Tara Chand v. Superintendent of Central Excise, Bombay.

Dua, J. This appeal by special . leav~ is directed against the judgment and order of the Mysore High Court· on appeal setting aside in part the order of the appellant's acquittal by a Second Class Magistrate and convicting him under r. 126P (2) of the Defence of India Rules as amended in 1963-hereafter called the Rules-and sentencing him to rigorous imprisonment for six months. The order of the trial court acquitting him of the offence under s. 135 of the Customs Act was upheld.

The appella,nlt alighted from a service plane at H.A.L. Aero-drome, Bangalore on November 16, 1963 at about 12.45 in the aftembon. E. R. Fariman, Inspector, C.I.D. had prior incrimi-nating information about the arrival of a person whose. descrip-tion seemed to tally with that of the appellant. The Inspector and has staff who were on the look out waited for the appellant to take his baggage from a the baggage counter. As soon as the appellant took delivery of plastic bag and a hold-all the Inspector asked the appellant to accompany him to the Security Room. On being questioned the appellant gave his name as Tara Chand though he admitted that he had travelled under the name· of J. D. Shaw. In the Security Room in the 'Presence of Panch-watdars the platic bag and the holdcall were opened and examined. From a pi!l~w taken. out of the hold-all w~re found two tape bags contammg 16 pieces of gold with foreign markings. These tape bags had been put into the pillow which was then stitch-ed. The appellant was then produced by ti» Inspector before his D. S. P. along with the articles seized from him. After obtaining sanction from the Collector under s.- 137 (I) of the Customs Act and under r: 1260 of the Rules Sliri Rasool, Superintendent of Central Excise (P.W. 3) filed the complai.nt.

The learned Magistrate trying the appellant· found. the gold pieces to be of foreign origin. He, however, did not find any evidence establishing them to be smuggled with· the result that the appellant was acquitted of th.e offence u.nder s. 135 of the Customs Act. The learned Magistrate did not draw any pre· sumption against the. appellant because the seizure of the gold pieces was not by the Customs authorities but by the police who thereafter handed over the gold pieces to' the office of the Collec-tor of Sentral Excise. and Customs.

While _considering the case against the appellant under r. 126P(2) of the Rules, the learned Magistrate observed that according to the relevant notification issued by the Government of India on November 5, 1963 in fuooification of the earlier one issued under r. 126J read with r. 126X of th.e Ru)i:s, it is either the Assistant Collector af Central ·Excise or the Collector of Central Excise who can institute prosecution, These officers are not authorised to delegate the power to institute prosecution. According to the learned Magistrate the Collector of Excise had, therefore, no power to ddegate the right to insfiwte prosecutions with which he alone had been clothed. Exhibit P/5 was in the circumstances consid!!red· to be ineffective. On this reasoning the complaint having not been filed by the officer c<impetently authorised the appellant was acquitted.

On appeal by the Superintendent of Central Excise and Customs (the complainant in the case) the High Court disagreed with the view taken by the learned Magistrate: It may be point· -eel out that the appeal by . the complainant was confined . only to the acquittal under r. 126P(2) of the Rules and the appellant's acquittal under s. 135 of the Customs Act :was not questioned, it being conceded .that there was no evidence on the record to bring the appellant's case under s. 135 of the Customs Act.

The High Court relying on Ex. PI 5 and the two notifica-tions issued by the Government of India came to the conclusion that the Collector was lawfully empowered to authorise the Superintendent of Central Excise to prosecute the appellant. That Court also arrived at the conclusion that the appellant, who was not a dealer or refiner, having a licence, was found in possession of gold, of which no declaration had been made under the law and, therefore, he was guilty of an offence punishable under r. 126P(2) of the Rules. The appeal was accordingly allowed and the appellant convicted and sentenced to rigorous imprisonment for six 11).0nths.

In this Coun Shri Tarkunde assailed the legality of the view taken by the High Coun. According to him the trial court had rightly held the prosecution not to have been instituted by a duly authorised person. Let us see if the scheme of the relevant sta-tutory provisions supports the learned counsel.

