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TMI Blog1959 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... . He asked the petitioner whether he had any Indian or foreign currency or gold in his possession and thereupon the petitioner made the oral declaration that he had only $ 2105 in American currency, $ 60 worth of travellers' cheques and ₹ 250/,- in Indian currency. The petitioner and his wife and their cabin were searched (under Sections 169 and 171 of the Act), but nothing was found in excess of what the petitioner had declared. The Chief Inspector thereupon decided to search the car of the petitioner (under S, 171), but since this would have meant the detention of the vessel beyond the scheduled time for sailing, the Master of the vessel "agreed to off-load the car and to leave the petitioner at Cocbin for enabling him to be present during the search of his car." Accordingly, the petitioner and his car werd taken off the vessel (whether by force as alleged by the petitioner or by persuasion as stated by the Customs authorities does not very much matter), but, be-fore doing so, the Chief Customs Inspector obtained from the petitioner a written declaration to the effect that he had U.S.A. $. 1605 and Indian ₹ 250/- in his possession. (He had given $ 500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.S.A. currency and ₹ 250/- in Indian currency which the petitioner was carrying on his person were seized and detained by the customs officers). He was remanded to custody and was in custody till 21-1-1959 when he was released on bail. In the meanwhile, on 28-12-1958, Mr. Bhaskara Menon, an advocate, had entered appearance on his behalf be-fore, the Customs Collector and by a letter (Ext. D3) of the same date asked for copies of certain records in the case (which were duly granted) and also questioned the Collector's authority to hold an inquiry while the criminal trial against the petitioner was proceeding. Mr. Bhaskara Menon also informed the Customs Collector that he had received the show cause notice Ext. PI only on 18-12-1958 and had been able to obtain instructions from his client through an interpreter only on the 26th. He explained that for these reasons it had not been possible to submit any explanation within, the time allowed. On 6-1-1959 the petitioner was served with a second show cause notice requiring him to show cause within five days why action should not be taken against him under Clause (8) of Section 167 of the Sea Customs Act read with Section 23A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving proper instructions to Mr Bhaskara Menon who had been engaged for him, tbat he was compelled by the Customs Officers to make the statement Ext. D2, and that in the circumstances the opportunity given to him bv the show cause notices was illusory and so-called adjudication by the Customs Collector, a mere one-sided farce enacted without hearing him. All this has been denied by the respondent, and the facts I have set forth above -- and I have set them out at some length for this purpose--are sufficient to show that there is no substance whatsoever in the petitioner's allegations. A lawyer entered appearance for him on 28-12-1958 after, according to the letter Ext. D3 written by the lawyer to tbe Customs Collector, taking instructions from the petitioner through an interpreter on the 26th, and the lawyer also obtained copies of all the documents he thought relevant to the petitioner's defence. Both the show cause notices, Ext. PI dated 13-12-1958, and Ext. P2 dated 6-1-1959, asked the petitioner whether he desired to be heard in person and also told him that he could produce with his reply any evidence in his possession to show that the currency notes seized from his ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the stand taken by the petitioner, the remaining matters have been very strenously argued. And it has even been suggested that, should I find the order of the Customs Collector illegal, I should restore the status quo ante by directing the Collector to put the currency notes back in the place where they were found and allow the petitioner to proceed with his car to his chosen destination. As I have already said, even if the order of confiscation passed by the Customs Collector be wrong, there can be no question of setting it aside at the instance of the petitioner, in so far as the currency notes found in the car are concerned, since, on the petitioner's own showing, he has no manner of interest in them. It must be left to the true owner to take such steps as he thinks fit to safeguard his rights. 7. Whether the order passed by the Customs Collector under the several provisions of the Sea Customs Act was right or wrong depends on whether the petitioner was aware of the presence of the currency notes in his car, and on whether the cur-rency notes are prohibited or restricted goods within. the meaning of that Act. On the first question the Customs Collector came to the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout being removed from the ship or conveyance in which it is being carried shall nonetheless be deemed to be a bringing, or as the case may be sending, into India of that article for the purpose of this section". (2) No person shall, except with the general or special permission of the Reserve Bank or the written permission of a person authorised in this behalf by the Reserve Bank, take or send out of India any gold, or precious stones or Indian currency or foreign exchange other than foreign exchange obtained from an authorised dealer. The Central Government has by its notification No. 12 (12) F 1/49 dated 10-9-1949 (printed as item (2) at page 58 of Vakil's Law Relating to Foreign Exchange, 2nd edition) acted under Sub-section (1) of the section and prohibited the bringing or sending into India from any place outside India of any currency notes or bank notes except with the general or special permission of the Reserve Bank. The talcing or sending out of India of any Indian currency or foreign exchange, other than foreign exchange obtained from an authorised dealer, without such permission is prohibited by the section itself, so that both the import and export of cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares that he has not, and if any such goods are, after such denial, found about his person, or in his possession General such goods shall be liable to confiscation, & such person shall be liable to a penalty not exceeding three times the value of such goods. 