03 December 1970
Supreme Court


Case number: Appeal (civil) 76 of 1968






DATE OF JUDGMENT: 03/12/1970


CITATION:  1971 AIR  781            1971 SCR  (2) 908  1970 SCC  (3) 507

ACT: Defence of India Rules 1962 rr. 126J and  126X-Notificatnons under--if   enable  Collector  or  Assistant  Collector   to delegate  authority  to institute  prosecution  for  offence under  r.  126-P(2)-Sentence--If  minimum  sentence  to   be governed  by provisions of Rules or by Act 18 of  1965  when Act in Force.

HEADNOTE: The Appellant was searched on alighting from a plane at  the H.A.L.  Aerodrome,  Bangalore, on November 16,  1963  and  a quantity  of Gold was found on and seized from  him.   After obtaining sanction from the Collector under section  137(1) of the Customs Act and under Rule 126-Q of Defence of  India Rules,  1962, the Superintendent of Central Excise  filed  a complaint  against the Appellant.  The Trial Court  did  not find  any  evidence  establishing that  the  Gold  had  been smuggled  and the Appellant was therefore acquitted  of  the offence under section 135 of the Customs Act. As  regards the case against the Appellant under  Rule  126- P(2) the Trial Court held that according to the Notification issued  by  the Government of India on November 5,  1963  in modification  of  the Notification dated  January  10,  1963 issued  under  Rule 126-J read with Rule 126-X,  either  the Assistant  Collector of Central Excise or the  Collector  of Central  Excise  could  institute  the  prosecution;   these officers were not authorised to delegate powers to institute prosecution.  The Court, therefore, acquitted the  Appellant on  the view that the complaint was not filed by an  Officer competently authorised.  The High Court in appeal  disagreed with  this  view  holding that the  Collector  was  lawfully empowered to authorise the Superintendent of Central  Excise to  prosecute  the  appellant.   The  Court  convicted   the appellant and sentenced him to rigorous imprisonment for six months. Dismissing an appeal to this Court, HELD  :  The plain reading of the relevant  entries  in  the Notification   of  January  10,  1963  as  amended  by   the Notification  of  November  5, 1963 clearly  shows  that  it authorises the Collector to exercise the power and  function



in  relation  to  the institution  of  prosecution  for  any offence punishable under Part XII-A of the Rules referred to in r. 126Q.  Keeping in view the multifarious activities  of the  higher  officers of the Central  Excise  Department  it seems  clear  that after the responsible  officers  of  this Department  not inferior in rank to the Assistant  Collector had  applied  their mind and come to a decision  as  to  the desirability  of starting the prosecution in a  given  case, further  steps in the mitt& of actual prosecution  including the  drafting  and presentation of the  complaint  could  be lawfully carried out by others.  To hold otherwise would not only   mean  unduly  straining  the  unambiguous   statutory language   but  would  also  tend  to  thwart,  instead   of effectuating, their real purpose. [915 C-F] There  was  no  force  in the  contention  that  the  charge levelled  against  the  appellant was vague or  in  any  way different from the one for which 909 he  was convicted.   In fact the appellant had admitted  all the  relevant facts alleged by the prosecution.   The  facts alleged  and  proved clearly brought  the  appellant’s  case within  the  mischief  of  rule  126H(2)(d)  and   126-P(2). Although under the new Gold (Control) Act 18 of 1965,  which had  repealed Part XII-A of the Rules, there is  no  minimum sentence  of imprisonment prescribed, the present case  must be  governed by the law in force at the time  and  therefore the  minimum sentence of 6, months under rule 126-P(2)  (ii) must apply. [916 D, G]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 76  of 1968. Appeal  by special leave from the judgment and  order  dated February 8, 1968 of the Mysore High Court in Criminal Appeal No. 215 of 1966. V.M.  Tarkunde, R. Jethamalani, N. H. Hingorani  and  K.. Hingorani, for the appellant. S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Dua, J. This appeal by special leave is directed against the judgment  and  order  of the Mysore  High  Court  on  appeal setting aside in part the order of the appellant’s acquittal by  a  Second Class Magistrate and convicting him  under  r. 126P(2)  of the Defence of India Rules as amended  in  1963- hereafter  called the Rules-and sentencing him  to  rigorous imprisonment  for six months.  The order of the trial  court acquitting  him of the offence under s. 135 of  the  Customs Act was upheld. The appellant alighted from a service plane at H.A.L.  Aero- drome, Bangalore on November 16, 1963 at about 12.45 in  the afternoon.   E.  R.  Fariman, Inspector,  C.I.D.  had  prior incriminating  information  about the arrival  of  a  person whose   description  seemed  to  tally  with  that  of   the appellant.  The Inspector and has staff who were on the look out  waited for the appellant to take his baggage  from  the baggage counter.  As soon as the appellant took delivery  of a  plastic  bag  and  a hold-all  the  Inspector  asked  the appellant  to accompany him to the Security Room.  On  being questioned the appellant gave his name as Tara Chand  though he  admitted that he had travelled under the name of  J.  D. Shaw.  In the Security Room in the presence of  Panchwatdars the  plastic bag and the hold-all were opened and  examined. From a pillow taken out of the hold-all were found two  tape



