esent case the seized articles were removed by the accused it was unnecessary to deal any further with this aspect of the case because if any order was passed for return of the bags the order could not be enforced 251 E  CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 182 of 1966
Appeal by special leave from the judgment and order dated January 31 1966 of the Patna High Court in Criminal Appeal No 210 of 1966
Rameshwar Dial and A D Mathur for the appellants
Lal Narayan Sinha Advocate General for
the State of Bihar and U P Singh for the respondent
236 L M Singhvi and section P Nayar for the Union of India
Lal Narayan Sinha Advocate General for the State of Bihar and D Goburdhun for the State of Bihar
The judgment of the Court was delivered by Ray J
This is an appeal by special leave from the judgment of the High Court at Patna challenging first the authority of the Excise Inspectors as Officers of Customs namely public servants and secondly their power to arrest Nazir Mian and seize 2 bags of cloves from his possession under sections 173 and 178 respectively of the 
The facts giving rise to this appeal are as follows
On 13 December 1961 Inspectors Uma Shankar and Bisuddha Nand Jha and Constable Bishan Singh all belonging to the Central Excise Department were on checking patrol duty on 330 Down Barauni passenger train proceeding from Barharwa to Pakur which are Railway Stations in Santhal Parganas in Bihar
The appellant Nazir Mian was travelling by Barauni passenger train
When the train stopped at Pakur the excise staff found Nazir Mian in the latrine of one of the compartments of the train with two bags of cloves weighing about 2 pounds 10 seers
The door of the latrine was closed
Inspector Uma Shankar pushed the door when it was opened from inside
Uma Shankar disclosed his identity and asked if duty had been paid for the cloves
Nazir Mian answered in the negative
Inspector Uma Shankar thereupon seized the bags and arrested Nazir Mian
While this was being done the train started
Shortly after the train had started it stopped at a level crossing in consequence of one of the persons of the excise staff pulling the alarm chain
The excise staff got downwith Nazir Mian
The two bags of cloves were also brought down
Certain persons collected on the spot
Nazir Mian is alleged to have been rescued by other appellants and the bags of cloves were taken away
In the scuffle that ensued one of the Inspectors received simple injuries and the other a grievous injury
The three appellants Nazir Mian Ram Kirpal Bhagat and Ganga Dayal Shah and two other persons Jhaman Mian and Raghunath Prasad Yadav were all charged under section 147 149 333 and 379 of the Indian Penal Code for forming an unlawful assembly in assaulting Inspectors Uma Shankar and B N Jha and in rescuing accused Nazir Mian from their lawful custody and in removing two bags of seized cloves from their possession
The accused persons with the exception of Raghunath Prasad Yadav were further charged under section 332 of the Indian Penal Code for voluntarily causing hurt to Uma Shankar a public 237 servant in the discharge of his public duties
The accused with the exception of Nazir Mian were charged under section 225 of the Indian Penal Code for intentionally offering resistance to the lawful apprehension of accused Nazir Mian
Nazir Mian was also charged under section 7 of the for contravention of section 5 of the said Act and also under section 167 item 81 of the for contravention of Section 19 of the said Act and also under section 5 of the Imports and Exports Control Act 1947 for contravention of section 31 of the Imports Control Order 1955
At the trial before the Assistant Sessions Judge Dumka in Santhal Parganas Raghunath Prasad Yadav was acquitted of all the charges and the appellants Nazir Mian Ram Kirpal Bhagat and Ganga Dayal Shah along with Jhaman Mian were all convicted under sections 147 and 332 of the Indian Penal Code
Jhaman Mian Ram Kirpal Bhagat and Ganga Dayal Shah were also convicted under sections 225 and 333 of the Indian Penal Code
Ram Kirpal Bhagat and Nazir Mian were also convicted under section 379 of the Indian Penal Code
The said four accused including the three appellants were sentenced to several terms of imprisonment and the said sentences were ordered to run concurrently
The Assistant Sessions Judge Dumka however acquitted the appellant Nazir Mian of the charges under the  the and the Imports and Exports Control Act
The Assistant Sessions Judge Dumka held that section 6 of the Imports and Exports Control Act 1947 raised a bar of taking cognizance by any court except upon a complaint in writing made by an officer authorised in that behalf by the Central Government by general or special order and in the absence of any complaint in writing by the officer concerned the Assistant Sessions Judge Dumka found that he had no jurisdiction to take cognizance of the offence under this Act
The Assistant Sessions Judge Dumka also held that section 187A of the laid down that  cognizance as to offence was to be taken upon a complaint in writing made by the Chief Customs Officer or any other officers of customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs Officer
The Assistant Sessions Judge Dumka found that in the present case there was no such complaint and therefore he did not take cognizance for the contravention of section 19 of the 
The appellants and Jhaman Mian thereafter preferred an appeal to the High Court
In the High Court the appellant Nazir 238 Mian contended that Inspector Uma Shankar had no power to arrest him and seize the cloves and therefore the Inspector could not be held to have acted in the discharge of his public duties
In aid of that contention it was submitted first that the Imports and Exports Control Act 147 the  the and the Indian Tariff Act 1934 were not extended to Santhal Parganas and were not therefore applicable
