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Agarwal Trading Corporation and ors. Vs. Asst. Collector of Customs and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms;FERA
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 110 of 1960
Judge
Reported inAIR1964Cal347,1964CriLJ151
ActsSea Customs Act, 1878 - Sections 19, 167, 167(3), 167(8) and 167(37); ;Foreign Exchange Regulation Act, 1947 - Sections 8, 8(2), 23(1), 23A, 23B, 23C and 23(I-A); ;Constitution of India - Article 20
AppellantAgarwal Trading Corporation and ors.
RespondentAsst. Collector of Customs and ors.
Appellant AdvocateR. Choudhuri and ;S.N. Ghorai, Advs.
Respondent AdvocateG.P. Kar and ;A.K. Banerji, Advs.
DispositionAppeal dismissed
Cases ReferredAdditional Collector of Customs v. Sitaram Agarwalla
Excerpt:
- miter, j. 1. this is an appeal from an order discharging a rule obtained by the appellants calling upon the respondents, the collector of customs and others to show cause why certain orders passed under various sections of the sea customs act and the foreign exchange regulation act should not be quashed and why a written complaint made by the respondents, the assistant collector of customs and superintendent, preventive service under the foreign exchange regulation act and case no. 876 of 1959 pending to the court of the presidency magistrate, calcutta, should not be stayed.2. the appellants are agarwal trading corporation, a firm registered under the indian partnership act carrying on business at no. 191, mahatma gandhi road, calcutta and its partners girdharilal gupta and puranmal jain......
Judgment:

Miter, J.

1. This is an appeal from an order discharging a Rule obtained by the appellants calling upon the respondents, the Collector of Customs and others to show cause why certain orders passed under various sections of the Sea Customs Act and the Foreign Exchange Regulation Act should not be quashed and why a written complaint made by the respondents, the Assistant Collector of Customs and Superintendent, Preventive Service under the Foreign Exchange Regulation Act and case No. 876 of 1959 pending to the Court of the Presidency Magistrate, Calcutta, should not be stayed.

2. The appellants are Agarwal Trading Corporation, a firm registered under the Indian Partnership Act carrying on business at No. 191, Mahatma Gandhi Road, Calcutta and its partners Girdharilal Gupta and Puranmal Jain. The respondents are (i) the Assistant Collector of Customs and Superintendent, Preventive Service (2) and Additional Collector of Customs (3) Collector of Customs and (4) the Union of India.

3. The case arose out of a detection of Rs. 51,000/- in Indian Currency Notes concealed in specially made cavities on the battens nailed to the inner sides of a wooden case booked for despatch to Hongkong at Dam Dum Airport on October 25, 1958. The package was declared to contain articles of food like rossogolla, acher etc., under cover of Shipping bill No. A. E. F. No. 761 of October 18, 1958 to be shipped by Swiss Air. According to the shipping bill the consignor was one Ramghawan Singh, Karnari Mansions, Park Street, Calcutta and the consignee was one Iswarlal, 41, Wyndhem Street, Hong Kong. The Customs authorities instituted searches on the strength of warrants obtained from the Chief Presidency Magistrate Calcutta and various documents and books of accounts were seized not only at the business premises of the appellant firm but also at the respective residences of the partners on January 22, 1959. According to the Customs authorities the searches and the investigation revealed the following :-

(a) One Bhagwandeo Tewari at one time a cashier of the appellant firm had gone to the office of Thai Airways Co., Ltd., with the wooden case in question for booking the same on October 22, 1958. Two days thereafter he had been to the office of the Indian Airlines Corporation. The identity of Bhagwandeo Tewari as the person who had gone to the said air offices had been established by employees of Thai Airways Co., Ltd., and Traffic Assistants of Indian Airlines Corporation.

(b) The specimen writings of Bhagwandeo Tewari and the signature 'Ramchandra' on the consignment note were from the same hand. The typing of the consignment note appeared to have been done on the typewriter of the appellant firm as was apparent from a comparison of the consignment note with a letter admittedly sent out by the appellant firm and signed by one of its partners Girdharilal Gupta.

