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TMI Blog1961 (11) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... d a Chinese national named Wong Chit Khaw were proceeded against; Bholanath was dealt with in the same proceeding with the respondent but the Chinese national Khaw was dealt with separately in another proceeding. Nothing having been established against Bholanath, no penalty was imposed upon him; but in a separate proceeding the Additional Collector of Customs imposed a personal penalty in the sum of ₹ 20,000/- on the said Wong Chit Khaw and ordered confiscation of 23 bars of Chinese gold valued at ₹ 40,441/11 nP., found upon him. 4. The respondent Sitaram Agarwalla as well as the said Chinese national were further prosecuted before a Magistrate. The trial ended in conviction of both of them under Section 167 (81) of the Sea Customs Act. The respondent was sentenced to pay a fine of ₹ 2000/- in default to suffer rigorous imprisonment for sis months and Wong Chit Khaw was sentenced to rigorous imprisonment for three months and to pay a fine of ₹ 1000/-, in default to suffer rigorous imprisonment for three months. 5. It appears that the convicted men took an appeal to this Court and the appeal (Criminal Appeal No. 360 of 1959) was allowed and the convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duly entered. Another seizure list was prepared in respect of a sum of ₹ 49,320/- which was recovered from the possession of the respondent. The gold bars bore marks of foreign origin. After sometime the police made over the matter to the customs authorities who thereafter proceeded with the investigation. 9. At the police station the respondent as well as the Chinese national made statements which were recorded; but these statements were not adhered to by them either in the proceeding before the Additional Collector of Customs or before the Magistrate before whom they were prosecuted. 10. Upon these allegations two separate proceedings were taken before the Additional Collector of Customs. The respondent and Bholanath Gupta were served in due course with a notice requiring them to show cause why they should not lie proceeded against under S. 167 (8) of the Sea Customs Act. A similar notice was issued against the aforesaid Chinese national who was proceeded against separately as indicated above. 11. The case made by the Customs authorities against the respondent clearly is that he wanted to purchase smuggled gold from the Chinese national and they met on Jatindra M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent It is remarkable that his original version that the money had been given to him by a certain lady was completely contradicted by the lady herself and her husband and she said that she never so much as had not any time known him. 13. We are not concerned with the defence of the Chinese national whose case is not before us and we accordingly confine our consideration to the case made against the respondent. 14. The respondent showed cause before the Additional Collector of Customs in which he gave a version which was completely discounted. As has already been indicated, the Additional Collector of Customs found that nothing had been proved against the said Bholanath Gupta; but he held that the respondent was a person concerned in the act of smuggling gold into India and accordingly imposed a personal penalty of ₹ 60,000/-. 15. The order made by the Additional Collector of Customs by which the penalty was imposed discloses that although formally the allegation against the respondent was that he had been a person concerned in the illegal importation of foreign gold, the statement of the case as well as the findings show that the real charge brought against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it could reasonably be said that he had been concerned an importation of gold. 17. On behalf of the Customs authorities, it was sought to be established that the circumstances to which we have referred proved the respondent's participation, in the act ox importing foreign gold. The learned trial Judge addressed himself to this question and came to the dear finding on a review of the facts disclosed by the parties that it could not be held that the Customs authorities had been able to establish that the respondent had been concerned in importation of foreign gold. The learned Judge found that on the facts alleged, the worst that could be said to have been proved against the respondent was that he had been concerned in dealing with smuggled gold. In this view, the learned Judge allowed the respondent's application under Article 226 of the Constitution and directed the issue of appropriate writs quashing the order of the Additional Collector of Customs imposing a personal penalty of ₹ 60,000/- upon the respondent and prohibited the Customs from giving effect to that order. 18. Being dissatisfied with this decision, the Customs Authority have brought this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our view, depend upon the meaning we give to the word importation and to the expression concerned in occurring in item (8) of Section 167 of the Sea Customs Act, it has been debated before us on behalf of the Customs that the act of importation is not concluded merely when the gold reaches this country. The process of importation, it has been said, continues, until it reaches the hands of the first taker who comes to acquire it for value. We have no hesitation in saying that this contention cannot prevail. A thing is imported when it reaches the borders of the country. If it is imported by water then, as soon as the vessel reaches an Indian port, the process of importation is complete. There is not the faintest suggestion in this case as to how, when or by whom the stuff was imported into this country. It is true that for the purpose of proceeding against the gold itself, it is enough to show that it has been imported without a valid permit, and immediately that is established, the gold becomes liable to confiscation. But before a person can be proceeded against under Section 167(8) and a personal penalty imposed upon him for being concerned in the commission of the offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the final step in the act of importation. It was held in that case that the gold had already been imported into the country and the only thing proved was that the persons proceeded against had merely dealt with the smuggled gold. 21. A similar conclusion was reached by the Bombay High Court in the case of Gopal Mayaji v. T.C. Seth, AIR I960 Bom 479. In this case the petitioner had been helping another person in destroying the evidence of the gold being of foreign origin by melting it at his shop. It was said that the act of such destruction or defacement of gold imported into the country was a link in the chain and consequently the person so engaged was guilty of the offence of importing gold. The learned Judge repelled the contention and held that the act of importation was complete when the goods crossed the Customs barriers. It was at that moment that the restriction or prohibition was violated and whatever was done with reference to such goods subsequent to that point of tune would merely be dealing with smuggled gold. The contention raised that the act of melting to destroy evidence of foreign origin was an essential step which could clearly be connected with the series ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of importation must be held to be complete as soon as it reaches its borders. If the gold is carried by sea and the vessel reaches an Indian port or the territorial waters, it is the moment of entry of the vessel which must be held to be the moment of importation of the gold. If any one thereafter takes the gold out of the vessel, not having been in any way concerned with it earlier, he cannot be said to have been concerned in importation. It is equally plain that there need be no physical connection between the gold and the person charged. We have said that a man may be miles and miles away from the gold and yet it proof is available that he had an interest in or was concerned in its illegal importation, then surely he would be guilty of the offence described and punished in Section 167(8) of the Sea Customs Act. 25. Mr. Kar attempted to elucidate the position in regard to this question by drawing our pointed attention to the decision of the Supreme Court in the case of Sewpujanrai Indrasanarai Ltd, v. Collector of Customs, . That was a case where proceedings were taken against smuggled gold, but there were no proceedings taken against any one for importing the gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the gold bars. The Only question is whether the respondent was concerned in the illegal importation of the gold bars. There can be no doubt that Section 167(8) has two facets, as has been pointed out by the Supreme Court. One is directed against the thing itself and the other against the person concerned; but where, as here, the question is whether the person proceeded against was concerned in illegal importation, the court must insist upon proof of facts from which it can reasonably be inferred that at any stage prior to the actual find of the gold in the country, he had anything to do with it. We have already indicated that there is no evidence at all which connects the respondent with, any act or acts which might be said to have resulted in the bringing of the gold into this country. The evidence of the conduct of the appellant on the forenoon in question might be gravely suspicious. If the charge against him 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; but this is another matter. We have not been shown anything on the record from which we could reasonably sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divorcing it completely from the facts of his case. What are the facts? They are that on a particular day the respondent was seen waiting for the Chinese national. When the latter arrived, he made a signal; they met, shook hands, boarded the taxi and were proceeding when in consequence of intervention by the police and the public, they ran in different directions. On the respondent was found a sum of money which is sufficient to cover the price of the gold bars. On the person of the Chinese national was found a jacket with special devices evidently for the purpose of concealing the contraband gold. In the course of the chase, the gold bars dropped on the road and they were picked up by some members of the public. These are all the facts. But the question is, could we draw from them the conclusion that the respondent was in any way concerned with their importation. The learned trial Judge declined to draw that inference against him and we also do the same. 28. Lastly, Mr. Kar tried to impress upon us the divergence between items 8 and 81 of the schedule to Section 167 of the Act. His contention is that whereas in item 81 the legislature has provided that before a person could be fou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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