JAGANNATH SONU PARKAR Vs. STATE

JUDGEMENT

(1.) [His Lordship after considering the evidence in the case and upholding the convictions, proceeded.] Mr. Kode relying on the decision in B. Ultrich v. Asst. Collector of Customs : AIR1960Ker335 contended that the learned Magistrate was in error in convicting the accused both under Clause (81) of the Schedule to Section 167 of the Sea Customs Act and also under Section 8(1) read with Section 23(1 -A) of the Foreign Exchange Regulation Act, 1947. It seems to us that the contention is not well founded.

(2.) SECTION 8(1) of the Foreign Exchange Regulation Act, 1947, enables the Central Government by notification to order that no person shall, except with the general or special permission of the Reserve Bank of India bring or send into India any gold or silver. Section 23, as it originally stood, provided for penalties and procedure for imposing the same and contained four sub -sections. Sub -section (1) provided a penalty of two years imprisonment or fine or both for any breach of any of the provisions of the Act or of any order, rule, direction made or issued under the Act. The other sub -sections are not necessary to be referred for the present purpose. By Act VIII of 1952 a new Section 23(A) was added. It is as follows: 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...shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878 and all 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.

(3.) IT would seem that any breach of the restrictions under Section 8 of the Foreign Exchange Regulation Act which were deemed to be made under Section 19 of the Sea Customs Act, would be an offence under the latter Act, under Clause 8 of the schedule in Section 167 under which the penalty is one of fine and confiscation. By Act X of 1963, Clause 81 was introduced in the schedule to Section 167 of the latter Act, The clause is complicated and provides for a large many matters. It may be broken up into its constituent parts as follows: (1) If any person knowingly or with intent to defraud the Government of any duty payable thereon acquires possession or is concerned in carrying or removing, depositing, harbouring or concealing or in any manner dealing with goods (a) which have been unlawfully removed from a warehouse (b) or which are chargeable with a duty which has not been paid (c) or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force. (2) If any person knowingly and with intent to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession or is concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods (a) which have been unlawfully removed from a warehouse (b) or which are chargeable with a duty which has not been paid (c) or with respect to the importation or restriction of which any prohibition or restriction is for the time being in force as aforesaid. (3) If any person is in any way knowingly concerned in any fraudulent evasion or attempt at evasion (a) of any duty chargeable as aforesaid (b) or of any prohibition of this Act applicable to those goods.