bags  containing  16 pieces of gold with  foreign  markings. These tape bags had been put into the pillow which was  then stitched.  The appellant was then produced by the  Inspector before  his  D. S. P. along with the articles  seized-  from him.   After obtaining sanction from the Collector under  S. 137(1) of the 910 Customs  Act  and under r. 126Q of the  Rules  Shri  Rasool, Superintendent   of  Central  Excise  (P.W.  3)  filed   the complaint. The learned Magistrate trying the appellant found the.  gold pieces  to be of foreign origin.  He, however, did not  find any  evidence  establishing  them to be  smuggled  with  the result that the appellant was acquitted of the offence under S. 135 of the Customs Act.  The learned Magistrate did  not draw  any  presumption  against the  appellant  because  the seizure   of  the  gold  pieces  was  not  by  the   Customs authorities but by the police who thereafter handed over the gold pieces to the office of the Collector of Central Excise and Customs. While  considering the case against the appellant  under  r. 126P(2)  of the Rules, the learned Magistrate observed  that according  to  the  relevant  notification  issued  by   the Government  of India on November 5, 1963 in modification  of the  earlier one issued under r. 126J read with r.  126X  of the  Rules, it is either the Assistant Collector of  Central Excise or the Collector of Central Excise who can  institute prosecution.  These officers are not authorised to  delegate the  power  to  institute  prosecution.   According  to  the learned  Magistrate the Collector of Excise had,  therefore, no  power  to delegate the right to  institute  prosecutions with which healone  had been clothed.  Exhibit P/5 was  in the circumstancesconsidered  to be ineffective.  On  this reasoning the complainthaving   not  been  filed  by   the officer competently authorised the appellant was acquitted. On appeal by  the  Superintendent  of  Central  Excise   and Customs  (the  complainant  in  the  case)  the  High  Court disagreed with the view taken by the learned Magistrate.  It may  be pointed out that the appeal by the  complainant  was confined only to the acquittal under r. 126P(2) of the Rules and  the appellant’s acquittal under S. 135 of  the  Customs Act was not questioned, it being conceded that there was  no evidence  on the record to bring the appellant’s case  under S. 135 of the Customs Act. The High Court relying on Ex.  P/5 and the two notifications issued  by  the Government of India came to  the  conclusion that  the Collector was lawfully empowered to authorise  the Superintendent of Central Excise to prosecute the appellant. That   Court   also   arrived   at   the   conclusion   that the,appellant,  who  was not a dealer or refiner,  having  a licence,  was  found  in possession of  gold,  of  which  no declaration  had been made under the law and, therefore,  he was guilty of an offence punishable under r. 126P(2) of  the Rules.  The appeal was accordingly allowed and the appellant convicted  and  sentenced to rigorous imprisonment  for  six months.                             911 In  this  Court Shri Tarkunde assailed the legality  of  the view  taken by the High Court.  According to him  the  trial court  had  rightly held the prosecution not  to  have  been instituted  by a duly authorised person.  Let us see if  the scheme  of  the relevant statutory provisions  supports  the learned counsel. Part XII-A of the Rules deals with Gold Control and it  con- tains  rules  126A to 126Z.  This part was inserted  in  the