The second contention was that cloves were not dutiable articles
The third contention was that section 173 of the had no application because there was no evidence of reasonable suspicion that Nazir Mian was guilty of an offence under the 
It was also contended that Inspector Uma Shankar was not an officer of the Customs
The High Court came to the conclusion that the and the Imports and Exports Control Act 1947 applied to the Santhal Parganas with the result that the import of cloves was prohibited duty was payable on cloves the Inspectors were officers of Customs within their respective jurisdiction and therefore they could exercise power under section 173 of the and they could seize the goods under section 178 of the 
The High Court further held that under section 178A of the  the burden was on the appellant Nazir Mian to prove that cloves seized were not smuggled goods and that the appellant Nazir Mian failed to do so
The High Court held that the appellants had been rightly convicted for certain offences but the sentences under section 332 of the Indian Penal Code against Nazir Mian Ganga Dayal Shall were set aside to correct an error in the judgment of the Assistant Sessions Judge Dumka who at one place convicted all the four accused under section 332 of the Indian Penal Code and at another place found only Jhaman Mian and Ram Kirpal Bhagat guilty of the offences under section 332 of the Indian Penal Code
Counsel on behalf of the appellants contended first that the did not apply to the place of occurrence and therefore the arrest and the seizure were unlawful
The second contention was that the did not apply to the place of occurrence and therefore the Inspectors were not officers of Customs who could invoke the authority of the to arrest and seize the appellant Nazir Mian
The third contention was that the seizure of cloves was not authoorised by section 178 of the Sea
Customs Act 1878 nor was the arrest authorised under section 173 of the Sea Customs The arrest and the seizure under the were impeached as illegal on the ground that the did not apply to the place of occurrence namely Pakur in Santhal Parganas in Bihar
The fourth contention was that section 178A of the could not apply because there was no notification to attract the application of the said section
The first question which falls for decision is whether the applies
In order to appreciate this contention it is necessary to refer to the statutes by virtue of which the is said to apply to the place of occurrence
The Bihar Regulation I of 1951 enacted that the Imports and Exports Control Act 1947 was applicable to Santhal Parganas
The relevant sections under the Imports and Exports Control Act 1947 in the present case are the two sub sections in section 3 which are as follows 3 Powers to prohibit or restrict imports and exports
 I The Central Government may by order published in the Official Gazette make provisions for prohibiting restricting or otherwise controlling in all cases or in specified classes of cases and subject to such exceptions if any as may be made by or under the order a the import export carriage coastwise or shipment as ships stores of goods of any specified description b the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried
2 All goods to which any order under subsection 1applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the  and all the provisions of that Act shall have effect accordingly
The first contention on behalf of the appellants is that sub section 2 of section 3 of the Imports and Exports Control Act 1947 means that only section 19 of the is applicable and the other section do not apply
The second contention on behalf of the appellants that the Bihar Regulation I of 1951 is in excess of the power of the Governor contained in the Fifth Schedule to the Constitution will be dealt with hereinafter
Counsel on behalf of the appellants contended that sec 240 tion 32 of the Imports and Exports Control Act 1947 meant that goods to which sub section 1 of section 3 of the Act of 1947 applied were deemed to be goods of which the import or export had been prohibited under section 19 of the  and therefore only section 19 of that Act was to have effect for that restricted purpose
In aid of that contention reliance was placed on the decision of this Court in The Collector of Customs Madras vs Nathella Sampathu Chetty  Anr1
The question for consideration in the Madras Customs case was whether section 178A of the applied
The Collector of Customs there seized gold because he was prima facie of the view that it had been smuggled and notice was issued to the respondent to show cause why the gold should not be confiscated
Import of gold was dealt with by section 8 of the Foreign Exchange Regulation Act 1947 which provided that the Central Government might by notification order that no person except with the general or special permission of the Reserve Bank and on payment of prescribed fee bring or send into India any gold or silver
Section 23A of the Foreign Exchange Regulation Act which came into existence in the year 1952 was as follows  23A
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 and ail 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
Section 178A of the was introduced into the Act in the year 1955
It was therefore contended that when the Foreign Exchange Regulation Act 1947 was enacted the provisions of the were not at all attracted and secondly
when section 23A was introduced in 1952 as a part of the Foreign Exchange Regulation Act 1947 it would have the effect of bringing into operation only those sections of the which were part of the in 1952
