Dy. Chief Controller of Imports &
Exports, New Delhi Vs. K. T. Kosalram & Ors [1970] INSC 205 (29 September
1970)
29/09/1970 DUA, I.D.
DUA, I.D.
BHARGAVA, VISHISHTHA
CITATION: 1971 AIR 1283 1971 SCR (2) 507 1970
SCC (3) 82
CITATOR INFO:
R 1984 SC 684 (50)
ACT:
Imports and Exports Act (18 of 1947), Import
Control Order, 1955 and Import Trade Control Policy-Condition in licence for
import of goods-Interpretation of-Import of Printing Presses-Condition in
licence against sale of printing material-If applicable to printing presses..
HEADNOTE:
Under s. 3 of the Imports and Exports Act,
1947, the Central Government is empowered to provide by Order published in the
Official Gazette for prohibiting, restricting or otherwise controlling the
import,, export, carriage or shipment etc., of goods of any specified
description. The Central Government made the Import Control Order, 1955. Under
cl. 3 of this Order the import of any goods of the description specified in
Sch. I of the Order is restricted except under and in accordance with a licence
or a customs clearance permit granted by the Central Government. Item 67(1) in
Sch. I Part V, contains printing and lithographic material, and a large number
of various components of a printing press.
In Part V of the Schedule, known as ITC
Schedule of the Import Trade Control Handbook, relevant for the year 1960,
published by the Government of India (Ministry of Commerce and Industry)
printing and lithographic material are entered at serial no. 67(1). The I.T.C
Handbook, whichis published to give information of rules and procedure for the
assistance of those interested in imports, emphasises the importance of correct
classification with reference to the serial number and part, of the ITC
Schedule.
The Government of India, Ministry of Commerce
and Industry also publishes from time to time its Import Trade Control Policy.
In the publication, relevant for the period AprilSeptember 1960, the policy
statement shows the list of items licensable to actual users, and item 67(1)(i)
dealing with printing machinery (for Newspaper Establishments and quality
printers), is shown in App. iv, Part V. The respondents-who were the
Director-in-Charge and other officers of a company publishing a Tamil daily
newspaper-and others applied in Form B prescribed in Appendix III of the ITC
Handbook, for a licence for importing a printing press.
This form is meant for the import of goods by
actual users, when the licence is sought for import of goods other than those
falling under the capital goods licensing procedure.
The respondents stated that the raw material
was required by them for printing their newspaper. The ITC number and part were
specifically stated to be No. 67(1)(i), Part V. An amendment of the licence was
sought by the respondents for importing one more printing press, and while the
matter was pending with the Government, negotiations were entered into by the
respondents with a third party for the sale of one of the printing presses. One
of the presses was ultimately sold and delivered to the third party. According
to condition (c) of the licence issued 508 to the respondents the
licence-bolder had to utilise the goods imported only for consumption as raw
material or accessories in his own factory and their sale to or use by other
parties was specifically prohibited.
Alleging that the respondents had violated
cl. (c) of the licence, the appellant, (Deputy Chief Controller of Imports and
Exports) who was authorised by Statute to do so filed a complaint against them
for offences under s. 120B I.P.C., s. 5 of the Imports and Exports Control Act
and cl. 5(iv) of the Imports Control Order, 1955.
The respondents justified the sale on the
contention that cl. (c) did not cover the printing presses, that this clause
postulated that the goods covered by it should be capable of being utilized for
consumption as raw material or accessory in a factory, and that a complete
printing press is neither raw material nor accessories and that it cannot be
said that by fixing a printing press for running it the press is utilised for
consumption as raw material or accessory.
The trial court convicted some of the
accused. The High Court acquitted them on appeal, and dismissed the petition
for enhancement of sentence filed by the Public Prosecutor.
The Public Prosecutor applied under Art.
134(1) (c) of the Constitution for leave to appeal to this Court but that
application was dismissed by the High Court. Special leave to appeal under Art.
136 was applied for by the appellant and was granted.
On the questions: (1) Whether special leave
to appeal could be granted to the appellant when he did not move the High
Court; and (2) whether the respondents were guilty of the offences charged,
HELD : (1) There is no provision of law which
disentitles the appellant, who was the original complaint, from applying for
special leave in this Court merely because the Public Prosecutor had applied in
the High Court for enhanced punishment and for leave to appeal to this Court,
under Art.
