Magistrate, Ramanathapuram, for offences under Section 167(81) of the Sea Customs Act and Section 8(2) read with Sec. 23-B and Sec. 23 of the Foreign Exchange Regulation Act VII of 1947, and sentenced to six months R. I., for the offence under Sec. 167(81) of the Sea Customs Act and for a similar term for the offence under S. 8(2) read with S. 23-B of the Foreign Exchange Regulation Act, the sentences to run concurrently. In appeal the conviction and sentence for the offence under Sec. 8(2) read with Sec. 23-B of the Foreign Exchange Regulation Act were set aside but the conviction and sentence for the offence under section 167(81) of the Sea Customs Act were confirmed.
(2) The circumstances under which the petitioner was tried and convicted are these: The petitioner was a passenger bound for Ceylon. He came to the Customs baggage shed at Danushkadipier on 5-2-1958 for embarkation. He made a declaration in Ex. P-1 that he had only Rs. 10 in Indian currency notes. P.W. 1, the Inspector, Central Excise, Dhanushkodi examined the baggage and found that he had no dutiable articles. But P.W. 2, the Deputy Superintendent of Police, who had information that the accused was carrying currency notes, followed him and question him. He gave the Deputy Superintendent of Police the same reply as he gave to P.W. 1. The accused was then wearing a cap and chapels. P.W. 2 cut open one of the chapels and found two packets rolled in white paper inserted in the chapel. He found 35 notes of RS. 100 denomination in one packet and 30 notes of similar denomination in the other packet. Similarly he cut open the other chappal (M.O.2), and he found therein also two packets containing in all 65 notes of Rs. 100 denomination.
There were thus 130 notes of Rs. 100 denomination found hidden in the two chappals. The cap of the accused was then cut open and P.W. 2 found in the cap (M. O.3) 130 currency notes of Rs. 100/- denomination concealed around the cap between the card board padding and the outer fur of the cap. All these were seized and a mahazar Ex. P. 2 was prepared for the same. The Mahzar was attested by P. Ws. 3 to 5. P.W. 2 also recorded a statement, Ex. P. 3, from the accused and it was attested by P. Ws. 6 and 7. It is doubtful whether this statement is admissible in view of the fact that it was an admission made to a police officer. The Deputy Superintendent also seized the railway receipt, Ex. P. 4, The accused did not show the officer concerned any reserve bank licence to carry currency notes to the above extent. The currency notes were confiscated and a penalty also was imposed though it is not clear from the judgment as to what penalty was imposed. Then the Assistant Collector or Customs on the authority of the Collector filed a compliant before the Sub-Divisional Magistrate for the offences mentioned above.
(3) The accused does not deny the recovery of the currency notes from him but he denies that it was recovered in the manner alleged. In short he says that without his knowledge the currency notes were in his hand bag, and they were recovered from the bag. The lower court very rightly rejected the defence and accepted the evidence of the prosecution and found that the notes were recovered in the manner alleged which clearly showed that the accused kept these things hidden. Undoubtedly, he intended to take these currency notes to Ceylon but before they could be taken they were seized from him. It is, therefore, clearly established on the facts that the accused did carry these currency notes hidden in the chappals and in the cap for the purpose of taking them to Ceylon. The trial Court convicted him as aforesaid i.e., for offences under Sec. 167(81) of the Sea Customs Act and Sec. 8(2) read with Sec. 23-B of the Foreign Exchange Regulation Act; and AS already stated, in appeal the conviction for the offences under the Sea Customs Act was confirmed, the accused having been acquitted of the other offence.
(4) The main contention of Mr. Mohan Kumaramangalam who appears for the petitioner is that Sec. 167(81) of the Sea Customs Act cannot apply to a contravention of Sec. 8(2) of the Foreign Exchange Regulation Act. To appreciate this contention it is necessary to set out some of the provisions of the Foreign Exchange Regulation act and also the Sea Customs Act. Section 8 of the Foreign Exchange Regulation Act 1947 is as follows :
"8. Restriction s on import and export of certain currency and bullion: (1) The Central Government may, by notification in the official Gazette, order that, subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed, bring or send into the States any gold or silver or any currency notes or bank notes or coin whether Indian or Foreign.
Explanation : The bringing or sending into any port or place in the States of any such articles as aforesaid intended to be taken out of the States without being removed from the ship or conveyance in which it is being carried shall nonetheless be deemed to be a bringing, or as the case may be sending, into the States of that article for the purpose of this section.
(2) No person shall, except with the general or special permission of the Reserve Bank or the written permission of a person authorised in this behalf by the Reserve Bank, take or send out of the States any gold, jewellery or precious stones or Indian currency notes bank notes or coin or foreign exchange other than foreign exchange obtained from an authorised dealer."
(5) There was another clause (3) which was as follows :
"(3) The restrictions imposed by sub-secs. (1) and (2) shall be deemed to have imposed under section 19 of the Sea Customs Act, 1878, without prejudice to the provisions of Sec. 23 of this Act, and all the provisions of that Act shall have effect accordingly."
(6) This sub-clause (3) was deleted by Central Act VIII of 1952 and instead, Sec. 23-A was introduced which runs as follows:-
"23-A. Application of Sea Customs Act, 1878. Without prejudice to the provisions of Sec. 23 or to any other provision contained in this Act, the restrictions imposed by sub-secs. (1) and (2) of section 8, sub-sec. (1) of Sec. 12, and clause (a) of sub-sec. (1) of Sec. 13 shall be deemed to have been imposed under Sec. 19 of the Sea Customs Act, 1878 (VIII of 1878) and all the provisions of that Act shall have effect according, except that S. 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted."
(7) Section 19 of the Sea Customs Act is as follows:
"19. The Central Government may from time to time, by notification in the official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government."
(8) Section 167(81) is as follows:
Offences Section of this Act to which offence has reference Penalties
81. If any person knowingly and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the item 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, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been lawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid; or General Such person shall on conviction before a magistrate be liable to imprisonment for any term not exceeding two years, or to fine or to both.
if any person is in relation of any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods.