Counsel for the appellants relied on the observations at page 834 of the Report in the Madras Customs case that the effect of section 23 A is to treat the text of the notification by the Central Government under section 8l as if it had been 1  241 issued under section 19 of the with the title and the recital of the source of power appropriate to it by the creation of legal fiction
Counsel for the appellants extracted from these observations the proposition that only section 19 of the would attracted in the present case to make effective the notifications under the Imports Control and Exports Control Act 1947 and the Imports Control Order 1955 and no other section of the would be attracted
The decision of this Court in the Madras Customs case does not support that contention for the obvious reason that section 178A of the was held to be applicable there
If only section 19 of the were attracted for the purpose of giving sanction to notifications under the Foreign Exchange Regulation Act section 178A of the could not have been held to be applicable in Madras Customs case 
Further this Court in the Madras Customs case  at page 799 of the Report held first that on the law as it stood upto 1952 before section 23A of the Foreign Exchange Regulation Act was inserted importation of gold in contravention of the notification of August 1948 issued under section 8l of the Foreign Exchange Regulation Act would have been an importation contrary to section 19 of the  with the result that any person concerned in the act of importation would have been liable to the penalties specified in the third column of section 1678 of the and imported gold would have been liable to confiscation under the opening words of that column
This conclusion indicates
that a restriction on the import of gold by a notification under the Foreign Exchange Regulation Act would be a prohibition or restriction on importation or exportation of gold under section 19 of the which occurs in Chapter IV of the 
The other conclusion of this Court in the Madras Customs case was that though section 187A of the was introduced in the year 1955 section 23A of the Foreign Exchange Regulation Act 1947 which came into exist ence in 1952 would be operative to introduce the subsequent amendments of the in dealing with con travention of the Foreign Exchange Regulation Act in relation to importation or exportation of gold
In dealing with the contention in the Madras Custom case that section 178A of the did not apply because it was not a part of the when section 23A of the Foreign Exchange Regulation Act was en 1  242 acted in 1952 the decision of the Judicial Committee in The Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd  was referred to by this Court for the purpose of showing that in the Hindustan Co operative Insurance Society case the Calcutta Improvement Trust Act 1911 referred to the provisions of the Land Acquisition Act by enacting that the provisions of the Land Acquisition Act shall apply as if they were herein re enacted to mean that the Calcutta Improvement Trust Act 1911 in adopting the provisions of the Land Acquisition Act did not intend to bind themselves to any future additions which might be made to the Land Acquisition Act
The other consideration which weighed with the Judicial Comniittee was that the Calcutta Improvement Trust Act did nothing more than incorporate certain provisions from an existing Act and for convenience of drafting did so by reference to that Act instead of setting out for itself at length the provisions which it was desired to adopt
This Court said that there was no analogy between the manner in which the provisions of the Land Acquisition Act had been incorporated in the Calcutta Improvement Trust Act 1911 and the operation of the as a result of section 23A of the Foreign Exchange Regulation Act
Section 23A of the Foreign Exchange Regulation Act was construed to mean that the restrictions imposed by section 8l of the Foreign Exchange Regulation Act shall be deemed to have been imposed under section 19 of the and all the provisions of the shall have effect accordingly
At page 837 of the Report this Court said that a notification issued under section 8l of the Foreign Exchange Regulation Act was deemed for all purposes to be a notification issued under section 19 of the and the contravention of the notification attracted to it each and every provision of the which was in force at the date of the notification
The ratio of the decision in the Madras Customs case  is that the provisions of the were attracted by relation to the provisions of section 19 of the which deal with restrictions or prohibitions on import or export and the notifications under the Foreign Exchange Regulation Act prohibiting import of gold become an integral part of section 19 of the  and therefore the contravention of such a notification would bring into effect each and every provision of the 
In the present case sub section 2 of section 3 of the Imports and Exports Control Act 1947 enacts that goods to which any 1 59 4A 259
2  243 order under sub section 1 applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the and the second limb of subsection 2 of section 3 is that all the provisions of that Act meaning thereby the  shall have effect accordingly
To accede to the contention of counsel for the appellants that only section 19 of the will apply and no other provision of the will be effective or operative will be not only to render the words and all the provisions of that Act shall have effect only otiose but also nugatory
When the statute enacts that all the provisions of that Act shall have effect accordingly it will be an error to hold in spite of the language of such legislation that the provisions of the shall not have effect
The effect of bringing into an Act the provisions of an earlier Act is to introduce the incorporated sections of the earlier Act into the subsequent Act as if those provisions have been enacted in it for the first time
