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Seikh Md. Omer Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberMatter No. 99 of 1965
Reported inAIR1966Cal237
ActsCustoms Act, 1962 - Sections 75, 111, 112 and 125(1); ;Constitution of India - Article 226; ;Imports and Exports (Control) Act, 1947 - Section 3(2); ;Passengers (Non-tourist) Baggage Rules - Rule 7
AppellantSeikh Md. Omer
RespondentCollector of Customs
Appellant AdvocateS. Roy, Adv.
Respondent AdvocateSubrata Roy Chowdhury and ;R. Pyne, Advs.
Cases ReferredKshetra Nath Basack v. Collector of Land Customs
- orderr.n. banerjee, j. 1. this is all over a horse. but i do not wonder horses have a record of being friends and helpers of men running back to century of centuries. men rode before they wrote; they were horsemen before they were historians. horses pranced and charged in egyptian art. the assyrians pained and carved equine portraits even before the egyptians did and the acquaintance of the former with horses appears to have been derived from aryan-persians, a nation of horsemen2. the dog, the cattle and the sheep were tamed and treasured by men of ancient times. but horses, when tamed, lifted men to a new plane of life. they gave men many times their own speed, many more times their own strength for work and added enormously to the distances they dared to venture. the animal has been a.....

R.N. Banerjee, J.

1. This is all over a horse. But I do not wonder horses have a record of being friends and helpers of men running back to century of centuries. Men rode before they wrote; they were horsemen before they were historians. Horses pranced and charged in Egyptian art. The Assyrians pained and carved equine portraits even before the Egyptians did and the acquaintance of the former with horses appears to have been derived from Aryan-Persians, a nation of horsemen

2. The dog, the cattle and the sheep were tamed and treasured by men of ancient times. But horses, when tamed, lifted men to a new plane of life. They gave men many times their own speed, many more times their own strength for work and added enormously to the distances they dared to venture. The animal has been a partner to man in his battles and daily toils for existence and won for him laurels in wars and sports. Man began to value the animal as dear to his heart and worthy of his love and affection. An Arab poet, who might have immortalised himself by writing on feminine graces, wrote on the qualities of a mare dear to his heart :

' Spare is her head and lean, her ears pricked close together,

Her fetlock is a net, her forehead a lamp lighted Illumining the tribe; her neck curves like a palm branch,

Her withers sharp and clean. Upon her chest and throttle

An amulet hangs of gold. Her forelegs are twin lances.

Her hoofs fly forward faster ever than flies the whirlwind,

Her tail bones borne aloft; yet the hairs sweep the gravel. '

3. The above poem finds almost an identical echo in Shakespeare's 'Venus and Adonis.'

4. The horse has done much for the man. But man has done much more for horses. Man by his arts--particularly scientific process of airing and training has 'made' the modern horse, as surely as he has 'made' certain fruits from sour and profitless original stocks. Whatever horse qualities have been needed, man has encouraged speed, power, bulk, smallness, colour, action and beauty. He would do still more. That is why horse-loving countries have bloodstock companies and stud farms trying, perhaps, to put inches to a mighty shire horse or to create the smallest of Shetland ponnies.

5. The petitioner Sheikh Mohammad Omer describes himself as a great lover of horses and as one interested in the breeding and maintenance of pedigree horses. He has, as he says, earned considerable name and reputation as a race-horse owner and has also won several prizes awarded for horse-racing, including the first ever Dr. B.C. Roy Memorial Cup.

6. The petitioner further says that while he was in Switzerland, in the year 1964, the British Bloodstock Agency Limited of Charing Cross Road. London, wrote to him the following letter :

' I am glad to learn that you are in Europe and I take advantage of this situation to communicate to you that one of our clients is inter ested in obtaining a foal by your stallion 'Pieta' from their brood mare.

Will you please contact me as soon as you are here in London to settle the matter.'

This offer, the petitioner says, was accepted by him. He further says that the British Bloodstock Agency Limited was authorised by him to finalise the terms. The British Bloodstock Agency Limited, in their turn, communicated to the petitioner, on October 27, 1964, the terms on which the mare might be leased out to the petitioner :

'One of their mares will be leased to you pending her producing two foals in India and return to England duly tested positively pregnant to PIETA.

' The mare will be shipped to you and you will pay the freight charges to India. ' The return freight charges to England will be paid by the Lessor.

' The mare will have to be properly insured by you on arrival in India and insurance premium will have to be borne by you, but in case of any claim, the insurance benefits will go to the lessor. '

The petitioner arrived from Europe to Calcutta on November 7, 1964, by air without the mare accompanying him. Me, however, submitted at Dum Dum Airport, an International Passengers' Baggage Declaration therein indicating that seven unaccompanied packages would follow him by sea or air. The effect of this declaration I shall consider later on. In the meantime, the British Bloodstock Agency Limited wrote the following letter to the petitioner, on November 2, 1964 :

' We have pleasure in confirming that during your visit here, we had concluded negotiations with you on behalf of our clients, the Glasgow Stud Farm, to lease a brown English mare to you in India as per terms communicated to you in our letter dated the 27th October, 1964.

As per your instructions we shall ship the mare by the earliest available ship sailing for Calcutta and shall on securing a shipping engagement, cable to you to deposit the freight with the shipper's agents in Calcutta.'

