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

1. This appeal by special leave is directed against the judgment and order of the Mysore High Court on appeal setting aside in part the order of the appellants acquittal by a Second Class Magistrate and convicting him under Rule 126-P (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 Section 135 of the Customs Act was upheld.2. The appellant alighted from a service plane at H. A. L Aerodrome, Bangalore on November 16, 1963 at about 12.45 in the afternoon, E. R. Fariman, Inspector, C. I. D. had prior incriminating information about the arrival of a person whose description seemed to tally with that of the appellant. The Inspector and his staff who were on the look out waited for the appellant to take his baggage from the baggage counter. As soon as the appellant took delivery of a 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 Panchawatdars the plastic bag and the hold-all were opened and examined. From a pillow taken out of the hold-all were found two tape bags containing 16 pieces of gold with foreign markings. These tape bags had been put into the pillow which was then stitched. The appellant was then produced by the Inspector before his D. S. P. along with the articles seized from him. After obtaining sanction from the Collector under Section 137 (1) of the Customs Act and under Rule 126-Q of the Rules Shri Rasool, Superintendent of Central Excise (P. W. 3) filed the complaint.3. 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 the offence under Section 135 of the Customs Act. The learned Magistrate did not draw any presumption 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 Collector of Central Excise and Customs.4. While considering the case against the appellant under Rule 126-P (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 modification of the earlier one issued under Rule 126-J read with Rule 126-X of the Rules, it is either the Assistant Collector of 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 delegate the right to institute prosecutions with which he alone had been clothed. Exhibit P/5 was in the circumstances considered to be ineffective. On this reasoning the complaint having not been filed by the officer competently authorised the appellant was acquitted.5. 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 pointed out that the appeal by the complainant was confined only to the acquittal under Rule 126-P (2) of the Rules and the appellants acquittal under Section 135 of the Customs Act was not questioned, it being conceded that there was no evidence on the record to bring the appellants case under Section 135 of the Customs Act.6. The High Court relying on Ex. P/5 and the two notifications 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 Rule 126-P (2) of the Rules. The appeal was accordingly allowed and the appellant convicted and sentenced to rigorous imprisonment for six months.7. In this Court Shri Tarkunde assailed the legality of the view taken by the High Court. According to him the trial Court had rightly held the prosecution not to have been instituted by a duly authorised person.

Reasoning: 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.