vil Appeal Nos
624748 of 1983
From the Judgment and Order dated 371980 of the Orissa High Court in Original Jurisdiction Case Nos 91 and 155 of 1977
Kapil Sibal Additional Solicitor General Dilip Tandon and CVS Rao for the Appellant
Mrs Bharati Anand NP for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
These appeals by special leave are from the Judgment of the High Court of Orissa Cuttack dated July 3 1980 in two writ applications under Article 226 of the Constitution of India allowing the applications and quashing the penalty imposed on the writ petitioner under the of 1962 hereinafter referred to as the Act 
A commercial vessel MV Jag Darshan arrived at Paradip Port on March 29 1976
It was being rummaged by the customs officers from April 6 1976 to April 13 1976
In course of the rummage the customs officers recovered various contra band goods worth more than Rs 140000 Rupees one lac forty thousand seized some quantity and detained the vessel by issue of a proper notice to the Master of the vessel with a copy to the second respondent Sri VL Choud hary Deputy Conservator of Paradip Port Trust
At the instance of Sri VL Choudhary and another the vessel was shifted to the reads ie far away anchorage of paradip port which was far in the high sea
As a result of the shifting despite the detention order the rummaging operation was interrupted as the customs staff had to leave the vessel and the vessel had to remain unguarded for nearly 38 hours
It was alleged that the contraband goods then somehow disap peared from the vessel
Sri VL Choudhary was asked to show cause as to why for his failure to comply with the provi sions of the Act and for abetment of the commission of offence of smuggling by his deliberate obstructions to the customs officers in the recovery of smuggled goods from the detained vessel MV Jag Darshan in violation of section 133 of the Act he should not be proceeded against and as to why penalty should not be imposed on him under section 117 and 151 of the Act
In reply to the notice the second respondent Sri VL Choud hary 708 took the plea that the Collector of Customs and Central Excise had no jurisdiction to initiate proceedings against him as what he had done was in discharge of his duties under the Paradip Port Rules and that the provisions of section 151 of the Act were not attracted in his case
The Collector rejecting the pleas imposed a penalty of Rs 1000 upon Sri
VL Choudhary under section 117 of the Act
The operative part of the order said I therefore impose a penalty of Rs 1000 Rs one thou sand on Sri VL Choudhary Deputy Conservator of Paradip Port under section 117 of the customs act 1962
The penalty should be deposited into any Government Treas uryState Bank of India within a fortnight from the date of receipt of this order under head 1037 Customs Miscellane ous Receipts Fines Rent etc
 The order of the Collector was challenged in two writ petitions under Article 226 of the Constitution of India in the High Court of Orissa
The High Court quashed the penalty and allowed the writ petitions on two grounds
First that the impugned order in each case in categorical terms showed that the jurisdiction had been exercised under sections 133 and 151 of the Act section 137 of the Act made provision for cognizance of offences and section 133 had been included therein and as such section 133 must be referring to Court and not to the Collector as the punishing authority where fore the Collector was not competent to impose punishment for the offence under that section
Secondly section 151 required the officers mentioned therein to assist the Cus toms Officers but the two officers were employee of the Port Trust and were not officers mentioned in clauses d or e of that section as the former referred to officers of the Central or State Government employee at any port or airport and clause e referred to such other officers of the Central or State Government or local authority as were specified by the Central Government in this behalf by noti fication in the official gazette so as to bring the two officers under clause e
Mr Kapil Sibal learned Additional Solicitor General of India has not seriously assailed the finding that the officers did not come under section 151 of the Act
His main submissions assailing the finding as to applicability of section 133 of the Act are that section 133 both creates an offence and also prescribes a penalty and though the section is refera ble to Court in so far as prosecution and punishment is concerned for 709 the offence there would be no bar to deal with that offence under section 117 of the Act
Counsel submits that even assuming but not admitting that section 133 referred only to Court and the offence could not otherwise be dealt with Sri VL Choud hary having abetted the contravention of the provisions of the Act he made himself liable to penalty of not exceeding Rs 1000 under section 117 of the Act and the penalty was right ly imposed on him by the Collector and the High Court ought not to have set aside the penalty
Counsel further submits that under the there would be no double jeopardy if in an appropriate case one has been prosecuted and pun ished under the sections in Chapter XVI of the Act and also subjected to penalty under the provisions other than those in Chapter XVI of the Act for offences including those in Chapter XVI of the Act
