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Report No. 29

165. Trafficking to be dealt with by special enactments.-It seems to us, that the matter can be more conveniently dealt with by a suitable provision in the law under which the licenses are issued. When a license is issued a condition can be inserted that it shall not be transferable. Breach of the condition could be made punishable under the relevant enactment.

166. So far as licenses for importing or exporting goods are concerned, contravention of a condition in the license authorising the import or export is an offence under section 5 of the Imports Act1-2-3. And it would appear, that under clause 5(2) of the Export (Control) Order, 1962, it is deemed to be a condition of every licence that the licensee shall not (except with permission of the licensing authority, etc.) transfer the licence, and that the goods for the export of which the licence is granted shall be the licensee's property at the time of export. Similar provision has been made by clause 5 of the Import (Control) Order, 1955.

This being the position, an unauthorised transfer of the license ("trafficking") would seem to be already covered, so far as import and export licenses are concerned4.

1. The Imports and Exports (Control) Act, 1947 (18 of 1947) (as amended in 1960).

2. See Best & Co. v. Additional Collector, AIR 1965 Cal 478.

3. It is understood that a Bill to provide for minimum penalties under section 5 is to be introduced shortly.

4. See Mohan Lal v. Jasjit Singh, (1965) 1 Cr LJ 379 (Cal HC).

167. If there are any practical difficulties in the enforcement of the relevant condition in the licence, those difficulties would not be solved by making a provision in the Indian Penal Code.

168. We may also state here that, as has been pointed out in one of the comments received on the proposals under consideration, the magnitude of the malpractice of trafficking may vary with the particular enactment (i.e. the enactment which requires that the activity or operation or transaction in question should be licensed). For that reason also, it will be more appropriate to deal with the matter by a suitable provision in the special enactment concerned, rather than by a general provision in the Indian Penal Code. If a general provision (prohibiting trafficking) applicable to all licenses and permits is inserted, it might cover even a licence or permit which is transferable under the enactment under which it is issued, and thus lead to inconsistency in the law. We do not, therefore, feel inclined to recommend a provision in the Indian Penal Code on the subject.

Proposal to include certain Social and Economic Offences in the Indian Penal Code Back

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