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TMI Blog1958 (11) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16th November, 1954 issued by the Government of the Republic of Cuba. The second petitioner is a citizen of the United States of America, and holds a U.S.A. passport No. 45252, dated 1st July, 1955. In May 1957, both the petitioners were in Paris. There, the second petitioner purchased a motor car from an officer of the American Embassy. He is said to have sold that car to the first petitioner on 14th May, 1957, and the same month, it was registered in the first petitioner's name. The two petitioners sailed by the same steamer at the end of May. The car was also shipped by the same steamer. They reached Karachi on 11th June 1957, and from there, flew to Bombay. From 11th to 19th June, 1957 they stayed together in Hotel Ambassador in Bombay. The car was delivered to the first petitioner in Bombay on June 13th and on June 19th both of them flew from Bombay to Delhi. In Delhi, also, they stayed, together at Hotel Janpath. The first petitioner received the car at Delhi by rail on June 22nd and the same night, the two petitioners left by the said car for Amritsar, where they reached after midnight, and stayed in Mrs. Bhandari's Lodge. On the morning of June 23rd, they reached Atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that they were used for carrying gold bars) Mirror 1 besides other insignificant things. Under the Indian law, Indian currency over Rs. 50, Pakistan currency over Rs. 10 and any foreign currency, could not be exported out of India, without the permission of the Reserve Bank of India. The export of a pocket radio also required a valid licence under the Imports and Exports (Control) Act, 1947. The petitioners could not produce, on demand, the requisite permission from the Reserve Bank of India, or the licence for the export of the pocket radio, or a permit for exporting a time-piece, as required by the Land Customs Act, 1924. The car also was handed over to the police for necessary action. The offending articles, namely : Indian currency Rs. 8, 50,900 Pakistan currency Rs. 250 U.S. Dollars $. 10,001.00 Hong Kong Dollar $. 1.00 Thailand currency T. 78.00 pocket radio, and the time-piece, etc., were seized under Section 178 of the Sea Customs Act, 1878. Both the petitioners were taken into custody for infringement of the law. On 7th July both the petitioners were called upon to show cause before the Collector of Central Excise and Land Customs, New Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act, 1947, and Section 167(81) of the Sea Customs Act, 1878. The petition of complaint, after stating the facts stated above, charged the accused persons with offences of attempting to take out of India Indian and foreign currency, in contravention of the provisions of the Acts referred to above. 4. After recording considerable oral and documentary evidence, the learned Additional District Magistrate, Amritsar, by his judgment dated 13th November, 1957, convicted the petitioners, and sentenced them each to two years' rigorous imprisonment under Section 23 read with Section 23B, of the Foreign Exchange Regulation Act, six months' rigorous imprisonment under Section 120-B(2) of the Indian Penal Code, the sentences to run concurrently. It is not necessary to set out the convictions and sentences in respect of the third accused Moshe who was subsequently acquitted by the High Court of Punjab, in exercise of its revisional jurisdiction. The learned Magistrate also, perhaps, out of abundant caution, directed that "The entire amount of currency and foreign exchange and the car in which the currency had been smuggled as well as the sleeveless shirt Ex. P. 39 and belt Ex. P. 40 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cases in this Court, it is necessary to state that the petitioners had moved this Court separately under Article 32 of the Constitution, against their prosecution, in the Magistrate's court, after the aforesaid orders of confiscation and penalty, passed by the Collector of Customs. They prayed for a writ of certiorari and/or prohibition, and for quashing the proceedings. There was also a prayer for a writ in the nature of habeas corpus. On that occasion also, the protection afforded by Article 20(2) of the Constitution, was pressed in aid of the petitioners' writ applications. This Court, after hearing the parties, dismissed those writ petitions, holding that the charge against the petitioners included an offence under Section 120B of the Indian Penal Code, which certainly was not one of the heads of charge against them, before the Collector of Customs. This Court, therefore, without deciding the applicability of the provisions of Article 20(2) of the Constitution, to the facts and circumstances of the present case, refused to quash the prosecution. The question whether Article 20(2) of the Constitution, barred the prosecution of the petitioners under the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Penal Code, or under the penal provisions of the other Acts mentioned above. 