Shortly thereafter, they informed the petitioner, on November 8, 1964, that they had secured a booking for the mare on B. I. Vessel 'Chinkoa', sailing on the 12th November and due in Calcutta on or about December 23, 1964. By the same letter the petitioner was asked to arrange for deposit of the freight in the office of the agents for the ship in Calcutta. It appears from letters and telegrams from the petitioner (annexed to the petition) that he deposited Rs. 1,700 with Messrs. Mackinon Mackonzie and Co. (Private) Limited, Calcutta agents of S.S. 'Chinkoa', towards freight of the mare. Thereafter, the petitioner submitted before the Customs authorities a second Baggage Declaration, in January, 1965, therein stating that the baggage concerned was one brood mare pet animal not for racing but for breeding purposes only, pregnant and to be returned to the United Kingdom after she was in her next second pregnancy with a stallion in India. The petitioner further undertook to produce the requisite certificate from the State Director of Animal Husbandry. The said Baggage Declaration was returned to the petitioner with an endorsement, dated January 12, 1965, in the following language :

' It is not a case of unaccompanied baggage. The importation cannot be treated as of pet animal. The party may file Bill of Entry in Group I for clearance. '

7. Apprehending trouble, the petitioner executed a bond in favour of the Collector of Customs, on January 14, 1965, undertaking to submit the Bill of Entry and relevant documents within 48 hours of the delivery of the mare from the ship and further undertaking to pay a sum of Rs. 15,000 on the petitioner's failure to do so. The bond was accepted, on January 16, 1965. Subject to the condition that after off-loading, a Preventive Officer of the Customs would accompany the mare to the Government Veterinary College at Balachia and the animal would remain there under Customs guard until the bond was redeemed. The mare arrived in Calcutta, on January 18, 1965, and was admitted by the petitioner into the Bengal Veterinary College Hospital, in terms of the bond. On January 20. 1965, the petitioner submitted a Bill of Entry, therein estimating the value of the animal at Rs 5,807-35 nP Along with the Bill of Entry he submitted a certificate from an Additional Director of Animal Husbandry. Lucknow. (Uttar Pradesh) about the an cestry of the mare and about the arrangement made for her breeding in India. The petitioner thereafter raised the contention that no import license was required, in terms of the Import Trade Control Public Notice No I-ITC (PN)/61, dated January 2. 1961, for importation of a pel brood mare as unaccompanied baggage An Appraiser of Customs thereupon asked the petitioner to produce certain documents including the Import Trade Control License and evidence of the value of the animal The petitioner could not produce the license because he had none but contended that the same was not required for importation of a pet animal As regards value of the animal he produced no evidence He repeated this performance, when an Appraiser of Customs summoned him. under Section 108 of the Customs Act, to produce certain documents. At last, on February 3, 1965, an Assistant Collector of Customs served upon the petitioner the following notice :

' In the Bill of Entrv covered by Line No. 130 Rotation No. 64/1781 relating to one 'Brood Mare' imported by you ex. S.S. Chinkoa from U..K., the value of the goods under Section 14 of Customs Act, 1962 has been declared as Rs, 5,807.35 nP. No proof or evidence in support of the correctness of the value declared has, however, been produced. The mare is stated to be of high pedigree for breeding purposes. The value declared for the mare appears to be low. Duty-free clearance of the mare has been claimed by you in terms of Notification No. 159-Cus. dated 4-12-1954. No proper certificate from the Director of Animal Husbandry of the Stale con cerned has, however, been produced. Unless, therefore, a proper certificate as required under the Notification is produced, the mare shall be charged to duty under item No. 1(1) of I.T.C

'Importation of goods requires an I.T.C. licence but no such licence has been produced. The goods, therefore, appear to have been imported in contravention of Government of India, Ministry of Commerce and Industries Order No. 17/55 dated 7-12-1955 read with Section 3 (1) of the Import and Export (Control) Act.

You are called upon to show cause to the Collector of Customs within 7 days from the date of issue why the goods should not be confiscated and action taken against you under Section 3 (2) of the Import and Export (Control) Act.'

8. The petitioner showed cause in writing, on March 1, 1965, in the following language:

' 1. I state that the Bill of Entry, reply to Summons under section 108 of the Customs Act 1962 and my letters in this connection may be taken into consideration as part of my reply.

2. That the brood mare cannot be confiscated nor any action, can be taken against me under Section 111, Clause (d) and Section 112 of the Customs Act, 1902, or Section 3 (2) of the Import and Export Control Act, as the mare has not been imported in contravention of any Act. The brood mare has been imported as pet animal underlease and at the expiry of the lease period is to be returned to U.K. The importation of pel animal is allowed without import Trade Control restrictions in Import Trade Control, Government of India, Ministry of Commerce and Industry Public Notice No. 1-ITC (PN)/61 dated the 2nd January 1961 '

9. He added further clarification to his explanation, on the same day. as hereinbelow quoted :

'*** *** ***From the Bill of Entry and my previous letters you will find that I have stated that the brood mare is on lease term and is to be returned to U.K. after the lease period and in view of her age and breeding, the value is estimated on the higher side and as examples I have had given details to the Appraiser Sri S. K. Ghosh. of similar mares imported at Bombay which I repeat as follows :

*** *** ***3. You have not mentioned who has slated and on what consideration it is stated that the brood mare is of high pedigree. Save and except that the brood mare is a thorough-bred, I do not admit anything else unless it is specifically proved, but no doubt the brood mare is for breeding purposes.