The nature of such a piece of legislation was explained by Lord Esher M R in Re Wood s Estate1 that if some clauses of a former Act were brought into the subsequent Act the legal effect was to write those sections into the new Act just as if they had been written in it with the pen
This Court noticed in the Madras 
Customs case 2 the distinction between a mere reference to or a citation of one statute in another on the one hand and an incorporation on the other for the purpose of showing as to what would be the effect of the repeal of the former statute on the latter statute
It is in that context that this Court observed that if section 19 of the would be repealed then there would no longer be any legal foundation for invoking the penal provisions of the to a contravention of a notification under section 8l of the Foreign Exchange Regulation Act
The ratio is that if the contravention of the notification under the Foreign Exchange Regulation Act is equated with a contravention of the notification under section 19 of the  1878 the effacement of section 19 of the  1 878 from the statute book would naturally remove the substratum of the 
In the present case the provisions of the are attracted by reason of the provisions contained in section 3 of the Imports and Exports Control Act 1947 and on the authority of the decision of this Court in the Madras Customs case  all that can be said is that if section 19 of the were repealed then the would not be attracted
Section 19 of the Sea Customs 1 1881 2 119621 3 SCR 786
has not been repealed and was extant and is now reenacted as section 11 in the Sea and there has been corresponding change in the Imports and Exports Control Act 1947 by reference to the Sea and section 11 thereof
The second question which falls for consideration is whether the Bihar Regulation I of 1951 is in excess of the Governor s powers
The contentions were first that the Regulation I of 1951 could not at all have been made secondly that Regulations deal with the subject matter and did not mean power to apply law and thirdly the power to extend a law passed by another legislature was said to be not a legislative function but was a conditional legislation
The legislation in the present case is in relation to what is described as Scheduled Areas
The Scheduled Areas are dealt with by Article 244 of the Constitution and the Fifth Schedule to the Constitution
Prior to the Constitution the Excluded Areas were dealt with by sections 91 and 92 of the Government of India Act 1935
The excluded and the partially excluded areas were areas so declared by order in Council under section 91
and under section 92 no act of the Federal Legislature or of the Provincial Legislature was to apply to an excluded or a partially excluded area unless the Governor by public notification so directed
Sub section 2 of section 92 of the Government of India Act 1935 conferred power on the Governor to make regulations for the peace and goods government of any area in a Province which was an excluded or a partially excluded area and any regulations so made might repeal or amend any Act of the Federal Legislature or the Provincial Legislature or any existing Indian law which was for the time being applicable to the area in question
The extent of the legislative power of the Governor under section 92 of the Government of India Act 1935 in making regulations for the peace and good government of any area conferred on the Governor in the words of Lord Halsbury an utmost discretion of enactment for the attainment of the objects pointed to
See Riel vs The Queen 1
In that case the words which fell for consideration by the Judicial Committee were the power of the Parliament of Canada to make provisions for the administration peace order and good government of any territory not for the time being included in any province It was contended that if any legislation differed from the provisions which in England had been made for the administration peace order and good government then the same could not be sustained as valid
That contention was not accepted
These words were held to embrace the widest power to legislate for the peace and good government for the area in question
1 LR 10 AC 657 at 658
245 The Fifth Schedule to the Constitution consists of 7 para graphs and consists of Parts A B C and D Paragraph 6 in
Part C deals with Scheduled Areas as the President may by order declare and there is no dispute in the present case that the Santhal Parganas falls within the Scheduled Areas
Paragraph 5 in the
Fifth Schedule deals with laws applicable to Scheduled Areas
Sub paragraph 2 of paragraph 5 enacts that the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area
Undersub paragraph 3 of paragraph 5 the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area
in question
It may be stated that a contention was advanced by counsel for the appellants that section 92 of the Government of India Act 1935 was still in operation and the Governor could only act under that section
This contention is utterly devoid of any substance because section 92 of the Government of India Act 1935 ceased to exist after repeal of the Government of India Act 1935 by Article 395 of the Constitution
It was contended that the power to make regulations did not confer power on the Governor to apply any law
It was said that under section 92 of the Government of India Act 1935 the Governor could do so but under the Fifth Schedule of the Constitution the Governor is not competent to apply laws
This argument is without any merit for the simple reason that the power to make regulations embraces the utmost power to make laws and to apply laws
Applying law to an area is making regulations which are laws