"Nothing in the second column of the above schedule shall be deemed to have the force of law."
This Sec. 167(81) was introduced by was of amendment by Sec. 10 of Act XXI of 1955. It is the contention of Mr. Mohan Kumaramangalam that Sec. 19 must be considered to have been incorporated by virtue of Sec. 23-A in S. 8 of the Foreign Exchange Regulation Act : and this having been incorporated in the year 1952, any subsequent amendment of the Sea Customs Act-as in the present case S. 167(81)-cannot be read into the Foreign Exchange Regulation Act and in this view the conviction for the offence under Sec. 167(81) is unsustainable. In support of his contention he relies upon the decision of a Bench of this Court reported in Sampathu v. Collector of Customs, . The Bench consisting of Rajagopalan and Balakrishna Aiyar, JJ., has observed as follows at p. 242 (of ILR, Mad) : (at p. 150 of AIR):
"The language of Sec. 23-A of the Foreign Exchange Regulation Act bars in our opinion, acceptance of the plea of the learned Advocate-General, that the provisions of Sec. 8(1) among others of that Act were incorporated into the Sea Customs Act. It was really the provisions of the Sea Customs Act as they stood in 1952 that were incorporated by reference to that Act into the Foreign Exchange Regulation Act by Sec. 23-A thereof."
(9) In Secy., of State v. Hindustan Co-operative Insurance Society Ltd., ILR 59 Cal 55 : (AIR 1931 PC 149) the Privy Council observed at p. 64 (of ILR Cal) : (at p. 152 of AIR) thus :
"It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition."
And they held that the subsequent amendment, which was in that case Sec. 167(8) could not be read into Sec. 8(1) of the Foreign Exchange Regulation Act.
(10) The learned Advocate-General who appears for the State contends that the interpretation put by the Bench is not correct and he reiterates his contention that it is the provision of Sec. 8(1) and(2) of the Foreign Exchange Regulations Act that must be said to be incorporated in the Sea Customs Act and this is the interpretation to be given to the provisions of Sec. 23-A of the Foreign Exchange Regulation Act. It seems to me that the contention of the learned Advocate-General is well founded and I am inclined to agree with him that it is the provisions of Sec. 8(1) and (2) (in this case we are concerned only with S. 8(2)) that must be considered to be incorporated in section 19 of the Sea Customs Act by virtue of section 23-A and not the other way about. As the decision relied upon by Mr. Kumaramangalam is by a Bench of this Court and as I do not agree with the view taken by that Bench, I am put to the necessity of directing the papers to be laid before my Lord the Chief Justice for order as to reference to a Full Bench.
(11) The question, therefore, which I would like to formulate for reference to the Full Bench is as follows:
"Whether Sec. 167(81) of the Sea Customs Act does not apply to contravention of Sec. 8(2) of the Foreign Exchange Regulation Act."
Two other questions also have been raised before me, one of which at least is undoubtedly a question of importance and I have been asked to include these questions also in their reference to the Full Bench. One of the question raised arises on the construction of Sec. 186 of the Sea Customs Act. Section 186 reads as follows :
"The award of any confiscation, penalty or increased rate of duty under this Act by an officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under 'any other law'." (Underlining (here into ' ') is mine).
What is meant by 'any other law? Does it mean law other than what is contained in the Sea Customs Act or whether it includes any other provisions of the Act?
(12) In two decisions of the Supreme Court, one Leo Roy v. Superintendent, District Jail, Amritsar, and the
other in Thomas Dana v. State of Punjab, without the point being raised and discussed their Lordships simply confirmed the conviction under the Sea Customs Act after the goods were confiscated and penalty was levied. In as much as the point was never raised and decided and as the question is raised before me, it is contended by the learned Advocate-General that this question also being an important question of law may be referred for decision by the Full Bench. I would therefore formulate the question as follows:
"Whether Sec. 186 of the Sea Customs Act precludes proceedings under Sec. 167(81) of the Sea Customs Act in cases where goods have been confiscated and penalty has been levied."
The third question which has been raised for the first time before me in revision is one arising under the proviso to Sec. 23 of the Foreign Exchange Regulation Act. The proviso runs as follows :
"Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission."
In this case the lower appellate Court following the decision of the Bombay High Court has acquitted the accused for the offence under S. 23(1)(B) of the Foreign Exchange Regulation Act. I do not think it necessary to refer this question for decision by the Full Bench as the accused has been acquitted of that offence. The trial Court finds that the accused did not have any reserve bank license or permission. He must have been questioned about the license and he must have said that he has no permission. Evidence has not been placed before me to establish that he has not been questioned. It is not likely that a complaint would have been laid without ascertaining from him whether he has permission or license. The very fact that he has not produced any such permission even during trial shows that he has no such permission. In these circumstances I do not think it necessary to refer this question to the Full Bench.
(13) Therefore, the two questions for reference to a Full Bench are the following.
"1. Whether section 167(81) of the Sea customs Act does not apply to contravention of section 8(2) of the Foreign Exchange Regulation Act.
2. Whether section 186 of the Sea Customs Act in cases where goods have been confiscated and penalty has been levied."
The papers will be placed before my Lord the Chief Justice for orders as to posting before a Full Bench.
Opinion of the full bench
(14) This is a reference by our learned brother Somasundaram, J., upon two questions hat arose in the course of the arguments before him in criminal revision proceedings. The first question referred to us is:
"Whether section 167(81) of the Sea Customs Act does not apply to the contravention of section 8(2) of the Foreign Exchange Regulation Act."
The second question is:
"Whether Sec. 186 of the Sea Customs Act precludes proceedings under section 167(81) of the Sea Custom Act in cases where goods have been confiscated and penalty has been levied."
The two questions, though arising from the facts of the particular case are distinct, and have to be kept apart. It is not necessary to recapitulate the facts, for they have been sufficiently set forth in the order of reference of our learned brother, and, further, they are not essentially related to the problems which concern us in the reference, which are largely problems of law. I shall immediately proceed to the first question of the reference.