4. I have submitted a certificate from the Director of Animal Husbandry of the U.P. State. You do not state why you do not accept the same, so that I could have rectified it. I had been trying my level best to get a certificate from the Director of Animal Husbandry, West Bengal, but so far he has refrained from issuing the some for reasons best known to him and the Custom House The brood mare cannot be charged to Custom Duty, as the brood marc is for breeding purposes, she is in advanced stage of pregnancy which is even apparent to a layman and for which a certificate has been submitted and she is available for examination as suggested in my previous letter dated the 25th January, 1965.

5. With reference to paragraph 2 of your memorandum under reply, I reiterate that no import licence is required in this instance, as the brood mare is on lease lo me to be returned to U.K. and being a pet animal is allowed to be imported without Import Trade Control restrictions under Public Notice No. 1-ITC (PN)/61 dated the 2nd January 1901 of the Ministry of Commerce and Industry, Government of India,' The petitioner asked for personal hearing before the Collector of Customs, which was allowed. After considering the cause shown by the petitioner, the respondent Collector of Customs arrived at the following findings :'I have gone through the submission made by Sri S. N. Omer. As regards the contravention of I.T.C. restrictions, Sri Omar's defence was that pet animals are allowed to be imported by passengers without I.T.C. restrictions, ft is true that pel animals brought in by passengers are exempt from I. T. C. restrictions, but. in the circumstances of this case, I am unable to accept that the mare in question is a pet animal of Sri Omer. The mare does not belong to Sri Omer. It has been leased to Sri Omer for producing two foals in India and later return to England duly tested positively pregnant to PIETA. It is quite clearly a business deal and not a case of importation of a pet animal. In this connection, it is also relevant that pet animals of passengers for purposes of I. T. C. exemption would be those which passengers carry with them even during their travels and which invariably stay with the passengers in their houses. From that point of view too, this particular animal cannot be considered as a pel brought by a passenger. Under the circumstances, an offence warranting penal action under Section 111(d) of the Customs Act is clearly established. Since Sri Omer arranged for the importation of this animal he has rendered himself liable for action under Section 112 of Customs Act 1962. '

10. On the above findings, the respondent Collector, by his order dated March 15, 1965, directed confiscation of the mare 'Jury Maid' under Section 111(d) of the Customs Act, 1962 read with Section 3 (2) of the Imports and Exports (Control) Act 1947, and further ordered imposition of a personal penalty of Rs. 5,000 upon the petitioner, under Section 112 of the Customs Act.

11. Aggrieved by the order, the petitioner moved this Court, under Article 226 of the Constitution, praying for a Writ of Certiorari for the quashing of the penal order and for a Writ of Mandamus directing the respondents not to give effect to the order and obtained this Rule, on March 23, 1964.

12. At the earnest request of the learned counsel for the petitioner, I fixed an early date for the hearing of the Rule, because it was represented to me that Calcutta lacked in proper arrangements for the foaling of the mare and for the next siring, which must lake place within ten days of the foaling; otherwise, the mare would miss her annual session and that if the petitioner succeeded in the Rule, at too late a lime, he would suffer very great, loss and the victory won by him would be of doubtful value.

13. Mr. Sidhartha Roy, learned Advocate for the petitioner, strongly criticized the finding of the Customs Collector that pet animals of passengers, for the purpose of import trade control exemption, were those animals which passengers carried with them during their travels and which invariably stayed with them in their houses. He contended that a horse would come under the description of 'pet animals' and tried to fortify his argument by reference to certain English decisions, which I need notice at this stage. He cited, in the first place, Cox v. Burbidge (1863) 13 C. B. (NS) 430 in which Erlc C. J. noticed that a horse was such an animal that 'it was not the ordinary habit of a horse to kick a child on the high way'. He cited, in the next place, Bradley v. Wallaces Ltd., (1913) 3 K. B. 629 in which Cozens Hardy M.R. found himself in complete agreement with the observations of Erle C. J. that 'it was contrary to the ordinary nature of a horse to kick at a child.' He relied, in the third place, on the decision of the Court of Appeal in Manton v. Brocklebank, (1923) 2 K. B. 212 in which Lord Sterndale M. R. observed that 'a mare being mansuetude nature was prima facie an innocent animal.' He lastly relied on Behrens v. Bertram Mills Circus Ltd., (1957) 2 QB 1 in which Devlin J. noticed that 'horse was an animal completely tamed and domesticated by man.' These decisions are not of much relevancy. There are horses which are still brombies or wild horses. There are also horses which for generations have been domesticated and tamed by men and these are docile by nature and as innocent as domesticated cows and sheep. Domesticated horses often become very much attached to their owners or keepers and they in their turn develop a sort of emotional fondness to horses in their ownership or keep and treat them as their pet animals. I am glad to note that Mr. Subrata Roy Chowdhury. learned Advocate for the respondents, did not dispute the above broad proposition.

