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PETITIONER: RAM KIRPAL BHAGAT & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 13/11/1969

BENCH: RAY, A.N. BENCH: RAY, A.N. HIDAYATULLAH, M. (CJ) SIKRI, S.M. MITTER, G.K. REDDY, P. JAGANMOHAN

CITATION:  1970 AIR  951            1970 SCR  (3) 233  1969 SCC  (3) 471  CITATOR INFO :  F          1972 SC 223  (14,15)  R          1972 SC1193  (10)  RF         1989 SC 222  (3)

ACT: Sea Customs Act 8 of 1878-Imports & Exports Act 18 of  1947- Effect  of s. 3 (2) of Act 18 of 1947-Whether only s. 19  of Act 8 of 1878 attracted or other provisions also Sea Customs Act  whether  applicable to Santhal Parganas  in  Bihar-Land Customs  Act  19  of  1924  whether  applicable  to  Santhal Parganas-Power  of Governor under Art. 244 & Fifth  Schedule of  Constitution of India 1950 to extend laws  to  scheduled areas-Cloves whether ’prohibited goods’ under Act 18 of 1947 and Imports Control Order 1955-Whether dutiable under Indian Tariff  Act  1934-Power  of Inspectors  of   Central  Excise employed  on Central Excise & Customs Intelligence  work  to make  arrests and seize cloves under s. 173 & s. 178 of  Sea Customs  Act-Effect  of  notifications under  s.  6  of  Sea Customs  Act,  namely,  Notification No.  69-Cus.  dated  28 September  1951 and CBR Notification 1. L. Cus.  dated  25th january. 1958 Sea Customs Acts. 178A-Onus of proof under.

HEADNOTE: One Nazir Mian was arrested at Pakur Railway Station in  the Santhal Parganas of Bihar by two Inspectors and a  constable belonging to the Central Excise Department.  The  Inspectors were  employed  on  Central Excise  and  Customs  Prevention intelligence  work.   Two bags of clove& on which  duty  was required  to be paid under the Imports Control  Order  1955, but  had not been paid, were seized from the  possession  of Nazir  mian who had locked himself inside the latrine  of  a railway  compartment  in the said station.  The  arrest  and seizure  were  effected  under ss. 173 and 178  of  the  Sea Customs  Act  1878.  Helped by certain persons,  Nazir  Mian escaped  and  the  cloves  were also  taken  away.   In  the scufflee   the  said  two  Inspectors  were   injured,   one grievously.   Alongwith four others Nazir Mian was tried  in connection  with  the  incident.  The  charges  against  the

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accused included the offences of offering resistance to  the lawful  Apprehension of Nazir Mian and of causing hurt to  a public  servant  in the discharge of  his  official  duties. Four  of  the accused including the  three  appellants  were convicted  by  the trial Court.  The  High  Court  dismissed their  appeals.   In  appeal by special  leave  against  the judgment  of the High Court the appellants contended  before this  Court  that : (1) The Sea Customs Act,  1878  did  not apply to the place of occurrence and, therefore, the  arrest purporting to have been, made under ss. 173 and 178 of  that Act  and the seizure of the cloves were unlawful.  (ii)  The Land  Customs  Act  1924  did not  apply  to  the  place  of occurrence and therefore the Inspectors were not officers of Customs  who could invoke the authority of the Land  Customs Act,  1924  to arrest and seize the  appellant  Nazir  Mian; (iii) The seizure of cloves was not authorised by s. 178  of the Sea Customs Act 1878 nor was the arrest authorised under s. 173 of he Sea Customs Act 1878; (iv) Section 178A of  the Sea  Customs Act 1878 could not apply because there  was  no notification to attract the application of the said section. HELD  : (i) The Sea Customs Act, 1878 was applicable to  the Santhal  Parganas  by  virtue of s. 3(2) of  the  Imports  & Exports Control Act, 1947 up. C.I./70-16 234 which  had  been  made applicable by  the  Governor  to  the Santhal Parganas under Bihar Regulation I of 1951. Sub-section  (2)  of s. 3 of the Imports &  Exports  Control Act,  1947 enacts that goods to which any order  under  sub- section (1) applies shall be deemed to be goods of which the import or export has been prohibited under s. 19 of the  Sea Customs  Act, 1878 and the second limb of subsection (2)  of s. 3 is that all the provisions of that Act (The Sea Customs Act, (1878) shall have effect accordingly.  To accede to the contention  on behalf of the appellants that only s.  19  of the Sea Customs Act, 1878 will apply and no other provisions of the Sea Customs Act, 1878 will be effective or  operative will  be  not  only  -to  render  the  words  "and  all  the provisions  of that Act shall have effect" otiose  but  also nugatory.   When the statute enacts that all the  provisions of  that  Act shall have effect accordingly, it will  be  an error  to hold in spite of the language of such  legislation that  the provisions of the Sea Customs act shall  not  have effect.  the effect of bringing into an Act, the  provisions of an earlier Act is to introduce the incorporated  sections of  the  earlier  Act into the subsequent Act  as  if  these provisions have been enacted in it for the. first time. [242 H-250 Di All that can be said on the authority of the Madras  Customs case  is  that  if s. 19 of the Sea Customs  Act  1878  were repealed  then  the  Sea  Customs  Act  1878  would  not  be attracted.  Section 19 of the Sea Customs Act, 1878 has  not been, repealed and was extant and is now re-enacted as S. 11 in   the   Sea  Customs  Act,  1962  and  there   has   been corresponding change in the Imports and Exports Control Act, 1947  by  reference to the Sea Customs Act, 1962 and  s.  11 thereof. [243 H] The Collector of Customs, Madras v. Nathella Sampathu Chetty JUDGMENT: The  Secretary of State  for India in Council  v.  Hindustan Co-operative Insurance Society Ltd., referred to. Re : Wood’s Estate, [1881] 31 Ch.  D. 607, applied. Bihar  Regulation  1  of  1951. was not  in  excess  of  the Governor’s powers.  The Santhal Parganas are included in the Scheduled.Areas  dealt  with  in  Art.  244  and  the  Fifth