Defence of India Rules in January 1963.  Rule 126Q  provides :               "(1) No prosecution for any offence punishable               under  this Part shall be  instituted  against               any person except by, or with the consent  of,               the Administrator or any person authorised  by               the Administrator in this behalf.               (2)   Nothing  in rule 154 shall apply to  any               contravention of any provision of this Part or               any order made thereunder."               The  word "Administrator" was substituted  for               the  word "Board" in September 1963.   We  are               informed  that no Administrator as defined  in               r.  126A(a)  was  appointed  by  the   Central               Government  under power conferred on it by  r.               126J(1).  Under r. 126X the Central Government               is  empowered  to perform all or  any  of  the               functions  of  the Administrator and  also  by               notification  to  exercise all or any  of  the               powers conferred on the Administrator by  Part               XII-A if considered necessary or expedient  in               the   public   interest   to   do   so.    The               Administrator who is to take suitable measures               : (a) to discourage the use and consumption of               gold, (b) to bring about conditions tending to               reduce the demand for gold and, (c) to  advise               the Central Government on all matters relating               to   gold,  is  enjoined  by  r.  126J(3)   to               discharge his functions subject to the general               control   and   directions  of   the   Central               Government.   Sub-rules  4 and 5  of  r.  126J               provide :               "(4)  The  Administrator  may  by  general  or               special  order  authorise such  person  as  he               thinks  fit  to  exercise all or  any  of  the               powers exercisable by him under this Part  and               different   persons  may  be   authorised   to               exercise different powers               Provided  that  no officer below the  rank  of               Collector  of  Customs or  Central  Excise  or               Collector of a district shall be authorised to               hear appeals under sub-rule (3) of rule 126-M.                (5)  Subject   to  any  general  or   special               direction  given or condition attached by  the               Administrator any               912               person  authorised  by  the  Administrator  to               exercise any powers may exercise these  powers               in the same manner and with the same effect as               if  they  had  been coffered  on  that  person               directly  by  this  Part and  not  by  way  of               authorization."               We may bear in mind the effect of sub-rule (5)               on the scheme.  Rule 126H(2) (d) dealing  with               restrictions on possession and sale of gold by               persons other than licensed holders lays down               "(2) Save as otherwise provided in this Part,-               (d)   no  person other than a dealer  licensed               under this Part shall buy or otherwise acquire               or  agree to buy or otherwise  acquire,  gold,               not being ornament, except,               (i)   by     succession,     intestate      or               testamentary, or               (ii)in accordance with a permit granted by the               Administrator  or  in  accordance  with   such



             authorisation  as  the Administrator  may,  by               general or special order make in this behalf :               Provided that a refiner may buy or accept gold               from a dealer licensed under this Part;" Turning now to the two notifications on the construction  of which the fate of this case depends, we find that on January 10,  1963  the Central Government issued a  notification  in exercise  of the powers coffered on it by r. 126X read  with r.  126J(4)  authorising  certain officers  of  the  Central Excise  Department to exercise any or all of the  powers  of the  Gold  Board in relation to  certain  matters  specified therein.   At  sl.  no. 10 of the  Table  contained  in  the notification officers not inferior in rank to the  Assistant Collector  were authorised to exercise powers and  functions in relation to the matter of "according of sanctions for the prosecution of offences" with reference to r. 126Q.  We have reproduced  the exact words of the entry in col. (4) of  the Table.  This notification was amended in certain respects on November  5,  1963.   At sl. no. 10  of  the  amended  Table officers not inferior in rank to the Assistant Collector  of Central  Excise Department were authorised to  exercise  the powers   and  functions  in  relation  to  the   matter   of "institution.  of  prosecution for  any  offence  punishable under Part XII-A of the Defence of India 913 Rules"  with  reference  to r. 1260.   Here  again  we  have reprocessed the exact words used. According  to Shri Tarkunde these notifications did not  em- power    the   Assistant   Collector   to   authorise    the Superintendent  of Central Excise and Customs  to  institute the present proceedings.  The Assistant Collector, said  the counsel,  was authorised only himself to institute them  and he could not lawfully accord consent for the institution  of prosecution  as  he purported to do under ET.  P/5.  We  are unable to accept this submission.  The actual wording of the relevant entries in all the columns of serial no. 10 in  the Table of the later notification may here be reproduced. " 10.  Assistant Collector of the Central Excise Department.                             126Q Institution of prosecution for any offence punishable  under Part XIIA of the Defence of India Rules, 1962". This  has  to  be read along with the opening  part  of  the earlier  notification dated January 10, 1963  Which  remains the  principal notification and was amended only in  certain particulars  on November 5, 1963.  According to the  opening part of the principal notification the officers not inferior in rank to the officer specified in col. 2 of its Table were authorised to exercise any or all of the powers of the  Gold Board   in  relation  to  the  matters  specified   in   the corresponding  entries in cols. 3 and 4. In place  of  "Gold Board" we have to read the word "Administrator" and since no Administrator  was ever appointed, the powers and  functions entrusted to him were at the relevant time being exercised by  the  Central Government.  We may point out that  it  was apparently  by oversight that the word  "Administrator"  was not substituted for the expression "Gold Board" in the noti- fication though in September 1963 such substitution had been effected  by  appropriate amendment in the  relevant  rules. This was not controverted at the Bar and indeed no point was sought  to  be made on this ground.  It would thus  be  seen that  in determining the scope and extent of the  powers  of the officers authorised in the Table of the Notification  to exercise  the  powers and functions  of  the  Administrator, actually exercised by the Central Government (there being no Administrator appointed under the rules), we have to see the