14. Mr. Siddharta Roy then read out lo me the dictionary meaning of words 'pet'' and 'fondness.' From the shorter Oxford Dictionary he read the following meaning of the word pel: 'any animal that is domesticated and tamed and kept as a favourite or treated with fondness'. According to the same dictionary, the meaning of the word fondness is 'feeling, affection, unreasoning tenderness.' Mr. Roy contended that the relationship that grows up between man and his horse is of this type and horses may be counted amongst man's pet animals. I do not doubt his argument as a general proposition. It is possible that a man may develop a sort of fond sentiment for his prized horse and treat the animal as his pet. I do not also doubt that there are horses which may put up with human fondness and may even reciprocate inasmuch as is possible for an animal to do so. But this sort of general argument offers no solution to the problem that 1 have to decide. Horses may be capable of being made human pets. But this does not lead to the conclusion that all horses are pet animals to all men in the world. The question for my consideration is whether the particular mare called 'Jury Maid' is a pet animal to the petitioner and whether the animal falls within the description of 'pet animals' as under the Import Trade Control Public Notice 1-ITC (PN)/61 of January 2, 1961. The first part of the question that I have to decide, viz., whether the mare in question is a pet animal to the petitioner is not difficult to answer. The petitioner may have great interest in horses. But his entire interest in horses is not sentimental interest of love and fondness. He has also an economic interest in horses. He admits having earned considerable reputation in horse racing and it appears from the Annexure B to the affidavit-in-opposition that he 'has made racing pay'. If his interest in horses has also a planned economic side, then it does not necessarily follow that he keeps horses merely as his pet animals. A hackney-carriage owner who maintains horses for drawing his carriages, a milkman who keeps cows to supply him with milk in which he trades, a circus-owner who keeps animals for his shows and performances may take good care of his animals but they do not become his pet animals. His interest remains measured by the economic usefulness of the animals. He may part with them when they no longer serve his purposes. In this case, when the petitioner entered into a deal for the mare 'Jury Maid'. he had not even seen the animal. He merely entered into a transaction for taking on lease an unknown English brood mare on consideration that she would produce two foals in India, which the petitioner would take as his own property, and thereafter return the mare to the owner in England 'duly tested positively pregnant' to his stallion of the name of 'Pietta.' Such a mare imported to India for such a purpose cannot be described as a pet mare of the petitioner. He had no occasion to develop any fondness for this particular mare and the care which the petitioner may have bestowed on the animal since arrival did not necessarily follow from fondness for the animal but in consideration of a valued business transaction entered into by a race-horse lover, who makes money out of races. I do not, therefore, hold that the mare 'Jury Maid' is a pet animal to the petitioner.

15. Assuming for the sake of argument that the mare 'Jury Maid' a pet animal to the petitioner (which, of course, I do not hold), in the sense that the petitioner being a racing man and a lover of horses has a general liking for a well-bred, pedegreed horse like the mare 'Jury Maid', I have still then to see whether the mare 'Jury Maid' satisfies the description of a 'pet animal' in the limited sense as used in the Import Trade Control Public Notice No. 1-ITC (PN)/61, dated January 2, 1961. For the purpose, I need examine the relevant provisions of the Imports and Exports (Control) Act 1947, the Order thereunder framed, Passengers (Non-Tourist) Baggage Rules framed under section 76 of the Sea Customs and the Import Trade Control Public Notice above referred to. The Imports and Exports (Control) Act 1947 was passed to continue for a limited period powers to prohibit or control imports and exports. Under Section 2 of the Act, 'Imports and Exports' mean respectively bringing into and taking out of India by sea, land or air. Sub-section (1) of Section 3 of the Act provides for powers to prohibit or restrict imports or exports in the following manner:

'The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases, and subject to such exceptions if any, as may be made by or under the order:

(a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified description;

(b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried.'

16. Section 5 of the Act provides for penalties as herein below quoted:

' If any person contravenes, or attempts to contravene, or abets a contravention, of, any order made or deemed to have been made under this Act or any condition of a licence granted under any such order, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878 (VIII of 1878), as applied by Sub-section (2) of Section 3, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both,'

17. Clause 3 of Imports (Control) Order, 1955 puts restrictions on imports in the following language:

'3. Restriction on import of certain goods:--(1) Save as otherwise provided in this Order, no person shall import any goods of the description specified in Schedule I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II.

(2) If, in any case, it is found that the goods imported under a licence do not conform to the description given in the licence or were shipped prior to the date of issue of the licence under which they arc claimed to have been imported, then, without prejudice to any action that, may be taken against the licensee under the Customs Act, 1962 (S2 of 1962) in respect of the said importation, the licence may be treated as having been utilised for importing the said goods.'

18. Part IV, Item I of Schedule I referred to in Clause 3 reads as follows:

'Serial No.Name of ArticleItem of First Schedule to Indian Tariff Act. 1934.


PART IV. 1.Animals, living all sorts.I and I (1).'

