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TMI Blog1972 (1) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... agents, brokers and general merchants. It consists of two partners, Girdhari Lal Gupta and Pooran Mal Jain. On the 25th October, 1958, the Cashier of the appellant Bhagwandeo Tiwari handed over a consignment of wooden case to the Swiss Airways at Dum Dum Airport for being sent by air freight to Hongkong. According to the consignment note, the consignment was being sent by one Ramghawan Singh of Karnani Mansions, Park Street, Calcutta who in fact was a fictitious person. The Shipping Bill showed that the consignment purported to contain Rassogolla, Achar, Paper and dried vegetables and it was being sent to one Ishwar Lal, 41 Wyndham St., Hongkong who is also alleged to be a fictitious person. After the consignment was accepted and when the Customs examined it for clearance on 25th October, 1958 before its onward despatch to Hongkong, there was found concealed in a specially made secret cavity on the battens nailed to the inner sides of the case Indian currency notes of Rupees 51,000/-. An investigation was set on foot and on 22nd January, 1959, a search warrant was issued by the Presidency Magistrate, pursuant to which the Customs Officers caused a search to the made of the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the partners of the firm went even to the extent of denying that Bhagwandeo Tiwari was the Cashier of the firm, notwithstanding the fact that in the earlier reply to the show cause notice as also in the writ petition, it was tacitly assumed that he was the Cashier. 3. Apart from the Criminal Prosecutions that were launched against the partners, in the penalty proceedings which were initiated by the aforesaid show cause notice, the firm was held to be knowingly concerned in the offence and accordingly, a fine of Rupees 1,000/- was imposed on it under Section 167(3) of the Sea Customs Act with a further personal liability of Rupees 1,000/- under Section 167(37) of the said Act. It was further fined Rupees 51,000/- under Section 167(8) of the Act read with Section 23(1) of the Foreign Exchange Regulation Act. Apart from these fines, the currency notes of Rupees 51,000/- which were seized were confiscated. 4. This order was challenged before the Single Judge of the Calcutta High Court who, as already stated, had issued a rule but later discharged it. Against that order an appeal was filed but that also was dismissed. Of the four points that were urged in that appeal, the first three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onment for a term which may extend to two years, or with fine, or with both. 23. (1-A) Whoever contravenes - (a) any of the provisions of this Act or of any rule, direction or order made thereunder, other than those referred to in sub-section (1) of this section and Section 19 shall, upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both; (b) any direction or order made under Section 19 shall, upon conviction by a Court, be punishable with fine which may extend to two thousand rupees. 23-A. 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 (8 of 1878), and all the provisions of that Act shall have effect accordingly except that Section 183 thereof shall have effect as if for the word `shall' therein the word `may' were substituted. 23-B. Whoever attempts to contravene any of the provisions of this Act or of any rule, direction or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin any bay, river, creek or arm of the sea which is not a port for the shipment and landing of goods. 11 8. If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction; or 18 & 19 such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees. if any attempt be made so to import or export any such goods; or if any such goods be found in any package produced to any officer of Customs as containing no such goods; or if any such goods or any dutiable goods, be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in India; or if any goods, the exportation of which is prohibited or restricted as aforesaid, be brought to any wharf in order to be put on board of any vessel for exportation contrary to such pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r taking by sea or by land goods of any specified description into or out of India, these restrictions are not applicable to the bringing in or taking out the currency notes which are not goods within the meaning of that section, and, therefore, the appellant is not guilty of any contravention of Section 19 of the Sea Customs Act and cannot be subjected to the penal provisions of the said Act. This argument, in our view, is misconceived, because firstly, it is a well accepted Legislative practice to incorporate by reference, if the Legislature so chooses, the provisions of some other Act in so far as they are relevant for the purposes of and in furtherance of the scheme and objects of the Act and secondly, that merely because the restrictions specified in Section 8 of the Foreign Exchange Regulation Act are deemed to be prohibitions and restrictions are not necessarily confined to goods alone but must be deemed for the purposes of the Foreign Exchange Regulation Act to include therein restrictions in respect of the articles specified in Section 8 thereof, including currency notes as well. The High Court thought that there is no definition of goods in the General Clauses Act and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less it appears from the evidence that members of the firm had consciously taken any steps to violate the provisions of law and even then only the particular members against whom there is evidence of guilt can alone be held liable. This contention was said to be based on a decision of this Court in Radha Krishan Bhatia v. Union of India, (1965) 2 SCR 213 that as the `person concerned' specified in Section 167(8) of the Sea Customs Act is the person actually involved or engaged or mixed up in contravening the restrictions imposed under the Foreign Exchange Act or the Sea Customs Act, he must be the person who must be shown to be actually concerned. That was also a case under Section 167(8) of the Sea Customs Act where, in fact, a number of gold bars held to be smuggled were recovered from the person of the appellant. The Single Bench of the Punjab High Court had allowed the Writ Petition of the appellant on the ground that the Collector had not recorded a finding that the appellant was connected with the act of smuggling gold into the country. This finding was set aside on a Letters Patent Appeal and the writ petition was dismissed. This Court held that the concern of the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he guilt in a criminal proceeding of the type which the customs authorities have to take. The evidence of the kind which has been adduced in this case would be sufficient to lead to the conclusion that the partner of the firm was interested in or involved in attempting to export Indian currency notes out of India. As observed by this Court in Thomas Dana v. The State of Punjab, (1959) Supp. 1 SCR 274, while dealing with Section 167 of the Sea Customs Act, that "All criminal offences are offences but all offences in the sense of infringement of Law are not criminal offences. Likewise the other expressions have been used in their generic sense and not as they are understood in the Indian Penal Code or other laws relating to criminal offences......... Out of more than 82 entries in the Schedule to Section 167, it is only about a dozen entries which contemplate prosecution in the criminal sense, the remaining entries contemplate penalties other than punishments for a criminal offence." 9. In the Additional Collector of Customs v. Sita Ram Agarwal, (1962) CA No. 492 of 1962, dated 14-9-1962 (S.C.), to which the High Court has referred, while dismissing the appeal from the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de was to hoodwink the Customs officials and escape their detection. Further, the consignor and the consignee were not shown as real persons but were fictitious so that even if the attempt to smuggle out of the country the currency notes was detected the real persons could not be traced. The charges and expenses incurred in connection with the despatch found in the entries in the books of account of the firm were the same as those relating to the offending package which was being despatched to Hongkong. The freight mentioned in the account slip is the exact amount which appears on the consignment note in respect of that offending package. The amount sought to be sent is half a lakh of rupees which can hardly be within the means of the Cashier, leading to the inescapable inference that the firm through its partners was concerned in the attempt to transgress the restrictions under Section 8 of the Foreign Exchange Regulation Act and liable to penal action by virtue of Section 23A under the provisions of the Sea Customs Act. On these facts as established and in our view rightly that it was not unreasonable to infer that it was the firm which was interested in sending the currency note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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