nature  of  the power and function mentioned in col.  4  and examine it by’ reference to the rule mentioned in col. 3  in the  light  of the expression "in relation  to  the  matters specified"  in  the notification which, in our  opinion,  to some extent widens the scope of the powers and functions de- legated by the notification. 16-L694 SupCI/71 914 Under r. 126Q as read in the light of the entries at  serial no.  10  of  the notification  prosecution  for  an  offence punishable  under  Part  XII-A  can,  in  our  opinion,   be instituted  by  or  with the consent  of  an  officer  not inferior  in rank to the Assistant Collector of the  Central Excise Department.  In Ex.  P/5 dated September 4, 1964 Shri V. Parthasarathy, Collector of Central Excise accorded  his sanction  to  the prosecution of the appellant  as  required under  r. 1260 of the Defence of India Rules.  He did so  in exercise  of  the  powers  conferred  on  him  by  the   two notifications  mentioned above.  The offence for  which  the consent was given was described in this document as under               "WHEREAS  Shri  Tarachand s/o  Deviraj  (Devi-               chand)  Room  No. 4, Mistry  Bungalow,  Duncan               Road, Bombay-4was found to have acquired  gold               not being ornamentexcept   by   succession,               intestate, or testamentary or in accordancewith               the    permit   granted,   either    by    the               Administrator  or by the Deputy  Secretary  in               the office of the Gold Control  Administrator,               Bombay, duly authorised in this behalf by  the               Government  of India vide  their  notification               No.  F. 1/8/63-GC dated 20-10-1963, 16  pieces               of  gold of 10 tolas each bearing markings  as               to its origin and purity contrary to the  pro-               visions  of  rule 126H(d) of  the  Defence  of               India Amendment Rules.               WHEREAS any person having in his possession or               in his control any quantity of gold or buy  or               otherwise   acquires   or  accepts   gold   in               contravention of any provisions of Part  XII-A               of the Defence of India Rules renders  himself               liable for punishment under Rule 126P(2).               And  on careful study of the  material  placed               before me and satisfying myself that the  said               Shri Tarachand is liable to action under  rule               126P(2)  of  the Defence  of  India  Amendment               Rules, 1963 for reasons mentioned above, I. V.               Parthasarathy,  Collector of  Central  Excise,               Mysore Collectorate, Bangalore, in exercise of               the  powers conferred on me by the  Government               of India in their Notification F. No. 25/1/63-               GCR dated 5-11-63 issued under Rule 126J  read               with  Rule  126-X  of  the  Defence  of  India               Amendment  Rules do hereby accord consent  for               the  institution of prosecution of  the  said               Shri Tarachand as required under Rule 126-Q of               the Defence of India Amendment Rules, 1963."                             915 This  authority, in our opinion, quite clearly falls  within the  notification  read as a whole and the  High  Court  was right in so construing it. The  submission that these notifications must  be  construed strictly  because  by  these instruments  the  authority  to prosecute is delegated and so construed they should be  held to confer power only to prosecute but not to accord  consent to  the  apperant’s  prosecution by  some  other  person  or