(c) An account slip seized from the office of the appellant firm contained entries to show that Bhagwandeo Tewari was the person who actually transported and booked the package in question. The entry of Rs. 123.73 np as freight to Hongkong was the exact amount shown on the consignment note for the package containing the currency. Bhagwandeo Tewari had admitted that the account slip was in his handwriting. Some of the costs and charges noted on the account slip in connection with the booking of a package were also to be found in the books of account of the appellant firm.

(d) Both the consignor Ramghawan Singh and the consignee Iswarlal were fictitious persons.

4. The first respondent issued a show causa notice on the appellant firm en April 2, 1959 setting out various facts including the above and pointing out that the exportation of Indian currency out of the Union of India was in violation of a bar imposed under Section 8(2) of the Foreign Exchange Regulation Act, 1947 read with Reserve Bank of India Notification No. F. E. R. A. 105 5I/RB dated February 27, 1951. The appellant firm was given an opportunity of showing cause within four days of the receipt of the notice in pursuance of the provisions of Section 23 of the Foreign Exchange Regulation Act by producing the permit, if any, of the Reserve Bank of India for export of Indian currency failing which a prosecution was to be launched under Section 23 (i) read with Section 8 (2) of the Foreign Exchange Regulation Act, 1947. The notice mentioned, inter alia, that the partners of the firm were Girdharilal Gupta and one Dongarmul Sarogi. A separate notice on similar terms was issued to Girdharilal Gupta on April V, 1959- In this it was stated that the firm and its partners as well as the cashier Bhagwandeo Tewari who aided in the shipment were punishable under Section 167, clauses (3) and (8) of the Sea Customs Act read with Section 23-A of the Foreign Exchange Regulation Act, 1947. These persons were further charged with attempt to export the currency by deceiving officers of Customs thereby rendering themselves amenable to the jurisdiction under Section 167 clause 37 (d) of the-Sea Customs Act. Girdharilal Gupta was called upon to explain in writing and to show cause why penal action should not be taken against all of them under Section 167 (3), (8) and (37) of the Sea Cuostoms Act. Girdharilal Gupta was further requested to intimate whether he wished to be heard in person before 'the case was decided. On April 13, 1959, the appellant firm replied to the notice dated April 7, 1959 stating inter alia that the firm consisted of two partners, Girdharilal Gupta and Puranmal Jain and that Dongannal Sarogi had no connection with the firm. The firm denied having had anything to do with the package containing the currency notes and stated that it was not aware of the existence of any persons by the name of Ramghawan Singh or Iswarlal. The firm further denied that Bhagwandeo Tewari had despatched the consignment in question or visited any of the air offices in connection therewith. With regard to the searches and the findings based thereon it merely stated that full explanation could not be given without an inspection of the documents seized. The reply was signed by Girdharilal Gupta who desired that the same should be treated as submitted on his own behalf as well. The Assistant Collector of Customs wrote to the appellant firm again on May 6, 1959, enclosing a corrigendum to the show cause memo issued on April 7, 1959, and requesting the addressee to submit a written explanation with all originals, certified copies, documentary evidence etc., within seven days from the receipt of the letter. The important thing mentioned in the corrigendum was that Girdharilal Gupta and Puranmal Jain were treated as partners of the firm and Dongarmal Sarogi was treated as aa executive of the same. The firm with its partners Girdharilal Gupta and Puranmal Jain and its executive Dongarmal Sarogi as also the employee Bhagwandeo Tewari were called upon to explain why penal action should not be taken against them under Section 167 (3), (8) and (37) of the Sea Customs Act. As before the only reply to this notice came over the signature of Girdharilal Gupta and the appellant firm denied all knowledge of anything done in connection with the booking of the offending parcel and requested the return of books of account and documents seized from them.

