Skip to content


Romesh Chander Vs. the Superintendent Customs and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1975CriLJ739
AppellantRomesh Chander
RespondentThe Superintendent Customs and anr.
Cases ReferredCustoms v. Charana Das Malhotra
Excerpt:
- .....to show cause as to why the said gold be not confiscated under the then operative rule 162-m of gold control rules and now under section 71 of the gold control act, 1968, and why penal action be not taken against them under the then operative rule 126 (16) of the gold control rules and now under section 74 of the gold control act, as there were reasons to believe that they had contravened the provisions of rule 126-m (1-a) of the defence of india (fourth amendment) rules, 1966. all these persons were also called upon to show cause why penal action under the operative rule 126 (16) of the gold control rules and now under section 74 of the gold control act, 1968, should not be taken against them.3. the appellant and the aforesaid three persons submitted their reply to the said notice.....
Judgment:

Jaswant Singh, J.

1. This Letters Patent Appeal is directed against the judgment dated November 22, 1972 of Mian Jalal-ud-Din, J. whereby the appellant's petition No. 261 of 1971, for issue of writs of Certiorari and Mandamus against the respondents herein was dismissed.

2. The facts leading to this appeal are: During their tour of the border area on May 6, 1966, the Customs (Preventive) Start Rajouri, apprehended the appellants, Mela Ram son of Anant Ram, and Preetam Dass son of Des Raj residents of Rajouri, and recovered from the possession of the appellant two cut biscuit shape gold bars weighing ten tolas with the words and figures 'Jhon-son Mathey London 99.0' inscribed on them as also two other pieces of gold weighing two Tolas and Two Mashas which did not bear any marking. Some biscuit shape gold bars bearing foreign markings were also recovered from the possession of Mela Ram and Preetam Dass. On the aforesaid recoveries being effected from them all the three persons were called upon to furnish proof regarding the lawful import and possession of the gold and on their failure to do so, the Customs staff seized the said gold in presence of independent witnesses believing that it had been smuggled. In the course of their statements recorded in the presence of independent witnesses by the Deputy Superintendent, Customs, Rajouri, all the aforesaid three per-sons including the appellant admitted the recovery of the gold from their possession and stated that the same was smuggled by them from Pakistan and was in the process of being transported to Rajouri for disposal duly concealed by them when it was seized by the Customs Staff. Under his show cause memo dated May U, 1966, the Deputy Superintendent Customs, Rajouri, called upon the aforesaid three persons to show cause and explain as to why the gold seized from their possession be not confiscated under Section 111(k) of the Customs Act, 1962, for contravention of the provisions of Sections 109 and 11 of the Act read with Section 8(1) of the Foreign Exchange Regulation Act and Section 3(ii) of the Imports and Exports Act, 1947. The said persons were also called upon to explain as to why penal action should not be taken against them for contravention of the provisions of Section 112 of the Customs Act, 1962.

In their reply to the show- cause memo the said persons denied that the gold was recovered from their possession and pleaded that the same was planted on them by the Customs staff. They also pleaded that while in Customs custody they were subjected to duress by the Customs Staff and their statements were extorted under threats held out to them. After giving them an opportunity of being heard and examining the witnesses produced by them in defence, the Assistant Collector Customs Division, Amritsar, vide his No. VIII-10(4)JK/66/5844 dated March 17, from the aforesaid three persons under Section 111(k) of the Customs Act, 1962, and imposed on each one of them a personal penalty of Rs. 250/- under Section 112 of the Customs Act, 1962. Subsequently vide C. No. HP/69/Rajouri PT-66 dated May 7, 1969, the S. P. Customs (T and I), Jammu, issued notice to the appellant and the other two persons requiring them to show cause as to why the said gold be not confiscated under the then operative Rule 162-M of Gold Control Rules and now under Section 71 of the Gold Control Act, 1968, and why penal action be not taken against them under the then operative Rule 126 (16) of the Gold Control Rules and now under Section 74 of the Gold Control Act, as there were reasons to believe that they had contravened the provisions of Rule 126-M (1-A) of the Defence of India (Fourth Amendment) Rules, 1966. All these persons were also called upon to show cause why penal action under the operative Rule 126 (16) of the Gold Control Rules and now under Section 74 of the Gold Control Act, 1968, should not be taken against them.

