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Report No. 47

Chapter 6

Existing Position with Reference to Important Enactments

6.1. Detailed discussion of existing position with reference to important enactments.-

It will now be convenient to analyse the position under the existing laws, with reference to provisions of the nature referred to above1.

The analysis will be confined to important enactments2, in order to avoid cumbersomeness.

(1) Elimination or modification of mens rea
(a) Central Excises Act, 1944. - No such provision.
(b) Foreign Exchange Regulation Act, 1947. - No legislative provision. But courts have modified the mens rea. 3
(c) Prevention of Food Adulteration Act, 1954. -Section 19 (Modification).
(d) Essential Commodities Act, 1955. -Section 7(1) (Elimination).
(e) Wealth Tax Act, 1957. -No such provision.
(f) Income-Tax Act, 1961. -No such provision.
(g) Customs Act, 1962. -See sections 112(a), 114, 117, 134(a), 134(b), 136(1).
(h) Gold Control Act, 1968. -No such provision.
(2) Mandatory imprisonment
(a) Central Excises Act, 1944. -No such provision.
(b) Foreign Exchange Regulation Act, 1947. -No such provision.
(c) Prevention of Food Adulteration Act, 1954. -Section 16.
(d) Essential Commodities Act, 1955. -Section 7(1)(a) (I) and (ii) .
(e) Wealth Tax Act, 1957. -No such Provision.
(f) Income-Tax Act, 1961. -Section 277.
(g) Customs Act, 1962. -Section 135(i).
(h) Gold Control Act, 1968. -Section 85.
(3) Minimum punishment
(a) Central Excises Act, 1944. -No such provision.
(b) Foreign Exchange Regulation Act, 1947. -No such provision.
(c) Prevention of Food Adulteration Act, 1954. -Section 16(1)4
(d) Essential Commodities Act, 1955. -No such provision.
(e) Wealth Tax Act, 1957. -Section 36(2), proviso
(f) Income-Tax Act, 1961. -Section 277
(g) Customs Act, 1962. -Section 135(1), proviso
(h) Gold Control Act, 1968. -(i)Section 85;
-(ii) Section 86-87;
-(iii) Section 89 (Second Conviction).
(4) Public censure
(a) Central Excises Act, 1944. -No such Provision.
(b) Foreign Exchange Regulation Act, 1947. -Section 27(2)(c) (By rules.)
(c) Prevention of Food Adulteration Act, 1954. -Section 16(2).
(d) Essential Commodities Act, 1955. -No such provision.
(e) Wealth Tax Act, 1957. -Section 42 A.
(f) Income-Tax Act, 1961. -Section 287.
(g) Customs Act, 1962. -No such provision.
(h) Gold Control Act, 1968. -No such provision.
(5) Confiscation
(a) Central Excises Act, 1944. -Section 10 (Forfeiture by court), section 12 (application of provisions of Customs Act), section 23 (adjudication).
(b) Foreign Exchange Regulation Act, 1947. -Section 23 (1B-
(c) Prevention of Food Adulteration Act, 1954. -Section 23 (1B).
(d) Essential Commodities Act, 1955. -Section 18.
(e) Wealth Tax Act, 1957. -Section 6A to 6D and section 7(1)(b).
(f) Income-Tax Act, 1961. -No such provisions.
(g) Customs Act, 1962. - Sections 111, 113, 115, 118, 119(2).
(h) Gold Control Act, 1968. -Section 92 (Forfeiture) section 71, 72, 73 (Confiscation).
(6) Stoppage of business or cancellation of licence
(a) Central Excises Act, 1944. - No such provision.
(b) Foreign Exchange Regulation Act, 1947. - No such provision.
(c) Prevention of Food Adulteration Act, 1954 - Section 16(1D) (Cancellation of licence).
(d) Essential Commodities Act, 1955. - Section 7(3) (Stoppage of business).
(e) Wealth Tax Act, 1957. - No such provision.
(f) Income-Tax Act. 1961. - No such provision.
(g) Customs Act, 1962. - No such provision.
(h) Gold Control Act, 1968. - No such power with the court.
(7) Higher powers of Magistrates
(a) Central Excises Act, 1944. - No such provision. -No such provisions.
(b) Foreign Exchange Regulation Act, 1947. - Section 23(2).
(c) Prevention of Food Adulteration Act, 1954. - Section 21.
(d) Essential Commodities Act, 1955. - Section 12.
(e) Wealth Tax. Act, 1957. - No such provision.
(f) Income-Tax Act, 1961. - No such provision.
(g) Customs Act, 1962. - No such provision.
(h) Gold Control Act, 1968. - No such provision.
(8) Summary trial
(a) Central Excises Act, 1944. Specific summary trial is not prescribed. But under section 12, the Customs Act can be appliedl.
(b) Foreign Exchange Regulation Act, 1947. Specific summary trial is not prescribed.
(c) Prevention of Food Adulteration Act, 1954. Specific summary trial is not prescribed.