10. It is, therefore, necessary first to consider whether the petitioners had really been prosecuted before the Collector of Customs, within the meaning of Article 20(2). To "prosecute", in the special sense of law, means, according to Webster's Dictionary, "(a) to seek to obtain, enforce, or the like, by legal process; as, to prosecute a right or a claim in a court of law. (b) to pursue (a person) by legal proceedings for redress or punishment; to proceed against judicially; especially, to accuse of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal form before a legal tribunal; as, to prosecute a man for trespass, or for a riot." According to "Wharton's Law Lexicon", 14th edition, page 810, "prosecution" means "a proceeding either by way of indictment or information, in the criminal courts, in order to put an offender upon his trial. In all criminal prosecutions the King is nominally the prosecutor". This very question was discussed by this Court in the case of Maqbool Hussain v. State of Bombay, 1983 (13) E.L.T. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). That section is in these terms :- "187A. No Court shall take cognizance of any offence relating to smuggling of goods punishable under item 81 of the Schedule to Section 167, except upon complaint in writing, made by the Chief Customs officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs officer." This section makes it clear that the Chief Customs Officer or any other officer lower in rank than him, in the Customs department, is not a "court", and that the offence punishable under Item 81 of the Schedule to Section 167, cannot be taken cognizance of by any court, except upon a complaint in writing, made, as prescribed in that section. This section, in our opinion, sets at rest the controversy, which has been raised in the past upon certain expressions, like "offences" and "penalties", used in Chapter XVI. These words have been used in that chapter in their generic sense and not in their specific sense under the penal law. When a proceeding by the Revenue Officers is meant, as is the case in most of the items in the Schedule to Section 167, those officers have been empowered to deal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been raised this Court has pointed out the difference in the nature of proceedings against offending articles and offending persons. A proceeding under the Sea Customs Act and the corresponding provisions of the Foreign Exchange Regulation Act, in respect of goods which have been the subject-matter of the proceeding, has been held to be of the nature of a proceeding in rem whereas, a proceeding against a person concerned in smuggling goods within the purview of those Acts, is a proceeding in personam, resulting in the imposition of a punishment by way of imprisonment or fine on him, where the offender is known. In the former case, the offender may not have been known, but still the offending goods seized may be confiscated as a result of the proceedings in rem. That case was not concerned with the further question whether, besides the liability to the penalty as contemplated by Section 23(1)(a) namely, a penalty not exceeding three times the value of the foreign exchange in respect of which the contravention had taken place, the person contravening the provisions of the Foreign Exchange Regulation Act, 1947 upon conviction by a Court, is also punishable with imprisonment which Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Authorities have been empowered to start proceedings in respect of suspected infringements of the provisions of the Act, and to impose penalties upon persons concerned with those infringements, or to order confiscation of goods or property which are found to have been the subject-matter of the infringements, but when a trial on a charge of a criminal offence is intended under any one of the entries of the Schedule aforesaid, it is only the Magistrate having jurisdiction, who is empowered to impose a sentence of imprisonment or fine or both. 13. It was also suggested in the course of the argument that the use of a particular phraseology in the Act, should not stand in the way of looking at the substance of the matter. It may be that the Act has drawn a distinction between confiscation of property and goods, and imposition of penalties on persons concerned with the infringement, on the one hand, and the imposition of a sentence of imprisonment or fine or both by a Magistrate, on the other hand; but, it is further contended, the Customs Authorities, who impose a penalty or who order confiscation of goods of very large value, are in substance imposing punishments within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing from such infringements. A person may be guilty of certain acts which expose him 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 Income-tax law, may have submitted a false return with a view to defrauding the Revenue. His fraud being detected, the Taxing Officer may realise from him an amount 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 statements to his knowledge. Similarly, a person may use defamatory language against another person who may recover damages in tort against the maker of such a defamatory statement. But the fact that a decree for damages has been passed against him by the civil Court, would not stand in the way of his being prosecuted for defamation. In such cases, the law does not allow him the plea of double jeopardy. 