5. On May 30, 1959 the Additional Collector of Customs passed order No. 293 on the above show cause notice. Reference was therein made to the evidence already secured, particularly the account books and account slip seized from the office premises of the appellant firm, the comparison of the signature on the consignment note with the admitted signature of Bhagwandeo Tewari, the identification of Tewari as the person who had gone to book the package first at Thai Airways and later at Indian Airlines Corporation for despatch to Hongkong. According to the Additional Collector the account slip contained significant entries showing that Tewari was the person who had actually transported and booked the package in question. This was said to be borne out by the identity of the freight Rs. 123.73 nP. which appeared on the slip and on the consignment note and the admission by Tewari that the account slip was in his handwriting. The Additional Collector came to the conclusion on the above evidence that Tewari was the person actively concerned in the attpmpted illegal transportation of the currency under cover of a mis-declaration and was therefore liable to penal action under the provisions of Section 167 (3), (8) and (37) of the Sea Customs Act. With regard to the appellant firm it was noted that the partners did not ask for a personal hearing and offered no explanation. According to the Additional Collector, Tewari who occupied the position of a cashier in the firm could hardly be the person to attempt a smuggling offence of the magnitude involved in the transaction and the probability was that he was doing so on behalf of and under instructions from his employers. Evidence in support of this was afforded by various circumstances including the identity of the charges incurred in connection with the booking of the package noted in the account slip and in the account books of the firm and the use of the typewriter of the firm for typing out the letter of authority addressed to the customs department in connection with the shipment. The firm of whom Girdharilal Gupta and Puranmal Jain were the partners, was held to be knowingly concerned in the offence alleged in the show cause notice. A fine of Rs. 1000/- was imposed on the firm under Section 167 (3) of the Sea Customs Act, with a further personal penalty of Rs. 1000/- under Section 167 (37) of the same Act and one of Rs. 51,000/- under Section 167 (8) of the same Act read with Section 23-A of the Foreign Exchange Regulation Act. The currency notes amounting to Rs. 51,000/- also stood confiscated. The penalties were directed to be paid within seven days of the order. By letter dated June 8, 1959, the appellant firm asked for extension of time by two months for deposit of the amounts. The Additional Collector of Customs thereupon directed the firm to pay the entire amount on or before June 22, 1959. In the mean time on June 3, 1959, the Assistant Collector of Customs filed a written complaint before the Presidency Magistrate, Calcutta against the appellant firm, its partners and Bhagwandeo Tewari under Section 23 (i) and 23-B of the Foreign Exchange Regulation Act. The summons in connection with this case which was numbered 876 of 1959 was served on the appellant on July 1, 1959.

6. On July II, 1959, the solicitors of the appellant firm wrote to the Additional Collector ot Customs, the Collector of Customs and the Union of India asking them to desist from taking any steps whatsoever in respect of the imposition of the fines on the ground that the firm or its partners had no concern or connation with the offending package and were not in any way responsible for any attempt to export any currency notes. On July 22, 1959, the appellant firm and its partners presented an application under Article 226 of the Constitution to this Court asking for various reliefs. The main prayers were that the orders dated May 30, 1959 and June 16, 1959 should not be given effect to and the complaint in case No. 876 of 1959 should be stayed pending the hearing of the application, on various grounds set forth in paragraph 22 of the petition.

7. An affidavit in opposition was affirmed herein by the respondent No. I, the Assistant Collector of Customs. The affidavit in reply was affirmed by Girdharilal Gupta on January 11, 1960. In this affidavit, for the first time, it was contended that Bhagwandeo Tewari was not the cashier of the firm. It is significant to note that even in the first show cause notice Tewari had been described as occupying the position of the cashier of the firm and no exception was taken thereto either in reply to the notice or even in the petition.

8. Of the various grounds taken in the petition those which were urged before the trial Judge were as follows: -

(1) The customs authorities should not on the same show cause notice proceed against the petitioners under Section 167 (3), (8) and (37) of the Sea Customs Act. It was argued that these three items dealt with offences which were identical and, therefore, nobody could be punished three times for the same offence. Alternatively, it was argued that these offences overlapped to a certain extent and, therefore, it was not possible to punish anybody under all three itema jointly.

(2) Under Section 167 (8) the maximum penalty which could be imposed was Rs. 1,000/-and the imposition of Rs. 51,000/- by way of penalty was therefore invalid.

(3) The show cause notice was issued by the Assistant Collector of Customs who also received the reply of the petitioner. It was therefore not open to the Additional Collector of Customs to take up the matter or to impose any penalty on the petitioners. All these points were turned down by the learned Judge, and the Rule was discharged.

9. Before us the broad points canvassed were as follows:

(1) Currency 'notes are not 'goods' and therefore the provisions of Section 167 (3), (8) and (37) of the Sea Customs Act are not attracted.

(2) A 'firm' is not a legal entity and therefore it cannot be a 'person' within the meaning of any of the above provisions of law.

(3) Even if a firm be a person within the meaning of the said provisions no penalty can be imposed on the firm or any of its members unless it appears from the evidence that the members of the firm had consciously taken any steps to violate the provisions of law; even so only the particular member against whom there is evidence of guilt can be held liable.

(4) Under the provisions of Section 23 (i) of the Foreign Exchange Regulation Act a person can be made liable to a penalty not exceeding three times the value of the foreign exchange in respect of which any contravention had taken place; alternatively he can be punished with imprisonment for a term which may extend to two years or with fine or with both but he cannot be made liable to a penalty and also be proceeded against on a criminal complaint before a criminal Court.

10. Before dealing with the argument in detail it is necessary to note some provisions of the Sea Customs Act and of the Foreign Exchange Regulation Act. There is no definition of 'goods' or 'person' in the Sea Customs Act. Under Section 19 of the Sea Customs Act the Central Government is authorised, by notification in the Official Gazette, to 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. The offences under the Act and the penalties prescribed thereunder are to be found itemised under Section 167 of the Sea Customs Act. Under item (3) of the said section it is an offence for any person to ship or land goods or aid in the shipment or landing of goods or knowingly keep or conceal, or knowingly permit or procure to be kept or concealed, any goods shipped or landed or intended to be shipped or landed, contrary to the provisions ol the Act. The maximum penalty which can be inflicted is one of Rs. 1,000/-. Under the relevant provisions of item 8 of the section

'if any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of the Act, be imported into or exported from India contrary to such prohibition or restriction; or if any attempt be made so to import or export any such goods; or if any such goods, the exportation of which is prohibited or restricted as aforesaid, be brought to any wharf in order to be put on board of any vessel for exportation contrary to such prohibition or restriction such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees.'

Under item 37 clause (d) if it be found, when goods are entered at, or brought to be passed through, a custom-house either for importation or exportation that goods not stated in the bill or entry or application have been concealed in, of mixed with, the articles specified therein, or have apparently been packed so as to deceive the officers of customs, and such circumstance is not accounted for to the satisfaction of the Customs-Collector such packages, together with the whole of the goods contained therein, shall be liable to confiscation, and every person concerned in any such offence shall be liable to a penalty not exceeding one thousand rupees.

11. Under Section 8 (i) of the Foreign Exchange Regulation Act 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, it any, prescribed bring or send into India any gold or silver or any currency notes or bank notes of coin whether Indian or foreign.

12. Under Section 8 (2) of the Foreign Exchange Regulation Act

'no person shall, except with the general of 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 India any Gold, or precious stones or Indian currency or foreign exchange other than foreign exchange obtained from an authorised dealer.'

13. Under Section 23 (i)

'if any person contravenes the provisions ot Section 4, Section 5, Section 9 or sub-section (2) oi Section 12 or any rule, direction or order made' thereunder, he shall -

(a) be liable to such penalty not exceeding' three times the value of the foreign exchange in respect of which the contravention has taken place or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or

(b) Upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

14. Under Section 23 (i-A)

'whoever contravenes -

(a) any of the provisions of this Act or of any rule, direction or order made thereunder, other than those referred to in Sub-section (I) of this section and Section 19 shall, upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both;

(b) any direction or order made under Section 19 shall, upon conviction by a Court, be punishable with fine which may extend to two thousand rupees.'