3. The appellant and the aforesaid three persons submitted their reply to the said notice contending therein that the notice was mis-conceived, that the gold was not recovered from them and that the gold having been already confiscated and personal penalty also imposed upon them, they could not be put to double jeopardy for the same offence. They also pleaded that they could not be convicted and subjected to penalty under the Gold Control Act, 1968, which was an ex post facto law. Thereupon respondent No. 2 vide his No. C. No. 8-10-(14)JK/66/79-9108 dated October 1, 1971, informed the aforesaid three persons that 'proceedings under the Customs Act, 1962, had been finalised whereas proceedings under the Gold Control Act, 1968 were still pending decision' and called upon them to intimate within ten days of the receipt of the communication whether they wanted to be heard in person or the case under the Gold Control Act, 1968 be decided on the basis of the facts already on the record. On receipt of this communication the said three persons requested respondent No. 2 through their counsel to reconsider his decision in view of the facts that the notice issued by him was time barred and no action under law or departmental rules could be taken against them after the lapse of more than three and a half years and that the seizure of gold having taken place long before the enforcement of Gold Control Act they could not be proceeded against under an enactment which was nonexistent at the time of the commission of the alleged offence. This reply also did not evoke favourable response and respondent No. 2 vide his order No. C 8 (10)(14) JK 66/PI/l 1008/7-12-71 directed the appellant and the other two persons to attend his offi- 1969, confiscated the entire gold recoveredce at Srinagar on December 31, 1971, together with their defence witnesses and other evidence failing which the case would be decided on the basis of the record.

4. The validity of the aforesaid notice and communication issued by the respondents was challenged by the appellant by means of writ petition, which as already stated, was dismissed by Mian Jalal-ud-Din, J. It is against this order that the present appeal has been filed.

5. Appearing on behalf of the appellant Mr. Avtar Singh has urged that the gold having already been confiscated and the appellant having been already visited with a penalty under the Customs Act, he cannot be proceeded against again under the Gold Control Act, as that would amount to a violation of the mandate against double jeopardy as enshrined in Article 20(2) of the Constitution, that with the enforcement of Gold Control Act, the Defence of India Rules as mentioned in the Show Cause notice stood repealed and no action thereunder could be taken against the appellant, that Gold Control Act, 1968, admittedly not being in force at the time when the gold was seized in 1966, the appellant was not liable to be proceeded against under the provisions of that Act, that proceedings under the Gold Control Act, 1968, could be commenced against the appellant only if the gold had been seized under the Act and as the gold had not been seized under that Act, no proceedings thereunder could be initiated against the appellant, that gold having become the property of the Government with effect from March 17, 1967, when it was confiscated by the Assistant Collector Amritsar, under Section 111(k) of the Customs Act, 1962, no provisions of the said Gold Control Act could apply to such gold, that according to Section 79 of the Gold Control Act no proceedings could be taken under the Act regarding the gold which had been seized but in respect of which no show cause notice was given within a period of six months from the date of its seizure and that the show cause notice having been given after about three years of the seizure the proceedings were time barred and without jurisdiction.

6. Mr. Malhotra has, on the other hand, submitted that Article 20 of the Constitution of India, has no bearing on the present case, that the impugned notices are perfectly valid and legal and that there is nothing wrong about the judgment appealed against.

7. So far as the contention of the learned counsel for the appellant based on the rule against double jeopardy enshrined in Article 20(2) of the Constitution of India is concerned, it is totally misconceived. It is well settled that proceedings contemplated in all the three clauses of Article 20 are proceedings of a criminal nature before a court or a judicial tribunal. It is also well settled that fundamental conditions for the applicability of Clause (2) of Article 20 are:

(i) That there must have been a previous prosecution.

(ii) That the accused must have been punished at such prosecution.

(iii) That the subsequent proceedings must also be one for prosecution and punishment of the accused.

(iv) That proceedings on both the occasions must be in relation to the same offence.

8. It will be seen that primary condi tion which must be satisfied before the guar antee relating to double jeopardy can b invoked is that there must have been a previous prosecution which means starting of prosecution of a criminal nature before a court' of law or a judicial tribunal in accord ance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Thus imposition of a penalty or confiscation of goods under certain Acts is not the same thing as a punishment imposed by a criminal court for a criminal offence. In Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) where some gold brought to Bombay from Jeddah by Maqbool Hussain in contravention of the notification of the Government of India dated August 25, 1948, was confiscated by the Customs authorities under the Sea Customs Act 1878 and later on Maqbool Hussain was proceeded against in a criminal court for the commission of an offence under Section 8 of the Foreign Exchange Regulation Act, 1047, read with notification dated August 25, 1948, it was observed :

We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy.

