Harivansh Lal Mehra Vs. State of
Maharashtra  INSC 86 (19 March 1971)
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 1130 1971 SCR 113 1971 SCC
Prevention of Corruption Act 2 of 1947, s.
5(2) read with s.
5(1) (d)--Official sending goods from Goa to
Bombay after Goa had become Part of Indian territory without payment of customs
duty--No offence is committed because no customs duty was leviable--Duty can be
levied only by law and not by administrative instructions.
The appellant was convicted of a charge under
a. 5(2) read with a. 5(1) (d) of the Prevention of Corruption Act. The
allegation against him was that by utilizing his position as a government
servant he sent various articles such as Radios, Transistors, Clothes etc.,
from Goa to Bombay without paying customs duty thereon. Against the order of
the High Court maintaining his conviction appeal was filed in this Court. The
question for consideration was whether any customs duty was leviable on goods
alleged to have been sent by the appellant to Bombay from Goa which when the
goods were sent, had become a part of India.
HELD: Goa was liberated on December 20, 1961.
The twelfth amendment to the Constitution which received the assent of the
President on 27th March 1962 made Goa a part of India. All territories that
this country may acquire in whatever manner become a part of India in view of
Art. 1(3) (c). [115G-116C] According to the prosecution the goods complained of
were all sent from Goa to Bombay after March 27, 1962. There was no statute or
statutory rule to show that any customs duty had been imposed on the goods
transferred from Goa to other parts of India after December 20, 1961. The trial
court and the High Court wrongly held that certain customs duties were leviable
because of some administrative instructions. No tax or duty can be levied or
collected except by authority of law. Moreover no administrative instructions
were produced before the court, privilege being strangely claimed for them on
the ground that they were confidential documents. [116C-F] The notification
issued in 1950 declaring Goa to be a foreign territory and thus bringing the
exports from that country to India within the purview of the Land Customs Act,
could not continue to have legal effect after Goa became a part of India, for
it then ceased to be a foreign territory.
[116G] Section 5 of the Indian Tariff Act
1934 as it stood in 1950 empowered the Government to declare any territory
outside India as a foreign territory for the purpose of that provision. That
provision did not empower the government to declare any part of India as a
foreign territory. Once Goa became a part of India the Government was
incompetent to declare that territory as a foreign territory. Nor did it appear
that any such declaration was made after December 20, 1961. [117C-D] There was
thus no legal basis for holding that the appellant had utilised his official
position to evade customs duty.
His appeal must accordingly be allowed.
[117E-G] 8--1 S.C. India/71 114
CRIMINAL APPELLATE JURISDICTION Criminal
Appeal No. 80 of 1967.
Appeal from the judgment and order dated
April 17, 1967 of the Bombay High Court in Criminal Appeal No. 1210 of 1965.
A.S.R. Chari, M. J. Mirchandani, K. K. Jain,
H. K. Puri and R. Nagratnam, for the appellant.
P. K. Chatterjee, B. D. Sharma and S. P.
Nayar, for the respondent.
The Judgment of the Court was delivered by
Hegde, J.-The appellant and one R. B. Mathur were tried before the learned
Special Judge for Greater Bombay under various charges including a charge of
conspiracy. Mathur was acquitted and the appeal against his acquittal was
unsuccessful. The appellant was also acquitted of all charges excepting a
charge under Section 5(2) read with Section 5(1) (d) of the Prevention of
Corruption Act. For that offence he was sentenced to suffer rigorous
imprisonment for two years and pay a fine of Rs. 5,000, in., default to suffer
further rigorous imprisonment for four months. The substance of the charge
under which he was convicted is that he by utilizing his position as a
Government servant sent various articles such as Radios, Transistors, Clothes
etc., from Goa to Bombay without paying customs duty. He was also held guilty
of sending his personal articles in the vehicles engaged by the postal
department without paying any charge. The trial court supported its conclusion
on a further ground namely that the assets of the appellant were more than that
he could have acquired by his known sources of income.
The charges framed against the appellant made
no reference to the fact that his assets were more than that he could have
acquired by his known sources of income. In appeal the learned. judges of the
High Court did not go into that aspect of the case. Nor was that aspect of the
case pressed before us at the hearing. Therefore it is not necessary to go into
that aspect. Even otherwise that accusation appears to be without any solid
basis. The learned Judges of the High Court also did not go into the allegation
that the appellant utilised his official position in sending his personal goods
in the vehicles engaged by the postal department. The accusation is that the
appellant sent some of his goods in the vehicles engaged, by the postal
department from Panjim in Goa to Margoa or Sawanthwadi or Belgaum. These places
are not very far from Panjim. The High Court held that the offence committed by
the appellant in that regard if true, is of a technical nature and therefore it
thought it unnecessary to examine the evidence relating to the same. Evidently
in its view the accusation 115 regarding the sending of some articles in the
vehicles engaged by the postal department was of a trifling nature and
therefore riot worth examining. But the High Court agreed with the trial (court
that the appellant was guilty of evading payment of customs duty and he did so
by utilizing his official position. In order to ,examine the correctness of
this finding, it is necessary to set out the material facts.