1. Para. 4.7, supra.

2. (a) Central Excises Act, 1944.

(b) Foreign Exchange Regulations Act, 1947.

(c) Prevention of Food Adulteration Act, 1954.

(d) Essential Commodities Act, 1955.

(e) Wealth Tax Act, 1957

(f) Income-Tax Act, 1961

(g) Customs Act, 1962.

(h) Gold Control Act, 1968.

3. State of Maharashtra v. M.H. George, AIR 1965 SC 722 (732 and 740), paras. 15, 40 (Majority view).

4. See City Corporation v, K.J. Mathew, AIR 1968 Ker 139.

5. See, however, Collector of Customs v. A.S. Bawa, AIR 1968 SC 13 (14, 15), paras. 8 and 11 (1968) 1 SCR 82, as to the scope for applying the Customs Act.

Section 12A of the Essential Commodities Act deals with summary trial.

Section 12A, power to try summarily

(1) If the Central Government is of opinion that a situation has arisen where, in the interests of production, supply or distribution of any essential commodity or trade or commerce therein and other relevant considerations, it is necessary that the contravention of any order made under section 3 in relation to such essential commodity should be tried summarily, the Central Government may, by notification in the Official Gazette specify such order to be a special order for purposes of summary trial, unclgr this section, and 'every such notification shall be laid, as soon as may be after it is issued, before both Houses of Parliament.

(2) Where any notification issued under sub-section (1) in relation to a special order is in force, then, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), all offences relating to the contravention of such special order shall be tried in a summary way and by a Magistrate of the first class specially empowered in this behalf by the State Government or by a Presidency Magistrate, and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:

Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year.

(3) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1898 (5 of 1898), there shall be no appeal by a convicted person in any case tried summarily under this section in which the Magistrate passes a sentence of imprisonment not exceeding one month, or of fine not exceeding two hundred rupees, or both, whether or not any order of forfeiture of property or an order under section 517 of the said Code is made in addition to such sentence, but an appeal shall lie where any sentence of imprisonment or fine in excess of the aforesaid limits is passed by the Magistrate.

(4) Where any notification is issued under sub-section (1) in relation to special order, all cases relating to the contravention of such special order and pending on the date of the issue of such notification shall, if no witnesses have been examined before the said date, be tried in a summary way under this section and if such case is pending before a Magistrate who is not competent to try the same in a summary way under this section, it shall be forwarded to a Magistrate so competent.

(e) Wealth Tax Act, 1957.

Specific summary trial is not prescribed.

(f) Income-Tax Act, 1961.

Specific summary trial is not prescribed.

(g) Customs Act, 1962.

Section 138-Offences to be tried summarily-

Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Chapter other than an offence punishable under clause (i) of section 135 may be tried summarily by a Magistrate

(h) Gold Control Act, 1968.

Section 98-Offences to be tried summarily-

Notwithstanding anything contained in the Code of Criminal Procedure, 1898

(i) no magistrate other than a Presidency Magistrate or Magistrate of the first class shall try an offence against this Act;

(ii) every offence against this Act may be tried summarily by a Magistrate.

(9) Search and similar powers
(a) The Central Excises Act, 1944 - Sections 13 to 23 and rules under section 27.
(b) Foreign Exchange Regulation Act, 1947 - Sections 19 to 19J and section 25A.
(c) Prevention of Food Adulteration Act, 1954 - Section 10.
(d) Essential Commodities Act, 1955 - Section 3(2)(h) and (j).
(e) Wealth Tax Act, 1957 - Section 37A.
(f) Income-Tax Act, 1961 - Section 132.
(g) Customs Act, 1962 Section 100, 101, 103, 105, 106.
(h) Gold Control Act, 1968 - Section 58 to 70.
(10) Special rules of evidence
(a) Central Excises Act, 1944 - No such provision.
(b) Foreign Exchange Regulation Act, 1947. - Section 24 and 24A.
(c) Prevention of Food Adulteration Act, 1954. - Section 13.
(d) Essential Commodities Act, 1955 - Section 14
(e) Wealth Tax Act, 1957 - No such provision.
(f) Income-Tax Act, 1961 - No such provision.
(g) Customs Act, 1962 - Section 139.
(h) Gold Control Act, 1968 - Section 99.


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