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PETITIONER: COLLECTOR OF CUSTOMS AND CENTRAL EXCISE,BHUBNESHWAR, DISTRIC

       Vs.

RESPONDENT: PARADIP PORT TRUST AND ANR.

DATE OF JUDGMENT08/08/1990

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) AGRAWAL, S.C. (J)

CITATION:  1990 AIR 1897            1990 SCR  (3) 705  1990 SCC  (4) 250        JT 1990 (3)   447  1990 SCALE  (2)224

ACT:     Customs  Act, 1962: Chapter XIV and  XVl--Sections  177, 133  and  151--Contravention  of  provisions  under  Chapter XVl--Whether  amounts  to abetment of contravention  of  any other  provision under Chapter XIV--Order passed under  sec- tion  117 only--High Court not gone into  this  aspect--Also Second  Respondent not represented--Matter remanded to  High Court for fresh disposal.

HEADNOTE:     A  commercial vessel which arrived at Paradip  Port  was rummaged by the Customs Officers and contraband goods  worth more  than  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 instant of the second respondent and another, 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 left unguarded  for about 38 hours, during which period it was alleged that  the contraband goods disappeared from the vessel.     The second respondent was asked to show cause as to  why he  should not be proceeded against and why  penalty  should not  he  imposed on him, under Sections 117 and 151  of  the Customs Act, 1962. In his reply, the second respondent  took the plea that the Customs and Central Excise Authorities had no jurisdiction to initiate proceedings against him and that section  151  of the Act was not  attracted.  Rejecting  his plea,  the  Collector imposed a penalty  of  Rs.1,000  under section 117 of the Act.     The  said order of the Collector was challenged  in  the High Court by way of writ petitions. The High Court  allowed the writ petitions and quashed the penalty. This appeal,  by special  leave,  is  against the orders of  the  High  Court quashing the penalty, On behalf of the appellant it was contended that Section 133 706 creates an offence and also prescribes a penalty, and though the  section s referable to Court in so far  as  prosecution and punishment is concerned for the offence, there would  be

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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- jected  to penalty under the provisions other than those  in Chapter  XVI  if  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 ruder Chapter XVI and at the same time constitutes a contravention  or  abetment of contravention of any  of  the provisions  of  the Act or failure 0 perform any  duty  pre- scribed  under the Act or amounts to noncompliance with  any of  the provisions of the Act, there will be possibility  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. [710G-H]     2.  In  the instant case, the vessel  could,  therefore, lawfully  be  detained,  rummaged and  the  goods  suspected seized. There may be cope for holding that there was  inten- tional  obstruction on the part of he second  respondent  if the  allegations  are proved. Where there was an  order  for seizure  it would amount to obstruction under s. 186 IPC  if the goods were not allowed to be removed. 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. [711B; F]     Santosh  Kumar v. State. AIR 1951 SC 201 and  Hinchliffe v. sheldon, [1955] 1 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  provi- sions  of S. 117 of the Act. There is no discussion  in  the High Court’s order on this aspect of the matter and here  is no indication as to whether this was urged or not before the High  Court.  Further, since the second  respondent  is  not represented  before his 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  or making  their submissions on the basis of the  evidence  al- ready on record. [711H; 712A-B] 707

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  6247˜48 of 1983.     From the Judgment and Order dated 3.7.1980 of the Orissa High Court in Original Jurisdiction Case Nos. 91 and 155  of 1977.     Kapil Sibal, Additional Solicitor General, Dilip  Tandon and CVS Rao for the Appellant. Mrs. Bharati Anand (N.P.) for the Respondents. The Judgment of the Court was delivered by     K.N. SAIKIA, J. These appeals 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

