Supreme Court of India
COLLECTOR OF CUSTOMS AND CENTRAL EXCISE, BHUBNESHWAR, DISTRICT PURIversusPARADIP PORT TRUST AND ANR.
- Citation
- 1990 INSC 226
- Decided
- 8 August 1990
- Disposal
- Appeal(s) allowed
- Bench
- K N SAIKIA
Holding
A person may be penalised under section 117 for contravention or abetment of a provision of the Customs Act even when the same act also constitutes an offence under Chapter XVI, and the Collector’s order was therefore valid.
Summary
A commercial vessel, M.V. Jag Darshan, was detained and rummaged by customs officers at Paradip Port, leading to the seizure of contraband goods. The Deputy Conservator of Paradip Port Trust, the second respondent, ordered the vessel to be moved to a distant anchorage, interrupting the rummage and allowing the contraband to disappear. The Collector of Customs imposed a Rs.1,000 penalty on the Deputy Conservator under section 117 of the Customs Act for failure to comply and abetment. The Orissa High Court quashed the penalty, holding that the Collector lacked jurisdiction under sections 133 and 151. On appeal, the Supreme Court held that the same act can give rise to an offence under Chapter XVI and a penalty under Chapter XIV, that section 117 can be invoked notwithstanding a Section 133 offence, and that the High Court had not considered this point; consequently, the High Court’s order was set aside and the matter remanded for fresh disposal.
Issues considered
- Whether a contravention that constitutes an offence under Chapter XVI of the Customs Act can also attract a penalty under section 117 of Chapter XIV for the same act.
- Whether the Collector of Customs has jurisdiction to impose a penalty under section 117 for an obstruction offence under section 133.
- Whether section 151 of the Customs Act applies to the Deputy Conservator of Paradip Port Trust.
- Whether the High Court erred in quashing the penalty imposed by the Collector.
Legislation cited
- Customs Act, 1962s. 106(1), s. 110(1), s. 111, s. 117, s. 120, s. 122, s. 123, s. 127, s. 133, s. 135(1), s. 137, s. 138, s. 138A, s. 151
- Indian Penal Code, 1860s. 186
Subjects
Customs lawContrabandObstruction of customs officerSection 117 penaltySection 133 offenceAbetmentPort authorityDouble jeopardyJurisdictionHigh Court order
Judgment
COLLECTOR OF CUSTOMS AND CENTRAL EXCISE,
A
BHUBNESHWAR, DISTRICT PURI
V.
PARADIP PORT TRUST AND ANR.
AUGUST 8, 1990
B
[K.N. SAIKIA AND S.C. AGRAWAL, JJ.]
Customs Act, 1962: Chapter XIV and XVI-Sections 177, 133
and 151-Contravention of provisions under Chapter XVI-Whether
amounts to abetment of contravention of any other provision under
- Chapter XIV-Order passed under section 117 only-High Court not ·
gone into this aspect-Also Second Respondent not represented-Matter C
remanded to High Court for fresh disposal.
A commercial vessel which arrived at Paradip Port was rum-
maged by the Customs Officers aod contrabaod goods worth more thao
Rs.1,40,000 were recovered. The officers also detained the vessel by D
issue of a notice to the Master of the vessel with a copy to the second
respondent, the Deputy Conservator of Paradip Port Trust.
At the instaot of the second respondent aod aoother, the vessel
was shifted to the reads far away from the port in the high sea. This
resulted in the interruption of the rummaging operation and the vessel E
being ten unguarded for about 38 hours, during which period it was
alleged that the contrabaod goods disappeared from the vessel.
--- The second respondent was asked to show cause as to why be
should not be proceeded against and why penalty should not be impose()
___.- .. _
on him, under Sections 117 and 151 of the Cnstoms Act, 1962. 1n his F
reply, the second respondent took the plea that the Customs aod Cent-
ral Excise Authorities had no jurisdiction to initiate proceedings against
him and that section 151 of the Ac< was not attracted. Rejecting his
plea, the Collector imposed a penalty of Rs.1,000 nnder section 117 of
the Act.
G
The said order of the Collector was challenged in the High Conrt
by way of-writ petitions. The High Conrt allowerl the writ petitions aod
' quashed the penalty. This appeal, by special leave, is against the orders
of the High Conrt quashing the penalty.
On behalf of the appeDaot it was contended that Section 133 H
705
l
706 SUPREME COURT REPORTS [1990) 3 S.C.R.
A creates an offence and also prescribes a penalty, and though the section "'-
is referable to Court in so far as prosecution and punishment is con-
cerned for the offence, there would be no bar to deal with that offence
under s. 117 of the Act. It was also contended that there would be no
double jeopardy if in an appropriate case one has been prosecuted and
punished under the sections in Chapter XVI of the Act and also sub-
B jected to penalty under the provisions other than those in Chapter XVI
of the Act for offences including those in Chapter XVI of the Act.
Allowing the appeal,
HELD: 1. Where the same Act or event constitutes an offence
under Chapter XVI and at the same time constitutes a contravention or
c abetment of contravention of any of the provisions of the Act or failure
to perform any duty prescribed under the Act or amounts to non-
compliance with any of the provisions of the Act, there will be pos!ibi-
lity of prosecution and punishment under Chapter XVI of the Act and
any other provision of law and the same time confiscation and penalty
D under Chapter XIV of the Act. [7 lOG-Hi
2. In the instant case, the vessel could, therefore, lawfully be
detained, rummaged and the goods suspected seized. There may be
scope for holding that there was intentional obstruction on the part of
the second respondent if the allegations are proved. Where there was an
E order for seizure it would amount to obstruction under s. 186 IPC if the
goods were not allowed to be removed. Obstruction is not confmed to
physical obtstruction and it includes anything which makes it more
difficult for the police or public servant to carry out their duties. [7 I IB; Fj
-
Santosh Kumar v. State. AIR J95J SC 201 and Hinchliffe v.