In 1961, the appellant was working as a
Senior Superinten- ,dent of Post Offices at Jaipur. On December 20, 1961 Goa
was liberated by the Indian Army. Thereafter the appellant was ,deputed as a
Special Duty Officer to Goa. He took charge in Goa on December 25, 1961. He
assumed additional charge as Director of Posts and Telegraphs on May 11, 1962
and he held that office till August 11, 1962. Thereafter he went back to
Jaipur. It is alleged that during the period of appellant's stay in Goa, he
made large purchases of certain luxury articles. Utilising his official position
in the Posts and Telegraphs department at profits. The prosecution relied in
support of that charge on four different instances. Voluminous evidence was led
in support of the prosecution case. But it is not necessary to go into that
evidence as in our opinion the charge under which the appellant was convicted
is without any legal basis. The learned Counsel for the appellant, Mr. A. S. R.
Chari has assailed the judgments of the High Court and the trial court on
various grounds. He contended that the evidence adduced in, support of the
prosecution case is unreliable and insufficient to support the conviction of
the appellant. He also raised various legal pleas in support of the appeal. He
contended that as the Prevention of Corruption Act was not in force in Goa at
the relevant time, the appellant could not have been held guilty of an offence
under that Act.
According to him, the investigation of this
case was illegal as the required sanction had not been obtained. But the most
important plea taken by him is that no custom duty was leviable on the articles
said to have been sent by the appellant from Goa to Bombay and as such the
entire fabric of the prosecution case must fall to the ground. There is force
in this contention. Hence it is not necessary to examine the other contentions.
As mentioned earlier Goa was liberated on
December 20, 1961.
Twelfth amendment to our Constitution which
received the assent of the President on 27th March 1962 made Goa a part of
India. It became a Union Territory. The amendment in question is deemed to have
come into force on December 20, 1961. Hence Goa must be considered as a part of
India from December 20, 1961 and indisputably at any rate from March 27, 1962.
Article 1 of our Constitution says :
" 1. India, that is Bharat, shall be a
Union of States.
2. The states and the territories thereof
shall be as specified in the First Schedule.
3. The territory of India shall comprise- (a)
the territories of the States ;
(b) the union territories specified in the
First Schedule, and (c) such other territories as may be acquired." All
the territories that this country may acquire in whatever manner become part of
India in view of Article 1 (3) (c). Further in the case of Goa by means of 12th
amendment to the Constitution, the same is included in the 1st Schedule.
Therefore there is no room for the contention that Goa was not a part of India
during the relevant time.
It may be noted that according to the
prosecution the goods complained of were all sent from Goa to Bombay after March
This takes us to the question whether there
is any liability to pay customs duty when someone sent goods from Goa to Bombay
in 1962. No statute or statutory rule was placed before, the Court to show that
any customs duty had been imposed on the goods transmitted from Goa to other
parts of India after December 20, 1961. The only witness who spoke about the
liability to pay customs duties on the goods in question is P. W. 56 Shaikh,
the Dy. Superintendent of Central Excise. According to him customs duty on
those articles was leviable because of certain administrative instructions. But
be refused to place those administrative instructions before the court. He
claimed privilege on the ground that they are confidential documents a strange
Stranger still is that the trial court
appears to have accepted that plea. No tax or duty can be levied or collected
except by authority of law. Hence no customs duty was leviable on the basis of
any administrative instruction.
Every levy of customs duty or any other tax
must be sanctioned, by law. It is surprising that both the trial court as well
as the High Court were of the opinion that certain customs duties were leviable
because of some administrative instructions. It appears that there was a
notification issued in the year 1950 declaring Goa to be a foreign territory
and thus bringing the exports from that country to India within the purview of
Land Customs Act.
But that notification cannot continue to have
a legal effect after Goa became a part of India. On becoming a part of India
Goa ceased to be a foreign territory. The notification in question must have
been issued under Section 5 of the Indian Tariff Act, 1934 as it stood in 1950
(that section has been repealed now). That section read:
"Where a customs duty at any rate
prescribed by or under this Act or any other law for the time being in force is
117 leviable on any articles when imported into, or any article when exported
from, a port in India the Central Government may, by notification in the official
gazette, direct that a duty of customs at the like rate shall be leviable on
any such article when imported or exported, as the case may be, by land from or
to any territory outside India which it may, by, a like notification, declare
to be foreign territory for the purposes of this section." The
notification under this section could have been issued only in respect of any
territory outside India and not in respect of any part of India. That provision
empowered the Government to declare any territory outside India as a foreign
territory for the purposes of that provision. That provision did not empower
the Government to declare any part of India as a foreign territory. But it gave
power to the Central Government not to treat any territory outside India as a
foreign territory for the purposes of that provision. To illustrate the
position, the Central Government could not have declared either Delhi or Bombay
as a foreign territory but it could have treated Nepal or Bhutan as not a
foreign territory for the purposes of that provision. Once Goa became part of
India, the Government was incompetent to declare that territory as a foreign
territory. Nor does it appear that any such declaration was made after December
Unfortunately the High Court allowed it to be
influenced by what it says the practical considerations. It is likely that
there were considerable foreign goods in Goa which had been imported into that
territory before it was liberated, may be even without paying customs duty and
those goods were available for being transmitted to other parts of India.
But this circumstance does not change the
position in law.
It is not necessary for us to consider
whether after integration of Goa, the Government could have imposed any duty on
the goods that were sent from Goa to other parts of India. Suffice it to say
that our attention was not invited to any law imposing such duties. That being
so, the conclusion that the appellant had utilised his official position to
evade customs duty must fail.
In the result this appeal is allowed and the
conviction and sentence imposed on the appellant are set aside. He is on bail.
His bail bond do stand cancelled, and fine if paid refunded.