Part XII-A of the Rules deals with Gold Control and it con-tains rules 126A to 126Z: This pan was inserted in the Defence of India Rules in January 1963. Rule 1260 provides:

"(I) No prosecution for any offence punishable under

this Pan shall be. instituted against any person except by, or with the consent of, the Adminis-trator or any person authorised by the Admins-trator in this behalf.

(2) 'Nothing in rule 154 shall apply to any contra-

vention of any provision of this Part or any order made thereunder."

The word "Administrator" was substituted for the word "Board" in September 1963. We are informed that no Administrator as defined in r. l 26A (a) was appointed by the Central Government under wwer conferred on it by r. 126J ( 1). Under r. 126X the e1i!ntral Government is empowered to perform all or any of the functions of the Administrator and also by notification to ·exercise ail o~ any of the powers conferred on the Administrator by Pan XII-A if considered necessary or expedient in the public <interest to do so. The Administrator who is to take suitable measures : (a) to discourage the use and consumption of gold, (b) to bring about conditions tending to reduce the demand for gold and, ( c) to advise the Central Government on all matters relating to gold, is enjoined by r. 126!(3) to discharge his func-tions subject to the general control and directions of the Central .Government. Sub-rules 4 and 5 of r. 126J provide :

" ( 4) The Administrator may by general or special

order authorise such person as he thinks fit to exercise all or any of the powers exercisable by him under this Pan and-different persons may be authorised to exercise different powers :

Provided that no officer below the rank of Collector

of Customs or Central Excise or Collector of a district shall be authorised to hear appeals under sub-rule (3) of rule 126-M.

( 5) Subject to any general or special direction given

or condition attached by the Administrator any

person authorised by the Administrator to exer-cise any powers may exercise these powers in the same mariner and with the same effect as if if they had been confered on that person directly by ·this Part and not by way of autho-risation."

We may bear in mind the effect of sub-nile (5) on the scheme. ~ule 126H(2) (d) dealing with restrictions on possession and sale of gold by persons other than licensed holders lays down :

"(2) Save as otherwise provided in this Part,-

( d) no person other than a dealer licensed under this

Part shall buy or otherwise acquire or agree to buy or otherwise acquire, gold, not being orna-ment, except, (i) by succession, intestate or testamentary, or (ii) in accordance with a permit granted by the Administrator o'r in accordance with such authorisation as the Administrator may, by general or special' order ir.ake in this behalf :

Provided· that a refiner may buy or accept gold from a dealer licensed under this Pai:t;"

Turning now to the two notifications on the construction of which the fate of this case depends, we find that on January 10, 1963 the Central Government issued a notification in exercise of the. powers confered on it by r. 126X read with r. 1261( 4) authorising. certain officers of the Central Excise Department to exercise any or all of the powers of the Gold Board in relation to certain matters specified therein. At sl. no. 10 of the Table ·contained in the notificatioru officers not inferior in rank to the Assistant Collector were authorised to exercise powers and func-tions in relation to the matter of "according of sanctions for the prosecution of offences" with reference to r. 1260. We have reproduced the exact words of the entry in col ( 4) of the Table. This notification was amended in certain respects on November S, 1963. At sl. no. 10 of the amended Table officers not inferior in rank to the Assistant Collector of Central Excise Department were authorised to exercise the powers and functions in relation to the matter of "institution of prosecution for any offence punishable under Part XII-A of the Defence of India Rules" with reference to r. 1260. Here again we have repro-duced the exact words used.

According to Shri Tarkunde these notifications did not em· power the Assistant Collector to authorise the Super..ntendent of Central Excise and Customs to institute the present proceedings. The Assistant Collector, said the counsel, was· authorised.·· only himself to institute them and he could not lawfully accord con· sent for the institution of prosecution as he purported to do under Ex. PI 5. We are unable to accept this submission. The . actual wording of the rel11vant entries in all the columns of serial no. 10 in the Table of the later notification may here be reproduced.