None appears for the respondents
T weigh the submissions we may examine the relevant provisions of the Act
Admittedly offence  has not been defined in the Act
Chapter XVI in sections 132 to 140A deals with Offences
and Prosecutions
Section 132 constitutes false declaration false documents etc
an offence
Section 133 constitutes obstruction of officer of customs an of fence
Similarly by section 134 refusal to be ex rayed by section 135 evasion of duty or prohibition are constituted of fences
It may be noted that section 1351 is without prejudice to any action that may be taken under this Act  This clear ly envisages any action that may be taken under this Act over and above the prosecution and punishment prescribed under this Section
Section 137 deals with Cognizance of Offences by Courts
Section 138 says that offences are to be summarily tried except those stated under the section
Section 138A provides for presuming the existence of culpa ble mental state where such a state is necessary
Chapter XIV in sections 111 127 deals with confiscation of goods and conveyance and imposition of penalties
Section 120 provides for confiscation of smuggled goods notwith standing any change in form etc
Section 122 deals with adjudication of confiscations and penalties
Under this section in every case under this Chapter in which anything is liable to confiscation or any person is liable to a penalty such confiscation or penalty may be adjudged by appropriate customs authorities
Section 123 deals with burden of proof in certain cases and in some cases puts in on the owner or possessor of the goods
Section 127 says that the award of any confiscation or penalty under this Act by an officer of Customs shall not prevent the infliction of any punishment to 710 which the person affected thereby is liable under the provi sions of Chapter XVI of the Act or under any other law
This clearly shows that there will be no double jeopardy if for the same transaction act or occurrence there is an award of any confiscation or penalty under the relevant provisions of the Act and also infliction of any punishment under the provisions of Chapter XVI of the Act or under any other law
Section 117 included in Chapter XIV deals with penalties for contravention etc
not expressly mentioned
It says Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply where no express penalty is elsewhere provided for such contravention or failure shall be liable to a penalty not exceeding Rs 1000
Though included in Chapter XIV section 117 provides for penalties for contravention of any provision of the Act an abetment of any such contravention or failure to comply with any provision of the Act with which it was one s duty to comply but no express penalty is elsewhere provided
For such contravention or failure a penalty of not exceeding Rs 1000 has been prescribed
From the foregoing provisions we find that for the same transaction act or occurrence in an appropriate case there may be prosecution and punishment under Chapter XVI and confiscation of goods and conveyances and also imposition of penalty not exceeding one thousand rupees for contravention of any of the provisions of the Act or abetment of any such contravention and or failure to comply with any provisions of the Act with which it was one s duty to comply where no express penalty is elsewhere provided for such contravention or failure
It may also be possible that an act or event which entails punishment under Chapter XV1 may be itself or with other ingredients also amount to a contravention of any of the provisions of the Act or abetment of any such contra vention
Where the same act or event constitutes an offence under Chapter XVI and at the same time constitutes a contra vention or abetment of contravention of any of the provi sions of the Act or failure to perform any duty prescribed under the Act or amounts to non compliance with any of the provisions of the Act there will be possibility of prosecu tion and punishment under Chapter XVI of the Act and any other provision of law and at the same time confiscation and penalty under Chapter XIV of the Act
711 As regards the allegations in the case under section 1061 of the Act where the proper officer has reason to believe that any vessel in India or within the Indian customs waters has been is being or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled he may at any time stop any such vessel and a rummage and search any part of the vessel b examine and search any goods in the vessel
Under section 1101 if the proper officer has reason to believe that any goods are liable 10 confiscation under the Act he may seize such goods
Section 111 provides for confiscation of improperly imported goods
Under the facts alleged in this case the vessel could therefore lawfully be detained rummaged and the goods suspected seized
It was alleged that the shifting of the vessel was on order of the second respondent and that because of the shifting to the reads away in the deep sea the proper officers had to leave the vessel with the seized goods and the vessel had to remain unguarded for 38 hours during which period the contraband goods happened to be illegally disposed of
Section 133 reads 133
Obstruction of officer of customs If any person intentionally obstructs any officer of customs in the exer cise of any powers conferred under this Act such person shall be punishable with imprisonment for a term which may extend to six months or with fine or with both