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Schedule  to  the Constitution.  Paragraph 5  in  the  Fifth Schedule  deals  with laws applicable  to  Scheduled  Areas. Sub-paragraph 2 of Paragraph 5 enacts that the Governor  may make  regulations for the peace and good government  of  any area  in  a State which is for the time  being  a  Scheduled Area.  Under sub-paragraph 3 of paragraph 5 the Governor may repeal  or  amend any Act of Parliament or any  Act  of  the legislature  of the state or any existing law which  is  for the  time  being applicable to the area  in  question.   The Bihar  Regulation I of 1951 is a valid piece of  legislation emanating from the legislative authority of the Governor  in its  plenitude of power.  The contentions s did not  include the that the Governor’s power of making regulation power  to apply laws and that the Bihar Regulation I of 1951 is either piece of delegated legislation or a conditional legislation, could not be accepted. [245 B-C, H] Riel v. The Queen, L.R. 10 A.C. 657, referred to. (ii)  The Land Customs Act, 1924 was not applicable  to  the Santha.  Parganas as an ’existing law within the meaning  of Art. 372(1) of the Constitution. it was also not made applicable to the Santhal Parganas -by the Governor by the exercise of power under the Government  of India Act or the Constitution.   Nevertheless by virtue of notification No. 6 235 Cus.  dated 28th September, 1951 under section 6 of the  Sea Customs  Act, 1878 and notification No. CBR Notification  1. L.  Cus. dated 25th January, 1958 (as amended in May,  1958) the  two  Inspector’s in the present case had  authority  to arrest  the  appellant Nazir Mian and to seize the  bags  of cloves in his possession. From  the said notifications it appeared that under s. 6  of the  Sea  Customs  Act,  1818  Land  Customs  Officers   arc appointed  Officers of Customs.  Secondly, the  notification under  the  Land  Customs  Act  is  that  all  the  officers mentioned therein including the Inspectors of Central Excise employed  on  the  Central  Excise  or  Customs   Prevention Intelligence Work and attached to the Headquarters are  Land Customs   Officers.   The  combined  effect  of   both   the notifications  is that the Inspectors of Central  Excise  in the present case were Land Customs Officers and Officers  of Customs  as a result of the application of the  Sea  Customs Act, 1878. [246 H; 251 B-D] (iii)     (a) The import of cloves was prohibited under  the Imports Control Order 1955 made under s. - 3 of the  Imports & Exports Control Order 1947.  They were also dutiable goods under  the Indian Tariff Act, 1934 which was  applicable  to the Santhal Parganas being one of the Acts mentioned in  the Schedule  to  the Santhal  Parganas  Settlement  Regulation, 1872.   Being prohibited goods under the Imports  &  Exports Control  Act, 1947 cloves are deemed to be prohibited  under s. 19 of the Sea Customs Act, 1878. [250 Al (b)  The-evidence  in  the  present  case  established   the following  facts.   First, the appellant Nazir Mian  had  in possession two bags of cloves and no duty was paid on  those cloves.  Secondly the said appellant kept the cloves in  two bags  and concealed the same in the latrine of the  railways compartment.   Thirdly, the cloves were dutiable goods  -and there  was  prohibition  on  the  import  of  those   goods. Fourthly, the place o f occurrence was at a distance of only 11  &  12  miles from the East  Pakistan  border.   Fifthly, cloves   are  not  grown  in  India.   These   circumstances indicated a reasonable suspicion and, therefore the Officers were justified in arresting the appellant Nazir Mian  tinder section 173 of the Sea Customs Act, 1878. 1251 E]

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(iv) In the absence of special notification under s, 178A of the Sea Customs     Act. 1878 specifying goods to which  the section applies, the onus of  proof   under   that   section cannot  be  placed  on persons whose goods  are  seized  for violation of other provisions of the Sea Customs Act,  1878. In  view  of the fact that in the present  case  the  seized articles  were removed by the accused it was unnecessary  to deal any further with this aspect of the case because if any order was passed for return of the bags the order could  not be enforced [251 E]

& CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 182  of 1966. Appeal  by special leave from the-judgment and  order  dated January 31, 1966 of the Patna High Court in Criminal  Appeal No. 210 of 1966. Rameshwar Dial and A. D. Mathur, for the appellants. Lal Narayan Sinha, Advocate-General for. the State of  Bihar and, U. P. Singh, for the respondent. 236 L. M. Singhvi and S. P. Nayar, for the Union of India. Lal  Narayan Sinha, Advocate-General for the State of  Bihar and D. Goburdhun, for the State of Bihar. The judgment of the Court was delivered by Ray, J.-This is an appeal by special leave from the judgment of  the High Court at Patna challenging first the  authority of  the  Excise Inspectors as Officers of  Customs,  namely, public  servants and secondly their power, to  arrest  Nazir Mian  and seize 2 bags of cloves from his  possession  under sections  173 and 178 respectively of the Sea  Customs  Act, 1878. The facts giving rise to this appeal are as follows.  On  13 December, 1961, Inspectors Uma Shankar and Bisuddha Nand Jha and  Constable  Bishan Singh, all belonging to  the  Central Excise Department were on checking patrol ’duty on 330  Down Barauni  passenger train proceeding from Barharwa  to  Pakur which  are  Railway Stations in Santhal Parganas  in  Bihar. The appellant Nazir Mian was travelling by Barauni passenger train.   When  the train stopped at Pakur the  excise  staff found  Nazir Mian in the latrine of one of the  compartments of the train with two bags of cloves weighing about 2 pounds 10  seers.  The door of the latrine was  closed.   Inspector Uma Shankar pushed the door when it was opened from  inside. Uma  Shankar  disclosed his identity and asked if  duty  had been  paid  for  the cloves.  Nazir Mian  answered  in  -the negative.   Inspector Uma Shankar thereupon seized the  bags and  arrested  Nazir Mian.  While this was being  done,  the train  started.   Shortly  after the train  had  started  it stopped  at  a level crossing in consequence of one  of  the persons  of the excise staff pulling the alarm  chain.   The excise  staff  got down,with Nazir Mian.  The  two  bags  of cloves were also brought down.  Certain persons collected on the  spot.   Nazir Mian is alleged to have been  rescued  by other appellants and the bags of cloves were taken away.  In the  scuffle  that ensued, one of  the  Inspectors  received simple injuries and the other a grievous injury. The three appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal  Shah and two other persons Jhaman Mian and  Raghunath Prasad  Yadav were all charged under section 147,  149,  333 and  379  of the Indian Penal Code for forming  an  unlawful assembly in assaulting Inspectors Uma Shankar and B. N.  Jha and in rescuing accused Nazir Mian from their lawful custody

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and  in  removing  two  bags of  seized  cloves  from  their possession.   The  accused  persons with  the  exception  of Raghunath  Prasad Yadav were further charged  under  section 332 of the Indian Penal Code for voluntarily causing hurt to Uma Shankar a public 237 servant in the discharge of his public duties.  The  accused with the exception of Nazir Mian were charged under  section 225  of  the Indian Penal Code  for  intentionally  offering resistance to the lawful apprehension of accused Nazir Mian. Nazir  Mian  was also charged under section 7  of  the  Land Customs  Act,  1924 for contravention of section 5  of  the, said  Act  and  also under section 167 item 81  of  the  Sea Customs  Act, 1878 for contravention of ’Section 19  of  the said Act and also under section 5 of the Imports and Exports Control  Act, 1947 for contravention of section 3(1) of  the Imports Control Order, 1955. At  the trial before the Assistant Sessions Judge, Dumka  in Santhal  Parganas, Raghunath Prasad Yadav was  acquitted  of all  the charges and the appellants Nazir Mian,  Ram  Kirpal Bhagat and Ganga Dayal Shah along with Jhaman Mian were  all convicted  under  sections 147 and 332 of the  Indian  Penal Code.   Jhaman Mian, Ram Kirpal Bhagat and Ganga Dayal  Shah were also convicted under sections 225 and 333 of the Indian Penal  Code.   Ram Kirpal Bhagat and Nazir  Mian  were  also convicted under section 379 of the Indian -Penal Code.   The said  four  accused  including  the  three  appellants  were sentenced  to  several terms of imprisonment  and  the  said sentences were ordered to run concurrently. The Assistant Sessions Judge, Dumka, however, acquitted  the appellant  Nazir Mian of the charges under the Land  Customs Act, the Sea Customs Act, 1878 and- the Imports and  Exports Control Act.  The Assistant Sessions Judge, Dumka held  that section  6  of  the Imports and Exports  Control  Act,  1947 raised a bar of taking cognizance by any court except upon a complaint  in writing made by an officer authorised in  that behalf by the Central Government by general or special order and  in  the  absence of any complaint  in  writing  by  the officer concerned, the Assistant Sessions Judge, Dumka found that  he  had  no jurisdiction to  take  cognizance  of  the offence  under  this  Act.  The  Assistant  Sessions  Judge, Dumka,  also held that section 187A of the Sea Customs  Act, 1878  laid  down that’ cognizance as to offence  was  to  be taken upon a complaint in writing made by the Chief  Customs Officer  or any other officers of customs not lower in  rank than  an Assistant Collector of Customs authorised  in  this behalf by the Chief Customs Officer.  The Assistant Sessions Judge,  Dumka, found that in the present case there  was  no such  complaint, and, therefore, he did not take  cognizance for the contravention of section 19 of the Sea Customs  Act, 1878. The  appellants  and  Jhaman Mian  thereafter  preferred  an appeal  to the High Court.  In the High Court the  appellant Nazir 238 Mian  contended that Inspector Uma Shankar had no  power  to arrest  him  and  seize  the  cloves,  and,  therefore,  the Inspector  could not be held to have acted in the  discharge of  his  public duties.  In aid of that  contention  it  was submitted  first, that the Imports and Exports Control  Act, 147, the Land Customs Act., 1924, the Sea Customs Act,  1878 and the Indian Tariff Act, 1934 were not extended to Santhal Parganas  and were not, therefore, applicable.   The  second contention was that cloves were not dutiable articles.   The third  contention  was that section 173 of the  Sea  Customs

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Act, 1878 had no application, because there was no  evidence of  reasonable  suspicion that Nazir Mian was guilty  of  an offence  under  the  Sea Customs Act,  1878.   It  was  also contended  that Inspector Uma Shankar was not an officer  of the Customs. The  High Court came to the conclusion that the Sea  Customs Act,  1878  and the Imports and Exports  Control  Act,  1947 applied  to  the Santhal Parganas with the result  that  the import of cloves was prohibited; duty was payable on cloves; the  Inspectors  were  officers  of  Customs  within   their respective jurisdiction, and, therefore, they could exercise power  under  section 173 of the Sea Customs Act,  1878  and they  could  seize the goods under section 178  of  the  Sea Customs  Act, 1878.  The High Court further held that  under section 178A of the Sea Customs Act, 1878, the burden was on the  appellant Nazir Mian to prove that cloves  seized  were not smuggled goods and that the appellant Nazir Mian  failed to do so. The  High  Court held that the appellants had  been  rightly convicted  for  certain  offences but  the  sentences  under section  332  of the Indian Penal Code against  Nazir  Mian, Ganga Dayal Shall were set aside to correct an error in  the judgment of the Assistant Sessions Judge, Dumka, who at  one place  convicted all the four accused under section  332  of the Indian Penal Code and at another place found only Jhaman Mian  and  Ram Kirpal Bhagat guilty of  the  offences  under section 332 of the Indian Penal Code. Counsel  on behalf of the appellants contended  first,  that the  Sea  Customs Act, 1878 did not apply to  the  place  of occurrence, and, therefore, the arrest and the seizure  were unlawful.   The second contention was that the Land  Customs Act,  1924  did not apply to the place  of  occurrence,  and therefore,  the Inspectors were not officers of Customs  who could invoke the authority of the Land Customs Act, 1924  to arrest  and  seize  the appellant  Nazir  Mian.   The  third contention   was  that  the  seizure  of  cloves   was   not authoorised  by section 178 of the Sea.  Customs  Act,  1878 nor  was the arrest authorised under section 173 of the  Sea Customs                             239 Act, 1878.  The arrest and the seizure under the Sea Customs Act,. 1878 were impeached as illegal on the ground that  the Sea  Customs  Act,  1878  did not  apply  to  the  place  of occurrence, namely, Pakur in Santhal Parganas in Bihar.  The fourth  contention was that section 178A of the Sea  Customs Act, 1878 could not apply, because there was no notification to attract the application of the said section. The  first question which falls for decision is whether  the Sea Customs Act, 1878 applies.  In order to appreciate  this contention  it  is  necessary to refer to  the  statutes  by virtue  of which the Sea Customs Act, 1878 is said to  apply to the place of occurrence.  The Bihar Regulation I of  1951 enacted  that the Imports and Exports Control Act, 1947  was applicable to Santhal Parganas. The relevant sections under the Imports and Exports  Control Act,  1947 in the present case are the two  sub-sections  in section 3 which are as follows: "3.   Powers  to prohibit or restrict imports  and  exports. (,’I) The Central Government may, by order published in  the Official   Gazette,   make   provisions   for   prohibiting, restricting  or  otherwise controlling in all  cases  or  in specified classes of cases, and subject to such  exceptions, if any, as may be made by or under the order:- (a)  the  import, export, carriage coastwise or shipment  as ships stores of goods of any specified description;

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(b)  the  bringing into any port or place in India of  goods of  any  specified description intended to be taken  out  of India  without being removed from the ship or conveyance  in which they are being carried. (2)  All   goods  to  which  any  order   under   subsection (1)applies  shall be deemed to be goods of which the  import or  export has been prohibited under section 19 of  the  Sea Customs Act, 1878, and all the provisions of that Act  shall have effect accordingly". The first contention on behalf of the appellants is that sub section (2) of section 3 of the Imports and Exports  Control Act, 1947 means that only section 19 of the Sea Customs Act, 1878 is applicable and the other section do not apply.   The second contention on behalf of the appellants that the Bihar Regulation  I  of  1951 is in excess of  the  power  of  the Governor contained in the Fifth Schedule to the Constitution will  be ’dealt with hereinafter.  Counsel on behalf of  the appellants contended that sec- 240 tion 3(2) of the Imports and Exports Control Act, 1947 meant that goods to which sub-section (1) of section 3 of the  Act of 1947 applied were deemed to be goods of which the  import or  ,export had been prohibited under section 19 of the  Sea Customs  Act, 1878, and, therefore, only section 19 of  that Act was to have effect for that restricted purpose.  In  aid of  that contention reliance was placed on the  decision  of this Court in The Collector ,of Customs, Madras v.  Nathella Sampathu Chetty & Anr.(1). The question for consideration in the Madras Customs case was whether section 178A of the  Sea Customs  Act, 1878 applied.  The Collector of Customs  there seized gold because he was, prima facie, of the view that it had been smuggled and notice was issued to the respondent to show  cause why the gold should not be confiscated.   Import of gold was dealt with by section 8 of the Foreign  Exchange Regulation  Act,  1947  which  provided  that  the   Central Government might by notification order that no person except with  the general or special permission of the Reserve  Bank and  on payment of prescribed fee bring or send  into  India any  -gold or silver.  Section 23A of the  Foreign  Exchange Regulation  Act which came into existence in the  year  1952 was as follows :- "23A.  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,  sub-section  (1) of section 12 and clause  (a)  of  sub- section  (1)  of  section 13 shall be deemed  to  have  been imposed  under section 19 of the Sea Customs Act,  1878  and ail   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". Section  178A  of the Sea Customs Act, 1878  was  introduced into the Act in the year 1955.  It was, therefore, contended that  -when  the Foreign Exchange Regulation Act,  1947  was enacted  -the provisions of the Sea Customs Act,  1878  were not  at all -attracted, and secondly. when section  23A  was introduced  in  1952  as  a part  of  the  Foreign  Exchange Regulation  Act, 1947 it would have the effect  of  bringing into  operation only those sections of the Sea Customs  Act, 1878 which were part of the Sea Customs Act, 1878 in 1952. Counsel  for  the appellants relied on the observations  at -page  834 of the Report in the Madras Customs case(,)  that "the  effect  of section 23 A is to treat the  text  of  the notification  by -the Central Government under section  8(l) as if it had been

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(1)  [1962] 3 S C.R. 786. 241 issued  under  section 19 of the Sea Customs  Act  with  the title and the recital of the source of power appropriate  to it  by  the  creation of legal fiction".   Counsel  for  the appellants extracted from these observations the proposition that  only  section 19 of the Sea Customs  Act,  1878  would attracted  in  the  present  case  to  make  effective   the notifications under the Imports Control and Exports  Control Act,  1947 and the Imports Control Order, 1955 and no  other section  of  the Sea Customs Act, 1878 would  be  attracted. The decision of this Court in the Madras Customs case(’)does not  support  that contention for the  obvious  reason  that section  178A  of  the Sea Customs Act,  1878  was  held  to be applicable there.  If only section 19 of the Sea  Customs Act, 1878 were attracted for the purpose of giving  sanction to  notifications under the Foreign Exchange Regulation  Act section  178A  of the Sea Customs Act, 1878 could  not  have been held to be applicable in Madras Customs case(’). Further this Court in the Madras Customs case(’) at page 799 of  the Report held first, that on the law as it stood  upto 1952  before section 23A of the Foreign Exchange  Regulation Act  was inserted, importation of gold in  contravention  of the  notification of August, 1948 issued under section  8(l) of  the Foreign Exchange Regulation Act would have  been  an importation  contrary to section 19 of the Sea Customs  Act, with  the  result that any person concerned in  the  act  of importation   would  have  been  liable  to  the   penalties specified  in the third column of section 167(8) of the  Sea Customs  Act  and imported gold would have  been  liable  to confiscation  under the opening words of that column.   This conclusion  indicates. that a restriction on the  import  of gold by a notification under the Foreign Exchange Regulation Act would be a prohibition or restriction on importation  or exportation of gold under section 19 of the Sea Customs Act, 1878  which  occurs in Chapter IV of the  Sea  Customs  Act, 1878. The  other  conclusion of this Court in the  Madras  Customs case  was that though section 187A of the Sea  Customs  Act, 1878  was  introduced in the, year 1955 section 23A  of  the Foreign Exchange Regulation Act, 1947 which came into exist- ence in 1952 would be operative to introduce the  subsequent amendments of the Sea Customs Act, 1878 in dealing with con- travention  of  the  Foreign  Exchange  Regulation  Act   in relation to importation or exportation of gold. In  dealing  with the contention in the Madras  Custom  case that section 178A of the Sea Customs Act, 1878 did not apply because it was not a part of the Sea Customs Act, 1878  when section 23A of the Foreign Exchange Regulation Act was en- (1)  [1962] 3 S.C.R. 786. 242 acted in 1952, the decision of the Judicial Committee in The Secretary  of  State for India in Council v.  Hindustan  Co- operative Insurance Society Ltd.(’) was referred to by  this Court  for the purpose of showing that in the Hindustan  Co- operative  Insurance Society case the  Calcutta  Improvement Trust  Act,  1911  referred to the provisions  of  the  Land Acquisition Act by enacting that "the provisions of the Land Acquisition  Act  shall  apply as if they  were  herein  re- enacted"  to  mean that the Calcutta Improvement  Trust  Act 1911 in adopting the provisions of the Land Acquisition  Act did  not intend to bind themselves .to any future  additions which might be made to the Land Acquisition Act.  The  other consideration which weighed with the Judicial Comniittee was that  the  Calcutta Improvement Trust Act did  nothing  more