It, therefore, follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on appellant. The appellant could not bi said ty reason of these proceedings before the Sea Customs Authorities to have been 'prosecuted, and punished'' for the same offence with which he was charged before the Chief Presidency Magistrate Bombay in the complaint which was filed against him under Section 23, Foreign Exchange Regulation Act.

Again while explaining the observations made by them in : 1983ECR1598D(SC) (supra) the majority of th-s learned Judges constituting the bench observed in Thomas Dana v. State of Punjab : 1959CriLJ392 :

The proceedings before the Sea Customs Authorities under Section 167 (8) of the Sea Customs Act are not 'prosecution' within the meaning of Article 20(2) of the Constitution. Therefore the fact that in such proceedings the Customs authorities have both confiscated the goods and also inflicted a penalty on the person does not bring into operation the provisions of Article 20(2) so as to prevent his prosecution and imprisonment under Section 167 (81) of the Act read with Section 23 and Section 23-B, Foreign Exchange Regulation Act and under Section 120B, Penal Code. In that view of the matter it is unnecessary to consider whether the action taken by the Customs Authorities amounted to 'Punishment' and whether the 'same offence'' was involved in the proceedings before the Revenmr authorities and the criminal court.

Prosecution means a proceeding either by way of indictment dr information in the criminal courts in order to put an offender upon his trial. The Chief Customs Officer or any other officer lower in rank than him in Customs department is not a court and that is made clear by the provisions of Section 187-A of the Sea Customs Act.

Simply because the Customs authorities took a very serious view of the smuggling activities of a person and imposed very heavy penalties under item 8 of the Schedule to Section 167 of the Sea Customs Act would not convert those authorities into a court of law or the penalty imposed on that person the same thing as a punishment imposed by a criminal court by way of punishment for a criminal offence. That Act when it meant proceeding to be taken by the Customs Authorities themselves, as is the case in most of the items to Schedule to Section 167 has empowered those authorities to deal with the offending articles by way of confiscation or with the person infringing those rules by way of imposition of penalties in contradistinction to sentence of imprisonment or fine or both. When a criminal prosecution and punishment of a criminal, in the sense of the penal law, is intended the section makes a specific reference to a trial by a magistrate a conviction by such Magistrate and on such conviction to imprisonment or fine or both. The legislature was, therefore, aware of the distinction between a proceeding before the Customs authorities by way of enforcing the preventive and penal provisions of the Schedule and a criminal prosecution before a magistrate with a view to punishing offender under the provisions of the same section.

Thus one of the three essential conditions laid down in Clause (2) of Article 20 of the Constitution is absent and therefore, the prohibition against double jeopardy would not become operative.

Again in re P. Bapanaiah : AIR1970AP47 where the Deputy Collector Central Excise, Guntur, imposed a penalty of Rs. 5,000/- on the petitioner under Rule 126-L (16)(aa) of the Defence of India Rules, 1962 (Gold Control) and also ordered confiscation of gold as provided in Rule 126-M (2)(aa) of the same Rules, and thereafter the Assistant Collector, Central Excise preferred 'a complaint against the petitioner before the 4th City Magistrate, Hyderabad, alleging contravention of the provisions of Section 135 of the Customs Act, 1962, and Rule 126-P (2) of the Defence of India Rules, 1962, (Part XII-A Gold Control) and an objection was raised that the prosecution was untenable in view of the mandatory provisions of Article 20(2) of the Constitution ef India, and Section 403, Criminal P. C. as the Deputy Collector of Central Excise, Guntur, had already imposed a penalty of Rs, 5,000/- on the petitioner besides confiscating the gold, a Division Bench of the Andhra Pradesh High Court observed:

It was next urged that the prosecution of the petitioner under the provisions of Section 135 of the Customs Act and Rule 126-P (2) of the Defence of India Rules offends Article 20(2) of the Constitution inasmuch as the Deputy Collector, Central Excise, Guntur had already imposed a penalty of Rs. 5,000/- on the petitioner besides confiscating the gold seized from him pursuant to the provisions of Rule 126-L (16)(aal and Rule 126^M (2)(aa) of the Gold Control Rules. Article 20(2) of the Constitution lays down that no person shall be prosecuted and punished for the same offence more than once. But it cannot for a moment be said that confiscation of the contraband gold would amount to prosecution or punishment of the person viz. the petitioner nor was any such contention put forth by Sri Sarma, the learned counsel, evidently because confiscation of the goods is an order in rem dealing with goods and not a punishment imposed on the person.