"l 0. Assis tart\ Collector of the Central Excise De-partment.

1260 Institution of prosecution for any offence punish-able under Part XIIA of the Defence of India Rules, 1962".

This has to be read .along with the opening part of the earlier notification dated January 10, 1963 which remains the principal notification and was amended only in certain particulars · on November 5, 1963. According to the opening part of the 1prin-cipal notification-the officers not inferior in rank to the officer specified in col. 2 of its Table were authorised io · exercise any or all of the powers of the Gold Board in relation to the matters specified in the . corresponding entries in cols. 3 and 4. In .place of "Gold Board" we have to read the word "Admiilistra· tor" and since no Administrator was ever appointed, the powers and functions entrusted to him were at the relevant time being exercised by the Central Government. We· may point out that it was app4rently by oversight that the word ' 'Administrator" was not substituted for the expression "Gold Board" in the noti-fication though in September 1963 such substitution had been effected by appropriate amendment in the relevant rules.. This was not controverted at the Bar and indeed no point was sought to be made on this ground. It would thus be seen that in deter-mining the scope and extent of the powers of the officers autho-rised in the Table of the Notification to exercise the powers and functions of the Administrator,· actually exercised . by the Central Government (there being no Adminstrator appointed under the rules), we have to see the nature of the power and function mentioned in col. 4 and examine it by reference to the rule mentioned in col. 3 in the light of the expression "in relation to the matters specified" in the notification which, in our ·opinion, to some extent. the widens the scope of the powers and functions de-legated by notification.

t6-L694 SupCl/7-I

Under r. 126Q as read in the light of the. entries at serial no. 10 of the notification prosecution for an offence punishable under Part XII-A can, in our opinion, be instituted by or with •the consent of an officer not inferior in rank to the Assistant • Collector of the Central Excise Department. In Ex. P/5 dated September 4, 1964 Shri V. Parthasarathy, Collector of Central Excise accorded his. sanction to the prosecution of the appellant as required under :r. 126Q of the,Defence of India Rules: He did so in exrcise of. the powers conferred on him by the two notifications mentioned above. ·The offence for which the consent was given was described in this document as under :

"WHEREAS Shri Tarachand s/,o Deviraj (Devi-chand) Room No. 4, Mistry Bungalow, Duncan Road, Bombay-4 was found to have acquired gold not being ornament except by succession, intestate or testamentary or in accordance with the permit granted either by the Administrator or by the Deputy Secretary in tire office of the Gold Control Administrator, Bombay, duly authorised in this behalf by the Government of India vide their notification No. · F. 1/8/63-GC dated 20-10-1963, 16 pieces of gold of 10 tolas each bearing markings as to. its origin and purity contrary to the pro-visio.ns of rule 126H(d) of the Defence of India Amend-ment Rules.

WHEREAS any person having in his possession or in his control any quantity of gold or buy or otherwise acquires or accepts gold in coruravention of any pro-visions of Part XII-A of the Defence of India Rules renders himself liable for punishment · under Rule 126P(2).

And on careful study of the material placed before me and satisfying myself tj:lat the said Shri Taiachand is liable to action under.rule 126P(2) of the Defence of India Amendment Rules, 1963 for reasons men- .tioned above, I. V. Parthasarathy, Collector of Central Excise, Mysore Collectorate, Bangalore, in exercise of the powers conferred on me by the Government of India in their Notification F. No. 2511/63-GCR dated 5-11-63 issued under Rule 126J read with Rule 126-X of the Defence of India Amendment Rules do hereby accord consent for the institution of prosecution of the said Shri Tarachand as required under Rule 126:0 of the Defence of India Amen(iment Rules, 1963."

This authority, in our opinion, quite clearly falls within the notification read as a whole and the High Court was right in so construing it.

