Case: Shri Tara Chand Vs. Superintendent of Central Excise, Bombay

gold in contravention of any provisions 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 that the said Sri Tarachand is liable to action under Rule 126P (2) of the Defence of India Amendment Rules, 1963 for, reasons mentioned 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 No. F25/1/63-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 Sri Tarachand as required under Rule 126Q of the Defence of India Amendment Rules, 1963."12. 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.13. The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed they should be held to confer power only to prosecute but not to accord consent to the appellants prosecution by some other person or authority has not impressed us. The attempt by the appellants learned counsel in this connection to equate these notifications with powers of attorney does not carry the matter any further. The plain reading, of the relevant entries in the notifications leaves no doubt in our mind as to its meaning, scope and effect. It quite clearly authorises the Collector to exercise the 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 Rule 126-Q.Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems to us that after the responsible officers 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 the real object and purpose of the notifications 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 effectuating, their real purpose We are thus in agreement, with the view taken by the High Court.14. The counsel next submitted that 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 defence. 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 turn hidden inside a pillow case. He was stated to be guilty inter alia of offences punishable under Rule 126-P (2). The second charge framed by the Court was as follows:"That you on or about the 16th November, 1963 at about 12.45 hours at H A L Aerodrome, Bangalore, alighted from the plane No. 105 which arrived from Bombay and when you and your articles were searched, 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 illegally 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 126-H (d) under the Defence of India Amendment Rules, 1963 and thereby committed an offense under Rule 126P (2) r/w 126-I (10) of the Defence of India Amendment Rules, 1963 relating to Gold Control and within my cognizance".The appellant never complained that this charge was vague or outside the complaint. Indeed in his statement in Court the appellant has admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the appellants case Within the mischief of Rules 126-H (2) (d) and 126-P (2). Rule 126-H (2) (d) has already been reproduced earlier. Under Rule 126-P (2) (ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less 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 question of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wide. This argument is accordingly repelled.15. Lastly the counsel contended that the sentence imposed was too severe. The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice. We have already noticed that under Rule 126P (2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant the law has since been amended and under the Gold (Control) Act 18 of 1965 which has repealed Part XII-A of the Rules there is no minimum sentence of imprisonment prescribed. In our opinion this case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, l965. 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 m regard to the question of sentence.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. 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.13. The submission that these notifications must be construed strictly because by these instruments the authority to prosecute is delegated and so construed they should be held to confer power only to prosecute but not to accord consent to the appellants prosecution by some other person or authority has not impressed us. The attempt by the appellants learned counsel in this connection to equate these notifications with powers of attorney does not carry the matter any further. The plain reading, of the relevant entries in the notifications leaves no doubt in our mind as to its meaning, scope and effect. It quite clearly authorises the Collector to exercise the 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 Ruleappellant never complained that this charge was vague or outside the complaint. Indeed in his statement in Court the appellant has admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the appellants case Within the mischief of Rules 126-H (2) (d) and 126-P (2). Rule 126-H (2) (d) has already been reproduced earlier. Under Rule 126-P (2) (ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less 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 question of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wide. This argument is accordingly repelled.15.Lastly the counsel contended that the sentence imposed was too severe. The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice.We have already noticed that under Rule 126P (2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant the law has since been amended and under the Gold (Control) Act 18 of 1965 which has repealed Part XII-A of the Rules there is no minimum sentence of imprisonment prescribed. In our opinion this case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, l965. 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 m regard to the question of sentence.