134(1) (c). Article 136 and the Supreme Court
Rules are also wide enough to empower this Court to grant special leave to the
appellant in cases like the present [515 A-C] Management of Hindustan
Commercial Bank Ltd. Kanpur v. Bhagwandass, [1965] 2 S.C.R. 265, referred to.
(2) (a) The words used in the licence have to
be construed in the background of the scheme of the Import Control Order, 1955,
entry No. 67 of Schedule I to that Order and the Import Trade Control Policy.
What particular meaning should be attached to words and phrases in a given
instrument is usually to be gathered from the context. the nature of the
subject matter, the purpose or the intention of the author, and the effect of
giving to them one or the other of the permissible meanings, on the object to
be achieved. [515 FH] There is no item in any of the lists referred to in the
Import Control Order, 1955, or the relevant ITC Handbook or the relevant
publication regarding Import Trade Control Policy which covers printing presses
as a separate item.
Printing presses are thus treated by
legislative intendment as printing material or printing machinery, and the
respondents also proceeded on that footing. This is shown by their use of Form
B, and by the reference in their application to serial No. 67(1)(i). They also
knew the disability imposed on them by cl. (c) of the conditions in the licence
issued to them. The words 'utilised', 'consumption' and 509 raw material', in
the conditions have to be fitted into the clearly discernible statutory scheme
and this is, possible without doing violence to the dictionary meaning of the
words. The word "consumption" conveys the idea of using up the goods
by fixing them in the factory along with the other components, and the various
articles mentioned in Item 67(1) (i) have been intended constitute 'raw
material.' [518 A-B;
519 E-F] (b) Further, the respondents sought
as actual users the original licence and the amended licence on the ground that
the imported goods were required to meet the increasing demand of circulation
of their newspaper. Had they not complied with the procedure meant for the
import of goods by actual users they might not have secured the licence.
Having secured a licence expressly for the
import of goods for their use they cannot be permitted to ignore the condition
of actual user on the plea that cl. (c) of the conditions is inapplicable to
them. [519 F-H] Therefore, all the respondents-the individual accused and the
company-were guilty of the offences charged. [520 F] State of West Bengal v.
Motilal Kanoria, [1966] 3 S.C.R.
933, followed.
(3) Breach of conditions for import of goods
is a serious matter because it prejudicially affects the country's national
economy. The view of the High Court is not sustainable on the statutory
language and on the Import Control Policy of which the respondents were fully
aware, and hence, this Court is justified in converting the acquittal into
conviction, under Art. 136 of the Constitution. [520 G-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 178 of 1967.
Appeal by special leave from the judgment and
order dated January 5, 1967 of the Madras High Court in Criminal Appeal Nos. 34
to 38 of 1965.
R. N. Sachthey, for the appellant.
H. R. Gokhale, M. K. Ramamurthi, Vineet Kumar
and Shyamala Pappu, for respondent No. 1.
A. V. Rangam, for respondent No. 6.
The Judgment of the Court was delivered by
Dua, J. A complaint under S. 6 of the Imports and Exports Control Act, 1947
dated 24th February, 1964 was presented by the Chief Controller of Imports and
Exports, New Delhi in the court of the Chief Presidency Magistrate, Madras
against (1) K. T. Kosalram, Director-in-charge of Messrs Dina Seithi Ltd.,
Madras, (2) K. T. Janakiram, Director, Messrs Dina Seithi Ltd., (3) K.
Natarajan, Manager, Messrs Mohan Ram Press, Madras, (4) Messrs Dina Seithi
Ltd., Madras, (5) Sri T. N. Ramachandran son of S. Natesa lyer, Madras and (6)
T.
Natarajan, Manager, Messrs Dina Seithi Ltd.,
Madras.
Accord5 10 ing to the broad allegations in
the complaint, on November 28, 1959 accused no. 4 (hereafter called the
Company) was registered under the Companies Act, 1956, as a public limited
company with the Registrar of Companies, Madras.
Accused nos. 1 and 2 who are brothers were
both directors of the Company, accused no. 1 being the Director-in-charge
attending to its day to day management and administration.
He was also authorised to operate its
accounts with the banks. The primary object of the Company was publication of a
Tamil daily newspaper "Dina Seithi". Accused no. 3 was the Manager of
Messrs Mohan Ram Press located in the same building in which the Company was
located. Srimati Gomati Devi, wife of accused no. 1 was the sole proprietress
of this Press. She had given power of attorney to her husband for operating the
bank account of her Press. The daily newspaper (Dina Seithi) used to be printed
at this press.
Accused no. 5 was a broker engaged in the
business of negotiating sale and purchase of printing machinery.
Between 1949 and 1951 he was working as Chief
Salesman of Printers' House, Madras and before that for about two years he had
worked as a salesman with Messrs Standard Printing Machinery Company, Madras.
In 1951 he started his independent business as a broker; in addition he also
used to work as a correspondent of "Kerala Kaumudi" belonging to the
Company. Accused no. 6 was the Manager of the Company and his wife Smt.
Sarojini was one of its Directors. On May 5, 1960 accused no. 1 applied on
behalf of the Company to the Chief Controller of Imports and Exports, New
Delhi, for the grant of an import licence in favour of the Company for
importing two secondhand rotary printing presses valued at Rs. 3 lakhs in the
category of "Actual Users". The Chief Controller of Imports &
Exports, on the recommendation of the Committee constituted for the purpose,
issued in the first instance aft import licence for Rs. 1,50,000 (Ex. P12). The
number of this licence was A-759626/60/AU/CCI/HO and it was dated September 19,
1960. Later, on the request of accused no. 2 on behalf of the Company, the
value of this licence was raised to Rs. 3 lakhs on the recommendation of the
Press Registrar of India. The licence was returned to the Company on December
16, 1960. The original period of validity of the licence having expired on June
19, 1961 accused no. 2 requested the Licensing Authority on behalf of the
Company to extend the period on the ground that the machinery could not be
fixed up by the Company's Directors.
Under the orders of the Controller in charge
of the newsprint sale, the validity of the licence was extended upto March 19,
1962. Oil July 2, 1961 accused no. 1 sought permission of the Licensing
Authority on behalf of the Company to import two secondhand rotary presses
instead of one already permitted within the licence value of Rs. 3 lakhs under
the import 51 1 licence Ex. P/12 on the ground that one more printing press was
required for the proposed office at Madurai (Ex. P/15).
After securing further necessary information
about the machinery proposed to be imported the Chief Controller approved the
request with the result that the amended licence for two presses was sent to
the Company, on August 16, 1961. On December 19, 1961 the Company as per letter
sent by accused no. 1, informed the Chief Controller that one rotary printing
press had been imported and the other was expected to arrive by January, 1962.
It was requested that in the import licence the description of the goods be
changed from "Rotary Press" to "Rotary Press with Stereo
equipment and Turtles". We find from Ex. P/17 and Ex. P/17(a) that it was
represented that the Company was incurring heavy demurrage as the cases were
lying on the wharf uncleared for want of the required amendment of the licence.
This was described as a purely technical amendment in the licence. This request
was granted with the approval of the Chief Controller of Imports and Exports.
The amended licence was despatched to, the Company on January 3, 1962.
According to condition (c) reproduced on-the
reverse of the import licence the licence-holder had to utilise the goods
imported only for consumption in his own factory and its sale to or use by
other parties was specifically prohibited.
The licence-holder was further prohibited
from pledging the imported goods in whole or in part except with a scheduled
bank duly authorised to deal in foreign exchange and that also with prior
permission of the Licensing Authority.
One Dr. K. G. Thomas owned "Kerala
Dhwani", a daily newspaper of Kottayam having circulation in the State of
Kerala. It has started on August 20, 1959 and C. J. Mani was its general
business manager ever since its inception.
On November 10, 1960 Dr. Thomas applied to
the Chief Controller of Imports and Exports on behalf of his firm for importing
a rotary printing press under a Customs Clearance Permit. But this was
rejected. On October 25, 1961 he sent another application dated October 3, 1961
on behalf of ,the firm requesting for an import licence for importing a
secondhand rotary press for the period October March, 1962.
But this was also rejected. Still another
application dated May 10, 1962 for licence for importing two mono typefacing
units was also rejected on April 29, 1963. C. J. Mani, the General Manager of
this concern was also independently trying to secure a rotary printing press
through various parties and firms. Accused no. 5 was known to C. J. Mani and
during the former's visit to Kottayam in the first quarter of 1961 he learnt
that Dr. Thomas was desirous of securing a secondhand rotary printing press.