 There may be scope for holding that there was intention al obstruction on the part of the second respondent if the allegations are proved
In Santosh Kumar vs State  it was held that where there was an order for seizure it would amount to obstruction under section 186 IPC if the goods were not allowed to be removed
On the authority of Hinchliffe vs Sheldon 1955 1 WLR 1207 it can be said that the obstruction is not confined to physical obstruction and it includes anything which makes it more difficult for the police or public servant to carry out their duties
But the question is did it also amount to abetment of contravention of any of the provisions of the Act Was there any abetment to alleged smuggling of the goods seized and those which could have been seized the Collectors orders though there was discussion of offence under section 133 and failure to perform duty under section 151 the order itself was passed ex facie under the provi sions of section 117 of the Act
On perusal of the impugned judgment of the High Court
we do not find 712 any discussion on this aspect of the matter and there is no indication as to whether this was urged or not before the High Court
Since the learned Additional Solicitor General has emphasised this aspect and we are inclined to agree with him to the extent indicated above and as the second re spondent is not represented before us we are inclined to set aside the impugned order and remand the cases to the High Court for fresh disposal in accordance with law in the light of the observations made hereinabove after giving opportunities to the parties for making their submissions on the basis of the evidence already on record and we order accordingly
GN Appeal allowed


Summary:
The petitioner joined as a primary teacher in 1952 in an aided recognised school
She was making contribution towards compulsory provident fund
In 1975 the Delhi Administra tion in consultation with the Accountant General Central Revenue issued a notification under Rule 126 of the Delhi School Education Rules 1973 laying down detailed procedure for disbursement of pension and gratuity as also accounting of General Provident Fund in respect of the employees of aided schools
The petitioner opted for the aforesaid scheme in 1976 which was duly counter signed by the Education Officer
After the petitioner retired in 1977 she made a number of representations to the authorities concerned for payment of pension and gratuity
She got a reply in 1987 that her case had been referred to the Government for policy deci sion
Ultimately Delhi Administration promulgated the pension scheme in the primary aided schools on and effective from 6th December 1988
The petitioner in her Writ Petition before this Court relied on the scheme announced by the Delhi Administration and the option exercised by her
She claimed that to deprive her of the pension and gratuity under the said scheme was without any justification
On behalf of the respondents it was contended that the scheme was brought into force only in 1988 by the said notification whereby the modalities for grant in aid to the local authorities were finalised and since the petitioner retired from service in 1977 she was not entitled to pen sion prior to the said notification
Allowing the Writ Petition this Court HELD 1
The school in which the petitioner was working was an 754 aided school within the meaning of section 2d of the Delhi Education Act and its employees were entitled to the bene fits conferred by the notification dated 17th October 1975
757B C 2
Since the Central Civil Services Pension Rules 1972 would apply to the petitioner as contemplated by noti fication dated 17th October 1975 she is obviously entitled to get pension with effect from the date on which she ceased to be borne on the establishment
of the school in which she was working consequent upon reaching the age of superannua tion
757F G 3
The said notification having been issued by the competent authority and the petitioner who was an existing employee of an aided school on the date of the issue of the said notification having opted for the pension and gratuity within the stipulated period in the prescribed proforma which was duly countersigned by the Education Officer she obviously became entitled to the benefits conferred by the said notification
This is so all the more in view of the fact that the notification dated 17th October 1975 did not contemplate finalisation of the modalities about contribu tion towards pension fund as a condition precedent to the entitlement of the benefits under the said notification
The finalisation of the said modalities was a matter of details among the authorities concerned and could have no bearing on the entitlement to the benefits of the notification dated 17th October 1975
Such finalisation could not even defer the date of the entitlement
758A C 4
The respondents are directed to pay to the petitioner pension admissible to her in pursuance of the notification dated 17th October 1975 with effect from the date of her retirement and also to pay to her the other retirement benefits
They are further directed to finalise the requi site formalities in this behalf within three mouths and to issue payment orders immediately thereafter
758H 759A B