Further the power to apply laws is inherent when there is a power to repeal or amend any Act or any existing law applicable to the area in question
The power to apply laws is really to bring into legal effect sections of an Act as if the same Act had be en enacted in its entirety
Application of laws is one of the recognised forms of legislation
Law can bemade by referring to a statute or by citing a statute or by incorporating a statute or provisions or parts thereof in a piece of legislation as the law which shall apply
It was said by counsel for the apppellants that the power to applv laws under the Fifth Schedule was synonymous with conditional legislation
In the present case it cannot be said that the Bihar Regulation I of 1951 is either a piece of delegated legislation or a conditional
legislation
The Governor had full power to make regulations which are laws and just as Parliament can enact that a piece of legislation will apply to a particular State similarly the Governor under paragraph 5 of the Fifth Schedule can apply specified laws to a Scheduled area
The Bihar Regulation I of 1951 is an instance of a valid piece of legislation 246 emanating from the legislative authority in its plenitude of power and there is no aspect of delegated or conditional legislation
The question which next arises for consideration is whether the applied on the relevant date of occurrence namely 13 December J961 to the Santhal Parganas
The was enacted in the year 1924 and it was declared to apply to the Santhal Parganas
Prior to the Constitution the Central Acts or Federal Acts or Acts of the Dominion Legislature did not apply to an excluded or a partially excluded area unless they were declared by the Governor to apply to those areas
After the enactment of the Constitution Article 244 and the Fifth Schedule deal with excluded or partially excluded areas
It was contended on behalf of the State that after the enactment of the Constitution the became applicable to excluded or partially excluded areas because first it was an existing law and secondly the restriction under section 92 of the Government of India Act 1935 which required a specific declaration of the Governor to apply any legislation to the areas in question was no longer operative
Article 372l of the Constitution enacts that the law in force in the territory of India immediately before the commencement of the Constitution is to continue in force until altered or repealed or amended by a competent legislature or other competent authority
Explanation I to Article 372 is that law in force in the Article shall include a law passed or mad by the legislature or other competent authority in the territory of India before the commencement of the Constitution not withstanding that it or parts of it may not be then in operation either at all or in particular area or areas
The contention on behalf of the respondent that the would apply to the Santhal Parganas on the ground that it is an existing law is not acceptable
Article 372 in clause 1 thereof enacts that subject to the other provisions of this Constitution all the laws in force in the territory of India shall continue in force
The Fifth Schedule to the Constitution relates to excluded or partially excluded areas
The existing law in relation to the excluded areas is saved by Article 372 and Explanation I thereto in spite of operation of such laws in particular areas
Similarly other laws which were applicable to territories other than the excluded or partially excluded areas are saved by Article 372 Explanation 1
Therefore laws which were existing law in territories other than excluded or partially excluded areas would not be existing law under Article 372 in relation to excluded or partially excluded areas
Nor would existing law for the rest of India be existing law to area in question within the meaning of paragraph 5 in the Fifth Schedule to the Constitution
The Land 247 Customs Act 1924 cannot therefore be said to apply to Santhal Parganas as an existing law
The present day sources of law making in the Santhal Par ganas which are included in the Scheduled Areas are Article 244 and the provisions in the Fifth Schedule to the Constitution
Clause 5 of the Fifth Schedule has two sub clauses
Under subclause 1 the Governor is empowered notwithstanding anything in the Constitution to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply to a Scheduled Area subject to such exceptions and modifications as the Governor may specify in the noti fication
Sub clause 1 of clause 5 of the Fifth Schedule to the Constitution speaks of Acts of Parliament or of the Legislature of the State and therefore Central Acts or Provincial Acts prior to the Constitution are not contemplated within sub clause 1 of clause 5
Sub clause 2 of clause 5 of he Fifth Schedule confers power on the Governor to make regulations for the peace and good Government of any area in a State which is a Scheduled Area
Under sub clause 2 the Governor has power to make laws which will include the power to apply to Scheduled Areas Central laws or Provincial laws enacted prior to the Constitution
Prior to the Constitution section 92 of the Government of India Act 1935 conferred power oil the Governor to make regulations for excluded and partially excluded areas which included the Santhal Parganas
In making such regulation the Governor could repeal or amend any Central law or any Provincial Acts and the regulations were to be submitted to the Governor General for assent
The Central or the Provincial Acts under sub section 1 of section 92 of the Government of India Act 1935 however were not applied to excluded and partially excluded areas unless the Governor so directed
Prior to the Government of India Act 1935 the Governor General in Council in 1872 promulgated the regulation known as Santhal Parganas Settlement Regulation and section 3 of the said Regulation provided the enactments specified in the Schedule thereto which would be in force in the Santhal Par ganas
