Tarachand Vs. Superintendent of
Central Excise, Bombay  INSC 247 (3 December 1970)
03/12/1970 DUA, I.D.
CITATION: 1971 AIR 781 1971 SCR (2) 908 1970
SCC (3) 507
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.
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 126P(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
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]
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 1963hereafter 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. Aerodrome, 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 lookout 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 seizedfrom 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 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 heal one had
been clothed. Exhibit P/5 was in the circumstances considered to be
ineffective. On this reasoning the complaint having 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 contains 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 there under."
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 empower 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
" 10. Assistant Collector of the Central
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 notification 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 delegated
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 (Devichand)
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 provisions 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. 25/1/63GCR 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
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 question
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
Lastly the counsel contended that the
sentence imposed was too 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
R.K.P.S. Appeal dismissed.