15. Section 23-A reads:-

'Without prejudice to the provisions of Section 23 or to any other provision contained in this Act, the restrictions imposed by Sub-section (i) and (2) of Section 8, sub-section (r) of Section 12 and clause (a) of sub-section (i) 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.'

16. Under Section 23-8:-

'Whoever attempts to contrayene any of the provisions of this Act or of any rule, direction or order made thereunder shall be deemed to have contravened that provision, rule, direction or order, as the case may be.'

17. Under Section 23-C (i) -

'If the person committing a contravention is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this subsection shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.'

18. Under Section 23-C (2) -

'Notwithstanding anything contained in subsection (i), where a contravention under this Act has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation - For the purpose of this section -

(a) 'Company' means any body corporate and includes a firm or other association of individuals; and

(b) 'director' in relation to a firm, means a partner in the firm.'

19. On the first point, our attention was drawn to the definition of 'goods' in the Sale of Goods Act which excludes money. As the Sea Customs Act does not define goods it was argued that the definition in the Sale of Goods Act should govern the meaning of the expression in the former Act. It is only necessary to point out that the Sale of Goods Act is a much later statute than the Sea Customs Act and that there is no definition of 'goods' in the General Clauses Act. The contention, however, cannot be accepted in view of the provisions of the Foreign Exchange Regulation Act. Under Section 8 of the said Act read with Section 23-A the exportation of Indian currency out of India will be a violation of the provisions of Section 19 of the Sea Customs Act attracting penalties and confiscation under clause 8 of Section 167 of the later Act.

20. The argument that only a natural person is amenable to the jurisdiction under Clauses (3), (8) and (37) of Section 167 of the Sea Customs Act cannot also be accepted. Although the word 'person' has not been defined in the Sea Customs Act, under the General Clauses Act it includes any company or association or body of individuals whether incorporated or not. It is true that the General Clauses Act came on the Statute Book long after the Sea Customs Act. But under Section 23-C of the Foreign Exchange Regulation Act and the explanation thereto where the contravention is by a firm every person who at the time the contravention was committed, was in charge of, and was responsible to the firm for the conduct of its business as well as the firm itself shall be deemed to be guilty of the same and liable to be proceeded against and punished. The result is that once it is found that there has been a contravention of any provision of the Foreign Exchange Regulation Act read with the Sea Customs Act by a firm the partners of it who were in charge of its business or were responsible for the conduct of the same cannot escape liability unless it is proved by them that the contravention took place without their knowledge or that they exercised all due diligence to prevent such contravention.

21. In my opinion, the further argument that an attempt to contravene any provision of the Sea Customs Act is not an offence under the said Act is without any substance. If the offence relates to Foreign Exchange the provisions of Sections 23-A and 23-3 of the Foreign Exchange Regulation Act are attracted drawing in their chain the offences and penalties prescribed under the Sea Customs Act. The result is that any attempt to contravene a provision of the Foreign Exchange Regulation Act is punishable under the relevant provisions of Section 167 of the Sea Customs Act. Besides under Section 167 clause 8 of the Sea Customs Act an attempt made to export any goods the exportation of which is prohibited or restricted by or under Chapter IV of the Act, which includes Section 19, renders the goods liable to confiscation and any person concerned in any such offence liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees. If the word ' 'goods' in the above is substituted by 'Indian Currency' under the Foreign Exchange Regulation Act an attempt to export Indian Currency Notes can be dealt with under the Sea. Customs Act.

22. On the facts of this case, I find myself unable to come to the conclusion that there was no evidence before the Customs officer to lead to the conclusion that the firm including its members were guilty of contravention of law. There was ample evidence to support the finding that it wasBhagwandeo Tewari who had booked the offending package containing the currency notes in secret cavities specially made for the purpose. The seizure of the account slip, the co-relation of some of the entries therein with the entries in the account book of the firm the admission by Tewari that the account slip had been written by him showing that Rs. 123.73 nP- was the freight paid in connection with the despatch of a package to Hongkong, the fact that Rs. 123.73 nP- was theextact amount paid in respect of the offending package as entered in the consignment note andthe fact that Tewari was an employee of the firm- according to the Customs authority its cashier at the relevant time - all prima facie indicate that it was the firm which was attempting to export Indian currency to Hongkong. The inference drawn from the circumstances by the Customs authorities that Tewari could not have been doing it on his own behalf is one which can easily be deduced. On a common sense view of things the firm could be held privy to the attempt to export Indian currency out of India. Of course, it was open to the partners to adduce evidence to the effect that they knew nothing about it, that they had nothing to do with the offending package and that Tewari was doing something without their knowledge or connivance. No attempt in this direction was ever made. In fact the members of the firm did not make use of the opportunity of the personal hearing given to them. The result is that I cannot hold that there was such a lack of evidence as would lead to the conclusion that the order made by the Customs authorities should 'be quashed by the issue of a writ of certiorari.

23. It was next argued that before a member of a partnership firm can be proceeded against as a 'person concerned', some direct relationship between the offence and the person sought to be made liable must be established by evidence and that the matter must be treated as a criminal proceeding where the burden of proof throughout rests on the prosecution. In this connection, our attention was drawn to the case of Ambalal v. Union of India, AIR 1961 SC 264. There the appellant was proceeded against under various sections of the Sea Customs Act and the Land Customs Act in respect of certain gold and silvei 'bullion and articles from his custody. In answer to the show cause notice the appellant there had stated that some of the items were brought by bim from Pakistan after the partition of the country in 1947 and that the others had been purchased by him bona fide for value in India. The Collector of Central Excise had held that the appellant had failed to establish that the first set of item had been brought by him into India in the year 1947 and he further rejected the appellant's plea in regard to the others leading to the confiscation of all the articles with an option to redeem some of them. With regard to the first series of articles the Supreme Court held that the decision turned on the question of onus of proof. It was observed that

'a customs officer is not a judicial tribunaland that a proceeding before bim is not a prosecution. But it cannot be denied that the relevant provisions of the Sea Customs Act and the Land Customs Act are penal in character. The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned. To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the customs authorities and they have to bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence.'

The Supreme Court negatived the contention that the onus shifted to the appellant by reason of certain provisions of the Sea Customs Act add the Land Customs Act and Section 106 of the Evidence Act. Before us reliance was placed on the above passage with special reference to the applicability of the principles of natural justice and criminal jurisprudence and it was argued that in the absence of direct evidence to connect a person with the offence no punishment could be inflicted. In my view, the observations of the Supreme Court cannot be stretched to cover the facts of this case. Let us consider the case of a natural person against whom the customs authorities have found evidence of the kind obtaining in this case. If the circumstances are such as to show that an employee of a certain person carrying on a business was attempting to book a package to Hongkong containing currency notes concealed in secret cavities, that some items of expenditure mentioned in his books of account tally with entries on an account slip in the handwriting of the said employee seized from his office premises showing further the freight paid on the package to be the same as that mentioned in the consignment note, a customs officer can reasonably come to the conclusion that the said person is involved or concerned in the attempt to export currency notes out of India. In my opinion, it would be futile in such a case to contend that the owner of the business was not a person concerned in the offence and the guilt of attempt to export currency notes had not been brought home to him. Once it is found that the offending package was being dispatched by the firm the inference of guilt is easy to draw for unless there was some guilty motive behind it why should the package be attempted to be sent in the name of-a fictitious person? This rules out the possibility of the currency notes being put into the package without the knowledge or connivance of the firm-The fact that the notes were attempted to be smuggled out of India only goes to confirm the guilt of the person or the firm despatching the package. It may be that more direct evidence would be required to establish the guilt in a criminal prosecution but in' a quasi-judicial proceeding of the type which the customs authorities have to conduct evidence of the kind which has corns: to light in this case would, in arty opinion, beenough to lead to the conclusion that the owner of the business was interested in or involved in attempting to export Indian currency notes out of India and, as such, punishable under the Sta Customs Act. If the circumstances justify the drawing of the inference in the case of a natural person Section 236 of the Foreign Exchange Regulation Act would warrant the same conclusion against the members of the firm where its employee was engaged in similar activities. As the norm and its partners were given an opportunity of adducing evidence to show that they were not interested in or involved in the attempt to export currency notes out of India there has been no violation of the principles of natural justice in i this case. I do not find myself able to hold that all the principles of criminal jurisprudence are attracted to enquiries under the Sea Customs Act by the Customs Officers. Dealing with Sea Customs Act and the Land Customs Act in Thomas Dana v. State of Punjab, : 1959CriLJ392 the Supreme Court observed that