9. Again in G. Ramanujam v. State of Andhra Pradesh (1971) 2 Andh WR 17 : 1972 Cri LJ 361 it was held that proceedings against the accused before the Collector, Central Excise, which ended in confiscation of the gold seized from the accused and infliction of penalty of Rs. 5,000/- on him did not amount to prosecution as contemplated by Article 20(2) of the Constitution as one of the essential conditions laid down therein was absent and hence the prohibition against double jeopardy would not become operative.

10. In the present case also as one of the essential conditions in regard to prosecution as laid down in Clause (2) of Article 20 of the Constitution is not satisfied, we find ourselves unable to agree with the learned counsel for the appellant that by initiating proceedings against the appellant under the provisions of the laws mentioned in the impugned notice, the rule against double jeopardy would be violated.

11. We now proceed to the consideration of the next crucial question as to whether action could be taken against the appellant under the Gold Control Rules or the Cold Control Act as mentioned in the impugned notice. For a proper determination of the question it is necessary to refer to the ifaistory of the Legislation relating to the control of gold.

12. It will be recalled that the President of India promulgated a proclamation -of emergency on October 26, 1963, in exercise of the powers conferred on him by Clause (1) of Article 352 of the Constitution of India. The Parliament not being in session at that time the President promulgated on the same day, the Defence of India Ordinance -(Ordinance No. IV of 1962) which was published in an extraordinary issue of the Gazette of India on that very day. Pursuant 'to the powers given by the said Ordinance the Defence of India Rules, 1962 (hereinafter -called 'The Rules') were framed. The Ordinance was replaced by Defence of India Act, 1962, (Act No. 1 of 1962) which came into force on December 12, 1962. The 'Rules' framed earlier were continued under that Act. On January 9, 1962, a notification was published in the gazette of India whereby the rules were amended by incorporating therein Part XII-A which was headed as 'Gold Control.' Then came the 'Gold Control Act 1965' (No. 18 of 1965) which was enacted by the Parliament on September 22, 1963. This Act was not, however, brought into force by the Central Government under Section 1(3) of the said Act. The Defence of India (Fourth Amendment) Rules of Novem-'ber 1, 1966, amended the Defence of India Rules, 1962, as contained in Chapter XII-A thereof. On January 10, 1968, the President withdrew the proclamation of emergency. 'Thereafter The Gold (Control) Ordinance was promulgated by the President on June 29, 1968. That ordinance repealed Part XII-A of the Rules and the provisions therein were replaced by the provisions of the Ordinance. 'Section 117 of the Ordinance which dealt with Repeals and Savings provided:

(1) As from the commencement of this Ordinance, the provisions of Part XII-A of the Defence of India Rules, 1962, shall stand repealed and upon such repeal, Section 6 of the General Clauses Act, 1897, shall apply as if the said Part were a Central Act.

(2) Notwithstanding the repeal made by sub section (1) but without prejudice to the application of Section 6 of the General Clauses Act, 1897, any notification, order, direction, appointment or a declaration made or any notice, licence, or certificate issued or permission, authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of Part XII-A of the Defence of India Rules, 1962. so far as it is not inconsistent with the provisions of this Ordinance be deemed to have been made, issued, granted, adjudged, imposed, ordered, done or taken under the corresponding provisions of this Ordinance.

On August 24, 1968, the Parliament passed the Gold (Control) Act, 1968, which received the assent of the President on September 1, 1968, and came into force on and from that date. Section 116(1) of the Act repealed the Gold (Control) Ordinance, 1968, Section 116(2) of the Act provided:

Notwithstanding such repeal, anything done or any action taken, including any notification, or appointment made, direction given, notice, licence, or certificate issued, permission, authorisation, or exemption granted, confiscation adjudged, penalty or fine imposed, or forfeiture ordered, whether under the Gold (Control) Ordinance, 1968, or Part XII-A of the Defence of India Rules, 1962, shall in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken, made, given, issued, granted, adjudged, imposed, or ordered as the case may be under the corresponding provision of this Act, as if this Act had commenced on the 29th day of June, 1968.