Sometime in April or May, 1961 accused nos. 2 and 5 visited Kottayam and on
meeting Dr. Thomas they told him that accused no. 1 was going to have an import
licence for two rotary 512 printing presses but he needed only one, with the
result that one R. Hoe & Co eight-page rotary printing press would be
available for sale. After some correspondence and discussion between accused
no. 5 and C. J. Mani and Dr. Thomas and after a personal meeting between Dr.
Thomas and accused no. 1 (at the instance of accused no. 5) the terms of sale of
rotary press to Dr. Thomas were finally settled on July 17, 1961. The price was
settled at Rs. 2 lakhs exgodown, Madras, The same day Dr. Thomas paid to
accused no.
5 Rs. 15,000 by means of a cheque by way of
advance money.
Accused no. 5 issued a stamped receipt which
was also signed by accused no. 1. On July 19, 1961 the photo prints of the
press offered for sale were forwarded by accused no. 5 to Dr. Thomas. On the
reverse of these prints were the rubber stamp impressions of the Company. On
August 2, 1961 a further sum of Rs. 25,000 was paid by Dr. Thomas for which a
receipt was given by accused nos. 1 and 5. Between September 23, 1961 and March
17, 1962 the balance of Rs.
1,76,700 (total being Rs. 2,16,700) was paid
by Dr. Thomas in instalments towards the price of the rotary press and its
accessories. On September 1, 1961 accused No. 1 had 'opened a letter of credit
with a nil margin with the Indian Overseas Bank Ltd., Madras on Messrs
Universal Printing Equipment Company, ,New Yorkfor importing a secondhand
rotary press for dollars equivalent to Rs. 1,00, 1 12 against import licence
no. A-759626/ 60/AU/CCI/HQ. On October 28, 1961, the Bank received the relevant
import documents and-on December 13, 1961 it received from the Company the
remittance of the amount in cash towards the letter of credit. On October 20,
1961 Messrs Binny & Co., Madras, the agents of the' Shipping Company Messrs
Isthmian Lines Inc., U. S. A. had requested the Company to remit Rs. 12,712
being the freight payable at Madras towards the consignment of 19 boxes
containing secondhand rotary press due to arrive from New York by s.s.
"Steel Vendor" so as to enable them to cable to their principals at
New York to issue the bills of leding to the shippers. A cheque for Rs. 12,712
was accordingly sent by the Company to Messrs Binny & Co., on October 31,
1961. The necessary cable was then sent to New York. The import documents
pertaining to the rotary press were sent by accused no. 1 on behalf of the
Company to Messrs Natesa lyer & Co., Clearing Agents, Madras for clearing
the goods from the Madras Port by the Indian Overseas Bank Ltd., Pursawalakam,
Madras. This invoice was issued by the Universal Printing Equipment Company,
Lindhurst in the name of Messrs Dina Seithi Ltd., indicating shipment of the
goods imported contained in the 19 boxes bearing marks "Dina Seithi".
The customs duty and the clearance charges were paid by the Company. It is
unnecessary to state at length further details of the complaint. Suffice it to
513 started functioning from May 20, 1962. In March, 1962 the Deputy
Superintendent of Police, Madras, visited the premises of this newspaper and
found the rotary printing Press tallying with the description given in the
invoice issued to the Company by R. Hoe & Co., New York/London. The number
458 assigned to the press was also found on its major parts. No rotary press
imported by accused no. 1 on behalf of the Company was found at its (the
Company's) premises.
The amount received by cheques and drafts
from Dr. Thomas were credited to the account of Messrs Mohan Ram Press of which
Smt. Gomati Devi, wife of accused no. 1, was the sole proprietress. On these
broad avermerits it was prayed in the complaint that accused nos. 1 to 3 and 5
and 6 be proceeded against for offences under s. 120-B, I.P.C. read with s. 5
of Imports and Exports (Control) Act, 1947' Lind also for an offence under s. 5
of the said Act. The Company was alleged to be guilty under s. 5 of the said
Act read with cl. (5), sub-cl. (iv) of Imports (Control) Order, 1955.
The Chief Presidency Magistrate who tried the
complaint acquitted accused no. 6 holding that he had nothing to do with the
impugned transaction but convicted the rest. The Company was sentenced to fine
only and so were accused nos.
2, 3 and 5; three individual accused persons
were directed, in case of default to undergo rigorous imprisonment for three
months on each count. Leniency was shown to accused nos. 2, 3 and 5 because
they had acted under the directions given by accused no. 1 who was sentenced to
rigorous imprisonment for six months under each count and also to pay fine and
in default to undergo further rigorous imprisonment for three months.
The convicted accused appealed to the High
Court at Madras and the State applied for enhancement of sentences. The, High
Court acquitted all the accused persons with the result that the revision for
enhancement necessarily failed.
The High Court having declined certificate of
fitness under Art. 1 3 4 ( 1 ) (c) of the Constitution the Deputy Chief
Controller of Imports & Exports secured special leave to appeal under Art.
136 of the Constitution against the order of acquittal by the High, Court.
In the High Court, though in the memorandum
of appeal several grounds were taken, during arguments the appellant's counsel
confined his submission mainly to the point that condition. (c) of the licence
issued to accused no. 4 (Ex.
P/ 1 2) related only to raw material or
accessories and that as such the sale of printing press which was neither raw
material nor accessories, did not contravene that clause.
The factum of sale of the printing press, 514
to Dr. Thomas (P. W. 16) was not disputed. The High Court accepting this
contention held condition (c) in Ex. P/12 to be inapplicable to printing
presses and observed that the Licensing Authority had not applied its mind when
this condition was inserted in the licence for importing the printing press in
question. On this ground the conviction recorded by the trial court was set
aside. The appellant's learned counsel in this Court has questioned the
correctness of this view and has submitted that it is not sustainable on the
statutory provisions and has resulted in grave failure of justice.
Before dealing with this question we may
dispose of a preliminary objection to the competency of this appeal at the
instance of the Deputy Chief Controller of Imports and Exports, raised by Shri
H. R. Gokhale on behalf of the respondents. It has been pointed out that the
special leave petition in this Court purports to be filed by the Deputy Chief
Controller of Imports & Exports and not by the State.
As the State had conducted the prosecution
the complainant, it is argued, cannot seek leave nor can he prosecute this
appeal. Leave already granted ex parte is, according, to Shri Gokhale liable to
be revoked. Reliance has been placed on Management of Hindustan Commercial Bank
Ltd., Kanpur v.
Bhagwandass(1). There the appellant had
secured from this Court ex parte special leave to appeal under Art. 136 of the
Constitution without first moving the High Court for the necessary certificate
and this Court, on objection by the respondent, revoked the special leave as
being in contravention of O. 13, r. 2 of the Supreme Court Rules.
The respondents' contention before us is that
the Public Prosecutor and not the Deputy Chief Controller of Imports &
Exports had applied to the High Court for the necessary certificate and,
therefore, the Deputy Chief Controller has no locus standi to apply for special
leave. Having been granted on an incompetent petition the special leave
deserves to be revoked, argues Shri Gokhale. We are unable to uphold this
objection. The complaint was filed in the court of the Chief Presidency
Magistrate by the Deputy Chief Controller of Imports and Exports under S. 6 of
the Imports and Exports (Control Act, 1947. It is not disputed that this
officer was, as stated in para 1 of the complaint, duly authorised to make the
complaint within the contemplation of s. 6. In the appeals filed by the accused
against their conviction the State was impleaded, as represented by the Deputy
Chief Controller of Imports and Exports (complainant), as the respondent. It is
true that in a petition for enhancement of sentence filed in the High Court the
Public Prosecutor was shown as the petitioner and similarly the application for
leave to appeal from the judgment of the High Court was (1) [1965] (2) S.C.R.
265.
515 also filed in that Court by the Public
Prosecutor. But that, in our view, does not in any way disentitle the Deputy
Chief Controller of Imports and Exports (the original complainant duly
authorised by the statute) to apply for special leave to appeal to this Court
and to prosecute the appeal., Our attention has not been drawn to any provision
of law which can be said to deprive the Deputy Chief Controller the lawfully
authorised complainant in this case to seek special leave and prosecute this
appeal. In any event Art. 136 of the Constitution and the Supreme Court Rules
are wide enough in their language to empower this Court to grant special leave to
the Deputy Chief Controller in cases like the present and deal with the appeal
on the merits. The preliminary objection must accordingly be repelled.
Coming to the merits we may for a while again
turn to condition (c) of the licence which has already been noticed earlier. It
may be recalled that this condition expressly provides that the goods would be
utilised only for consumption as raw material or accessories in the licenceholder's
factory and no portion thereof would be sold to, or, be permitted to be
utilised by, any other party. The goods imported are also not to be pledged
with any financier other than banks authorised to deal in foreign exchange,
provided that particulars of the goods so pledged are reported in advance to
the licensing authority. Under s. 3 of the Imports and Exports Act-, 18 of 1947
the Central Government is empowered to provide by order published in the
official Gazette for prohibiting, restricting or otherwise controlling the
import, export, carriage or shipment etc., of goods of any specified
description and also 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. The
Central Government by Order dated December 7, 1955 made the Import Control
Order under ss. 3 and 4A of the said Act. Clause (3) of this Order provides for
restriction on import of certain goods in these words :
"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." Clause 7 of this Order empowers the Licensing Authority
suo motu or on application by the licensee to amend the licences granted under
this Order in such manner as may be necessary to make them conform to the
aforesaid Act or this Order or any other law in force or to rectify any error
or omission in the licence : on the licensee's request, however, the licence
may be 5 1 6 amended in any manner consonant with the Import and Export Control
Regulations. Item no. 67(1) in Schedule 1, Part V, which appears to us to be
relevant for this case reads :
"Printing and Lithographic material,
namely, presses, lithographic plates, composing sticks, chases, imposing
tables, lithographic stones, stero-blocks, wood blocks, half-tone blocks,
electrotype blocks, process blocks, roller moulds, roller frames and stocks,
roller composition, lithographic nap rollers, standing screw and hot presses,
perforating machines, gold blocking presses, galley presses, proof presses,
arming presses, copper plate printing presses, rolling presses, ruling
machines, ruling pen making machines, lead cutters, rule cutters, slug cutters,
type casting machines, typesetting and casting machines, paper in rolls with
side perforations to be used after further perforation for typecasting, rule
bending machines, rule mitreing machines, bronzing machines, stereotyping
apparatus, paper folding machines, paging machines, but excluding ink and paper
and sets of mats when imported as advertising material in connection with
composed films." This item which contains a very large number of various
components of a printing press corresponds to item no. 72(2) of the Indian
Tariff Act, 1934 which consolidates the law relating to customs duties. Item
no. 67(2) in Schedule I speaks of component parts as defined in import tariff
item no. 72(3), of machinery specified in cl. (1) excluding those covered by
sl. no 6 8 of this schedule. Serial no. 68 refers to rubber blankets for
printing presses etc. Item no. 67 (1) would suggest that printing presses are
included in the expression "printing and lithographic material." Our
attention has not been drawn to any other entry either in Schedule I of the
Imports Control Order or in the first Schedule of the Indian Tariff Act which
would cover the import of printing presses and payment of customs duty on such
import. These two statutes forming parts of the Import Control Scheme may
appropriately be considered as throwing some light on each other. The principal
argument advanced on behalf of the respondents is that cl. (c) of the
conditions of the licence does not cover the printing presses in question
because the plain language of this clause postulates that goods covered by it
should be capable of being utilised for consumption as raw material or
accessory in a factory. A complete printing press, it is contended, is neither
raw material nor accessories and it cannot be said that by fixing a printing
press for running it, the press is utilised for consumption as raw material or
accessory. This argument, though attractive on first impression seems to us on
a deeper thought to 517 be unacceptable. A close scrutiny of the scheme and
language of the relevant provisions of the import and export legislation and of
the Import Control Policy formulated by the Government leaves no doubt that the
argument is unfounded. Clause (c) reads :
" (c) The goods will be utilised only
for consumption as raw materials or accessories in the licence-holders' factory
and that no portion thereof will be sold to or be permitted to be utilised by
any other party or pledged with any financier other than Banks authorised to
deal in foreign exchange provided that particulars of goods so pledged are
reported in advance to the licensing authority." The respondents have
sought assistance for their argument principally from the dictionary meaning of
the words "consumption", "raw material" and
"utilised" used in this clause. "Consumption", it is
argued, conveys the idea of destruction of the commodity consumed and "raw
material" according to this submission, must be "utilised" in
this sense. In our opinion dictionary meanings, however helpful in
understanding the general sense of the words cannot control where the scheme of
the statute or the instrument considered as a whole clearly conveys a somewhat
different shade of meaning. It is not always a safe way to construe a statute
or a contract by dividing it by a process of etymological dissection and after
separating words from their context to give each word some particular
definition given by lexicographers and then to reconstruct the instrument upon the
basis of those definitions. What particular meaning should be attached to words
and phrases in a given instrument is usually to be gathered ?from the context,
the nature of the subject matter, the purpose or the intention of the author
and the effect of giving to them one or the other permissible meaning on the
object to be achieved. Words are after all used merely as a vehicle to convey
the idea of the speaker or the writer and the words have naturally, therefore,
to be so construed as to fit in with the idea which emerges on a consideration
of the entire context. Each word is but a symbol which may stand for one or a
number of objects. The context, in which a word conveying different shades of
meanings is used, is of importance in determining the precise sense which fits
in with the context as intended to be conveyed by the author.