'all criminal offences are offences, but all offences in the sense of infringement of a law, an; not criminal offences. Likewise, the other expressions have been used in their generic sense and not as they are understood in the Indian Penal Code or other laws relating to criminal offences-Section 167 speaks of offences mentioned the first column in the Schedule, and the third column in that Schedule lays down the penalties in respect of each of the contraventions of the rules or of the sections in the Act. There are is manyus 8r entries in the Schedule to Section 167, besidesthose added later, but each one of those Is and more entries, though an offence, being an act infringing certain provisions of the sections and rules under the Act? is not a criminal offence. Out of the more than 81 entries in the Schedule to Section 167, it is only about a dozen entries, when contemplate prosecution in the criminal case, the remaining entries contemplate penalties other than punishments for a criminal offence.'

24. In support of the argument that there must be a direct nexus between the offence andthe person charged therewith strong reliance was placed on a judgment of this Court in the case of Additional Collector of Customs v. Sitaram Agarwalla, : AIR1962Cal242 . There the respondent Sitaram and one Bholanath Gupta were observed moving together and stationing themselves on the western pavement of Jatindra Mohan Avenue, Calcutta, on a certain day. A taxi cab was seen shortly thereafter to proceed in that direction mid on a signal being flashed the occupant of the taxi, a Chinese national, alighted therefrom, shook hands with the respondent and all the three boarded the taxi. A police constable who was on the spot raised an alarm and secured the respondent and his companion with the help of members of the public. They were taken to the Police Station for purposes of interrogation. The Chinese national who started to run away was chased and eventually secured. Before his apprehension however he was seen to drop three packets which were found to contain 23 bans of illicit gold. The respondent was charged as a person concerned in the offence of attempting to import contraband gold under Section 167(8) of the Sea Customs Act. It was observed in that case that

'in order that a person may be said to be so concerned, some facts have to be proved which will establish that he was in conscious relation with the gold in one or other of the several successive steps preceding its actual receipt into the country. If there is no such evidence, as there is none in this case, it is impossible to agree that since the respondent was going to be the first taker of the smuggled gold, he is to be deemed to be a person concerned in illegal importation of the bars.'

The Court further pointed out that thereneed be no physical connection between the gold and the person charged and

'if the offence did not relate to being concerned in importation of the gold, but related to his having something to do with smuggled gold, the position might have been different.'

In dismissing the appeal from the above judgment, the Supreme Court observed

'the High Court was right when it observed that if any one is interested or consciously takes any step whatever to promote the object of illegally bringing bullion into the country, then even if no physical connection is established between trim and the thing brought he will be guilty.'

The judgment of the Supreme Court has not been reported yet but a blue print of it was available to us.

25. I do not think the observations of this Court in the above case help the appellants before us. According to the Oxford Dictionary 'to be concerned in' means 'to have relation to' or 'have interest in'. It was this aspect of the meaning of the word 'concerned in' which was emphasized on by the Supreme Court. On the facts of this case if it be possible to infer from the circumstances that the firm was despatching in the name of a fictitious person the offending package containing currency notes in secret cavities it would be idle to pretend that the firm was not related to or was not interested in sending the currency notes out of India. The facts clearly disclose a well laid plan. The currency notes were not inside the package in such a condition as not to be apparent even on the opening of the package. The package is sent out in the name of a fictitious person. All the charges and expenses incurred in connection with the despatch are not noted in the books of the firm. Some of the entries in the books of account tally with the account slip which undoubtedly relates to a package which was being despatched to Hong Kong, the destination of the offending package. The freight mentioned in the account slip is the exact amount which appears on the consignment note in respect of the offending package. A very large sum of money is sought to be sent out of India. The amount is so large that any reasonable man would think it beyond the means of the cashier to have possession of. In the face of all this it is not unreasonable to infer that it I was the firm which was interested in sending that currency notes out of India in a clandestine manner.