(15) Upon this aspect, we have had the considerable advantage of arguments by the learned Advocate-General based upon a research into the law and precedents relating to the topic of statutory incorporating by reference which is involved in the question. The main basis of the learned Advocate-General's argument in this. Referential legislation is a very wide subject, of increasing importance in the proliferation of enacted law. But, obviously, this includes many forms, from barecitation, reference, application, and application by means of legal fiction to statutory incorporation. Incorporation is only a part of this wide sphere, and it is essential that the ambit of statutory incorporation should be clearly defined. In English law and precedent, we see the ebb and flow of several ideas upon the topic, but, more and more, the legislature and the Courts have attempted to define and delimit statutory incorporation. Either the ipsissima verba are set fourth in the incorporating statute, or an almost unvarying formula is employed to indicate actual incorporation. But citation, reference and application stand on a different footing altogether; in recent statues we see the two processes side by side. But statutory incorporation has certain incidents and legal consequences, which ought to be clearly distinguished, and which ought not to be invoked in matters of mere reference or application of the principles of one statute to another.
(16) The matter arises in the following way. Section 8 of the Foreign Exchange Regulation Act, 1947, originally included clause 3, which ran as follows:
"The restrictions imposed by sub-sec (1) and (2) shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1878, without prejudice to the provision of Sec. 23 of this Act, and all the provisions of that Act shall have effect accordingly."
This sub-clause (3) was deleted by Central Act VIII of 1952. Section 23-A was introduced by Act VIII of 1952. It runs as follows:
"Without prejudice to the provisions of section 23 or to any other provision contained in this Act, the restrictions imposed by sub-secs. (1) and (2) of section 8, sub-sec. (1) of section 12 and cl. (a) of sub-sec. (1) of section 13 shall be deemed to have been imposed under section 19 of the Sea Customs Act, 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."
(17) We shall, a little later, turn to S. 183 of the Sea Customs Act where a verbal change has been introduced by S. 23-A. But, before this, it is necessary for us to note the provisions of subsets. (1) and (2) of S. 8, sub-sec. (1) of section 12 and clause (a) of sub-sec. (1) of section 13 of the Foreign Exchange Regulation Act, referred to above. It is not necessary to set forth these provisions in extenso. But we may observe that under section 8 sub-sec. (1), the Central Government is empowered to impose restrictions of the import and export of certain currency and bullion (Gold and Silver) "by notification in the official Gazette". Next, turning to sub-sec. (2) of section 8, it indicates that no person shall, except with the permission of the Reserve Bank, "take or send out of India any gold or precious stones of Indian Currency or Foreign Exchange." In other words, sub-sec. (1) requires a notification of its taking effect, while sub-sec. (2) of section 8 operates proprio vigore. Similarly, sub-sec. (1) of section 12 indicates that the Central Government may by notification in the Official Gazette, prohibit the export of certain class of goods specified in such notification, except upon a declaration etc. Subsection (1) (a) of section 13 indicates that no person shall, except with the general or special permission of the Reserve Bank "take or send any security to any place outside India". Here again, there is a contrast between section 12(1) which requires a notification, and section 13(1)(a) which operates proprio vigore.
Turning our attention to section 23-A again, were not that these restriction are to be deemed to have been imposed under Sec. 19 of the Sea Customs Act, 1878 "and all the provisions of that Act shall have effect accordingly". In other words, the text of section 19 of the Sea Customs Act is not brought into this statue nor are words employed to the effect that that section is to be read as part of the Foreign Exchange Regulation Act, 1947. What is enacted is that the restriction imposed by the sections aforesaid are, by a large fiction, to be deemed as imposed under section 19 of the sea Customs Act, and the structure of that Act is to be applied to those instances in which the restrictions have been infringed, as a logical consequence.
(18) We way immediately turn to the Sea Customs Act, 8 of 1878. Section 183 of that Act specifies that :
"Whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit."
The learned Advocate-General points out that, even as this provision stands in the Act in which it occurs, the word "shall" ought to be construed as "may" in certain cases. For when we turn to section 167 of the Act, we find that goods liable to confiscation under the schedule thereto will include counterfeit currency or obscene literature, and it could not have been the intention of the legislature that the person attempting to bring in or take out counterfeit currency should be entitled to its return. But, however this might be, there can be no doubt that, when Sec. 183 to be invoked in consequence of the application of the Sea Customs Act to certain restrictions under the Foreign Exchange Regulation Act, by virtue of Sec. 23-A, the authority confiscating the goods is not at all bound to offer the option of a fine instead. I might conveniently add, in this context, that the necessity for the reference arose because of section 167(81), a comprehensive penal provision, which was introduced by Act XXI of 1955 that is long after Act VIII of 1952 which introduced section 23-A of the Foreign Exchange Regulations Act. The argument before the learned Judge was that, in consequence of the incorporation of the Sea Customs Act under Sec. 23-A and more particularly of sec. 19 of that Act section 167(81) could not be read into the Foreign Exchange Regulation Act at all, being subsequent to the incorporation. I may further note sequent to the incorporation. I may further note in this same context that, under section 19 of the Sea Customs Act, the Central Government is empowered, by notification in the Official Gazette to "prohibit or restrict the brining or taking by sea or by land goods of any specified description into or out of India......."