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than  incorporate certain provisions from an  existing  Act, and for convenience of drafting did so by reference to  that Act  instead  of  setting  out  for  itself  at  length  the provisions  which it was desired to adopt.  This Court  said that  there was no analogy between the manner in  which  the provisions   of   the,  Land  Acquisition   Act   had   been incorporated in the Calcutta Improvement Trust Act, 1911 and the  operation of the Sea Customs Act, 1878 as a  result  of section 23A of the Foreign Exchange Regulation Act.  Section 23A of the Foreign Exchange Regulation Act was construed  to mean  that the restrictions imposed by section 8(l)  of  the Foreign Exchange Regulation Act shall be deemed to have been imposed under section 19 of the Sea Customs Act and all  the provisions  of the Sea Customs Act, 1878 shall  have  effect accordingly.   At  page, 837 of the Report this  Court  said that  a  notification  issued under  section  8(l)  ’of  the Foreign Exchange Regulation Act was deemed for all  purposes to  be  a notification issued under section 19  of  the  Sea Customs  Act  and  the  contravention  of  the  notification attracted to it each and every provision of the Sea  Customs Act which was in force at the date of the notification. The  ratio of the decision in the Madras Customs case(’)  is that  the  provisions  of the Sea  Customs  Act,  1878  were attracted by relation to the provisions of section 19 of the Sea  Customs  Act,  1878 which  deal  with  restrictions  or prohibitions  on  import ’or export  and  the  notifications under the Foreign Exchange Regulation Act prohibiting import of  gold  become an integral part of section 19 of  the  Sea Customs Act, 1878, and, therefore, the contravention of such a  notification  would  bring into effect  each  and  -every provision of the Sea Customs Act’, 1878. In  the  present case, sub-section (2) of section 3  of  the Imports and Exports Control Act, 1947, enacts that goods  to which any (1) 59 4A. 259.            (2) [1962] 3 S.C.R. 786.                             243 order  under sub-section (1) applies shall be deemed  to  be goods  of  which the import or export  has  been  prohibited under section 19 of the Sea Customs Act, 1878 and the second limb  of  subsection  (2)  of section  3  is  that  all  the provisions of that Act (meaning thereby the Sea Customs Act, 1878)  shall  have  effect accordingly.  To  accede  to  the contention  of counsel for the appellants that only  section 19  of  the Sea Customs Act, 1878 will apply  and  no  other provision of the Sea Customs Act, 1878 will be effective  or operative will be not only to render the words "and all  the provisions  of that Act shall have effect only"  otiose  but also  nugatory.   When  the  statute  enacts  that  all  the provisions  of  that Act shall have effect  accordingly,  it will  be an error to hold in spite of the language  of  such legislation that the provisions of the Sea Customs Act shall not  have  effect.  The effect of bringing into an  Act  the provisions   of   an  earlier  Act  is  to   introduce   the incorporated sections of the earlier Act into the subsequent Act  as if those provisions have been enacted in it for  the first  time.  The nature of such a piece of legislation  was explained  by Lord Esher M.- R. in Re Wood’s Estate(1)  that "if  some  clauses  of a former Act were  brought  into  the subsequent Act the legal effect was to write those  sections into the new Act just as if they had been written in it with the pen". This  Court  noticed  in the Madras .  Customs  case  2  the distinction between a mere reference to or a citation of one statute  in another on the one hand and an incorporation  on the  other, for the purpose of showing as to what  would  be

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the effect of the repeal of the former statute on the latter statute.   It  is in that context that this  Court  observed that  if  section 19 of the Sea Customs Act, 1878  would  be repealed then there would no longer be any legal  foundation for  invoking the penal provisions of the Sea  Customs  Act, 1878 to a contravention of a notification under section 8(l) of  the Foreign Exchange Regulation Act.  The ratio is  that if the contravention of the, notification under the  Foreign Exchange  Regulation Act is equated with a contravention  of the  notification under section 19 of the Sea  Customs  Act, 1.878, the effacement of section 19 of the Sea Customs  Act, 1  878  from  the statute book would  naturally  remove  the substratum of the Sea Customs Act, 1878. In the present case, the provisions of the Sea Customs  Act, 1878 are attracted by reason of the provisions contained  in section  3 of the Imports and Exports Control Act, 1947  and on the authority of the decision of this Court in the Madras Customs  case(’) all that can be said is that if section  19 of  the  Sea Customs Act, 1878 were repealed  then  the  Sea Customs Act, 1878 would not be attracted.  Section 19 of the Sea Customs (1) (1881] 31 Ch.  D. 607. (2) 119621 3 S.C.R. 786. 244 Act,  1878 has not been repealed and was extant and  is  now reenacted  as  section 11 in the Sea Customs Act,  1962  and there  has  been  corresponding change in  the  Imports  and Exports  Control Act, 1947 by reference to the  Sea  Customs Act, 1962 and section 11 thereof. The second question which falls for consideration is whether the  Bihar  Regulation  I  of  1951  is  in  excess  of  the Governor’s  powers.  The contentions were: first,  that  the Regulation  I  of  1951 could not at  all  have  been  made; secondly, that Regulations deal with the subject matter  and did  not mean power to apply law and thirdly, the  power  to extend  a law passed by another legislature was said  to  be not   a   legislative  function,  but  was   a   conditional legislation..  The legislation, in the present case,  is  in relation  to  what  is described as  Scheduled  Areas.   The Scheduled  Areas  -are  dealt with by  Article  244  of  the Constitution  and  the Fifth Schedule to  the  Constitution. Prior  to  the Constitution, the Excluded Areas  were  dealt with  by sections 91 and 92 of the Government of India  Act, 1935.   The excluded and the partially excluded  areas  were areas so declared by order in Council under section 91.  and under section 92 no act of the Federal Legislature or of the Provincial  Legislature  was to apply to an  excluded  or  a partially  excluded  area  unless  the  Governor  by  public notification so directed.  Sub-section (2) of section 92  of the  Government  of India Act, 1935 conferred power  on  the Governor  to  make  regulations  for  the  peace  and  goods government  of any area in a Province which was an  excluded or  a  partially excluded area and any regulations  so  made might repeal or amend any Act of the Federal Legislature  or the Provincial Legislature or any existing Indian law  which was  for the time being applicable to the area in  question. The  extent of the legislative power of the Governor  under- section  92 of the Government of India Act, 1935  in  making regulations  for the peace and good government of  any  area conferred on the Governor in the words of ]Lord Halsbury "an utmost  discretion  of enactment for the attainment  of  the objects  pointed to". (See Riel v. The Queen) (1).  In  that case the words which fell for consideration by the  Judicial Committee  were  "the power of the Parliament of  Canada  to make  provisions  for the administration, peace,  order  and

