Sheikh Mohd. Omer Vs. Collector of
Customs, Calcutta & Ors  INSC 174 (4 September 1970)
04/09/1970 HEGDE, K.S.
CITATION: 1971 AIR 293 1971 SCR (2) 35 1970
SCC (2) 728
Customs Act, 1962, s. 111(d)-"Any
prohibition" if includes restrictions-Mare imported for breeding, if pet
The appellant, a breeder of horses imported
into India a mare "Jury Maid", for purpose of breeding. The customs
authorities objected on the ground that the mare had been imported in
contravention of the provisions of the Imports and Exports (Control) Act. 1947
and confiscated the mare.
On the questions, (i) whether the mare was a
"pet animal" within the meaning of that expression in the
notification dated January 2, 1961 issued by the Government and therefore
exempt as personal baggage and (ii) whether the expression
"prohibition" contained in s. 111(d) of the Customs Act, 1962
includes prohibition of imports Coupled with it power to permit importation
under certain conditions,
HELD : (i) The mare "Jury Maid" was
not a 'pet animal'. A pet is "any animal tamed and fondled". There
was no evidence to show that jury maid was tamed or treated with fondness by
the appellant. He obtained that animal on lease for certain specified purpose
and in respect of that animal he had only a business connection.
(ii)The expression "any
prohibition" in s. 111 (d) of the Customs Act, 1962, includes
restrictions. Merely because s. 3 of the Imports and Exports (Control) Act,
1947, uses three different expressions "prohibiting",
'restricting" or "otherwise controlling," the amplitude of the
word any prohibition in s. 111 (d) of the Act cannot be cut down.
"Any prohibition" means every
prohibition and restriction is one type of prohibition. From item (1) of Sch. I
Part IV to Import Control Order. 1955, it is clear that import of living
animals of all sorts is prohibited. But Certain exceptions art, provided for.
But none the less the prohibition continues.
CIVIL APPELLATE JURISDICTION: Civil Appeal
1645 of 1966.
Appeals from the judgment and order dated
February, 7, 1966 of the Calcutta High Court in Appeal No. 114 of 1965.
A. N. Sinha and P. K. Mukherjee, for the
B. Sen and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Hegde, J. In this appeal by certificate two questions of law arise namely (1)
whether on the facts of this case the mare "'Jury Maid" can be
considered as a "pet animal" within the meaning of that expression in
the notification issued by the Government of 36 India, Ministry of Commerce and
Industries, Import Trade Control Public Notice No. 1 I.T.C.(PN)/61 dated 2nd
January 1961 and (2) whether the expression "prohibition" contained
in S. 111 (d) of the Customs Act 1962 (which will hereinafter be referred to as
the Act) includes prohibition of imports coupled with a power to permit
importation under certain conditions.
The facts relevant for the purpose of
deciding the points in issue are not many. They may now be stated. The
appellant, Sheikh Mohd. Omer, as found by the High Court was a dealer 'in
horses especially in racing horses. He was breeding horses out of mares owned
by him. He owned two stallions by name "Pieta" and
"Rontgen". He claimed to have had a considerable reputation as race
horse owner and for racing with horses bred by him races. In September, 1964,
the appellant went to Europe. While he was in Switzerland he received a letter
from M/s. British Blood-stock Agency Ltd., London informing him that one of its
clients was interested in obtaining a foal by stallion "Pieta" from
the said client's Brood Mare. After some correspondence it was agreed that the
Glasgow Stud Farm would lease a brown English mare to the appellant which would
be shipped to India and would be kept their pending her producing two foals by
the appellant's breeding race hot-se "Pieta" after which the mare
will be returned to with on foal. The appellant returned to Calcutta on
November 7, 1964 by air.
At the Dum Dum Airport he gave a declaration
showing that his seven unaccompanied bagages will follow by sea or by air.
'Eventually, "Jury Maid" was shipped to Calcutta by s.s
'Chinkoa" which reached Calcutta port on December 25, 1964. When the
appellant tried to take delivery of the same, the Customs authorities objected
on the ground that the mare had been imported in contravention of the
provisions of the imports and Exports (Control) Act, 1947.
After due enquiry the Customs authorities
confiscated the mare. At this stage, it may be mentioned that when the mare
came to India, it was pregant. After its arrival in India it gave: birth to a
foal and thereafter it died. The foal given birth by it is alive.
The first question that arises for decision
is whether by importing the mare in question the appellant contravened the
provisions of the Act.
Section 111 (d) of the Act provides:
"The following goods brought from a
place outside India shall be liable to confiscation:-(d)any goods which are
imported or attempted to be imported or are brought within the Indian customs
37 waters for the purpose of being imported, contrary to any prohibition
imposed by or under this Act or any other law for the time being in
force." "Prohibited goods" is defined in S. 2(33) of the Act.
That definition reads :
" "prohibited goods" means any
goods the import or export of which is subject to any prohibition under this
Act or any other law for the time being in force but does not include any such
goods in respect of which the conditions subject to which the goods are
permitted to be imported or exported have been complied with." From this
definition, it is clear that "prohibited goods" under the Act
includes also such goods as may be imported by complying with the prescribed
conditions. It is admitted that the import of horses or mares is not prohibited
under the Act. Therefore the question is whether such import is prohibited
"by any other law for the time being in force." Section 3(1) of the
Imports and Exports (Control) Act, 1947' provides:
"Powers to prohibit or restrict imports
and exports.(1)The Central Government may, by order published in the Official
Gazette, make provision 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 descripttion;
(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." In exercise of the powers conferred by s. 3 of the Imports and'
Exports (Control) Act, 1947, the Government of India promulgated an order known
as the "Imports Control" Order, 1955 dated 7th December, 1955. Clause
3(1) of the said order reads "Restriction on Import of Certain Goods.-(I)
Save as otherwise provided in this order, no person shall import any goods of
the description specified in Schedule 1, except under, and in accordance with,
a licence or a customs clearance permit granted by the Central Government or by
any officer specified in Schedule II." 38 The relevant Entry is to be
found in Item I of Schedule I in part IV which is as follows:-SL. Name of
Article Item of First Schedule to No. Indian Triff Act 1934.
(1) (2) (3) Part IV 1. Animals, living all I
and I (1).
By the notification dated January 2, 1961
referred to earlier certain exemptions were provided for personal baggage of a
passenger. One of the exemptions granted is for clearance of one dog, pet
animal and birds in a limited number subject to certain conditions.
Now we shall go back to the question whether
"Jury Maid" can be considered as a pet animal. A pet is explained in
Concise Oxford Dictionary of Current English as "any animal tamed and kept
as favourite or treated with fondness." The shorter Oxford Dictionary
explains that word thus:
"Any animal that is domesticated or
tamed and kept as a favourite or treated with fondness, esp. applied to a lamb
reared by hand." The same word is explained in Chamber's Twentieth Century
Dictionary thus "Any animal, tamed and fondled." There is no evidence
to show that "Jury Maid" was tamed.
That apart the "Jury Maid" was not
fondled or treated with fondness by the appellant. He obtained that animal on
lease for certain specified purpose. In respect of that animal he had only a
business connection. Rejecting the contention of the appellant that "Jury
Maid" is a pet animal, the learned judges of the appellate bench of the
Calcutta High Court observed :
"There is no such species of animal
known as "Pet animal". What happens is that certain kind of animals
or birds are often domesticated and when a particular person becomes fond of
such an animal or bird it may be said to have become a "pet" of that
person and may be called a "pet animal". It is a subjective
expression. In the present case, the mare "Jury Maid" was not the
" pet" of any particular person. So far as the appellant is
concerned,-he had not even seen the mare when it arrived in India. It cannot be
said that he became fond of it at any relevant point of time. In actual life we
find that men have at times fond of strange animals like 39 lions, tigers and
even crocodiles. It was not intended to make the baggage rules a warrant for
transforming passengers ships into a Noah's Ark.. . ." We entirely agree
with those observations and reject the contention of the appellant that
"Jury Maid" was a pet animal.
This takes us to the question whether by
importing the mare "Jury Maid" the appellant contravened S. 111(d)
read with s.
125 of the Act. It was urged on behalf of the
appellant that expression "prohibition" in s. 111(d) must be
considered as a total prohibition and that expression does not bring within its
fold the restrictions imposed by cl.
(3) of the Imports Control Order, 1955.
According to the learned Counsel for the appellant cl. (3) of that order deals
with the restrictions of import of certain goods.
Such a restriction cannot be considered as a
prohibition under s. 111 (d) I of the Act. While elaborating his argument the
learned Counsel invited our attention to the fact that while s. 111 (d) of the
Act uses the word "prohibition", s. 3 of the Imports and Exports
(Control) Act, 1947 takes in not merely prohibition of imports and exports, it
also includes "restrictions or otherwise controlling" all imports and
exports. According to him restrictions cannot be considered as prohibition more
particularly under the Imports and Exports (Control) Act, 1947 IIs that statute
deals with "restrictions or otherwise controlling" separately from
prohibitions. We are not impressed with this argument. What cl. (d) of s. 111
says is that any goods which are imported or attempted to be imported contrary
to "any prohibition imposed by any law for the time being in force in this
country" is liable to be confiscated. "Any prohibition" referred
to III that section applies to every type of prohibition". That
prohibition may be complete or partial. Any restriction on import or export is
to an extent a prohibition. The expression "any prohibition" in s.
III (d) of the Customs Act, 1962 includes restrictions. Merely because s. 3 of
the Imports and Exports (Control) Act, 1947 uses three different expressions
"prohibiting" "restricting" or "otherwise
controlling", we cannot cut down the amplitude of the word "any
prohibition" in s. 111(d) of the Act. "Any prohibition" means
every prohibition. In other words all types of prohibitions.
Restriction is one type of prohibition. From
item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that
import of living animals of all sorts is prohibited. But certain exceptions ire
provided for. But none the less the prohibition continues.
In the result this appeal is dismissed with
costs. Y. P.