19. Under Section 76 of the Sea Customs Act, which is very much attracted by the Imports and Exports (Control) Act, the Central Board of Revenue made certain Rules known as Passengers (Non-Tourist) Baggage Rules, Rules 2, 4, 5 and 7 of which read as follows:

'2. The bona fide baggage of a passenger may foe exempted from Customs duty upto the extent specified in these rules where such baggage accompanies the passenger, does not form part of the cargo, is not included in the manifest and, unless the proper officer of Customs in any case otherwise directs, is declared in the proper form.

X X X X X X4(1). The used personal wearing apparelof a passenger, and other articles in the immediate personal use of the passenger, may be,allowed free of duty, provided that they are hisproperty, were in his possession abroad, and areimported by him for his own personal use andnot for sale, exchange or gift.

Explanation x x x x x(2) Such instruments, apparatus or appliances, as are specially designed for use in the profession or calling followed by a passenger and which any person following the same profession or calling would usually carry with him in his professional tour when imported by the passenger as part of his bona fide baggage may be allowed to be imported free of import duty leviable thereon:

Provided that the instruments, apparatus or appliances:

(i) have been actually used by the passenger before the importation thereof; and

(ii) shall not be sold, exchanged or given away as gift after the importation thereof.

(5) In addition to the articles specified in Rule 4, a passenger may also be allowed to import free of duty, at the discretion of the proper Customs Officer, articles not exceeding Rs. 500/- in the value, provided that the articles are not imported for sale or exchange and are such as could reasonably be treated as baggage or are of a kind normally used for making gifts or as souvenirs. In the case of a passenger who is coming or returning to India after a stay of not less than 3 months abroad the value of the articles which can be passed under this rule may be increased by Rs. 100/- for each complete month in excess of 8 months, subject to a maximum of Rs. 1000/- in all. A passenger shall not be permitted under this rule to import without payment of duty a large number of units of the same article, even though their total value may be within the free allowance or to import any individual articles of a value exceeding Rs. 75/-.

X X X X X X7. (1) Notwithstanding anything contained in Rule 2, bona fide baggage of a passenger landed at any Customs Port within two months before or after his arrival in India may be passed, at the discretion of the Customs Collector, subject to the conditions and limits laid down in Rules 4 to 6.x x x x x '

20. Thereafter, on January 2, 1961, there was a Public Notice No. 1-ITC/(PN)/61 published by the Chief Controller of Imports and Exports, of which the relevant provisions read as follows:

'2. Under Rule 5 of the said Baggage Rules, a passenger may be allowed to import free of duty at the discretion of the Customs Collector, such articles as could reasonably be treated as baggage or are of a kind normally used for making gifts or as souvenirs, up to a value depending upon his stay abroad subject to a maximum of Rs. 1000A in all. The said Rule 5 further lays down that the passenger shall not be permitted under the rule to import without payment of duty a large number of the same type of articles even though their total value may be within the free allowance or to import any individual article of a value exceeding Rs. 76/-. Individual article of bona fide baggage whose value may exceed Rs. 76/- will also be allowed clearance without an import licence subject to payment of customs duties provided they fall within the monetary limits applicable in the case of the passenger concerned.

3. It has now been decided that passengers who stay out of India continuously for 9 months or more may be allowed to import goods upto an additional value of Rs. 500/- provided those articles are bona fide baggage and of the type mentioned in Rule 5 of the said Baggage Rules without an import licence but on payment of Customs duties.

4. The clearance of one, dog, pet animals and birds in a limited number may be allowed without Import Trade Control restrictions on furnishing the following health certificates to the Customs authorities:

(i) A health certificate from a Veterinary Officer authorised to issue a valid certificate by the Government in the country of export to the effect that the dog imported is free from Aujossky's disease, Distemper, Rabies, Leishmaniasis and Leptospirosis and in the case of cats from Rabies and Distemper.

(ii) In the case of import of dogs and cats originating from countries where Rabies infection is known to exist, a health certificate containing a record of vaccination, the vaccine used, brew of the vaccine and the name of the production laboratory and to the effect that the dog/cat was vaccinated against Rabies more than one month, but within twelve months prior to the actual embarkation in the chicken embryo vaccine, both vaccines having previous iv passed satisfactory potency tests.

(iii) In the case of parrots, a certificate to the effect that the parrots were subjected to a compliment fixation test for Fsittaoosis with negative results within 30 days prior to actual embarkation.'