Section 3 2 of the Santhal Parganas Settlement Regulation of 1872 in so far as it seeks to affect future legislation would not have any force after 26th January 1950
In this background it appears that the and the were not made applicable to Santhal Parganas either under the Santhal Parganas Settlement Regulation of 1872 or under any notification issued under section 248 92 of the Government of India Act 1935
Neither the nor the has been specifically made applicable to the Santhal Parganas by any notification under sub clause 2 of clause 5 of the Fifth Schedule
The Bihar Scheduled Laws Regulation being Regula tion I of 1951 which was promulgated under sub clause 2 of clause 5 of the Fifth Schedule for the purpose of applying certain laws to Santhal Parganas however made the Imports and Exports Control Act 1947 and the Imports and Exports Amendment Act 1949 applicable to Santhal Parganas
We have already stated as to how the is made applicable to Santhal Parganas by reason of the provisions contained in the Imports and Exports Control Act 1947
Though the does not apply to Santhal Parganas we have indicated hereinafter as to how because of the application of section 6 of the  officers of Land Customs appointed under the are treated as Customs Officers having jurisdiction in the Santhal Parganas
The Central Excise and Salt Act 1944 was however made applicable to the Santhal Parganas by a notification dated 14 September 1944 but the application of that Act is not in issue in the present appeal
One of the questions in the present appeal was whether the Indian Tariff Act 1934 applied to the Santhal Parganas
The articleswhich were seized in the present appeal viz cloves were dutiable articles being item 93 in column 3 in the First Schedule to the Indian Tariff Act 1934
We have already indicated as to how by reason of operation of section 3 of the Imports and Exports Control Act 1947 cloves became an article the import or export of which was prohibited under section 19 of the 
No notification of application of the Indian Tariff Act 1934 to the Santhal Parganas was shown to the High Court
It will appear in volume 7 page 5792 of the Bihar Local Acts 1793 to 1963 published by Bharat Law House Allahabad in the year 1966 that the Indian Tariff Act 1894 is found to be one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation 1872 and the Indian Tariff Act 1894 which was repealed by the  Indian Tariff Act 1934 was similarly declared to be in force in the Santhal Parganas
The Inspectors Uma Shankar and B N Jha were Customs Officers engaged in public duty
They arrested the appellant Nazir Mian under section 173 of the on a reasonable suspicion
The Inspectors further arrested the appeallant Nazir Mian under section 178 of the 
Section 178 of the empowered the 249 A Customs Officer to seize smuggled goods under the Act
The questions which have to be decided in the present case are first whether the Inspectors Uma Shankar and B N Jha were acting in the discharge of public duties secondly whether they could arrest the appellants and thirdly whether they could seize the cloves
The oral evidence of Inspector Uma Shankar is that he B was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence Section
He said that he was posted at Barharwa since the month of January 1961 and his jurisdiction was Pakur Dumka and Sahibganj
He also said that his duty was the prevention of smuggling of contraband commodities
Inspector B N Jha in his oral evidence said that he was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence section and Pakur Dumka and Sahibganj were within his jurisdiction of work The Imports and Exports Control Act 1947 in sub section 2 of section 3 enacted that goods to which sub section 1 applied would be deemed to be goods the import or export of which would be a restriction under section 19 or the sea Customs Act 1878 and all the provisions of that Act shall have effect accordingly
The Imports and Exports Control Act 1947 conferred power on the Central Government to make provisions prohibiting restricting and controlling import and export
The Imports Control Order 1955 was made by virtue of power conferred by section 3 of the Imports and Exports Control Act 1947
Schedule I Part IV item 23 of the Imports Control Order 1955 mentions cloves within the class of goods the import of which is prohibited
Therefore cloves come under the prohibition of section 3 of the Imports and Exports Control Act
1947 read with clause 3 of the Imports Control Order 1955 and F are goods which are prohibited from being imported
The Imports Control Order 1955 mentions that each entry in column 2 of Schedule I to the said Order has the same meaning as specified against the said item in column 3 of the First Schedule to the Indian Tariff Act
Schedule I to the Imports Control Order 1955 gives in a tabular form the names of articles as also G the corresponding items to the Indian Tariff Act
Cloves which are mentioned as item No 23 of Schedule I of Part IV of the Imports Control Order 1955 have the same meaning corresponding to item No
93 in column 3 in the First Schedule to the Indian Tariff Act 1934
It therefore follows that cloves are goods the import of which is prohibited by the Imports and Exports Control Act 1947 and they are dutiable goods by reason of that meaning of cloves in column 3 item No 9 3 of the First Schedule to the Indian Tariff Act 1934 having been attracted by the Imports Control Order 1955
Cloves are pro 250 hibited goods within the Imports and Exports Control Act 1947A and are therefore deemed to be prohibited under section 19 of the 
The Inspectors who arrested the appellant Nazir Mian and the other accused and seized the articles were Officers of Central Excise and Customs
