Report No. 47
Offences involving fraudulent economic gains obviously justify a provision for confiscation of the property so gained. The offender should not be allowed to retain the profits of criminality and this consideration has prevailed with the legislature in prescribing the punishment of confiscation for many economic offences. Under the Gold Control Act, for example, any gold in respect of which any provision of the Act or any rule made thereunder has been, or is being, or is attempted to be, contravened, shall be liable to confiscation. There are, in the same Act, specific provisions also for confiscation. Thus, confiscation of (i) any package etc. which contains gold liable to confiscation, (ii) gold mixed with other goods from which it cannot be separated, and (iii) gold which has changed its form (provided the gold itself is liable to confiscation) is provided for.
4.24. We may also refer to the provision in the Foreign Exchange Regulation Act1, under which, a court trying a contravention of a provision of the Act, as well as an authority adjudging penalty for such confiscation is empowered to direct that any currency etc. goods or other property in respect of which the contravention has taken place, shall be confiscated.
The Essential Commodities Act2 has also a provision for forfeiture of property by the Court.
1. Section 23(1), Foreign Exchange Regulation Act, 1947.
2. Section 7(1)(b), Essential Commodities Act.
4.25. Stoppages of business.-
Impelled by the desire to prevent a persistent offender from harming the public by repeating his anti-social act, the legislature has, occasionally, provided for prohibiting a person from carrying on a particular business for a specified period. An example is furnished by the Essential Commodities Act, 1955,1 under which, if a person convicted of an offence under sub-section (1) of section 7 (which relates to contravention of an order under section 3), is convicted for a second or subsequent time of an offence constituted by contravention of an order in respect of an essential commodity, then the convicting court shall, in addition to any penalty which may be imposed on him under that sub-section "by order direct that that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the court in the order".
1. Section 7(3), Essential Commodities Act, 1955.
4.26. Higher powers of Magistrate.-
One device adopted by the Legislature to speed up the trial of economic offences is the insertion of a provision enhancing the powers of Magistrates in relation to punishment. For example, the Foreign Exchange Regulation Act1 provides that it shall be lawful for any Magistrate of the first class, specially empowered in this behalf by the State Government, and for any presidency magistrate, to pass a sentence of fine exceeding rupees two thousand, on any person convicted of an offence punishable under section 23 of the Act.
1. Section 23(2), Foreign Exchange Regulation Act, 1947.
4.27. Summary trial.-
More important in the context of speeding up of trial is the provision for summary trial which is found, though not very frequently, in socio-economic legislation. The Essential Commodities Act furnishes an example.1 The relevant provision empowers the Central Government to issue a notification to the effect that contravention of any order made under section 3 of the Act in relation to a particular essential commodity should be tried summarily.
1. Section 12A, Essential Commodities Act, 1955. (At present, this provision is in force upto December, 1971). But it is understood that a Bill has been introduced to make it permanent.
4.28. Orders issued under section 12A, Essential Commodities Act.-
The number of special orders in respect of which notifications were so issued by the Central Government authorising summary trial since1 1964 and upto December, 1969 [as mentioned in Notification G.S.R. 1842, dated 24th December, 1964 of the Ministry of Food & Agriculture (Department of Food)] [No. 203, Genl. 1881864 by II] exceeds a hundred. There is also another notification on the subject, bearing the same No. (G.S.R. 1842), which is quoted below:-
1. Section 12A, Essential Commodities Act, was inserted in 1964.
"Ministry of Food & Agriculture
(Department of Food)
New Delhi, the 24th December,1964
G.S.R. 1842.-In pursuance of section 12A of the Essential Commodities Act, 1955 (10 of 1955) and in supersession of the notification of the Government of India in the Ministry of Home Affairs No. G.S.R. 1607 dated the 5th November, 1964, the Central Government hereby specifies all orders made under section 3 of the said Act in relation to foodstuffs, including edible oilseeds and oils, to be special orders for purposes of summary trial under the said section 12A.
[No. 203 (Genl.) (18)/770/64-PY. II]"
[It is rather difficult for an ordinary citizen to keep in touch with various notifications issued under the entire Act; and one can also appreciate the difficulty that must have been experienced by the prosecuting staff, particularly in the mufossil, in this respect. That, however, is a separate question.]1
1. Question of publicity of statutory rules and orders.
4.29. Search and seizure.-
Effective prosecution requires effective investigation; and effective investigation, in its turn, requires an array of powers. Since the general powers for search and seizure contained in the Code of Criminal Procedure are restrictive in nature, either by reason of the classes of officers who can exercise those powers, or by reason of the conditions precedent required before the powers can be exercised or by reason of other restrictive requirements, it has become necessary to make similar provisions as to search and seizure in most of the enactments dealing with social and economic offences.
The most comprehensive perhaps is the group of provisions in the Foreign Exchange Regulation Act1, conferring power to call for information, to search premises, to arrest, to examine persons, to summon persons to give evidence, to produce documents, custody of documents, inspection and connected matters. A recent one is the provision in the Income-Tax Act.2
1. Section 19, 19A; 19B, 19C, 19D, 19E, 19F, 19G, 19H, 19-I, 19J, Foreign Exchange Regulation Act, 1947.
2. Section 132, Income-Tax Act, 1961. See AIR 1970 SC 292, holding that the Criminal Procedure Code applies.
4.30. Special rules of evidence.-
Difficulty of proof that exists in respect of some of the offences has naturally led to the insertion of provisions which modify the burden of proof, or create rebuttable presumptions or enact other special rules of evidence. A striking example of a presumption is furnished by the Customs Act1, which has the following provision:-
"123. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
(2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify."
1. Section 123, Customs Act, 1962.