The words used in the licence (Ex. P/12) have
accordingly to be construed in the background of the scheme of the Import
Control Order, 1955, the entry no. 67 of Schedule I to this Order and the
Import Trade Control Policy. The word "consumption" as used in cl.
(c) in the licence seems to us to convey the idea of using up the goods by L
436 Sup Cl/71 518 fixing them in the factory along with other components.
This is clear from the fact that entry no.
67(1) in Schedule 1 of the Import Control Order does not contain any single
item denoting a complete printing press and from the fact that the various
;articles mentioned in this item seem as if to have been intended to constitute
"raw material". This construction fits in with the scheme and policy
of the Import Trade Control as we will presently show. The dictionary meaning
of the three words in cl. (c) on which the respondent relies also seems, in our
opinion to harmonise with this view.
The Government of India (Ministry of Commerce
and Industry) has been publishing from time to time Import Trade Control
Handbook on rules and procedure providing for the assistance of those
interested in imports up to date information as to the manner in which
applications for import licences should be made, the appropriate authority to
be addressed in each case, the procedure governing the grant of licences for
different classes of goods, the validity and use of import licences and other
similar matters. In the Handbook of 1956, which is the relevant Handbook for
this case which relates to the licence originally granted in 1960, Schedule I
commonly known as the ITC Schedule serves broadly to classify the articles that
enter into the import trade.
Part V of the Schedule covers 'industrial
requirements and it is in this part that the printing and lithographic material
including and Other items are entered at sl. no.
67(1), already noticed by us. This Handbook
emphasises the importance of correct classification with reference to the
serial number and part of the ITC Schedule. In Appendix III of the Handbook
application forms are prescribed. Form B is the one which was used by the
respondents. This form is meant for the import of goods by actual users not
borne on the registers maintained by the Industrial Advisers, Ministry of
Commerce and Industry, when licence is sought for import of goods (other than
those falling under the capital goods licensing procedure) vide : Government of
India, Ministry of Commerce and Industry Order No. 17/55 dated 7th December,
1955. It is expressly stated in the respondents' application Ex. P/ 11 (b) 1
that the raw material was required by them for printing newspaper (Dina Seithi,
Tamil Daily) : full particulars of the raw materials required to be imported
were given as printing machinery and proforma was attached with the
application. ITC number and part was specifically stated to be 67 (1 ) (i),
Part V. It was on the basis of this application that the licence Ex. P/12 was granted
subject inter alia to condition (c).
The Government of India, Ministry of Commerce
and Industry also publishes from time to time Import Trade Control Policy 519
for the various licensing periods. in the publication for the licensing period
April-September, 1960 we find the policy statement, showing the list of items
licensable to actual users. At p. 360 in Appendix IV, Part V, items 67 (1) (i)
and 67 (2) occur. Item 67 (1 ) (i) reads :
"Printing machinery (for Newspaper
Establishments and quality printers)." Item 67 (2) reads :
"Component parts of printing
machinery".
It is obvious that in the respondents'
application serial no. 67(1) (i) refers to this item in the Import Trade
Control Policy, April September, 1960, the period relevant for this case. There
is no other item in any one of the lists which covers printing presses as a
separate item.
This clearly shows that the printing presses
are treated by legislative intendment as Printing material or Printing
machinery. Form 'B' used in the present case indicates that the Press intended
to be imported was not considered to fall under the Capital Goods Licensing
Procedure. It seems that it is for all these reasons that in the licence it was
provided that these goods would be utilised only for consumption as raw
material or accessories in the licence holder's factory. The words
"utilised", "consumption" and "raw material" have
to be fitted into the clearly discernable statutory scheme and this is possible
without doing violence to the dictionary meaning of these words.