(19) It is now time that the problem should be clearly set forth and discussed. A very similar situation arose in the Bench decision of this Court in . That related to section 178-A(1) of the Sea Customs Act, which was incorporated in 1955, In other words, the situation and argument were both identical. The learned Judge observed (p. 242 (of ILR Mad) : (at p. 150 of AIR):
"The language of section 23-A of the Foreign Exchange Regulation Act, bars, in our opinion, acceptance of the plea of the learned Advocate-General, that the provision o f Sec. 8(1) among others of that Act were incorporated into the Sea Custom Act. It was really the provisions of the Sea Customs Act as they stood in 1952, that were incorporated by reference to that Act into the Foreign Exchange Regulation Act by section 23-A thereof." The learned Judges then proceeded to cite a passage from ILR 59 Cal 55 : (AIR 1931 PC 149), a decision that we shall have occasion to analyse at some length, and relied upon that passage for the dictum laid down by them earlier. In his order of reference, Somasundaram, J., refers to the same passage, and observes that he felt that there was substance in the argument of the learned Advocate-General that, if this is a case of incorporation at all, we must rather hold that the provisions of sections 8(1) and (2) of the Foreign Exchange Regulation Act, have, on the contrary, been incorporated with section 19 of the Sea Custom Act, by virtue of section 23-A. As we shall see a little later, a great deal could be said for this view upon certain grounds of logical property. But, since it is largely upon the strength of the Privy Council decision in ILR 59 Cal 55 : (AIR 1931 PC 149) that the argument itself is pressed, and it is certainly a leading case in this country upon the subject, we have to turn to it, before scrutinising the law and precedents in the United Kingdom.
(20) Before I do so, I might briefly refer to two provisions of the General Clauses Act, 1897, which are helpful in this context. Section 6-A of this Act lays down that where any Central Act or Regulations made after its commencement repeals any enactment by which the text of any Central Act or Regulations was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed. Similarly, under Sec. 8(1) of the General Clauses Act, where any Central Act or Regulation made after the commencement of the Act repealed and re-enacted with or without modification any provision of a former enactment, it was laid down that references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears be construed as reference to the provision so re-enacted. But it is noteworthy that section 8(1) is limited to the construction of references to repealed enactment, and is further subject to the proviso 'unless a different intention appears'. As the learned Advocate-General stresses, where there is actual incorporation this would be evidence of a different intention, for it is the rule of law that "where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second." (Per Brett, L. J., in Clarke v. Bradlaugh, (1881) 8 QBD 63). Also see Craies 'On Statute law" 5th Edn. P. 385. While on the General Clauses Act, I might further refere to section 28, which deals with the wide case of citation of enactment.
(21) It may be of some interest and significance, before I proceed to ILR 59 Cal 55 : (AIR 1931 PC 149), and the circumstances of that decision, to assume that the question before us is one of incorporation and not one of reference or application of one law by means of another, and then to discover whether the effect of section 23-A is not to incorporate section 8(1) and (2) etc., of the Foreign Exchange Regulation Act into the Sea Customs Act, as was actually contended before Somasundaram, J. The argument for this interpretation could be put in the following form. The legislature states, in substance, by the enactment of section 23-A, that certain restrictions under section 8(1) and (2) etc., of the Foreign Exchange Regulation Act, are to be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878. Some of those restriction require notification, others operate proprio vigore. Those notifications, already issued, or to be issued, are to be deemed to have been issued under section 19 of the Sea Customs Act. By virute of this legal fiction, all the other provisions of the Sea Customs Act are to be applied; in other words, by the mandate of this section, the infringements of these restrictions are brought within the ambit of the Sea Customs Act and the structure of that Act is made to apply in full force.
If we look at the matter in this light, we see that it can be logically contended, with considerable propriety, that these sub-secs. (1) and (2) of S. 8 etc., are really incorporated with S. 19, and that it is not vice versa as if the entire Sea Customs Act were brought into the Foreign Exchange Regulation Act. With regard to the modification of S. 183, it could be argued that this really makes no essential difference. All that the legislature here enacts is that, where the restrictions under Ss. 8(1) and (2) etc., incorporated with S. 19 of the Sea Customs Act, are to be dealt with by authority, the state of affairs is as though the obligation of the confiscating officer to afford an option for payment of fine is non-existent. As I earlier observed, if this has to be necessarily construed as an intance of incorporation, such an interpretation seems to me to be not merely feasible, but more in accordance with the express intention of S. 23-A. But, in this case, S. 167(81) introduced by a later amendment of the Sea Custom Act, will, of course, apply to the contravention of S. 8 (2) of the Foreign Exchange Regulation Act.
(22) As is clear from a careful study of ILR 59 Cal 55 : (AIR PC 149) Ch. IV (S. 69) of the Calcutta Improvement Act (Bengal Act V of 1911) provided that the trustees could make acquisition under the Land Acquisition Act of 1894, which their Lordships of the Judicial Committee termed the General Act, but introduced certain modification s of the provision of that Act for the purposes of the Local Act, Bengal Act V of 1911. Those modifications were contained partly in the body of the Act, and partly in a schedule attached. The amending Act 18 of 1911 provided an appeal to the Bengal High Court in certain cases, from the Tribunal, but there was no appeal to His Majesty in Council. But the Land Acquisition Act itself was amended by Act 19 of 1921, giving in terms a right of appeal to the Privy Council. The question was whether this later amendment of the General Act affected the rights of appeal under the Local Act. It is very important to note, with reference to the ratio decidendi of this case, which was really an appeal from Hindustan Co-operative Insurance Society Ltd., v. Secy., of State, ILR 56 Cal 989 : (AIR 1930 Cal 230) that the Judicial Committee observed (p. 65 (of ILR Cal) : (p. 153 of AIR)) :
"Even if their Lordships had been forced to hold that the sub-section was incorporated in the Local Act, they would, on the well recognised principle of generalia specialibus non derogant have come to the conclusion that the provision of the local Code must prevail and that this appeal was barred."
But the Judicial Committee also proceeded to rest their decision upon what they relate to be a more cogent objection to the contention of the Secretary of State. They pointed out (p. 63 (of ILR Cal) : (p. 152 of AIR)) that the sub-section was not part of the Land Acquisition Act, when the local Act was passed. When the Bengal legislature adopted the provision of the Land Acquisition Act in the local Act, there was nothing to suggest that they intended "to bind themselves to any future additions which might be made to that Act (L. A. Act)". For, new provisions might have been added to the Land Acquisition Act, which would be quite unsuitable to the local Code. The Judicial Committee then expressly observed that, under the circumstances, this was an instance of incorporation of certain provisions from an existing statute in another statue, the provisions themselves not being reproduced ipsissima verba, but this being effected by a reference, for the purposes of convenience. The rule is then stated from Craies "On Statute law" which is the dictum of Brett L. J., in (1881)-8 QBD 63, earlier cited. Their Lordships observed,
"The independent existence of the two Acts is, therefore, recognised; despite; the death of the parent Act, its offspring survives in the incorporating Act."
