1983 (7) TMI 47 - SC - Customs

Whether a case falls within any one part or not of the offence under Section 135(1)(a)(ii)? Held that - Where goods are chargeable to duty and any person is knowingly concerned in any fraudulent evasion or attempt at evasion of such duty, the case would fall within the first part of the section, but where there is a prohibition imposed with respect to any goods under the Customs Act, 1962 or any other law for the time being in force, then, irrespective of whether duty is chargeable on such goods or not, any person knowingly concerned in any fraudulent evasion or attempt at evasion of such prohibition, would clearly be covered by the second or third part as the case may be. Here there was clearly a prohibition on export of silver without a licence, imposed by the Export Trade Control Order, 1668 issued under Section 3 of the Imports and Exports (Control) Act, 1947 and on the facts established by the prosecution-facts which could not be and were not disputed-the accused were knowingly concerned in fraudulent evasion or attempt at evasion of such prohibition on export of silver and their case was therefore plainly and indubitably covered by the third part of Section 135(1)(a)(ii). The learned single Judge of the High Court was consequently in error in taking the view that the accused were not guilty of the offence charged under Section 135(1)(a)(ii). Allow these appeals preferred by the Assistant Collector of Customs, set aside the Order of acquittal passed by the learned single Judge of the High Court and restore the Order passed by the Additional Chief Presidency Magistrate convicting the accused under Section 135(1)(a)(ii) of the Customs Act, 1962 and sentencing them to various terms of imprisonment and fine.

Summary

Issues:
Appeal against acquittal under Section 135(1)(a)(ii) of the Customs Act, 1962.

Detailed Analysis:

1. Background and Facts:
The case involved appeals against a judgment by a Single Judge of the High Court of Bombay acquitting the accused of the offence under Section 135(1)(a)(ii) of the Customs Act, 1962. The accused were prosecuted for various offences related to smuggling silver. The prosecution contended that the accused were knowingly involved in fraudulent evasion of the prohibition on exporting silver without a license. The Single Judge acquitted the accused based on the interpretation that the prohibition referred to goods on which duty was chargeable, which did not include silver.

2. Interpretation of Section 135(1)(a)(ii):
The prosecution argued that the accused's actions fell under Section 135(1)(a)(ii) as they were knowingly involved in evading the prohibition on exporting silver without a license. The defense contended that the prohibition referred only to goods on which duty was chargeable, excluding silver. The Court analyzed the language of the section and concluded that the prohibition referred to any goods under the Customs Act, regardless of duty chargeability. The Court highlighted that the section had three distinct parts, each independent of the others, and the accused's actions clearly fell within the third part, involving fraudulent evasion of a prohibition on silver export.

3. Division of Section 135(1)(a)(ii):
The Court further dissected Section 135(1)(a)(ii) into three parts. The first part related to duty chargeable goods, while the second and third parts focused on fraudulent evasion of prohibitions under the Customs Act or other laws, irrespective of duty chargeability. The Court emphasized that the prohibition on silver export without a license was a valid basis for prosecution under the third part of the section, as established by the prosecution's evidence.

4. Decision and Outcome:
The Court allowed the appeals by the Assistant Collector of Customs, setting aside the acquittal by the Single Judge and restoring the conviction of the accused under Section 135(1)(a)(ii) of the Customs Act, 1962. The accused were sentenced to various terms of imprisonment and fines as per the Order passed by the Additional Chief Presidency Magistrate. The judgment clarified the correct interpretation of the section and affirmed the prosecution's case against the accused for their involvement in smuggling silver in violation of export prohibitions.

This detailed analysis outlines the key aspects of the judgment, including the interpretation of the relevant legal provisions and the ultimate decision of the Court to overturn the acquittal and uphold the conviction of the accused.