The appropriate dictionary meaning of words
possessing variable shades of meanings has not to be arbitrarily selected and
mechanically applied without considering the setting in which they are, used
and the purpose sought to be achieved.
There is another very cogent factor in this
case, namely, that the respondents, when they sought licence for the import of
printing press expressly represented that the imported goods were required to
meet the increasing demand of circulation of their newspaper. This indeed was
the sole round for importing the press. The amended licence was.
also secured by the respondents so as to
enable them to import two printing presses on the ground that one press was
required for their Madurai office as well. Licence for both the printing
presses was obtained for actual use by them for their newspapers. Had they not
complied with the procedure meant for the import of goods by actual users, they
might not have secured the necessary licence. Having secured a licence expressly
for the import of goods for their use they may not be permitted to ignore the
condition of actual user on the plea (which by no means seems to be virtuous)
that cl. (c) is inapplicable to actual users.
5 20 The respondents on their own showing
clearly knew their disability under the conditions imposed by cl. (c) of the
licence. Knowing full well the condition prohibiting the transfer of the press
to other persons the respondents as the correspondence to which our attention
has been drawn shows were actually negotiating for the sale of one of the
presses during the period when the procedure in regard to its import was being
carried out. On July 2, 1961 amendment of the licence was sought so as to
import one more printing press and on July 17, 1961 its resale was actually
finalised and a part of the price also received. These facts do not need any
comment on the intention and bona fides of the respondents. It is unnecessary
to go into the evidence on this point because, as already noticed, it is not
disputed that one of the printing presses was actually sold to Dr.
Thomas prior to its arrival in India. The
amendment of the licence also appears to have been sought with the object of
reselling the second press. The only argument urged namely that condition (c)
was inapplicable to-the present case having been repelled, the appeal, in our
view, must succeed and the order of the High Court reversed. The validity of
condition (c) in the licence has not been questioned and in our opinion rightly
in view of the decision of this Court in M/s. Ramchand Jagdish Chand v. Union
of India(1). There is neither any legal nor equitable justification for
reselling the printing press.
The suggestion faintly thrown that the
Company was the holder of the licence and, therefore, the other respondents
(accused persons) should not be held liable is also without merit. On the facts
found and on the authority of State of West Bengal v. Motilal Kanoria (2 ) all
the respondents (the individual accused persons along with the Company) are guilty.
The argument that the High Court having
acquitted the respondents on a view which is a possible view this Court should
not convert acquittal into conviction under Art. 136 of the Constitution has
not appealed to us. The view of the High Court does not seem to be sustainable
on the statutory language and on the Import Control Policy of which the
respondents were fully aware. Their own application is proof positive of their
awareness of the true position and the breach of the conditions of the licence
on their part was deliberate. Indeed, as observed earlier, the permission for
the import of the second press was apparently sought with the object of its
resale. Breach of conditions for import of goods is a serious matter because it
prejudicially affects our country's national economy. The import licence for
the second press having, in our view, been sought on false representation with
(1) [1962] 3 S.C.R. 72. (2) [1966] 3 S. C. R.
933.
521 the object and purpose of its resale the
breach of the licence was, therefore, fully intended and designed. The
respondents are guilty of malpractices and of abuse of the import licence with
the object of making money. We, however, think that in view of the fact that
this litigation has been pending since a long time, it would meet the ends of
justice if we impose merely fine and do not sentence anyone to imprisonment.
The final result is that the order of the High Court is set aside and accused
nos. 1, 2, 3 and 5 are convicted under s. 120-B, I.P.C. and s. 5 of the Imports
& Exports Act, 1947 read with cl. 5 of the Import Control Order, 1955 and
each of the accused nos. 2, 3 and 5 are sentenced to pay a fine of Rs. 2,000/under
each count.
Accused no. 1 who is the principal culprit
and who was sentenced by the trial court to imprisonment and fine is sentenced
to pay a fine of Rs. 5,000/under each count. In default of payment of fine the
defaulting accused persons will undergo rigorous imprisonment for three months.
The Company is convicted only under s. 5 of the Imports & Exports Act read
with cl. 5 of the Import Control Order and sentenced to pay a fine of Rs.
2,000/-.
V.P.S.
Appeal allowed.
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