15. That this is the law in America a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed burglary, and thus, having effected their entry into the premises, committed two distinct offences which may be separately charged and punished under the United States' Penal Code. Two separate convictions and sentences as for two distinct offences in those circumstances were not held to be within double jeopardy within the meaning of the United States' Constitutional 5th Amendment. The reason given for the decision against the contention of double jeopardy was that though the offences had been committed in the same transaction, they had been constituted separate and distinct offences by the United States' Penal Code - Articles 190 and 192. In the latter case, the plea of double jeopardy was given effect to because the special statutes, infringements of which formed the subject-matter of the controversy, namely, for unlawfully selling intoxicating liquor, had made a specific provision that if any act is a violation of earlier laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and also of the National Prohibition Act, a conviction for such act or offence under one statute, shall be a bar to prosecution therefor under the other. It is clear, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The answer given by the accused to this question was "The translation of Ex. P. FF/1 is mostly correct except for few variations which could have been due to misinterpretation of handwriting." It is clear from the question and answer quoted above, that the learned Magistrate did afford an opportunity to this petitioner to explain the circumstances appearing in the evidence against him with particular reference to the letter. If the Court had persisted in putting more questions with reference to that letter, perhaps, it may have been argued that the examination under Section 342, Criminal P. C., was in the nature of a cross-examination of the accused person, which is not permitted. In our opinion, there is no substance in the contention that the petitioner had not been properly examined under Section 342, Criminal P. C., to explain the circumstances appearing in the evidence against him. 20. It follows from what has been said above, that there is no merit either in the appeal or in the petition. They are, accordingly dismissed. 21. [Order per : K. Subba Rao, J.]. - I have had the advantage of reading the judgment prepared by Sinha, J., but I cannot persuade myself t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case does not fall within the Constitutional protection given under Article 20(2). 24. Before addressing myself to the arguments advanced it would be convenient at this stage to steer clear of two decisions of this Court. The first is [1983 (13) E.L.T. 1284 (S.C.) = 1953 SCR 730]. There proceedings had been taken by the Sea Customs Authorities under Section 167(8) of the Act and an order for confiscation of goods had been passed. The person concerned was subsequently prosecuted before the Presidency Magistrate for an offence under Section 23 of the Foreign Exchange Regulation Act in respect of the same act. This Court held that the proceeding before the Sea Customs Authorities was not a prosecution and the order for confiscation was not a punishment inflicted by a Court or a judicial tribunal within the meaning of Article 20(2) of the Constitution and the prosecution was not barred. The important factor to be noticed in that case is that the Sea Customs Authorities did not proceed against the person concerned but only confiscated the goods found in his possession. At page 742 (of SCR) Bhagwati J. says "Confiscation is no doubt one of the penalties which the Customs Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers an absolute title to Government. Therefore, in a case where the Customs authorities can proceed only against the goods, there can be no question of applying Section 23 of the Foreign Exchange Act and even on the construction put forward on behalf of the appellant company as respects Section 8(3), the remedy under the Sea Customs Act against the smuggled goods cannot be barred." This decision also indicates that the confiscation of the goods is an action in rem and is not a proceeding in personam. A combined effect of the aforesaid two decisions may be stated thus : Section 167(8) of the Act provides for the following two kinds of penalties when contraband goods are imported into or exported from India: (1) such goods shall be liable to confiscation; (2) any person concerned in any such offence shall be liable to a penalty. If the authority concerned makes an order of confiscation it is only a proceeding in rem and the penalty is enforced against the goods. On the other hand, if it imposes a penalty against the person concerned, it is a proceeding against the person and he is punished for committing the offence. It follows that in the case of confiscation there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enough to take in a prosecution before an authority other than a magisterial or a criminal Court. Having regard to the historical background, a restricted meaning has been placed upon it by this Court in 1983 (13) E.L.T. 1284 (S.C.) = 1953 SCR 730 (supra). Bhagwati J., in delivering the judgment of the Court observed at page 742 (of SCR) thus : "Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty, the highest penalty which can be inflicted is Rs. 1,000. Confiscation is no doubt one of the penalties which the Customs Authorities can impose, but that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit. All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties. There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by the Customs Authority. 