A careful study of Section 116(2) of the Gold (Control) Aot, 1968, reproduced above, would show that there is nothing therein which can be said to have saved the liabilities incurred under the Defence of India Rules 1962, which were repealed by the Gold (Control) Rules, 1962, which were repealed by' Gold (Control) Ordinance of 1968.

13. In M/s, Rayala Corporation (P) Ltd. v. The Director of Enforcement, New Delhi AIR 1970 SC 494 : 1970 Cri LJ 588 their Lordships of the Supreme Court, while elaborating and approving the general Rule enunciated in Jugmendar Das v. State : AIR1951All703 held that the provisions of Section 6 of the General Clauses Act apply when the repeal is of a Central Act or Regulation and not of a rule. Their Lordships further held that offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.

14. In J. and K. Gas Plant . v. King Emperor AIR 1947 FC 38 : 48 Cri LJ 886 it was held that the general rule in regard to the expiration of an enactment of a temporary nature is that unless it contains some special provision to the contrary, after it has expired, no proceedings can be taken under it and it ceased to have any further effect.

15. The foregoing discussion makes it clear that no action under Rule 126-M or Rule 126 (16) of the Gold (Control) Rules, could be taken against the appellant.

16. The contention raised on behalf of the appellant that action could also not be taken against the appellant under Section 71 of the Gold (Control) Act, 1968, is also well founded. The said Act, not being in force at the time of the alleged commission of the offence action against the appellant there-: under would be neither just nor legal. We are fortified in this view by a decision of the Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh : 1954CriLJ1480 , wherein it was held:

Article 20(1) in its broad import has been enacted to prohibit convictions and sentences under 'ex post facto' laws. This article must be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of 'ex post facto' laws whether the same was a post-Constitution or a pre-Constitution law.

X X X XThe phrase 'law in force' as used in Article 20(1) must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law 'deemed' to have become operative by virtue of the power of legislature to pass retrospective laws.

Section 6 of the General Clauses Act cannot also be invoked by the respondents as the sntire provisions of that Section have not been incorporated in Section 116(2) of the Gold (Control) Act, 1968. To import Section 6 of the General Clauses Act, would be tantamount to importing something in the Gold (Control) Act, which is inconsistent with Section 116(2) thereof.

17. It is also to be borne in mind that the ordinary rule is that Section 6 will apply if there is no saving clause in the repealing enactment, or 'unless a different intention appears.' If, however, the repealing enactment makes a special provision regarding pending or past transactions, it is the latter provision that will determine whether the liability arising under the repealed enactment survives or is extinguished'. Reference in this connection may usefully be made to a Bench Decision of the Orissa High Court in Chakko Bhai Ghelabhai v. State of Orissa AIR 1956 Ori 7.

18. The ruling of the Supreme Court reported in 0043/1971 : AIR1971SC1193 , cited by Mr. Vfalhotra, is distinguishable as the observations made therein were in connection with the notice issued by the Assistant Collector Central Excise, Baroda, on June 5, 1965. In the present case Section 116(2) of the Gold (Control) Act, has inter alia saved actions taken or made and not the liabilities incurred before the passing of the Act. The impugned notice is, therefore, invalid and cannot be upheld.

19. The impugned notice also appears to be time barred. There is nothing on the record to indicate that the time during which the notice could be issued was extended under Section 79 of the Gold (Control) Act, or that any notice was served on the appellant before the expiry of the initial period of six months calling upon him to show cause why extension in the period be not granted. The notice cannot, therefore, be treated as valid. We are fortified in this view by a decision of the Supreme Court in Assistant Collector of. Customs v. Charana Das Malhotra : 1973ECR1(SC) where it was held that a civil right which accrues to a person on the expiry of the initial period of six months cannot be defeated by an ex. parte order of extension of time by the Collector.

20. In view of our above findings, it is not necessary to go into the other questions raised on behalf of the appellant. For the foregoing reasons, we allow the appeal, set; aside the judgment of the learned Single Judge and grant the relief sought for by the appellant. We would, however, leave ther parties to bear their own costs.

S.M.F. Ali, C.J.

21. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //