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TMI Blog1959 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... 957 and declared that the vessel contained only 341 bundles of wet dates and no other dutiable articles in it. After verification the cargo of 341 bundles of wet dates was discharged by the Customs Authority on 16-10-1957. The fact that only a small cargo of 341 bundles of wet dates had been brought all the way from Muskat to India roused the suspicion of the Customs Authorities and they subjected the vessel to a thorough rummaging for some days from 18th October 1957 hut nothing was found in it. But the Authorities had some credible information that the members of the crew had brought gold concealed in the vessel and therefore, they kept a keen and continuous watch over the vessel. On 31-10-1957 one of the Customs Officials, who was inspecting the vessel once again observed certain cavities underneath the ridge of the hatchway on the port side of the vessel covered with thin deal-wood planks. He suspected that they may be cavities in which gold had been concealed. He, therefore, secured some respectable persons to the place and in the presence of all the petitioners and another member of the crew got the deal-wood planks covered at four places removed. On removing the planks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt) to pay a fine of ₹ 111/- each. Being aggrieved by the judgment of the learned District Magistrate, the petitioners and the pilot of the vessel, who had also been convicted filed an appeal to the Sessions Judge, South Kanara Division in Criminal Appeal No. 16 of 1958 challenging the correctness and legality of their convictions. Several contentions were raided by the petitioners. The learned Sessions Judge held (i) that none of the petitioners was guilty of an offence punishable under the provisions fit Section 167(81) of the Sea Customs Act since the prosecution had failed to establish mens rea and he, therefore set aside the conviction of all the petitioners on the said charge and (ii) that the third accused, who was the pilot of the vessel was not guilty of any of the two charges and acquitted him. In so far as the charge for contravention of tin-provisions of Section 8(1) read with Section 23(1) of the Foreign Exchange Regulation Act of 1947 is concerned, the learned Sessions Judge held that the finding of the District Magistrate that the petitioners were all guilty was based on proper appreciation of the evidence on record and confirmed the same. As already stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof of the fact that the petitioness had brought gold into India without obtaining necessary permit from the Reserve Bank of India was sufficient to make them liable to answer the said charge and confirmed the convictions of the petitioners of the said charge. 4. It was contended by Sri Javali, learned counsel for the petitioners, that the learned Sessions Judge on the evidence on record having reached the conclusion that no offence was made out against any of the petitioners for an offence under Section 167(81) of the Sea Customs Act was not justified in finding the petitioners guilty for an offence under Section 8(1) of the Foreign Exchange Regulation. Act of 1947 on the very same evidence. Sri Santosh, the learned Government Pleader, contended that the conclusion of the learned Sessions Judge that mens rea was a necessary element for an offence under Section 167(81) of the Sea Customs Act and that there was no evidence or material on re-cord to point out that the petitioners had knowledge that the gold was being smuggled or had intention to bring the same into India it not based on proper appreciation of the facts established in the case and therefore, there is no substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the amendment in question had come into operation before the prosecution in this case was lodged. The procedure to be followed in taking cognizance of an offence for contravention of Section 8(1) of the Foreign Exchange Regulation Act is governed by Section 23(3)(b) of the Foreign Exchange Regulation Act. This section as it stands lays down that no Court should take cognizance of any such offence except upon any complaint in writing made by the Director of Enforcement or any officer authorised in this he-half by the Central Government or the Reserve Bank by general or special order. It is contended that since the Government of India or the Reserve Bank had not issued any general or special order empowering P. W. 1 Sri Parameshwara to file such a complaint and since no Director of Enforcement has been appointed by the Central Government, P. W. 1 Sri Parameshwara was not competent to file a complaint. There is a fallacy in this argument. The only change made in Sub-section (3) by the amendment is that the Director of Enforcement was added as one of the officers entitled to lodge a complaint. The section as it stood originally provided that a complaint may be made in writin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meshwara was not competent to file the complaint. Section 24 of the General Clauses Act provides that where any Central Act or Regulation is repealed and re-enacted with or without modification then unless it is otherwise expressly provided any appointment, notification, order etc., issued under the repealed Act or Regulation shall so far as they are not inconsistent with the provisions re-enacted continue in force and be deemed to have been made or issued under the provisions of the new Act unless and until it is superseded by any appointment, notification etc., issued under the provisions of the new Act. It is, therefore, clear that the general notification issued by the Ministry of Finance, Government of India dated 12-1-1952 empowering all the Collectors and the Assistant Collectors of Customs to lodge complaints continued to be in force even after the section of the Regulation was amended. There is, therefore, no substance in the second contention of the petitioners and it must fail. 6. The next contention urged by Sri Javali, the learned counsel for the petitioners, is that the complaint lodged against the petitioners without affording an opportunity as contemplated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners were given an opportunity of showing cause whether they bad any permit or authority to bring the gold into India and all of them have uniformly stated that they had no permits with them. The petitioners cannot now be allowed to contend that they had not been given an opportunity. The decision of the Bombay High Court cited by the learned counsel for the petitioners does not in any way help the Petitioners in any manner. 7. It was next urged by the learned counsel appearing for the petitioners that there was absolutely no reliable and sufficient evidence placed on record by the prosecution to reach the conclusion that the petitioners intentionally brought the gold into India without any necessary permit in that behalf. It was strenuously urged that the evidence on records is not sufficient even if accepted on its face value to lead one to the conclusion that the petitioners had brought the gold into India and that the gold in question had foreign marks on it and had been actually smuggled into India so as to make the petitioners liable under Section 8(1) of the Foreign Exchange Regulation Act. There appears to be no substance in this contention. It is clear from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the forest officers are not invested with powers of an officer in charge of a police station they cannot be considered to be police officers under the Code of Criminal Procedure and therefore, any statement made by an aceused to the said forest officer is admissible in evidence and is not hit by Section 25 of the Evidence Act. This view consistently taken by the Madras High Court has been accepted as correct by the Andhra Pradesh High Court in Public Prosecutor v. Ranga Reddy, 1957 Cri LJ 623: (AIR 1957 Andh Pra 81). The learned Sessions Judge has not given reasons as to why he found it difficult to follow the reasoning adopted by the Madras and the Andhra Pradesh High Courts. I am of the opinion that the view taken by the Madras and the Andhra Pradesh High Courts that the Customs Authorities are not police officers as they are not invested with powers of an officer in charge of a police station and powers of investigation is sound and is acceptable. I am unable to accept the view of the Calcutta High Court that statement made to Customs Authorities by a person, who may later on be accused of an offence under the Foreign Exchange Regulation Act is hit by Section 25 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Judge did not accept the version given by the only defence witness examined in the case that these petitioners were throughout in the hotel. In these circumstances. I cannot, sitting as a revision Judge, dislodge the findings of fact. This contention of the learned counsel for the petitioner should, therefore, fail. 10. The last contention urged by Sri Javali, the learned counsel for the petitioners, was that the learned Sessions Judge was not justified in ton-firming the composite sentence awarded by the learned trial judge in spite of the fact that he acquitted the petitioners of the offence under Section 167(81) of the Sea Customs Act. According to the learned counsel for the petitioners the sentences awarded to the petitioners should have been proportionately reduced. There is no substance in this contention. It cannot reasonably be urged that the sentences awarded to the petitioners are in any way severe. I am of the opinion that the sentences awarded to any of the petitioners do not call for any interference. 11. In the result, therefore, this revision petition fails and the same is dismissed. The first petitioner is on bail and should surrender to his bail and u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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