28. The outstanding question therefore is whether a Collector of Customs in adjudging on the question whether any person concerned in the importation or exportation of the prohibited goods committed an offence, and in imposing a penalty on him, acts as a judicial Tribunal. There is a current of judicial opinion in support of the contention that under a particular Act an authority may act as a judicial Tribunal in discharge of certain duties and as an executive or administrative authority in discharge of other duties. The question whether a particular authority in discharging specified duties is a judicial tribunal or not falls to be decided on the facts of each case, having regard to the well settled characteristics of a judicial tribunal. 29. In `Words and Phrases' permanent edition. Vol. 23, "Judicial Tribunal" has been defined thus: "It is a body who has the power and whose duty it is to ascertain and determine the rights and enforce the relative duties of contending parties." In "The Encyclopedia of Words and Phrases - Legal Maxims", by Sanagan and Drynan, much to the same effect it is stated thus : "A `Judicial tribunal' is one that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribes: (iii) there must be the trappings of a judicial tribunal and (iv) the decision must have both finality and authoritativeness, which are the essential tests of a judicial pronouncement. Having regard to the aforesaid tests, I shall now proceed to consider the applicability of Article 20 to the present prosecution. 31. A fundamental right is transcendental in nature and it controls both the legislative and the executive acts. Article 13 explicitly prohibits the State from making any law which takes away or abridges any fundamental right and declares the law to the extent of the contravention as void. The law therefore must be carefully scrutinized to ascertain whether a fundamental right is infringed. It is not the form but the substance that matters. If the legislature in effect constitutes a judicial tribunal, but calls it an authority, the tribunal does not become any the less a judicial tribunal. Therefore the correct approach is first to ascertain with exactitude the content and scope of the fundamental right and then to scrutinize the provisions of the Act to decide whether in effect and substance, though not in form, the said right is violated or cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and they convey the same idea. 34. The more difficult question is whether a Customs Authority, when it functions under Section 167 of the Act, is a judicial tribunal. It is not, and cannot be, disputed that a Magistrate, who convicts and punishes a person for the infringement of some of the provisions of Section 167 of the Act, is a judicial tribunal. Is it reasonable to assume that when another authority adjudges on similar offences under the same section, it is functioning in a different capacity? Section 182 defines the jurisdiction of the Customs Authority in respect of the offences mentioned in Section 167 of the Act. It says : "In every case, except the cases mentioned in Section 167, Nos. 26, 72 and 74 to 76, both inclusive, in which under this Act, anything is liable to confiscation or to increased rates of duty; such confiscation, increased rate of duty or penalty may be adjudged - (a) without limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector; (b) up to confiscation of goods not exceeding two hundred and fifty rupees in value, and imposition of penalty or increased duty, not exceeding one hundred rupees, by an Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of Section 193 and Section 228, Penal Code, viz., for the purpose of punishment for giving false evidence and for contempt of Court, does not detract from the judicial characteristics conferred upon the authority by the other clauses of the section. Clause (4) must have been enacted only by way of abundant caution to guard against the contention that the authority is not a Court; and to bring in the inquiry made by the Customs Officer in regard to administrative matters other than those conferred upon him under Section 167, within the fold of Section 193 and Section 228, Penal Code. Sections 188, 189, 190A and 191 provided a hierarchy of tribunals for deciding appeals and revisions. The Chief Customs authority may, suo motu or otherwise exercise revisional powers in regard to the orders of the subordinate officers. Power is also conferred on Government to interfere in matters in regard whereof no appeal is provided for. It is true that no rules have been framed providing the manner in which the Customs Collector should proceed with the inquiry in regard to offences committed under the Act of which he is authorized to take cognizance. But the record discloses that a proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concelaing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid ; or if any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods. such person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years, or to fine, or to both." It is contended that under Section 167(81) knowledge or intention to defraud is an ingredient of the offence, whereas under Section 167(8) they are not part of the offence, that offences under Sections 167(8) and 167(81) are different, and that therefore the prosecution and punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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