Thus, upon the assumption that this is an instance of incorporation of an earlier statute by reference, the decision is based upon the canon of interpretation cited. But this does not help us to determine when precisely an Act may be said to incorporate another either by a formula of reference or in any other manner, and how this is to be distinguished from bare citation, application or a reference for certain purposes falling short of incorporation. WE have been taken through certain later decisions in this country, but they are not helpful in this context. For instance, in Corporation of Calcutta v. Omeda Khatum, , the principle of ILR 59 Cal 55 : (AIR 1931 PC 149) was followed in the instance of S. 475 of the Calcutta Municipal Act, adopting the provisions of the Land Acquisition Act, as it stood on 18-7-1923, prior to an amending Act. Hence a declaration issued in the language of old S. 6 of the Land Acquisition Act was held valid.
In the recent decision of the Supreme Court in Jethanand Betab v. State of Delhi, the general principle is set forth both
from Craies and Maxwell on "Interpretation of Statutes" 10th Edn. P. 406 and the situation considered where under a later amending Act inserted new provisions in an earlier Act. Their Lordships held that where an earlier Act is amended by a later Act, it cannot be said that the earlier Act applies incorporates or refers to the amended by a later Act, in cannot be said that the earlier Act applies incorporates or refers to the amending Act. The earlier Act could not incorporate the later Act, but it could only be amended by it. We have to note two matters here, before we proceed further. Section 8(1) of the General Clauses Act which I set forth earlier, will only apply to save a reference in the case of a repeal and a re-enactment. For an instance of this, I might cite the State of U. P., v. M. P. Singh, C. A. Nos. 157, 158 of 1957 and 5 of 1958 : , wherein their
Lordships held that a reference in the definition was to the Factories Act of 1934, but by virtue of S. 8 of the General Clauses Act, it had to be construed as a reference to the provisions of the Factories Act 63 of 1948. Secondly, the actual doctrine in Craies and Maxwell appears to be limited to an instance of repeal of the earlier statue. But it is true that the Judicial Committee observed in ILR 59 Cal 55 : (AIR 1931 PC 149), that where,
"certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act can be deemed to be incorporated in it" (per Lord Westbury in Ex parte St. Sepulchre, (1864) 33 LJ Ch. 372."
We shall now turn to the precedent and the law and practice in the United Kingdom. For it is here we see, most clearly, the evolution of those rules of construction upon which statutory incorporation has been demarcated and defined, within the wider ambit of Referential legislation. Two forces may be here seen at work. Firstly, the incorporation proceeds by an almost rigid formula, with the exception of the single decision in R., v. Smith, (1873) 8 QB 146, which we shall notice later. Either the ipsissima verba are preserved in the interpreting statute, or a form of reference is used which admits of no ambiguity whatever. Secondly, there is a more and more marked disinclination to confuse mere reference, citation or application of the legal principle of an earlier statute, with statutory incorporation proper. As early as Ilbert's "Legislative methods and Forms" 1901 Edn., pp. 254 and 259 and 260, the learned author has pointed out the imperative necessity for distinguishing these different forms of legislative reference. Incorporation proper was defined by Lord Esher M. R., in Re Woods Estate, (1886) 31 Ch. D. 607 (615) :
"If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been said, is to write those sections into the new Act just as it they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all."
The earliest case recognising this principle was R. V. Merionethshire Inhabitants, (1844) 6 QB 343. It is noteworthy that, upon the facts of this case, 43 G. 3. C. 59 applied and executed 13 G. 3. C. 78 "as fully and effectually as if the same and every part thereof were hereinafter repeated and re-enacted." Even so, it was argued before patterson J., that S. 1 of 43 G. 3 C. 59 did not completely incorporate the provision of 13 G. 3 C. 78, but only provided for a lawful application of those provisions. In other words, the distinction between legislative reference and incorporation is apparent in this very earliest case.
(23) I might next refer to R., v. Brecon, (1849) 117 ER 665 (666). Here again, the formula employed is "as fully and effectually to all intents and purposes as if they were herein repeated and reenacted". After this, we have the curious case of In reCherry's Settled Estates, (1862) 31 LJ Ch 351. This was a case in which lands taken under 9 and 10 Vict. C 39 were, in all respects, to be treated and considered as if they had been taken under 3 and 4 Vict 37, an instance of retrospective incorporation. The question was whether the Land Clauses Act of 1845 which came in between must be held incorporated with the later ct, and we find that the correctness of the decision in this case has been a fertile source of dissenting opinions in the later cases. It is a remarkable instance of the difficulties arising from the interpretation of incorporation or incorporated statutes. I shall, for a moment, leave aside, 1873-8 QB 146, which is really somewhat away from the main line of these decisions. In RE Mills Estate, (1886) 34 Ch. D. 24 again is an instance in which a very specific and unmistakable formula of incorporation is used with regard to the provisions of 3 and 4 Vict. Ch. 87 (1840). Here we find the dictum of Lord Ether M. R., in Re Woods' Estate, (1886) 31 Ch D (607 disapproving of the rule in Re Cherry's Settled Estates, (1862) 31 LJ Ch 351 expressly dissented from. IN Jenkins v. Great Central Rly. Co., (1912) authority of Boden v. Smith, (1889) 18 LJ CP 121 that the repeal of a statute did not repeal such portion of the statues as had been incorporated into another statute.