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good  government  of any territory not for  the  time  being included  in  any  province" It was contended  that  if  any legislation  differed from the provisions which  in  England had been made for the administration, peace, order and  good government  then the same could not be sustained  as  valid. That contention was not accepted.  These words were held  to embrace the widest power to legislate for the peace and good government for the area in question. (1)  L.R. 10 A.C. 657 at 658.                             245 The  Fifth Schedule to the Constitution consists of 7  para- graphs and consists of Parts, A, B, C and D. Paragraph 6 in. Part  C deals with Scheduled Areas as the President  may  by order  declare and there is no, dispute in the present  case that the Santhal Parganas falls within the Scheduled  Areas. Paragraph  5  in  the.   Fifth  Schedule  deals  with   laws applicable to Scheduled Areas.  Sub-paragraph 2 of paragraph 5  enacts  that the Governor may, make regulations  for  the peace  and good government of any area in a State  which  is for  the time being a Scheduled Area.  Undersub-paragraph  3 of  paragraph 5 the Governor may repeal or amend any Act  of Parliament  or  of  the Legislature of  the  State  or,  any existing  law which is for the time being applicable to  the area.  in question.  It may be stated that a contention  was advanced  by counsel for the appellants that section  92  of the Government of India Act, 1935 was still in operation and the  Governor  could  only act  under  that  section.   This contention  is  utterly  devoid of  any  substance,  because section  92 of the Government of India Act, 1935  ceased  to exist  after repeal of the Government of India Act, 1935  by Article 395 of the Constitution.  It was contended that  the power  to  make  regulations did not  confer  power  on  the Governor  to apply any law.  It was said that under  section 92  of the Government of India Act, 1935 the Governor  could do  so but under the Fifth Schedule of the Constitution  the Governor  is not competent to apply laws.  This argument  is without  any merit for the simple reason that the  power  to make regulations embraces the utmost power to make laws  and to   apply  laws.   Applying  law  to  an  area  is   making regulations which are laws.  Further the power to apply laws is  inherent-when  there is a power to repeal or  amend  any Act, or any existing law applicable to the area in question. The power to apply laws is really to bring into legal effect sections  of an Act as if the same Act had be en enacted  in its entirety.  Application of laws is one of the  recognised forms  of  legislation.  Law can bemade by  referring  to  a statute or by citing a statute or by incorporating a statute or provisions or parts thereof in a piece of legislation  as the law which shall apply. It  was said by, counsel for the apppellants that the  power to  applv laws under the Fifth Schedule was synonymous  with conditional legislation.  In the present case, it cannot  be said  that the Bihar Regulation I of 1951 is either a  piece of delegated legislation or a conditional. legislation.  The Governor  had full power to make regulations which are  laws and just as Parliament can enact that a piece of legislation will  apply to a particular State, similarly,  the  Governor under paragraph 5 of the Fifth Schedule can apply  specified laws to a Scheduled area.  The Bihar Regulation I of 1951 is an instance of a valid piece of legislation 246 emanating from the legislative authority in its plenitude of power  and  there is no aspect of delegated  or  conditional legislation. The question which next arises for consideration is  whether

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the  Land Customs Act, 1924 applied on the relevant date  of occurrence namely 13 December, J961 to the Santhal Parganas. The Land Customs Act was enacted in the year 1924 and it was declared  to  apply to the Santhal Parganas.  Prior  to  the Constitution the Central Acts or Federal Acts or Acts of the Dominion  Legislature  did  not apply to an  excluded  or  a partially  excluded  area unless they were declared  by  the Governor  to apply to those areas.  After the  enactment  of the  Constitution, Article 244 and the Fifth  Schedule  deal with excluded or partially excluded areas. It  was  contended  on behalf of the State  that  after  the enactment  of  the Constitution the Land Customs  Act,  1924 became  applicable to excluded or partially  excluded  areas because  first  it  was an existing  law  and  secondly  the restriction under section 92 of the Government of India Act, 1935  which required a specific declaration of the  Governor to  apply  any legislation to the areas in question  was  no longer operative.  Article 372(l) of the Constitution enacts that the law in force in the territory of India  immediately before  the commencement of the Constitution is to  continue in force until altered or repealed or amended by a competent legislature or other competent authority.  Explanation I  to Article  372  is  that law in force  in  the  Article  shall include  a  law passed or mad& by the legislature  or  other competent  -authority in the territory of India  before  the commencement  of the -Constitution not withstanding that  it or parts of it may not be then in operation either at all or in  particular area or, areas.  The contention on behalf  of the  respondent that the Land Customs Act, 1924 would  apply to  the,  Santhal  Parganas  on the ground  that  it  is  an existing  law is not acceptable.  Article 372 in clause  (1) thereof enacts that subject to the other provisions of  this Constitution all the laws in force in the territory of India shall  continue  in  force.   The  Fifth  Schedule  to   the Constitution  relates  to  excluded  or  partially  excluded areas.   The existing law in relation to the excluded  areas is  saved by Article 372 and Explanation I thereto in  spite of  operation of such laws in particular areas.   Similarly, other  laws which were applicable to territories other  than the  excluded  or  partially excluded  areas  are  saved  by Article  372  Explanation  1.  Therefore,  laws  which  were existing law in territories other than excluded or partially excluded  areas would not be existing law under Article  372 in  relation to excluded or partially excluded  areas.   Nor would existing law for the rest of India be existing law  to area  in question within the meaning of paragraph 5  in  the Fifth Schedule to the Constitution.  The Land 247 Customs  Act,  1924  cannot therefore be said  to  apply  to Santhal Parganas as an existing law. The  present day sources of law making in the  Santhal  Par- ganas which are included in the Scheduled Areas are  Article 244  and  the  provisions  in  the  Fifth  Schedule  to  the Constitution.   Clause 5 of the Fifth Schedule has two  sub- clauses.   Under  subclause (1) the  Governor  is  empowered notwithstanding anything in the Constitution to direct  that any  particular Act of Parliament or of the  Legislature  of the State shall not apply to a Scheduled Area or shall apply to   a  Scheduled  Area  subject  to  such  exceptions   and modifications  as  the Governor may specify  -in  the  noti- fication.  Sub-clause (1) of clause 5 of the Fifth  Schedule to  the Constitution speaks of Acts of Parliament or of  the Legislature  of  the  State and therefore  Central  Acts  or Provincial   Acts,  prior  to  the  Constitution   are   not contemplated  within sub-clause (1) of clause 5.  Sub-clause