In the present case there are two notifications
The first is a notification No 69 Cus dated 28 September 1951 under section 6 of the which is set out as follows  In exercise of the powers conferred by section 6 of the VIII of 18778 and in supersession of the Government of India in the Ministry of Finance Revenue Division Notification No 71 dated the 12th August 1950
the Central Government hereby appoints all the Land Customs Officers who have been appointed or may be appointed from time to time to be such under sub section 1 of section 3 of the XIX of 1924D to be Officers of Customs for their respective jurisdiction and to exercise the powers conferred and to perform the duties imposed on such officers by the first named Act
The second is a notification No CBR Notification 1  LCus
E dated 25th January 1958 as amended by No 8 LCus
dated 117th May 1958 under the which is setout as follows In exercise of the powers conferred by sub sec tion 1 of section 3 of the Land Customs Act 1924F 19 of 1924 read with the notification of the Government of India in the late Finance Department Central Revenue No 5944 dated the 13th December 1924 and in supersession of its notification No 56 Customs dated the 24th July 1951 as subsequently amended the Central Board of Revenue hereby appoints all  Deputy Collectors Assistant CollectorsHeadquarters Assistant Collectors Superintendents Deputy Superintendents Inspectors Nakedars Supervisors Range Officers Assistant Range Officers Women Searchers Jemadars Petty Officers Amaldas Sepoys and Peons
including all the officers of Central Excise employed for the time being on the Central Excise or Customs Preventive intelligence work and attached to the Headquarters and the Circle and
Divisional Officers of the Collectorate of Central Excise 251 Delhi Allahabad Patna Shillong Madras Bombay and Baroda to be Land Customs Officers within the jurisdiction of the respective Collectors of Land Customs under whom they are working 
It will appear from the aforementioned notifications first that under section 6 of the Land Customs Officers are appointed Officers of Customs
It is manifest the provisions of the apply and therefore the Land Customs Officers are appointed Officers of Customs under the 
Secondly the notification under the is that all the Officers mentioned therein including the Inspectors of the Central Excise employed on the Central Excise or Customs Preventive Intelligence work and attached to the Headquarters are Land Customs Officers
The combined effect of both the notifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as a result of the application of the 
Counsel on behalf of the appellants contended that there was no evidence to warrant the Customs Officers to arrest the appellants under section 173 of the because such an arrest could be made only if there was a reasonable suspicion in existence
The evidence in the present case established the following facts
First the appellant Nazir Mian had in possession two bags of cloves and no duty was paid on those cloves
Secondly the appellant Nazir Mian kept the cloves
in two bags and concealed the same in the latrine of the railway compartment
Thirdly the cloves were dutiable goods and there was prohibition on the import of those goods
Fourthly Pakur was at a distance of only 1 1 and 12 miles from the East Pakistan border
Fifthly cloves are not grown in India
These circumstances indicated a reasonable suspicion and therefore the Officers were justified in arresting the appellant Nazir Mian under section 173 of the 
It was contended on behalf of the appellants that though under section 178 of the  the Customs Officers could seize the goods there was no notification under section 178A of the imposing restrictions on import of cloves and therefore
the onus of proof could not be shifted to the appellants under section 178A of the 
The correct legal position is that in the absence of special notification under section 178A specifying goods to which the section applies the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the 
In 252 view of the fact that in the present case the seized articles were removed by the accused it is unnecessary to deal any further with this aspect of the case because if any order were passed for return of the bags the order could not be enforced
For these reasons the appeal fails and is dismissed
The appellants will surrender to the District Magistrate Santhal Parrganas to serve the sentences
Appeal dismissed


Summary:
One Nazir Mian was arrested at Pakur Railway Station in the Santhal Parganas of Bihar by two Inspectors and a constable belonging to the Central Excise Department
The Inspectors were employed on Central Excise and Customs Prevention intelligence work
Two bags of clove on which duty was required to be paid under the Imports Control Order 1955 but had not been paid were seized from the possession of Nazir mian who had locked himself inside the latrine of a railway compartment in the said station
The arrest and seizure were effected under sections 173 and 178 of the 
Helped by certain persons Nazir Mian escaped and the cloves were also taken away
In the scufflee the said two Inspectors were injured one grievously
Alongwith four others Nazir Mian was tried in connection with the incident
The charges against the accused included the offences of offering resistance to the lawful Apprehension of Nazir Mian and of causing hurt to a public servant in the discharge of his official duties
Four of the accused including the three appellants were convicted by the trial Court
The High Court dismissed their appeals
In appeal by special leave against the judgment of the High Court the appellants contended before this Court that  1 The did not apply to the place of occurrence and therefore the arrest purporting to have been made under sections 173 and 178 of that Act and the seizure of the cloves were unlawful