(24) In R. V. Stepney Union, (1874) 9 Q. B. 383, we find an emergence of the difficulty that incorporating by implicating is a nebulous concept, hard to define or distinguish from other forms of Referential legislation. Cockburn, C. J., pointed out that the question whether 9 G. 4 C. 40, repealed by 8 and 9 Vict. C. 126, was kept alive and incorporated by implication in S. 7 of 3 and 4 Vict. C. 54, could not be answered in the affirmative. He stated that he was not prepared to go to this length, and that he had considerable doubts upon this matter. A very recent case, to which the learned Advocate-General has drawn our attention, ins British Transport Commission v. London County Council, 1953-1 Q. B. 736. Evershed M. R., pointed but that it would not be correct to say that S. 26 of the Act of 1921 could even be strictly termed an enactment "applying" Sec. 17 of the Act of 1888 "to anybody or anything within the meaning of the Act of 1949." The facts here were that S. 8(2) of the Act of 1949 repealed inter alia S. 17 of the Act of 1888, while S. 26 of the Act of 1921 provided that S. 17 of the Act of 1888 "shall apply in respect of appeals from the Railway Rates Tribunal". It is highly noteworthy and significant that the learned Judges held that this was not a case of incorporation at all, or even of the application of certain portions of one law for the purpose of another, but merely the creation of an identical right of appeal mutatis mutandis.
(25) We may now turn to the exceptional case of (1873) 8 QB 146. That related to S. 8 of the Wine and Bear Houses Act, which provided that all the provisions of Act 9 G. 4 C. 61 "shall have the effect with regard to the grant of certificates under this Act". The Court held that "the form used does constructively, though note expressly, say that the appeal sections shall be incorporated". This is the nearest case to our present facts, but, even here, the language appears to me to be far more specific and indicative of the intention to incorporate than with regard to S. 23-A. I think that, on the contrary, an analysis of S. 23-A will definitely show that it is not a case of statutory incorporation at all. (1873) 8 QB 146 only comes into the picture to this extent; though in every other case, we have an almost unvarying or rigid formula of incorporation, this case does suggest that the orders of reference might be more oblique, but still that the same effect of incorporation might be achieved.
(26) The learned Advocate-General has further drawn our attention to the actual words of incorporation in a series of statues in the United Kingdom. He desires to contrast them with other words of mere reference or application. A clear formula will be found in the following enactment : (1) 1890-53 and 54 Vict. C. 70 " as if there were re-enacted in the body thereof." (2) 1891-54 and 55 Vict. C. 19 "as if herein re-enacted". (3) 1947-10 and 11 Geo. 6 Ch. 51 "S. 40(2)... shall be incorporated". Similarly, in 6 and 7 Eliz. (1958) Ch. 63, Sec. 5 of the Park Lane Improvement Act is to the effect that "the land clauses.... are hereby incorporated with this Act." ON the contrary, when we look at 10 and 11 Geo. 6 Ch. 51, Town and Country Planning Act, 1947, we find instances of both incorporated and mere reference. A good example of this is S. 16 of the Highways Act, 1959 (7 and 8 Eliz. 2 Ch. 25), where instances of application by reference are also to be found. It is noteworthy, in this context, that in F. N. Roy v. Collector of Customs, Calcutta, , their Lordships observed at p. 1156 (of SCR) : (at p. 650 of AIR) "the only effect of S. 3 (2) is to apply the Sea Customs Act to certain cases." This was a provision very similar in purport and form to S. 23-A equally invoking S. 19 and declaring that "all the provisions of that Act shall have effect accordingly. " The absence of any terminology indicating that the Supreme Court considered this to be a case of incorporation proper, is highly significant.
(27) Against this background, we may turn to the analysis of S. 23-A itself, and to certain recent decision of the Supreme Court defining and dealing with legal fictions, and their consequences. The first point that I desire to make here is that S. 23-A does not incorporate S. 19 of the Sea Customs Act, or any other provision of that Act, either expressly, or by implication, or by menas of any formula of the kind employed in the numerous English statues earlier referred to. Nor does it even incorporate sub-sections (1) and (2) of S. 8 etc., as part of the Sea Customs Act, by any language of reference. On the contrary, what it provides is that the restrictions under those subsections are to be deemed to have been imposed under S. 19 of the Sea Customs Act. The rest of that Act is made applicable, in logical consequence, but another legal fiction is created whereby, in the context of that, S. 183 has to be read with a verbal alteration. This is all that S. 23-A does and I am unable to see how this language can amount either to the incorporation of the Sea Customs Act into the Foreign Exchange Regulation Act, or vice versa.
If the incorporating of a statue is to be construed in a loose sense, and not to be distinguished from reference and application, such a view may be possible. But the authorities cited by the learned Advocate General, and a study of the relevant parts of the English statues placed before us, leaves me in no doubt that the courts in the United Kingdom have practically uniformly made such vital distinctions, and confined the instances of incorporation to those justified by the specific language employed. But, if this is to be taken as a case of incorporation at all, as I have earlier pointed out, it would be more logical and consistent with the intention evident from the language to hold that S. 8(1) and (2) etc., were being incorporated by means of S. 23-A with S. 19 of the Sea Customs Act, so that the structure of that Act might thereby apply to those restrictions.
(28) With reference to the interpretation to be placed on such words as "deemed to be" and the effect of legal fictions in general, it is sufficient to note the following authorities : Cave J., observed in R., v. Nrfolk County Council, 1891-60 LJ QB 379, that when the words "deemed to be" were used, it was an admission that a thing is distinct from another and not identical with it, but that nevertheless an identity was created by means of the legal fiction. In giving effect to legal fictions, the courts have necessarily to consider as real the consequences flowing from the imaginary assumption, and the well-known and oftquoted observations of Lord Asquith in East End Dwellings Co., Ltd., v. Finsbury Borough Council, 1952 AC 109 exemplify this with pointed emphasis. Of the decisions of the Supreme Court upon this mater I might refer to Bengal Immunity Co., Ltd., v. State of Bihar , ITO Bombay v. Bombay Dyeing and Mfg. Co., Ltd.,
(1958) 21 SCJ 1054 : (AIR 1958 SC 375) and Jute and Gunny Brokers Ltd., v. New Central Jute Mills Co. Ltd., , which is the
latest authority, and an instance of twin statutory fictions. The point here is hat these decisions and principles have a bearing upon the interpretation of S. 23-A in this sense. Where certain provisions of an Act are, by means of a legal fiction, deemed to have been imposed under the provision of another Act, and the structure of that Act is there by made applicable, what we really have before us is an instance of Referential legislation by means of a legal fiction, and not of incorporation proper of one statute in another.