26. The argument that the appellants were being prosecuted for the same offence three times over cannot be accepted. It was turned down by the learned trial Judge and I see no reason to differ from his conclusion. The learned trial Judicle pointed out that the ingredients of the three offences set forth under Section 167 (3), (8) and (37) where different although all the offences might be committed by the same person in planning try, export currency notes out of India. He observed that 'the illegal exportation of currency consists of an integrated series of acts just as much as the legal exportation would be. Some facts are bound to be common in the commission of the different offences but that does not affect the jurisdiction to impose the several penalties.' With respect, I agree.

27. The further argument that for the same offence a person cannot be proceeded with in the criminal jurisdiction and be subjected to penalties is of no merit. The Supreme Court pointed out in Dana's case, : 1959CriLJ392 that 'Those penalties, the collector had been empowered to impose in order not only to prevent a recurrence of such infringements, but also to swoup due loss of revenue resulting from such infringements. A person may be guilty of certain acts which expose h(tm) to a criminal prosecution for a criminal offence, to a penalty under the law intended to collect the maximum revenue under the Taxing Law, and/or at the same time, make him liable to damages in torts. For example, an assessee under the Inconm-tax Law, may have submitted a false return with a view to defrauding the Revenue. His fraud being detected, the Taxing Officer may realise fiom him an account which may be some multiple of the amount of tax sought to be evaded. But the fact that he has been subjected to such a penalty by the Taxing authorities, may not avail him against a criminal prosecution for the offence of having submitted a return containing false state-ments to his knowledge.'

It was argued, however, that under Section 23(1) of the Foreign Exchange Regulations Act the imposition of a penalty not exceeding three times the value of the foreign exchange in respect of which contravention had taken place was a punishment alternative to one of imprisonment upon conviction by a Court. Consequently it was argued that it was not open to the Customs authorities, as has been done in this case, not only to levy penalties but to lodge a criminal complaint against the appellants. No copy of the complaint is to be found in the paper book. In the absence thereof, I do not feel competent to express any views as to the maintainability of the complaint. In my opinion the complaint could properly be lodged under Section 23 (iA) of the Foreign Exchange-Regulation Act. It was stated in Court by counsel that the prosecution had ended in acquittal of the appellant. We are not however directly concerned with the same. Section 23(1) only relates to certain specified' contraventions and does not apply to all contraventions under the Foreign Exchange Hegnlation Act. Section 23(1 A) shows that the contravention of any rule, direction or order madethereunder, other than those referred to in subsection (i) of Section 23 and Section 19 shall, upon conviction by a Court, be punishable with imprisonment for a term which might extend to-two years, or with fine, or with both. As was-pointed out by the Supreme Court in Thomas-Dana's case, : 1959CriLJ392 a series of acts can make a person amenable to the criminal jurisdiction and also subject him to imposition of penalties at the hand of the Revenue Authorities. It is Bot for us to go into the question why the legislature has made different the treatment between offences falling under Section 23(1) and those under Section 23{iA) of the Foreign Exchange Regulation Act. There is nothing wrong in providing If for prosecution in a criminal case byer and above | subjection to penalties and no exception can be I taken because the legislature has made a difference! between one set of offences and another.

28. In the result, tie appeal fails and must be dismissed.

29. The appellants must pay the costs of * this appeal.

30. Certified for {W) Counsel.

31. The operation of this order will remain stayed for a period of Six weeks from date.

Bose, C.J.

32. I agree.


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