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TMI Blog1963 (9) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... gave a statement before the authorities that the cycle was sent by one Sikkander of Penang with instructions to hand it over to Shaik Dawood, the appellant before us. 2. Import of gold has been prohibited by a notification under Section 23 of the Foreign Exchange Regulation Act 1947. The appellant did not dispute that he was concerned with the illegal importation of the goods concealed in the cycle. After giving a reasonable opportunity to the appellant, the Collector of Customs, by his order, dated 4.2.1959, confiscated the gold and imposed a personal penalty of ₹ 25,000 on the appellant under Section 167(8) of the Sea Customs Act 1878. The appellant, not being the actual smuggler was not concerned with the propriety of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental penalty as well. That says: Without prejudice to the provisions of Section 23 or to any other provision contained in this Act the restrictions imposed by Sub-sections (1) and (2) of Section 8 , Sub-section (1) of Section 12 and Clause (a) of Sub-section (1) of Section 13 shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878 (VIII of 1878) and all the provisions of that Act shall have effect accordingly, except that sec. 183 thereof shall have effect as if for the word shall therein the word may were substituted. This provision deems that the offence of contravention of the provisions of the Foreign Exchange Regulation Act specified therein to be a contravention of the restrictions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of administrative penalty under Section 167(8) of the Sea Customs Act by the Collector (that provision having been incorporated in the Foreign Exchange Regulation Act by virtue of Section (23-A) the offender will be liable to be proceeded against as and for a criminal offence under Section 23 of the Foreign Exchange Regulation Act. 7. In the present case, the appellant before us appears to have been prosecuted before a Criminal Court under the provisions of Section 23 of the Foreign Exchange Regulation Act but that ended in his acquittal, an appeal against that order of acquittal proved to be of no avail. 8. Before the learned Judge, there was a contention that as Section 23-A of the Foreign Exchange Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng under the provisions of Section 167(8) of the Sea Customs Act, would not have these powers that are specifically given to the Magistrate under Section 23 of the Foreign Exchange Regulation Act. 10. The learned Judge has, in our opinion, rightly, rejected this contention. The words without prejudice to the provisions of Section 23 of the Act occurring in Section 23-A can only mean in addition to. The meaning of the expression without prejudice given in Shorter Oxford English Dictionary is: Without detriment to any existing right or claim, without detracting from one's own rights or claims 11. But Mr. Mohan Kumaramangalam contends that the expression without prejudice to in the section should be taken to mean wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation, technically speaking. The only consequence of the former order will be that the goods will not be available for confiscation by the latter authority. During the course of the arguments this aspect of the matter was put in the form of an illustration; suppose a person were to import volatile goods which before the Magistrate deals with the case, had completely evaporated. It cannot mean that the provisions of Section 23 which empower a Magistrate to confiscate the goods have been contravened. The result of the evaporation of the substance will be that the goods will not be available for confiscation. Similarly, where by virtue of the exercise of the concurrent administrative power conferred on the Collector, the goods are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods had not been imported contrary to the statutory prohibition or restrictions. It will then be the duty of the Collector to proceed forthwith under the provisions of that section. A criminal prosecution on the other hand might take comparatively a longer time. To hold that the administrative action should not be taken till the authorities decide not to take any action under Section 23 , will undoubtedly cause inconvenience. In the present case, the grievance of the appellant is about the personal penalty, and not against the confiscation of the goods. Penalty itself is not a fine as contemplated by Section 23 . We are, therefore, in agreement with the learned Judge that the Collector had jurisdiction in justifiable cases to impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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