The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed the~ should be held to confer power only to prosecute but not to accord consent to the appellant's prosecution by some other person or authority has not impressed us. The attempt by the appellant's· learned. co11nsel in this con· nection to equate .these notification with powers of attorney does not carry ·the matter any further. The plain reading of the rele-vant entries in die notifications leaves no doubt in our mind as to its meaning, scope· and effect. It quite clearly authorises the Collector to exercise power and function in relation to the matter of institution of prosecution for any offence punishable under Part XII-A of the Rules referred to in r. 1260 .. Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems to us that after the responsible offi-cers of this Department not inferior in rank to the Assistant Collector had applied their mind and come to a decision as to the desirability of starting the prosecution in a given case further steps in the 'matter of actual prosecution including the drafting and presentation of the complaint can be lawfully carried out by others. That this is l.he real object and purpose of the notifica-tions is clearly brought out on plain reading of their language. To hold otherwise, as desired by Shri Tarkunde, would not only mean unduly straining the unambiguous statutory language but would also tend to thwart, instead of offectuating, their real pur-pose. We are thus in agreement with the view talc.en by the High Court.

The couruel next submitted tliat the charge levelled against the appellant was different from the one for which he has been convicted. In any event the charge framed, according to the counsel, was vague and it has caused him prejudice in his defenee. Here again, we are unable to agree. In the complaint all the relevant facts were stated quite clearly and it was emphasised that the appellant had been found in possession of 16 pieces of gold with foreign markings ingeniously concealed inside long tabular pouches, in tum hidden inside a pillow case. He was stated tci be guilty inter alia of offences punishable under r. 126P(2). The second charge framed by tlte court was as follows :

"That you on or about the 16th November, 1963 at a~out 12.45 hours at H.A.L. Aerodrome, Bangalore, ahght~d from the plane No. 105 which arrived from Bomay and when you and your articles were searched, l 7-L694 Sup Cl/71

you were found in possession of 16 pieces of gold each bearing markings as to its foreign origin and ·purity weighing 10 tolas each, having illegaily imported into India in contravention of prohibition imposed by the Ministry of Finance Notification No. 1211 Fl/48 dated 25th August, 1948, and without permit issued by the Gold Control Authorities as required under Rule 126H-UI) under the Defence of India Amendment Rules, 1963· and thereby committed an offence under Rule 126P(2) r/w 1261(10) of the Defence of India Amendment Rules, 1963 relating to Gold Control and within my cognizance."

The appellant never complained that this charge wa& vague or outside the complaint. Indeed in his statement in court the appellant bas admitted all the relevant facts alleged by the pro-secution. The facts alleged and proved cleariy bring the appel-lant's case within the mischief of rr. 126H(2) (d) and 126P(2). Rule 126H(2) (d) has already been reproduced earlier. Under r. 126P(2) (ii) whoever has in. his possession or under his control any quantity of go)d in contravention of any provision of Part XII-A is punishable with imprisonment for a ·term of not Jess than six months and not more than two years and also with fine. All the relevant salient facts alleged by the prosecution having been admitted by the appellant there can hardly be any ques-tion of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wde. This argument is accordingly repeiled.

Lasily the counsel contended that the sentence imposed was two severe. The entire gold seized from him having been con-fiscated the sentence undergone should, according to the sub-mission, be held to serve the cause of justice. We have already noticed that under r. 126P(2) (ii) the minimum period of im-prisonment prescribed is six months. According to the appellant the law bas since lieen amended and under the Gold (Control Act 18 of 1965 which bas repealed Part XII of the Rules there is no minimum sentence of imprisonment prescribed. In our Qpinion this case must be governed by the law as in fo"ce prior to the enforcement of the Gold (Control) Act, 1965. Our attention has not been drawn ·to any provision of law nor to any principle or precedent which would attract the provisions of the Gold (Control) Act of 1965 to this case in regard to the question of sentence.

This appeal accordingly fails and is dismissed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 76 of 1968. ·

Appeal by special leave from the judgment and order dated February 8, 19618 of the Mysore High Court in Criminal Appeal No. 215 of 1966.

V. M. Tarkunde, R. Jethamala11i, N .. H. Hi11gora11i and K.

Hi11gorani, for the appellant.

S. P. Nayar, for the respondent.

The Juogment of the Court was delivered by