10. It is under items 8 and 73 that the penalty of ₹ 6000/- has been imposed on the petitioner. Considering first the application of item 8, on the Ending of fact that the currency notes concealed in the car were in the petitioner's possession and that he was fully aware of their presence there, there can be no doubt that he imported those goods into India the moment the vessel entered Indian territorial waters on its voyage from Colombo to Cochin. (From Sec. 19 of the Sea Customs Act it is clear that importation means bringing into India across any customs frontier as defined by the Central Government under Section 3A of the Act. And by such a notification the Central Government has denned the customs frontiers of India as the boundaries of the territories including the territorial waters of India. That apart, the territorial waters, which by a Proclamation by the President dated 22-3-1956 have been defined as exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate form at the time of arrival to the customs authorities of tho total amount of notes brought in. The petitioner, as we have seen, did make an oral, and later, a written declaration within a few hours after the vessel in which he brought the currency notes entered India, but in neither declaration did he mention the U.S.A. $ 44, 900 which he had brought into India. That the petitioner had no intention of landing himself, or his motor car, or the currency notes therein, on the soil of India and that his intention was only to proceed to Genoa with his car makes no difference to the fact that he did bring the American cur-rency notes into India without making the declaration required by the notification as a condition of the general permission. It is clear that he imported the American currency notes into India contrary to a restriction imposed under Section 19 of the Sea Customs Act, although, with regard to the import of the Indian currency notes there was no such violation. In fact the explanation to Section 8 (1) of the Foreign Exchange Regulation Act makes it abundantly clear that the bringing into any place in India of any article, intended to bo taken out without being rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y not exceeding the amounts brought in provided they have made a declaration of the amounts brought in on the prescribed form to the Customs officer on arrival in India. The petitioner not having declared the currency kept concealed in his car, the taking out o the currency comes within the prohibition, and the attempt to do so falls within the second paragraph of item 8 under Section 167 of the Sea Customs Act. 14. The petitioner is the person who brought into India and was attempting to take out of India, the currency notes kept concealed in his car, and there can be no doubt that he was concerned with this concealment on board the vessel M. V. Australia within the limits of the Port of Cochin. The currency notes, as we have seen, are goods the importation and exportation of which are restricted under Section 8 of the Foreign Exchange Regulation Act, and, therefore by virtue of Section 23A of that Act, under Section 19 in Chap. IV of the Sea Customs Act. The petitioner is therefore truly caught by paragraph 4 of item 8 under Section 167 of the Sea Customs Act. For, goods of the kind described in paragraph 1 of this item were found to have been concealed by the petitioner on boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that both the heading of Section 8 of the Foreign Exchange Regulation Act and the body of Section 23A of that Act refer to what is imposed by Section 8 as a restriction and not as a prohibition. But every restriction is a partial prohibition, and in fact, both Section 8 itself and the notification issued under Sub-section (1) thereof are worded in the form of a prohibition. They impose a prohibition except in cases where the general or special permission of the Reserve Bank has been obtained. Under Section 19 of the Sea Customs Act, the Central Government may prohibit or restrict the importation or exportation of goods, and I see little difficulty in viewing the so-called restrictions under Section 8 of the Foreign Exchange Regulation Act as prohibitions. It is not as if it is importation or exportation, above a specified quantity or in a particular manner that is forbidden --all importation and exportation is forbidden unless-there is the general or special permission of the Reserve Bank. All this apart, it seems to me that the term, "prohibited goods" in item 73 under Section 167 of the Sea Customs Act is only a compendious way of describing (to borrow the langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary that at the time of the detection of the offence it must be actually in use as a con-veyance. The confiscation is therefore in order. 22. Regarding the money carried by the petitioner on his person ($ 1605 and ₹ 250) and admittedly taken into charge by the customs officers, it is claimed that the department has a lien over this money under S, 193 of the Sea Customs Act for the penalty of ₹ 6000 imposed on the petitioner and it as said that the money will be returned to the petitioner as soon as the penalty is paid. Since Section 193 authorises the realisation of the penalty adjudged from any goods of the person concerned in the charge of an officer of customs, it seems to me that the department is entitled to keep these currency notes until the penalty is paid. That apart, it was represented in the course of the argument that, as soon as this case is disposed of, the department will send the currency notes to a magistrate for disposal in accordance with law and seek his assistance for recovery of the penalty under the second paragraph of Section 193 of the Sea Customs Act. Even if the currency notes are returned to the petitioner, they would, the veiy n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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