ii The did not apply to the place of occurrence and therefore the Inspectors were not officers of Customs who could invoke the authority of the to arrest and seize the appellant Nazir Mian iii The seizure of cloves was not authorised by section 178 of the nor was the arrest authorised under section 173 of he  iv Section 178A of the could not apply because there was no notification to attract the application of the said section
HELD  i The was applicable to the Santhal Parganas by virtue of section 32 of the Imports  Exports Control Act 1947 up
CI70 16 234 which had been made applicable by the Governor to the Santhal Parganas under Bihar Regulation I of 1951
Sub section 2 of section 3 of the Imports  Exports Control Act 1947 enacts that goods to which any order under sub section 1 applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the and the second limb of subsection 2 of section 3 is that all the provisions of that Act The  1878 shall have effect accordingly
To accede to the contention on behalf of the appellants that only section 19 of the will apply and no other provisions of the will be effective or operative will be not only to render the words and all the provisions of that Act shall have effect otiose but also nugatory
When the statute enacts that all the provisions of that Act shall have effect accordingly it will be an error to hold in spite of the language of such legislation that the provisions of the Sea Customs act shall not have effect
the effect of bringing into an Act the provisions of an earlier Act is to introduce the incorporated sections of the earlier Act into the subsequent Act as if these provisions have been enacted in it for the
first time
242 H 250 Di All that can be said on the authority of the Madras Customs case is that if section 19 of the were repealed then the would not be attracted
Section 19 of the has not been repealed and was extant and is now re enacted as section 11 in the Sea and there has been corresponding change in the Imports and Exports Control Act 1947 by reference to the Sea and section 11 thereof
243 H The Collector of Customs Madras vs Nathella Sampathu Chetty The Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd referred to
Re  Wood s Estate  applied
Bihar Regulation 1 of 1951
was not in excess of the Governor s powers
The Santhal Parganas are included in the Scheduled
Areas dealt with in article 244 and the Fifth Schedule to the Constitution
Paragraph 5 in the Fifth Schedule deals with laws applicable to Scheduled Areas
Sub paragraph 2 of Paragraph 5 enacts that the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area
Under sub paragraph 3 of paragraph 5 the Governor may repeal or amend any Act of Parliament or any Act of the legislature of the state or any existing law which is for the time being applicable to the area in question
The Bihar Regulation I of 1951 is a valid piece of legislation emanating from the legislative authority of the Governor in its plenitude of power
The contentions s did not include the that the Governor s power of making regulation power to apply laws and that the Bihar Regulation I of 1951 is either piece of delegated legislation or a conditional legislation could not be accepted
245 B C H Riel vs The Queen LR 10 AC 657 referred to
ii The was not applicable to the Santha
Parganas as an existing law within the meaning of article 3721 of the Constitution
it was also not made applicable to the Santhal Parganas by the Governor by the exercise of power under the Government of India Act or the Constitution
Nevertheless by virtue of notification No 6 235 Cus
dated 28th September 1951 under section 6 of the and notification No CBR Notification 1
L Cus
dated 25th January 1958 as amended in May 1958 the two Inspector s in the present case had authority to arrest the appellant Nazir Mian and to seize the bags of cloves in his possession
From the said notifications it appeared that under section 6 of the Sea Customs Act 1818 Land Customs Officers arc appointed Officers of Customs
Secondly the notification under the is that all the officers mentioned therein including the Inspectors of Central Excise employed on the Central Excise or Customs Prevention Intelligence Work and attached to the Headquarters are Land Customs Officers
The combined effect of both the notifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as a result of the application of the 
246 H 251 B D iii a The import of cloves was prohibited under the Imports Control Order 1955 made under section 3 of the Imports  Exports Control Order 1947
They were also dutiable goods under the Indian Tariff Act 1934 which was applicable to the Santhal Parganas being one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation 1872
Being prohibited goods under the Imports  Exports Control Act 1947 cloves are deemed to be prohibited under section 19 of the 
250 Al b The evidence in the present case established the following facts
First the appellant Nazir Mian had in possession two bags of cloves and no duty was paid on those cloves
Secondly the said appellant kept the cloves in two bags and concealed the same in the latrine of the railways compartment
Thirdly the cloves were dutiable goods and there was prohibition on the import of those goods
Fourthly the place o f occurrence was at a distance of only 11  12 miles from the East Pakistan border
Fifthly cloves are not grown in India
These circumstances indicated a reasonable suspicion and therefore the Officers were justified in arresting the appellant Nazir Mian tinder section 173 of the 
1251 E iv In the absence of special notification under s 178A of the specifying goods to which the section applies the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the