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(2)  of clause 5 of he Fifth Schedule confers power  on  the Governor  to  make  regulations  for  the  peace  and   good Government of any area in a State which is a Scheduled Area. Under  sub-clause  (2) the Governor has power to  make  laws which  will  include the power to apply to  Scheduled  Areas Central  laws  or  Provincial  laws  enacted  prior  to  the Constitution. Prior  to the Constitution section 92 of the  Government  of India  Act,  1935 conferred power oil the Governor  to  make regulations for excluded and partially excluded areas  which included  the Santhal Parganas.  In making  such  regulation the  Governor could repeal or amend any Central law  or  any Provincial Acts and the regulations were to be submitted  to the  Governor  General  for  assent.   The  Central  or  the Provincial  Acts under sub-section (1) of section 92 of  the Government  of India Act, 1935 however were not  applied  to excluded and partially excluded areas unless the Governor so directed. Prior  to  the Government of India Act, 1935  the  Governor- General-in-Council in 1872 promulgated the regulation  known as "Santhal Parganas Settlement Regulation" and section 3 of the said Regulation provided the enactments specified in the Schedule thereto which would be in force in the Santhal Par- ganas.   Section  3 (2) of the Santhal  Parganas  Settlement Regulation  of 1872 in so far as it seeks to  affect  future legislation  would  not have any force after  26th  January, 1950. In this background it appears that the Sea Customs Act, 1878 and  the Land Customs Act, 1924 were not made applicable  to Santhal   Parganas   either  under  the   Santhal   Parganas Settlement  Regulation  of 1872 or  under  any  notification issued under section 248 92  of the Government of India Act, 1935.  Neither  the  Sea Customs  Act, 1878 nor the Land Customs Act, 1924  has  been specifically made applicable to the Santhal Parganas by  any notification  under sub-clause (2) of clause 5 of the  Fifth Schedule.  The Bihar Scheduled Laws Regulation being Regula- tion I of 1951 which was promulgated under sub-clause (2) of clause  5 of the Fifth Schedule for the purpose of  applying certain  laws to Santhal Parganas however made  the  Imports and Exports (Control) Act, 1947 and the Imports and  Exports (Amendment) Act, 1949 applicable to Santhal Parganas. We have already stated as to how the Sea Customs Act is made applicable  to Santhal Parganas by reason of the  provisions contained  in the Imports and Exports (Control)  Act,  1947. Though the Land Customs Act, 1924 does not apply to  Santhal Parganas we have indicated hereinafter as to how because  of the  application  of  section  6 of  the  Sea  Customs  Act, officers  of Land Customs appointed under the  Land  Customs Act  are treated as Customs Officers having jurisdiction  in the Santhal Parganas. The  Central  Excise  and Salt Act, 1944  was  however  made applicable  to the Santhal Parganas by a notification  dated 14 September, 1944 but the application of that Act is not in issue  in the present appeal.  One of the questions  in  the present  appeal  was  whether the Indian  Tariff  Act,  1934 applied  to the Santhal Parganas.  The  articles.which  were seized  in  the present appeal, viz., cloves  were  dutiable articles  being item 9(3) in column 3 in the First  Schedule to  the Indian Tariff Act, 1934.  We have already  indicated as to how by reason of operation of section 3 of the Imports and Exports (Control) Act, 1947 cloves became an article the import or export of which was prohibited under section 19 of the Sea Customs Act.  No notification of application of  the

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Indian Tariff Act, 1934 to the Santhal Parganas was shown to the High Court.  It will appear in volume 7 page 5792 of the Bihar  Local  Acts (1793 to 1963) published  by  Bharat  Law House,  Allahabad  in the year 1966 that the  Indian  Tariff Act,  1894 is found to be one of the Acts mentioned  in  the Schedule to the Santhal Parganas Settlement Regulation, 1872 and  the Indian Tariff Act, 1894 which was repealed by  the’ Indian  Tariff  Act, 1934 was similarly declared  to  be  in force in the Santhal Parganas. The  Inspectors,  Uma  Shankar and B. N.  Jha  were  Customs Officers   engaged  in  public  duty.   They  arrested   the appellant  Nazir Mian under section 173 of the  Sea  Customs Act  on  a  reasonable suspicion.   The  Inspectors  further arrested the appeallant Nazir Mian under section 178 of  the Sea Customs Act, 1878.  Section 178 of the Sea Customs  Act, 1878 empowered the 249 A    Customs Officer to seize smuggled goods under the  Act. The  questions which have to be decided in the present  case are: first, whether the Inspectors Uma Shankar and B. N. Jha were  acting  in the discharge of public  duties,  secondly, whether  they  could  arrest the  appellants,  and  thirdly, whether  they could seize the cloves.  The oral evidence  of Inspector Uma Shankar is that he B    was  an Inspector of Central Excise and Customs and  he worked in the Preventive and Intelligence Section.  He  said that  he was posted at Barharwa since the month of  January, 1961  and his jurisdiction was Pakur, Dumka  and  Sahibganj. He  also said that his duty was the prevention of  smuggling of contraband commodities.  Inspector B. N. Jha in his  oral evidence’said that he was an Inspector of Central Excise and Customs  and  he worked in the Preventive  and  Intelligence section  and  Pakur,  Dumka and Sahibganj  were  within  his jurisdiction of work The Imports and Exports Control Act, 1947 in sub-section (2) of  section 3 enacted that goods to, which  sub-section  (1) applied would be deemed to be goods the import or export of which  would  be a restriction under section 19 or  the  sea Customs  Act, 1878 and all the provisions of that Act  shall have  effect  accordingly. The Imports and  Exports  Control Act, 1947 conferred power on the Central Government to  make provisions prohibiting, restricting- and controlling  import and  export.  The Imports Control Order, 1955  was  made  by virtue  of power conferred by section 3 of the  Imports  and Exports Control Act, 1947. Schedule I Part IV item 23 of the Imports Control Order, 1955 mentions cloves within the class of goods the import of which  is   prohibited.    Therefore, cloves  come  under  the prohibition of  section  3  of  the Imports and Exports Control Act. 1947 read with clause 3  of the Imports Control Order, 1955 and F   are goods which  are prohibited  from being imported. The Imports Control  Order, 1955 mentions that each entry in   column 2 of Schedule I to the said Order has the same meaning as specified against the said item in column 3 of the First Schedule  to  the  Indian Tariff  Act. Schedule I to the Imports Control  Order,  1955 gives in a tabular form the names of articles as also  G the corresponding  items to the Indian Tariff Act. Cloves  which are  mentioned as item No. 23 of Schedule I  of Part  IV  of the  Imports  Control  Order,  1955 have  the  same  meaning corresponding  to  item -No. 9(3) in column 3 in  the  First Schedule  to  the Indian Tariff Act, 1934.  It,   therefore, follows  that  cloves  are  goods the  import  of  which  is prohibited by the Imports and Exports Control Act, 1947  and they are dutiable goods by reason of that meaning of  cloves in  column 3 item No. 9 (3) of the First,-,Schedule  to  the