Mr. Roy for the petitioner contended that mare ''Jury Maid'' formed part of the personal bag gage of the petitioner and being a pet animal to the petitioner should have been allowed to be cleared without import trade control restrictions, under paragraph 4 of the Public Notice quoted above. This argument is not of much consequence because I have already held that the mare 'Jury Maid' is not in fact a pet animal to the petitioner Be that as it may. I need consider, at this stage certain other grounds urged by Mr. Subrata Roychowdhury, learned Advocate for the respondents, as to why para graph 4 of the Public Notice quoted above would not apply to the mare 'Jury Maid' He argued in the first place that 'pet animals' within the meaning of paragraph 4 meant only cats (dogs being separately mentioned), just as much as 'birds' in the said paragraph meant only par rots. He found inspiration for this argument from the language of Clauses (i), (ii) and (iii) of the said paragraph which provides for health certificates only in respect of dogs cats and parrots. Elaborating this argument. Mr. Roychowdhury contended that under paragraph 4 of the Public Notice quoted above pet animals cannot be cleared without furnishing the specified health certificate and since no health certificate was specified excepting for dogs, cats and parrots, other pet animals would not come within the purview of the said paragraph. This argument does not appeal to me. Under the aforesaid paragraph 'One dog, pet animals and birds in limited numbers' may be allowed to, be cleared without import control restrictions Ff only cats were intended to be meant by the expression 'pet animals', there is no reason why the aforesaid animal could not be specified in the same manner as a dog was. In my reading of paragraph 4, health certificates are necessary only in respect of dogs, cats and parrots, other pet animals need not have health certificates for clearing. The expression 'pet animals' is a generic term for all sorts of animals which are fondled or made pets Without more it docs not stand to reason, why the expression should only be taken to mean one single variety of pet animals viz. cats Although of that opinion. I need notice that the language used in paragraph 4 of the Public Notice leaves much to be desired and is capable of being used as a springboard for the type of sophistry propounded by Mr. Roychowdhury Mr. Roy chowdhury has however another line of argument in support of his contention that horses are not included within the description 'pet animals' as in paragraph 4 of the Public Notice quoted above He invited my attention to a Public Notice on import policy for the year April, 1964 to March, 1965 (Published in the Gazette of India 'Extraordinary' of March 31, 1964) and read to me the following entry:


Part and S. No. of I.T.C. Schedule.DescriptionLicensing AuthorityPolicy for Established ImporterValidity of Licenses.Remarks

1Animals, living all sortsParts/CCINilTwelve months.(i)* * * * * (ii)Applications from stud farms for import of horses for breeding purposes will be considered withina limited ceiling. Applications for import licences should be submitted to C. C I not later than the 31st May. 1964'

He also read to me the following note from page 13 of a book entitled 'The Indian Customs Tariff' (44th issue), which is couched in the following language.

''Under Government of India Ministry of Finance, (Revenue Division) Notification No 159-Customs dated the 4th December 1954 brood Mares and Stallions imported into India for the purpose of breeding only and not for the purpose of racing arc exempt from the payment of Customs duty leviable thereon provided that the importers seeking the above duty free concession on import of stallions and mares should produce a certificate from the Director of Animal Husbandry of the Stale concerned, to the effect that the stallions and mares on which exemption is sought are being imported soley for breeding and not for racing.'

Basing his point on the above-quoted entry and the note. Mr. Roychowdhury contended that there was a specific entry for importation of mares and stallions for breeding purposes subject to grant of import license and subject to production of certificate from the Director of Animal Husbandry of the State concerned as to the user and that indicated that mares could not be imported without import licenses as pet animals and as part of passenger's personal baggage. I am not impressed by this argument. If a breed mare, which is not the passenger's pet be imported then the above entry and the note may apply But I do not find any reason to use the above entry and the note in delimitation of paragraph 4 of the Public Notice, dated January 2, 1961, when that paragraph in my opinion is wide enough to include pet mares as well In the view that I take I also overrule another short point urged by Mr. Roychowdhary. He contended that a pet animal must be a small animal like a cat or a dog. I do not find any justification for importing limitation as to size upon animals, which may become human pets. Even amongst dogs, which are undoubtedly pet animals to man, there are differences in sixes and Great Dane Dogs are creatures of considerable size but still then may be made into human pets.

21. Mr. Roychowdhury contended further that mare cannot be a personal luggage for anybody on travel. He invited my attention in this context to (1) Hudston v. Midland Ry. Co., (1869) 4 Q.B. 366 in which Lush J., held that those articles only, which travellers ordinarily or usually carried with them as part of their luggage, come within the definition of ordinary or personal luggage, which a railway company was bound to carry with a passenger free of charge; (2) Macrow v. Great Western Ry. Co. (1871) 6 Q.B. 612 in which Cockburn C. J. held that whatever a passenger took with him for his personal use or convenience according to the habits or wants of the particular class to which he belonged, either with reference to his immediate necessity or the ultimate purpose of the journey would be considered as personal luggage. I need not consider these and also other cases on the line cited by Mr. Roychowdhury. Dogs, pet animals and birds may not form part of the conventional personal luggage of a passenger as much as his portfolio, suitcase or tiffin carrier may be. Pet animals, subject to certain restrictions, have been notionally made part of the personal baggage of a passenger under paragraph 4 of the Public Notice quoted above and have to be notionally treated as such. I do not, therefore, find much force in this branch of the argument advanced by Mr. Roychowdhury.