authority   has  not  impressed  us.  The  attempt  by   the appellant’s  learned  counsel in this connection  to  equate these  notification with powers of attorney does  not  carry the  matter any further.  The plain reading of the  relevant entries in the notifications leaves no doubt in our mind  as to  its  meaning,  scope  and  effect.   It  quite   clearly authorises  the Collector to exercise power and function  in relation to the matter of institution of prosecution for any offence punishable under Part XII-A of the Rules referred to in r. 126Q.  Keeping in view the multifarious activities  of the  higher  officers of the Central  Excise  Department  it seems  to  us that after the responsible  officers  of  this Department  not inferior in rank to the Assistant  Collector had  applied  their mind and come to a decision  as  to  the desirability  of  starting the prosecution in a  given  case further steps in the matter of actual prosecution  including the  drafting  and  presentation of  the  complaint  can  be lawfully carried out by others: That this is the real object and  purpose of the notifications Is clearly brought out  on plain  reading  of their language.  To  hold  otherwise,  as desired  by  5hri  Tarkunde,  would  not  only  mean  unduly straining the unambiguous statutory language but would  also tend to thwart, instead of effectuating, their real purpose. We  are  thus in agreement with the view taken by  the  High Court. The counsel next submitted that the charge levelled  against the  appellant was different from the one for which  he  has been  convicted.  In any event the charge framed,  according to the counsel, was vague and it has caused him prejudice in his  defence.  Here again, we are unable to agree.   In  the complaint  all the relevant facts were stated quite  clearly and  it was emphasised that the appellant had been found  in possession  of  16  pieces of  gold  with  foreign  markings ingeniously  concealed inside long tabular pouches, in  turn hidden  inside  a pillow case.  He was stated to  be  guilty inter  alia  of offences punishable under r.  126P(2).   The second charge framed by the court was as follows :               "That you on or about the 16th November,  1963               at  about  12.45 hours  at  H.A.L.  Aerodrome,               Bangalore,  alighted  from the plane  No.  105               which arrived from Bomay and when you and your               articles were searched,               17-L694 Sup CI/71                916               you  were found in possession of 16 pieces  of               gold each bearing markings, as to its  foreign               origin  and  purity weighing  10  tolas  each,               having   illegally  imported  into  India   in               contravention  of prohibition imposed  by  the               Ministry  of  Finance  Notification  No.  1211               F1/48  dated  25th August, 1948,  and  without               permit issued by the Gold Control  Authorities               as  required  under  Rule  126H(d)  under  the               Defence  of  India Amendment Rules,  1963  and               thereby   committed  an  offence  under   Rule               126P(2)  r/w 1261(10) of the Defence of  India               Amendment Rules, 1963 relating to Gold               Control and within my cognizance." The appellant never complained that this charge was vague or outside the complaint.  Indeed in his statement in court the appellant has admitted all the relevant facts alleged by the prosecution.  The facts alleged and proved clearly bring the appellant’s case within the mischief of rr. 126H(2) (d)  and 126P(2).   Rule  126H(2)  (d) has  already  been  reproduced earlier.    Under  r.  126P(2)  (ii)  whoever  has  in   his



possession  or  under his control any quantity  of  gold  in contravention  of any provision of Part XII-A is  punishable with imprisonment for a term of not less than six months and not  more  than  two  years and also  with  fine.   All  the relevant  salient  facts alleged by the  prosecution  having been admitted by the appellant there can hardly be any ques- tion  of  prejudice having been caused to him  by  the  wide language  of  the  complaint and the  charge,  assuming  the language to be wde.  This argument is accordingly repelled.    Lastly  the counsel contended that the  sentence  imposed was two severe.  The entire gold seized from him having been confiscated the sentence undergone should, according to  the submission, be held to serve the cause of justice.  We  have already  noticed  that  under r. 126P(2)  (ii)  the  minimum period of imprisonment prescribed is six months.   According to  the appellant the law has since been amended  and  under the Gold (Control Act 18 of 1965 which has repealed Part XII of  the Rules there is no minimum sentence of  imprisonments prescribed.   In our opinion this case must be  governed  by the  law  as in force Prior to the enforcement of  the  Gold (Control)  Act, 1965.  Our attention has not been  drawn  to any provision of law nor to any principle or precedent which would  attract the provisions of the Gold (Control)  Act  of 1965 to this case in regard to the question of sentence. This appeal accordingly fails and is dismissed. R.K.P.S.              Appeal dismissed. 917