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Indian Tariff Act, 1934 having been attracted by the Imports Control Order, 1955. Cloves are, pro-      250 hibited  goods within the Imports and Exports  Control  Act, 1947A  and  are, therefore, deemed to  be  prohibited  under section 19 of the Sea Customs Act, 1878. The Inspectors who arrested the appellant Nazir Mian and the other  accused  and  seized the articles  were  Officers  of Central Excise ’and Customs. In the present case, there  are two  notifications. The first is a notification No.  69-Cus. dated 28 September, 1951 under section 6 of the Sea  Customs Act, 1878 which is set out as follows :- "In exercise of the powers conferred by section 6 of the Sea Customs Act, 1878 (VIII of 18778) and in     supersession of the Government of India in the Ministry of Finance  (Revenue               Division) Notification No. 71, dated the  12th               August,  1950,. the Central Government  hereby               appoints  all  the Land Customs  Officers  who               have  been appointed or may be appointed  from               time to time to be such under sub-section  (1)               of  section  3 of the Land Customs  Act,  1924               (XIX  of 1924)D to be Officers of Customs  for               their respective jurisdiction and to  exercise               the powers conferred and to perform the duties               imposed  on such officers by the  first  named               Act". The  second  is a notification No. C.B.R. Notification  1  ’ L.Cus.E   dated  25th  January, 1958 as amended  by  No.  8- L.Cus.  dated  117th May, 1958 under the  Land  Customs  Act which is setout as follows "In exercise of the powers conferred by sub-sec-tion (1)  of section 3 of the Land Customs Act, 1924F     (19  of   1924) read with the notification of the Government of India in the late Finance Department (Central Revenue) No. 5944 dated the 13th December, 1924 and in supersession of its  notification No.  56-Customs, dated the 24th July, 1951  as  subsequently amended, the Central Board of Revenue hereby appoints all  , Deputy    Collectors,   Assistant    Collectors,Headquarters Assistant      Collectors,      Superintendents,      Deputy Superintendents,  Inspectors, Nakedars,  Supervisors,  Range Officers, Assistant Range, Officers,    Women     Searchers, Jemadars,  Petty  Officers,  Amaldas,  Sepoys  and   Peons,. including all the officers of Central   Excise employed  for the time being on the  Central     Excise     or     Customs Preventive intelligence work  and  attached      to      the Headquarters and the Circle; and. Divisional Officers of the Collectorate of Central Excise, 251 Delhi,  Allahabad,  Patna,  Shillong,  Madras,  Bombay   and Baroda, to be Land Customs Officers within the  jurisdiction of the respective Collectors of Land Customs under whom they are working’. It  will appear from the aforementioned notifications  first that  under  section  6 of the Sea  Customs  Act  1878  Land Customs  Officers are appointed Officers of Customs.  It  is manifest the provisions of the Sea Customs Act, 1878  apply, and,  therefore,  the Land Customs  Officers  are  appointed Officers  of  Customs  under  the  Sea  Customs  Act,  1878. Secondly,  the  notification under the Land Customs  Act  is that  all  the  Officers  mentioned  therein  including  the Inspectors  of  the Central Excise employed on  the  Central Excise or Customs Preventive Intelligence work and  attached to the Headquarters are Land Customs Officers.  The combined effect  of both the notifications is that the Inspectors  of Central  Excise  in  the  present  case  were  Land  Customs

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Officers  and  Officers  of  Customs as  a  ’result  of  the application of the Sea Customs Act, 1878. Counsel on behalf of the appellants contended that there was no  evidence to warrant the Customs Officers to  arrest  the appellants  under section 173 of the Sea Customs  Act,  1878 because  such  an arrest could be made only if there  was  a reasonable  suspicion  in existence.  The  evidence  in  the present  case established the following facts.   First,  the appellant  Nazir Mian had in possession two bags  of  cloves and  no  duty  was  paid on  those  cloves.   Secondly,  the appellant  Nazir  Mian  kept the cloves.  in  two  bags  and concealed   the   same  in  the  latrine  of   the   railway compartment.   Thirdly, the cloves were dutiable  goods  and there  was  prohibition  on  the  import  of  those   goods. Fourthly,  Pakur was at a distance of only 1 1 and 12  miles from  the  East Pakistan border.  Fifthly, -cloves  are  not grown in India.  These circumstances indicated a  reasonable suspicion  and,  therefore, the Officers were  justified  in arresting the appellant Nazir Mian under section 173 of  the Sea Customs Act, 1878. It  was  contended on behalf of the appellants  that  though under section 178 of the Sea Customs Act, 1878, the  Customs Officers  could  seize the goods there was  no  notification under  section  178A of the Sea Customs Act,  1878  imposing restrictions  on import of cloves, and, therefore. the  onus of  proof  could  not be shifted  to  the  appellants  under section  178A  of the Sea Customs Act,  1878.   The  correct legal   position   is  that  in  the  absence   of   special notification  under section 178A specifying goods  to  which the  section applies, the onus of proof under  that  section cannot  be  placed  on persons whose goods  are  seized  for violation of other provisions of the Sea Customs Act,  1878. In 252 view  of  the  fact  that in the  present  case  the  seized articles  were removed by the accused it is  unnecessary  to deal any further with this aspect of the case because if any order were passed for return of the bags the order could not be enforced. For  these reasons, the appeal fails and is dismissed.   The appellants  will  surrender  to  the  District   Magistrate, Santhal Parrganas to serve the sentences. Appeal dismissed. Y.P. 253