It is further a legal fiction where under S. 183 has also to be read differently with regard to the enforcement of restrictions under Ss. 8(1) and (2) etc., as restrictions under S. 19 of the Sea Customs Act, and their further provisions of that Act. The difficulty arising from the observations in ILR 59 Cal 55 : (AIR 1931 PC 149) does not appear to me to be substantial, or to be adverse to the interpretation I have sought to place on S. 23-A distinguishing it from strict instances of statutory incorporation. AS far as that decision was concerned, it proceeded upon a definite assumption that the Land Acquisition Act of 1894, or a part thereof was incorporated, with modifications, by means of Bengal Act V of 1911. Once this was held to be so, it appeared to follow from the canon of interpretation laid down in Craies on "Statute law" 5th Edn. P 385, that the repeal of the earlier ct could not affect the incorporated portions of the later Act, and that, upon equally logical ground, an addition to the former Act, not expressly made applicable to the subsequent Act, could not be held incorporated with the subsequent Act. But the decision of their Lordships in the case could be rested upon the distinct and well-recognised ground referred to by them at p. 65 (of ILR Cal) : (at p. 153 of AIR), and I do not take this decision as authority for the view that, even where the language does not warrant the inference of incorporation, the same consequences must follow. ON the contrary, as I have made clear, fi we hold that Sec. 8(1) and (2) etc., of the Foreign Exchange Regulation Act were incorporated with section 19 of the Sea Customs Act, further modifications of the Sea Customs Act would certainly be applicable to instances of the restrictions under the incorporated sections.
Consequently, I am of the view that the Bench decision of this Court in will have to be dissented from, upon its
interpretation of section 23-A of the Foreign Exchange Regulation Act. With the greatest respect to the learned Judtes who decided that case, I think that it could be contended, with even greater plausibility and force, that the provisions of section 8(21) and (2) of the Foreign Exchange Regulation Act were really incorporated into the Sea Custom Act, particularly with section 19, reading the section (23-A) as one of incorporation by reference. But it seems to me to be, more accurately, an instance of the application of the provisions of another law by means of a legal fiction, not amounting to incorporation proper, as the language employed falls short of the justification for such an inference.
(29) In result, therefore, I would answer this reference of Somasundaram, J., by holding that section 167(81) of the Sea Customs Act, though introduced by an amendment later than section 23-A of the Foreign Exchange Regulation Act, does apply to a contravention of S. 8(2) of the Act.
(30) I shall now turn to the second question referred to us, namely, whether section 186 of the Sea Customs Act has the effect of precluding proceedings, under section 167(81) of the Sea Customs Act, in cases where goods have been confiscated and penalty has been levied. The argument upon this aspect may be expressed in the following form. Section 186 is to this effect:
"The award of any confiscation, penalty or increased rate of duty under this Act by an officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under 'any other law'" (italics (here into ' ') mine).
The reasoning is that the words "any other law" preclude, by necessary implication, those other provisions of the Sea Customs Act, as set forth in the schedule to section 167, under which persons are liable to be convicted before a Magistrate for certain infringements, the most compendious provision being section 167 (81). When we look at section 187 of the Act, we find that it enacts that,
"All offences against this Act, other than those cognizable under section 182 by officers of customs, may be tried summarily by a magistrate."
It is sought to be argued that the language of section 186, and the manner in which the schedule to S. 167 has been constructed, enables us to draw this particular inference. Certain infringements are those which could be dealt with by officers of customs, for which the civil penalties, if we may so term them, of confiscation, fine or increased rate of duty under the Act itself, could be properly imposed. Where these are imposed, under Sec. 186, the offender may still be liable to be proceeded against under the penal provisions of some other statue, such as the Indian Penal Code etc. But, those infringements which are punishable by proceedings before a magistrate under the schedule to Sec. 167, are distinct and separate. They should be dealt with under section 187 already cited. In brief, where a civil penalty of any kind under the Act is being imposed, the person cannot be also liable for the magisterial proceedings and penalties under section 167, including section 167(81). Hence the words "any other law" will preclude criminal proceedings under Sec. 167(81) by indirect implication.
(31) I have carefully considered this reasoning which really depends upon a schematic analysis of the schedule to Sec. 167, in the light of the language of section 186 and under Sec. 187. I have no doubt whatever that the argument is unsustainable, and it is clearly opposed to the scheme of the provisions themselves, and to the general principles of law applicable. The matter is quite unambiguous and simple, and it is sufficient to refer to a very few of the authorities, apart from the sections themselves.
(32) When we scrutinise section 167 of the Sea Customs Act, and the schedule thereto, two matters are immediately apparent. Firstly, certain sub-sections alone relate to what might he termed infringements involving criminal proceedings before a magistrate, and consequential penalties. The other offences specified all involve the civil proceedings of confiscation, civil penalty or forfeiture, to be levied by officers of the customs themselves. It is distinctly unfortunate that the expression "offence" has been used in a loose sense through out. Section 167(81) which was introduced by Act 21 of 1955, is a comprehensive clause dealing with various infringements for which a magistrate may try the offender, and impose imprisonment or fine. But it will at once be equally apparent, secondly, that the civil penalties and the criminal penalties, so designating them for convenience, are not exclusively applicable, but may overlap in certain cases. For instance, Sec. 167(8) relates to certain prohibitions with regard to the importation or exportation of goods. Upon the same set of facts, under Sec. 167(72) the person may be liable for a false declaration in respect of such importation, or under section 167(81), which is a very general and comprehensive section penalising the fraudulent evasion or attempt at evasion of any duty chargeable upon goods on which duty has not been paid, etc. Consequently, the argument is not tenable that the scheme of section 167 and its schedule is such, as to create two sets of mutually exclusive offences which cannot overlap under any circumstances.
