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TMI Blog1960 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ghawan Singh ever lived or was living in Karnani Mansions at Park Street. The evidence shows that it was a fictitious name. Enquiries made of M/s. Thai Airways Co. Ltd, and Indian Airline Corporation revealed that during the Puja holidays an elderly person had been to their office with a wooden case or three days for booking the same. This same person had been to their office in connection with the booking of another case declared to contain images of Golds under cover of consignment note No. 085/SR 1082754. This man had signed the consignment note in the presence of the officers. A loader of M/s. Thai Airways Co. Ltd., and the Traffic Assistant of the Indian Airline Corporation, stated that they would be able to identify the person. In fact, they identified Shri Bhagwandeo Tewari employed by M/s. Agarwal Trading Corporation of 191, Harrison Road, Calcutta. Thereupon, the Customs Authorities took out a search warrant from the Chief Presidency Magistrate of Calcutta under Section 172 of the Sea Customs Act and the office of the petitioner firm was searched as also the residence of the partners. On scrutiny of the documents seized the following facts appeared: 3.(1) On 22-10-1958 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rency out of India was prohibited, except with the general or special permission of the Reserve Bank of India or the Central Government. Under Section 8(2) of the Foreign Exchange Regulation Act read with the Reserve Bank of India Notification No. FERA-105/51-RB, dated 27th February, 1951 (as amended). No such permit or authority existed in connection with the exportation of the said Indian Currency of the value of Rs. 51,000 and, therefore, an offence had been committed under Section 23 of the Foreign Exchange Regulation Act. The petitioner firm was given an opportunity of showing cause, otherwise it was stated that a prosecution would be lodged under section 23(1) read with section 8(2) of the Foreign Exchange Regulation Act. On the 7th April, 1959 a similar notice was issued upon Giridharilal Gupta, the petitioner No. 2 in the application, asking him to show cause why penal action should not be taken under Sections 167(3), (8) and (37) of the Sea Customs Act. He was asked to state in his written explanation whether he wished to be heard in person. It was further stated that if he failed to submit a written explanation in time or did not appear before the Assistant Collector of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is the only explanation on record and it simply states that they had no knowledge of the offending parcel and hope was expressed that the matter would be dropped. Beyond this, there was no explanation given, no personal hearing asked for, and nobody appeared when the matter was decided. On the 30th May, 1959 the matter was disposed of by an order made by the Additional Collector of Customs, Calcutta, the respondent No. 2 in this application. A copy of the order is annexure 'E' to the petition. It was held that upon the evidence on record, it had been established that the offence had been committed and that the offending Indian currency should be confiscated under Section 167(8) and (37) of the Sea Customs Act without any option, and a personal penalty imposed of Rs. 1,000 under Section 167(3) of the Sea Customs Act, a personal penalty of Rs. 1000 under section 167(37) of the Sea Customs Act, and a personal penalty of Rs. 51,000 under Section 167(8) of the Sea Customs Act read with Section 23(A) ot the Foreign Exchange Regulation Act. On the 27th June, 1959 the petitioners prayed for an extension of time to deposit the amount, and, thereafter, the application was made in July, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exceeding one thousand rupees. These two punishments are not alternative but may be imposed together. Section 167(37) comes into operation, if it be found that goods have been brought to be passed through a Customs house for exportation, but that the contents of any package containing the goods have been wrongly described in the bill or application as regards the denomination or character of such goods. Where any such offence is committed such package together with the whole of the goods shall be liable to confiscation, person concerned in any such offence shall be liable to penalty not exceeding one thousand rupees. In this particular case, it will be remembered that penalties have been imposed on all the three headings. In the case of 167(3) and (37) there has been imposed a penalty of one thousand rupees, on each head. With respect to 167(8), the currency notes have been confiscated and a personal penalty has been imposed to the extent of Rs. 51,000, being the value of the currency notes sought to be exported illegally. It would be observed that the offences which have been enumerated under sections 167(3), (8) and (37) are not identical. Section 167(3) does not relate to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of this case, because currency is not "goods". It is true that Sections 167(8) speaks about the importation and exportation of "goods". The question is whether current coins or currency could be appropriately described as "goods". A short answer to this point is Section 23A of the Foreign Exchange Regulation Act, 1947. It runs as follows:- "23A. Application of Sea Customs Act, 1878.- 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". 7.Sub-section (2) of section 8 provides that no person shall, except with the general or special permission of the Reserve Bank, or the written permission of a person authorized in this behalf by the Reserve Bank, take or send out of India inter alia any Indian currency. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency Magistrate, Bombay charging him with having committed an offence under the Foreign Exchange Regulation Act. The appellant thereupon filed a petition before the High Court of Bombay that this was in violation of Art. 20(2) of the Constitution, because he was being put to double jeopardy. It was held that Art. 20(2) did not apply, because the confiscation of the goods under section 167(8) was not a "prosecution". Incidentally Bhagwati J. made this remark:- "Even though the Customs officers are vested with the powers of adjudging confiscation, increased rates of duty or penalty, the highest penalty which can be inflicted is Rs. 1,000". 10.The next decision of the Supreme Court cited is F. N. Roy v. Collector of Customs, Calcutta, 1983 (13) E.L.T. 1296 (S.C.) - (1957) S.C.R. 1151. In that case, the applicant imported Zip-Chains from Japan of the value of Rs. 11,051/4/-. In respect of the goods imported, a show-cause notice was served on the applicant, stating that there was no valid covering the goods and that the goods would be confiscated and action taken against the petitioner under section 167(8). Ultimately, the Collector of Customs made an order confiscating the goods an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. It is an unreported decision in Appeal No. 39 of 1958 M. G. Abrol v. Hamid Sultan. It was held by Chainani C. J. that a fine exceeding Rs. 1000 could not be imposed under Section 167(8). The learned Judge relied on the case of Maqbool Hussain (Supra) and F. N. Roy (Supra) and also a Supreme Court decision, Babulal Amthalal Mehta v. Collector of Customs (1957) S.C.R. 1111. In that case, the petitioner carried on business as a broker in diamonds and precious stones. There was a search in his premises, and certain pieces of diamonds were discovered. He was asked to produce evidence showing that the goods were not smuggled goods but were legally imported on payment of duty, and also why action should not be taken under Sections 167(8) and 167(39) of the Sea Customs Act. After the explanation was given, the Collector of Customs held that the petitioner had failed to discharge the onus placed upon him by section 178(A) of the Sea Customs Act. Under this section, it is provided that where certain goods were seized under the Sea Customs Act, in the reasonable belief, that they were smuggled goods, the burden of proving that they were not smuggled goods shall be on the person from whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Munnar C.J. in Collector of Customs v. A. H. R. Rahivnan A.I.R (1957) Mad. 496 has discussed this question and held that Rs. 1000 is not a maximum limit. The language of the statute is clear. ....." 14.The point came to be considered by me in Mohonlal Sharma v. Jasjit Singh Ors. (Matter No. 80 of 1957 judgment dated 21-2-1958, unreported). Before me also, reliance was placed on the Supreme Court cases mentioned above. I held that the learned Judge of the Supreme Court had not decided the case from the point of view that we are considering, and that they were not dealing the money penalty, and were not considering the penalty so far the value of the goods was concerned. 15.The position, therefore, is that the Bombay views are conflicting, there being two Division Bench judgments, holding different views. The Madras and the Calcutta view supports the views expressed by Chagla C. J. of course, if the Supreme Court decision is clear, all High Courts would be bound. In my opinion however, the Supreme Court decision has not considered the aspect of the question we are called upon to determine and I am, therefore, still of the opinion that section 167(8) provides for two kinds of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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