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COLLECTOR OF CUSTOMS AND CENTRAL EXCISE,

BHUBNESHW AR, DISTRICT PURI

PARADIP PORT TRUST AND ANR.

AUGUST 8, 1990

[K.N. SAIKIA AND S.C. AGRAWAL, JJ.]

Customs Act, 1962: Chapter XIV and XVI-Sections 177, 133

and 151-Contravention of provisions under Chapter XVI-Whether amounts to abetment of contravention of any other provision under Chapter XIV-Order passed under section 117 only-High Court not gone into this aspect-Also Second Respondent not represented-Matter C remanded to High Court for fresh disposal.

A commercial vessel which arrived at Paradip Port was rummaged by the Customs Officers aod contrabaod goods worth more thao Rs.1,40,000 were recovered. The officers also detained the vessel by issue of a notice to the Master of the vessel with a copy to the second respondent, the Deputy Conservator of Paradip Port Trust.

At the instaot of the second respondent aod aoother, the vessel was shifted to the reads far away from the port in the high sea. This resulted in the interruption of the rummaging operation and the vessel being ten unguarded for about 38 hours, during which period it was alleged that the contrabaod goods disappeared from the vessel.

The second respondent was asked to show cause as to why be should not be proceeded against and why penalty should not be impose() on him, under Sections 117 and 151 of the Cnstoms Act, 1962. 1n his reply, the second respondent took the plea that the Customs aod Central Excise Authorities had no jurisdiction to initiate proceedings against him and that section 151 of the Ac< was not attracted. Rejecting his plea, the Collector imposed a penalty of Rs.1,000 nnder section 117 of the Act.

The said order of the Collector was challenged in the High Conrt by way of-writ petitions. The High Conrt allowerl the writ petitions aod quashed the penalty. This appeal, by special leave, is against the orders of the High Conrt quashing the penalty.

On behalf of the appeDaot it was contended that Section 133 H

A creates an offence and also prescribes a penalty, and though the section "'- is referable to Court in so far as prosecution and punishment is concerned for the offence, there would be no bar to deal with that offence under s. 117 of the Act. It was also contended that there would be no double jeopardy if in an appropriate case one has been prosecuted and punished under the sections in Chapter XVI of the Act and also sub- B jected to penalty under the provisions other than those in Chapter XVI

of the Act for offences including those in Chapter XVI of the Act.

Allowing the appeal,

HELD: 1. Where the same Act or event constitutes an offence under Chapter XVI and at the same time constitutes a contravention or abetment of contravention of any of the provisions of the Act or failure to perform any duty prescribed under the Act or amounts to noncompliance with any of the provisions of the Act, there will be pos!ibility of prosecution and punishment under Chapter XVI of the Act and any other provision of law and the same time confiscation and penalty under Chapter XIV of the Act. [7 lOG-Hi

2. In the instant case, the vessel could, therefore, lawfully be detained, rummaged and the goods suspected seized. There may be scope for holding that there was intentional obstruction on the part of the second respondent if the allegations are proved. Where there was an E order for seizure it would amount to obstruction under s. 186 IPC if the goods were not allowed to be removed. Obstruction is not confmed to physical obtstruction and it includes anything which makes it more difficult for the police or public servant to carry out their duties. [7 I IB; Fj

Santosh Kumar v. State. AIR J95J SC 201 and Hinchliffe v.

F Sheldon, [1955) l WLR 1207, referred to.

3. In the Collector's order, though there was discussion of offence under s. 133 and failure to perform duty under s. 151, the order itself was passed ex facie under the provisions of S. 117 of the Act. There is no discussion in the High Court's order on this aspect of the matter and G there is no indication as to whether this was urged or not before the High Court. Further, since the second respondent is not represented before this Court, the said order is set aside and the cases remanded 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 H record. l 7 JIU; 712A-B J

COLLECTOR OF CUSTOMS v. PARADIP PORT TRUST ISAIKIA, J.] 707

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. _,> _ 6247-48 of 1983.

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From the Judgment and Order dated 3.7.1980 of the Orissa High Court in Original Jurisdiction Case Nos. 91and155 of 1977.

Kapil Sibal, Additional Solicitor General, Dilip Tandon and B CVS Rao for the Appellant.

Mrs. Bharati Anand (N.P.) for the Respondents.

The Judgment of the c; ourt was delivered by

K.N. SAIKIA, J. These apppeals 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 Customs Act of 1962 (hereinafter referred to as 'the Act').

A commercial vessel M.V. 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 contraband goods worth more than Rs.1,40,000 (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 V .L. Choudhary, Deputy Conservator of Paradip Port Trust. At the instance of Sri V.L. Choudhary and another the vessel was shifted to the reads i.e. 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 disappeared from the vessel. Sri V .L. Choudhary was asked to show cause as to why for his failure to comply with the provisions 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 M. V. 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 V .L. Choudhary H

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.1,000 upon Sri V.L. Choudhary under section 117 of the Act. The operative B part of the order said:

"I, therefore, impose a penalty of Rs.1,000 (Rs. one thousand) on Sri V .L. Choudhary, Deputy Conservator of

Paradip Port, under section 117 of the customs act, 1962.