22. Mr. Roychowdhury also contended that the mare 'Jury Maid' was not originally intended to be imported as a pet animal and as part of the personal baggage of the petitioner. By way of an afterthought, Mr. Roychowdhury contended, the petitioner wanted to pass off the mare as part of his personal baggage and as his pet. For this purpose, he invited my attention to the Baggage Declaration (annexure 'A' to the affidavit-in-opposition) filed by the petitioner at Dum Dum Airport on arrival from Europe In that Declaration it was merely stated seven packages expected as un-accompanied baggage by sea/air, Mr. Roychowdhury argued that if the mare 'Jury Maid'' was also expected as part of the unaccompanied personal baggage, nothing was easier for the petitioner than to add to what he had stated the further words 'and a pet brood mare'. Mr. Roychowdhury further argued that it appeared from the correspondence attached to the petition that at the time of filing of the Baggage Declaration the petitioner was not even aware which mare was to come or when was she to arrive. The petitioner was informed of the arrangement to ship the mare 'Jury Maid' per s.s. 'Chinkoa', sailing from England on November 12, 1964, by the British Bloodstock Agency Limited, by their letter dated November 8, 1964 and may be by a telegram dated November 7, 1964. It was only thereafter that the petitioner filed a second Baggage Declaration claiming the mare to be part of his unaccompanied personal baggage. In my opinion, Mr. Roychowdhury may be right in his contention that this was an afterthought. Personal baggages must have some connection with the person who intends to travel. In these days of travelling in fast transports, it may not be possible for a passenger to carry all his personal baggages along with him in a fast plane or a fast moving luxury Liner. Rule 7 of Passengers (Non-Tourist) Baggage Rules, therefore, takes note of baggages of a passenger arriving before or after his arrival in India meaning thereby baggages which a passenger was unable to carry along with himself, regard being had to their nature, weights and sizes and in respect of which he had arranged for carriage by convenient and possibly cheaper transport. But even then such baggages must be part of his personal baggage as generally-understood, at the time when he intended to travel The expression 'personal baggage' may not apply to things which a passenger acquired subsequent to his arrival at destination and in respect of which he made arrangements for importation to India at a later date, I, therefore, find great substance in the contention of Mr. Roy chowdhury that the mare 'Jury Maid' could not be part of the personal baggage of the petitioner,

23. Mr. Roychowdhury lastly argued that a pet animal, in order to fall within paragraph 4 of the Public Notice quoted above must not exceed the value specified in Rule 5 of the Passengers (Non-tourist) Baggage Rules. I find nothing in paragraph 4 of the Public Notice to justify such a contention.

24. Since I hold that the mare 'Jury Maid' was not a pet animal to the petitioner, the animal does not fall within the exemption allowed in paragraph 4 of the Public Notice dated January 2, 1961 The petitioner, there fore, rendered himself liable to penal action under Sections 111(d) and 112 of the Customs Act read with Section 3 (2) of the Imports and Exports (Control) Act, 1947.

25. My finding above would have disposed of this Rule, Mr Roy however, made an additional argument based on a ground not originally taken in the petition but subsequently taken, after giving notice thereof to the respondents. That ground is that the impugned order was bad because the order for confiscation was arbitrary and unwarranted and no reason whatsoever was given in the said order to show as to why the petitioner was not given an option to pay in lieu of confiscation of the animal, such fine as the Customs authorities thought fit. Ordinarily, I would not have allowed such a new point to be urged. But it must be said in fairness to Mr. Roychowdhury, learned Advocate for the respondents, that he did not object to the ground being urged and indicated his preparedness to meet the new ground. Moreover, the ground urged is a pure point of law on admitted materials. A Division Bench of this Court has observed in the case of M, Dutta v. U. C. Law (1964) 68 Cal WN 179 that when a Rule comes up for final hearing before the High Court, it is open to the Court, if it finds that the Rule should succeed on some ground not initially taken or on a ground on which it was not issued, that is, on a ground other than the one on which it was issued, to consider the same and allow the application after giving the other party proper opportunities to meet the same objection. The High Court, according to their Lordships, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the Rule was not issued at the initial stage or the particular ground or grounds concerned. In respectful agreement with the observations allowed Mr. Roy to urge the point.

26. In order to consider the additional point, it is necessary for me to refer to Clause (d) of Section 111 and Section 126 (corresponding to Section 188 of the repealed Sea Customs Act) of Customs Act, 1962 and Sub-section (2) of Section 3 of the Imports and Exports (Control) Act, which read as follows :--

'(Section 111 of the Customs Act). The following goods brought from a place outside India shall be liable to confiscation :--

(a) * * * * (b) * * * * *(c) * * * *(d) any goods which are imported or attempted to be imported or are brought within the Indian Customs waters for the purpose of being imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force (Section 125 of the Customs Act): (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit.

* * * ** * * ** * * *(Section 3 (2) of Imports and Exports (Control) Act) : All goods to which any order under Sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under Section 19 of the Sea Customs Act, 1878, (VIII of 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.' Regard being had to the repeal of the Sea Customs Act, I have to read Section 125 in place of Section 188 mentioned in Sub-section (2) of Section 3 of the Imports and Exports (Control) Act. I have already expressed the opinion that the mare 'Jury Maid' was not a pet animal to the petitioner and as such fell within the prohibition of the Imports and Exports (Control) Act and the order thereunder made. That being so the confiscation of the animal was authorised by law. But the respondent Collector was vested with a discretion to give to the petitioner an option to pay, in lieu of confiscation, such fine as he thought fit. This was not certainly obligatory on his part but nevertheless a matter of discretion with him (see P. N. Roy v. Collector of Customs : 1983ECR1667D(SC) ), Mr. Roy argued that this discretion was not exercised by the respondent Collector and he must be deemed to have proceeded on the basis that he had no discretion in the matter and must impose the penalty of confiscation The case should, Mr. Roy contended, be remitted to the respondent Collector for exercise of that discretion. In support of this contention Mr. Roy relied on the following passage from the judgment of the Supreme Court in Nar Singh v. State of Uttar Pradesh : [1955]1SCR238 .