(33) On the contrary, as the learned Advocate-General points out, Secs. 182 to 186 form a related group, dealing broadly with the civil penalties, while Sec. 187 concerns those offences under the Act, which are not to be dealt with by officers of customs taking cognisance of them under Sec. 182, but to be tried by a magistrate. When we scrutinise section 182 we see that, as a matter of abundant caution, in this section which refers to adjudication of confiscation and penalties by customs officers sub-secs. 26, 72, 74, 75 and 76 have been specifically excluded. But, even here, the draftsmanship has not been complete; for the later provisions such as 76 (a), 72 (b), 77. 78 and 81 have not been included in this context as excepted, which should have been done. Hence, since the scheme is such that the magisterial procedure and penalties relating thereto may very well over lap the infliction of the penalties of confiscation etc., by officers of customs, and these are not mutually exclusive categories, Sec. 167(81) has full force, wherever it is applicable. Section 186 relates to a totally different principle, and there is no inference whatever, by means of any implication, from the use of the words "under any other law", excluding proceedings under section 167 (81), incases where the goods have been confiscated and civil penalty has been levied.
(34) We may turn to the more general aspect, which reinforces the same interpretation, and totally excludes any doctrine of "double jeopardy" as applicable in this context. A very few citations will be sufficient to indicate this.
(35) Both in the United States and in the United Kingdom it appears to have been generally held that the imposition of a civil penalty, such as confiscation or seizure or a penal tax, b the administrative agencies employed to implement the law relating to income-tax, customs etc., will not thereby absolve the transgressor from liability to criminal prosecution, if he is liable upon those identical facts. In other words, such imposition of civil penalties will not amount to a conviction and sentence under the criminal law in any sense, so as to attract the application of the doctrine of "double jeopardy". Reference might be made here to Ragazzoni v. K. C. Sethia (1944) Ltd., 1957-3 All ER 286, and to the case of Bowes, R., v. London Quarter Sessions. Ex parte Bowes, 1950-2 All ER 1043. In the United States, we have the Helvering case, Helvering v. Mitchell, (1938) 82 Law ED 917, where the Court specifically stated that the penalties imposed by congress to enforce the tax laws included both civil and criminal sanctions, and that "invocation of one does not exclude resort to the other". As far as Indian cases are concerned, I might refer to the following. I Maqbool Hussain v. State of Bombay, , the Supreme
Court held that, though the importation of gold in contravention of the rules constituted an 'offence' under section 167(8) of the Sea Customs Act and under section 23 of the Foreign Exchange Regulation act, 1947, the proceedings before the Sea Customs authorities did not constitute a "prosecution", nor did the order of confiscation constituted "punishment". Hence, a prosecution under Sec. 23 of the Foreign Exchange Regulation Act before a magistrate was not barred. Equally significantly, we have the Supreme Court decision in , where their Lordships expressed the mater in the following form, upon the construction of Sec. 186 itself :
"The proceedings before the Customs authorities were under Sec. 167(8) of the Sea Customs Act. Under Sec. 186 of that Act, the award of any confiscation, penalty or increased rate of duty under that Act by an officer of customs does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. The offences with which the petitioners are now charged include an offence under section 120-B I.P.C. Criminal conspiracy is an offence created and made punishable by the I.P.C. It is not an offence under the Sea Customs Act".
(36) This is upon the true scope and interpretation of Sec. 186, and it also explains why the legislature used the words "under any, other law" in this context. This has nothing to do with section 187, which has to be given equal effect, and which relates to proceedings before a magistrate in regard to infringements under sub-sections of Sec. 167 which are so triable. Those proceedings, where taken in respect of transactions for which confiscation, penalty etc., have been levied by the Customs authorities, do not constitute "double jeopardy" in any sense. Upon the broad principle that criminal prosecutions may be launched in respect of transactions for which departmental penalties are levied by administrative authorities, reference might also be made to the Bench decision of this Court in Sivagaminatha Moopanar and Sons v. Income-tax Officer, Madurai, ILR1956 Mad 415 : ((S) AIR 1956 Mad 1).
(37) There is one other point, which odes not directly arise from the reference, but which might be commented upon here, for the sake of completeness. Would it constitute 'double jeopardy' if a person is prosecuted both before a magistrate under Sec. 167(81), in respect of a certain alleged offence or offences, and also under the Indian Penal Code, for instance, in respect of the same transaction under Sec. 186? The answer of this would appear to lie in section 26 of the General Clauses Act (10 of 1897) which lays down that,
"Where an act or omission constitutes an offence under two or more enactment's then the offender shall be liable to be prosecuted and punished under either or any of those enactment's, but shall not be liable to be punished for the same offence."
It may be also pertinent to observe here, with reference to Art. 20(2) of the Constitution, that, as pointed out by the Supreme Court in Venkataraman v. Union of India, , the provision under Art. 20(2) differs from the American doctrine of 'double jeopardy" which is wider in its ambit as, according to that doctrine, there may be jeopardy even though the person was not actually punished in the previous proceeding.
(38) I hence conclude that this reference of our learned brother must be answered in the negative; section 186 of the Sea Customs Act does not preclude proceedings under section 167(81) of the Sea Customs Act, in those cases where the customs officers have levied the penalties of confiscation or fine.
(39) We place on record our high appreciation of the able and lucid arguments of the learned Advocate-General, assisted ably by the learned Public Prosecutor and of Mr. Mohan Kumaramangalam, learned counsel of the defence.
This case coming on for hearing after the expression of the Opinion of the Full Bench, before Somasundaram, J., on 15-4-1960, the Court, made the following Order):
(40) The decision of the Full Bench on the points of law raised by the petitioner is against the petitioner. On the merits their is absolutely no ground for interference as the evidence establishes the guilt of the accused. The only one question is the sentence. In view of the fact that the entire sum of Rs. 25000/- has been confiscated and a further penalty of Rs. 5000/- has been levied and paid by the petitioner, I do not think that the ends of justice require that he should be sent back to jail. The sentence is therefore reduced to the period undergone.
(41) Answer accordingly.