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the  rummage the customs officers recovered various  contra- band  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.  Choud- hary,  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  disap- peared from the vessel. Sri V.L. Choudhary was asked to show cause  as to why for his failure to comply with  the  provi- sions  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. Choud- hary 708 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 part of the order said: "I, therefore, impose a penalty of Rs. 1,000 (Rs. one  thou- sand)  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  Treas- ury/State Bank of India within a fortnight from the date  of receipt  of this order under head 1037--Customs  Miscellane- ous, Receipts, Fines, Rent, etc."     The  order of the Collector was challenged in  two  writ petitions 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 therein, and as such section 133 must be referring to  Court and not to the Collector as the punishing  authority,-where- fore,  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  Cus- toms  Officers,  but the two officers were employee  of  the Port Trust and were not officers mentioned in clauses (d) or (e)  of 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  noti- fication  in  the official gazette so as to  bring  the  two officers under clause (e).     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

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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 refera- ble  to  Court in so far as prosecution  and  punishment  is concerned for 709 the offence, there would be no bar to deal with that offence under S. 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.  Choud- hary  having abetted the contravention of the provisions  of the  Act he made himself liable to penalty of not  exceeding Rs. 1,000 under S. 117 of the Act and the penalty was right- ly imposed on him by the Collector; and the High Court ought not  to have set aside the penalty. Counsel further  submits that under the Customs Act there would be no double jeopardy if  in an appropriate case one has been prosecuted and  pun- ished under the sections in Chapter XVI of the Act 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. None appears for the respondents.     T,,  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  "Offences. and Prosecutions". Section 132  constitutes false declaration, false documents, etc. an offence. Section 133  constitutes  obstruction of officer of customs  an  of- fence.  Similarly, by s. 134, refusal to be ex-rayed, by  S. 135,  evasion  of duty or prohibition  are  constituted  of- fences. It may be noted that S. 135(1) is ’without prejudice to any action that may be taken under this Act.’ This clear- ly  envisages  any action that may be 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  culpa- ble 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  notwith- standing  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 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 710 which the person affected thereby is liable under the provi- sions 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  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

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provision of this Act with which it was his duty to  comply, where  no  express penalty is elsewhere  provided  for  such contravention  or failure, shall be liable to a penalty  not exceeding Rs. 1,000.     Though  included  in Chapter XIV, S.  117  provides  for penalties for contravention of any provision of the Act,  an abetment of any such contravention or failure to comply with any  provision  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.     From the foregoing provisions, we find that for the same transaction, 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 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 XV1 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 contra- vention. Where the same act or event constitutes an  offence under Chapter XVI and at the same time constitutes a contra- vention  or abetment of contravention of any of  the  provi- sions  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 Act, there will be possibility of prosecu- tion  and  punishment under Chapter XVI of the Act  and  any other provision of law and at the same time confiscation and penalty under Chapter XIV of the Act. 711     As regards the allegations in the case, under s.  106(1) of  the Act 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 reason to believe that  any  goods  are liable  10  confiscation ’under-the Act, he may  seize  such goods.  Section 111 provides for confiscation of  improperly imported  goods. Under the facts alleged in this  case,  the vessel could, therefore, lawfully be detained, rummaged  and the goods suspected seized. It was alleged that the shifting of the vessel was on order of the second respondent and that because  of the shifting to the reads away in the  deep  sea the proper officers had to leave the vessel 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 reads: "133.  Obstruction  of  officer of customs:  If  any  person intentionally obstructs any officer of customs in the  exer- cise  of  any powers conferred 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."     There may be scope for holding that there was intention- al  obstruction on the part of the second respondent if  the allegations are proved. In Santosh Kumar v. State, AIR  1951 SC  201: [1951] SCR 303 it was held that where there was  an order  for seizure it would amount to obstruction  under  s.

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186 IPC if the goods were not allowed to be 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 provisions  of  the Act?  Was  there any abetment to alleged  smuggling  of  the goods seized and those which could have been seized?      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  provi- sions  of  S.  117 of the Act. On perusal  of  the  impugned judgment of the High Court. we do not find 712 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  re- spondent  is not represented before us, we are  inclined  to 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 record; and  we  order accordingly. G.N.                                                  Appeal allowed. 713