' In the case of Clause (c) both of Article 133 (1) and Article 134 (1), the only condition is the discretion of the High Court but the discretion is a judicial one and must be judicially exercised along the well-established lines which govern these matters : see Benarsi Parshad v. Kashi Krishen (1901) 28 Ind App 11 at p. 13 (PC); also the certificate must show on the face of it that the discretion conferred was invoked and exercised; Radhakrishna Aiyar v. Swaminatha Aiyar, AIR 1921 PC 25 at p. 26 and Radha Krishna Das v. Rai Krishna Chand, (1901) 28 Ind App 182(183) (PC). If it is properly exercised on well-established and proper lines, then, as in all questions where an exercise of discretion is involved, there would be no interference except on very strong grounds. Swaminarayan Jethalal v. Acharya Devendraprasadji, and Bhagbati Dei v. Muralidhar Sahu, . But if, on the face of the order, it is apparent that the Court has misdirected itself and considered that its discretion was fettered when it was not, or that it had none, then the superior court must either remit the case or exercise the discretion itself: Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156 at p. 159'.He also relied on a judgment of Lord Halsbury in Sharp v Wakefield. 1891 AC 173 which reads as follows :--' An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and 'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's case (5 Rep l00a); according to law, and not humour. It is to be, not arbitrary, vague, fanciful but legal and regular. And It must be exorcised within the limit, to which an honest man competent to the discharge of his office ought to confide himself Wilson v. Rastall (1792) 4 TR 758 at p. 757). So in Reg v. Boteler (1864) 38 LJ MC 101 where justices thought proper not to enforce the law because they considered that the act in question was unjust in principle, the Court of Queen's Bench compelled them by a peremptory order to do the act which, nevertheless, the statute had said was in their discretion to do or leave undone. '

27. In the instant case, the penal order passed by the respondent Collector does not show that he applied his mind to the question whether the petitioner should be given an option to pay fine in lieu of confiscation. But does that alone make the order bad? Mr. Roy Chowdhury for the respondents tried to repel this argument with a three-fold contention; he relied on the judgment of the Supreme Court in F. N. Roy's case : 1983ECR1667D(SC) in which their Lordships observed that it was not obligatory on the part of the Customs authorities to give an option to the owner to pay a fine in lieu of confiscation but they had a discretion whether to do so or not and an order of confiscation would not become bad even though no such option was given; he also relied on a Division Bench judgment of this Court in Collector of Customs v. Calcutta Cycles Syndicate 0043/1964 : AIR1964Cal225 in which also the same view as Quoted above was expressed; he lastly relied on the judgment of a single judge of this Court in Kshetra Nath Basack v. Collector of Land Customs, AIR 1969 Cal 366 in which it was held that failure on the part of the authorities to give an option to pay fine in lieu of confiscation would not vitiate the penal order. Mr. Roy Chowdhury contended that the Collector was invested with a discretion and in exercise of that discretion made an order for confiscation and his discretion should not be interfered with by this Court. He further contended that the case in AIR 1964 SC 467, relied on by Mr. Roy, was distinguishable in the facts of the present case the observations quoted above having been made in the context of that case only. Mr. Roy Chowdhury also contended that the petitioner had imported a mare, which was not his pet, with the mundane economic purpose of commercial gain and tried to get the animal through, without import licence, on the pretext that the animal was pet animal. He contended that in this background there was no reason to visit the petitioner with the lesser penalty of fine in lieu of confiscation.

28. It is now beyond doubt that imposition of a fine in lieu of confiscation is discretionary with the authorities. But must there, be given specific reason in every case as to why a particular penalty, may be the more onerous of the two, was imposed In my opinion, there is no authority for such a proposition. If there be indications that an inferior tribunal felt that its discretion was fettered, although there was by law no limitation imposed, or that it had none, and in that view chose the more onerous of the two penalties provided, then only a superior court may remit the case and ask the inferior tribunal to exercise this discretion according to law. In the absence of such indications, the discretion exercised by an inferior tribunal should not be interfered with. Here, there is no such indication. I, therefore, do not propose to interfere.

29. I do not, however, accept the other two arguments of Mr. Roy Chowdhury. In my opinion, the observations by the Supreme Court in AIR 1964 SC 467 were not made in the context of that particular case but that it laid down the general proposition of law. Further, the reasons given by Mr. Roy Chowdhury as to how the offence merited confiscation are not the reasons given by the respondent Customs Collector but reasons invented by Mr. Roy Chowdhury in support of the penal order. In therefore, need not concern myself with such explanation.

30. For the reasons given above, the additional ground argued by Mr. Roy must fail.

31. Mr. Roy lastly tried to argue another point. He contended that the mare was released on a bond. The terms of the bond may now be enforced against the petitioner, if the bond has not already been redeemed, but no penalty can be imposed upon the petitioner under the Customs Act, read with Exports and Imports (Control) Act. This point was not taken in the grounds. No notice of this new ground was given to the respondents. The language of the bond goes to show that the bond was taken to ensure the filing of a bill of entry by the petitioner. I, therefore, do not make much of this point.

32. In the result, this Rule fails and is discharged. I, however, make no order as to costs.

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