The penalty should be deposited into any Government Treasury/State Bank of India within a fortnight from the date of receipt of this order under head 1037-Customs Miscellaneous, Receipts, Fines, Rent, etc."

The order of the Collector was challenged in two writ petitions D 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 E therein, and as such section 133 must be referring to Court and not to the Collector as the punishing authority, wherefore, 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 Customs Officers, but the two officers were employee of the Port Trust and were not officers mentioned in clauses ( d) or ( e) of F 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 notification in the official gazette so as to bring the two officers under clause (e).

G Mr. Kapil Sibal, learned Additional Solicitor General of India, has not seriously assailed the finding that the officers did not come under S. 151 of the Act. His main submissions assailing the finding as to applicability of S. 133 of the Act are that S. 133 both creates an offence and also prescribes a penalty, and though the section is refer- H able to Court in so far as prosecution and punishment is concerned for

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the offence, there would be no bar to deal with that offence under S.

A 117 of the Act. Counsel submits that even assuming but not admitting that S. 133 referred only to Court and the offence could not otherwise be dealt with, Sri V.L. Choudhary having abetted the contravention of the provisions of the Act he made himself liable to penalty of not exceeding Rs. l,000 under S. 117 of the Act and the penalty was rightly imposed on him by the Collector; and the High Court ought not to have B set aside the penalty. Counsel further submits that under ihe Customs Act there would be no double jeopardy if in an appropriate case one has been prosecuted and punished under the sections in Chapter XVI of theAct 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. c

None appears for the respondents.

To weigh the submissions, we may examine the relevant provisions of the Act. Admittedly, 'offence' has not been defined in the Act. Chapter XVI in ss. 132 to 140A deals with "Offence~. and Pro- D secutions". Section 132 constitutes false declaration, false documents, etc. an offence. Section 133 constitutes obstruction of officer of customs an offence. Similarly, by s. 134, refusal to be ex-rayed, by S. 135, evasion of duty or prohibition are constituted offences. It may be noted that S. 135(1) is 'without prejudice to any action that may be taken under this Act.' This clearly envisages any action that may be E 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 culpable mental state where such a state is necessary.

Chapter XIV in ss. 111-127 deals with confiscation of goods and conveyance and imposition of penalties. Section 120 provides for confiscation of smuggled goods notwithstanding 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 G 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 H

A which the person affected thereby is liable under the provisions 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

B 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 c comply, where no express penalty is elsewhere provided - for such contravention or faiiure, shall be liable to a penalty not exceeding Rs. !,000.

Though included in Chapter XIV, S. 117 provides for penalties

D for contravention of any provision of the Act, an abetment of any such contravention or failure to comply with any provisi?,_n 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.1,000 has been prescribed.

E From the foregoing provisions, we find that for the same transac-

'I'" _tion, 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

F 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 XVI 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 contravention. Where the same act or event

G constitutes an offence under Chapter XVI and at the same time constilutes a contravention or abetment of contravention of any of the provisions 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

.A__.

Act, there will be possibility of prosecution and punishment under Chapter XVI of the Act and any other provision of law and at the same

H time confiscation and penalty under Chapter XIV of the Act.

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As regards the allegations in the case, under s. 106(1) of the Act A 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 . S. 110( 1) if the proper officer has B reason to believe that any goods , are liable to confiscation under the Act, he may seize such goods. Setion 111 provides for confiscation of improperly imported goods. Und.er the facts alleged in this case, the vessel could, therefore, lawfully b.e detained, rummaged and the goods suspected seized. It was alleged ihat the shifting of the vessel was on order of the second respondent apd that because of the shifting to the reads away in the deep sea the proper officers had to leave the vessel C 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 read~:

"133. Obstruction of officer of customs: If any person intentionally obstruct~ any officer of customs in the exercise of any powers ccinferred 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." E

There may be scope for , holding that there was intentional obstruction on the part of the se<iond respondent if the allegations are proved. In Santosh Kumar v. State, AIR 1951SC201: [1951] SCR 303 it was held that where there was' an order for seizure it would amount to obstruction under s. 186 IPC _if the goods were not allowed to be F removed. On the authority of Hinchliffe v. 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 provsions of the Act? Was there any abetment to alleged smuggling of the G goods seized and those which could have been seized?

In the Collectors orders, though there was discussion of offence under S. 133 and failure to perform duty under S. 151, the order itself was passed ex facie under the provisions of S._ 117 of the Act. On perusal of the impugned judgment of the High Court, we do not find H

A 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 respondent is not represented before us, we are inclined to

B 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 - "'-a..- record; and we order accordingly.

G.N.

Appeal allowed.

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