F Sheldon, [1955) l WLR 1207, referred to.
3. In the Collector's order, though there was discussion of offence
under s. 133 and failure to perform duty under s. 151, the order itself
was passed ex facie under the provisions of S. 117 of the Act. There is no
discussion in the High Court's order on this aspect of the matter and
G there is no indication as to whether this was urged or not before the High
Court. Further, since the second respondent is not represented before
this Court, the said order is set aside and the cases remanded to the
High Court for fresh disposal in accordance with law in the light of the
observations made hereinabove after giving opportunities to the parties
for making their submissions on the basis of the evidence already on
H record. l7 JIU; 712A-B J
COLLECTOR OF CUSTOMS v. PARADIP PORT TRUST ISAIKIA, J.] 707
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
A
_,> _ 6247-48 of 1983.
From the Judgment and Order dated 3.7.1980 of the Orissa High
Court in Original Jurisdiction Case Nos. 91and155 of 1977.
Kapil Sibal, Additional Solicitor General, Dilip Tandon and B
CVS Rao for the Appellant.
- _,.,. -· Mrs. Bharati Anand (N.P.) for the Respondents.
The Judgment of the c;ourt was delivered by
K.N. SAIKIA, J. These apppeals by special leave are from the c
Judgment of the High Court of Orissa, Cuttack dated July 3, 1980 in
two writ applications under Article 226 of the Constitution of India
allowing the applications and quashing the penalty imposed on the writ
petitioner under the Customs Act of 1962 (hereinafter referred to as
'the Act'). D
A commercial vessel M.V. Jag Darshan arrived at Paradip Port
on March 29, 1976. It was being rummaged by the customs officers
from April 6, 1976 to April, 13, 1976. In course of the rummage the
customs officers recovered various contraband goods worth more than
Rs.1,40,000 (Rupees one lac forty thousand), seized some quantity E
and detained the vessel by issue of a proper notice to the Master of the
vessel with a copy to the second respondent Sri V .L. Choudhary,
Deputy Conservator of Paradip Port Trust. At the instance of Sri
V.L. Choudhary and another the vessel was shifted to the reads i.e. far
away ,anchorage of paradip port which was far in the high sea. As a
result of the .shifting, despite the detention order, the rummaging F
operation was interrupted as the customs staff had to leave the vessel
and the vessel had to remain unguarded for nearly 38 hours. It was
alleged that the contraband goods then somehow disappeared from the
vessel. Sri V .L. Choudhary was asked to show cause as to why for his
failure to comply with the provisions of the Act and for abetment of
the commission of offence of smuggling by his deliberate obstructions G
to the customs officers in the recovery of smuggled goods from the
detained vessel M. V. Jag Darshan in violation of section 133 of the Act
he should not be proceeded against and as to why penalty should not
be imposed on him under section 117 and 151 of the Act.
- In reply to the notice the second respondent Sri V .L. Choudhary H
708 SUPREME COURT REPORTS [1990] 3 S.C.R.
took the plea that the Collector of Customs and Central Excise had no
A jurisdiction to initiate proceedings against him as what he had done
was in discharge of his duties under the Paradip Port Rules and
that the provisions of section 151 of the Act were not attracted in his
case. The Collector rejecting the pleas imposed a penalty of Rs.1,000
upon Sri V.L. Choudhary under section 117 of the Act. The operative
B part of the order said:
"I, therefore, impose a penalty of Rs.1,000 (Rs. one
thousand) on Sri V .L. Choudhary, Deputy Conservator of
Paradip Port, under section 117 of the customs act, 1962.
The penalty should be deposited into any Government
c Treasury/State Bank of India within a fortnight from the
date of receipt of this order under head 1037-Customs
Miscellaneous, Receipts, Fines, Rent, etc."
The order of the Collector was challenged in two writ petitions
D under Article 226 of the Constitution of India in the High Court of
Orissa. The High Court quashed the penalty and allowed the writ
petitions on two grounds. First, that the impugned order in each case
in categorical terms showed that the jurisdiction had been exercised
under sections 133 and 151 of the Act; section 137 of the Act made
provision for cognizance of offences and section 133 had been included
E therein, and as such section 133 must be referring to Court and not to
the Collector as the punishing authority, wherefore, the Collector was
not competent to impose punishment for the offence under that
section. Secondly, section 151 required the officers mentioned therein
to assist the Customs Officers, but the two officers were employee of
the Port Trust and were not officers mentioned in clauses (d) or (e) of
F that section as the former referred to officers of the Central or State ~-
Government employee at any port or airport and clause (e) referred to
such other officers of the Central or State Government or local autho-
rity as were specified by the Central Government in this behalf by
notification in the official gazette so as to bring the two officers under
clause (e).
G
Mr. Kapil Sibal, learned Additional Solicitor General of India,
has not seriously assailed the finding that the officers did not come
under S. 151 of the Act. His main submissions assailing the finding as
to applicability of S. 133 of the Act are that S. 133 both creates an
offence and also prescribes a penalty, and though the section is refer-
H able to Court in so far as prosecution and punishment is concerned for
--
COLLECTOR OF CUSTOMS v. PARADIP PORT TRUST [SAIKIA, J.] 709
the offence, there would be no bar to deal with that offence under S. A
_f- 117 of the Act. Counsel submits that even assuming but not admitting
that S. 133 referred only to Court and the offence could not otherwise
be dealt with, Sri V.L. Choudhary having abetted the contravention of
the provisions of the Act he made himself liable to penalty of not
exceeding Rs. l,000 under S. 117 of the Act and the penalty was rightly
imposed on him by the Collector; and the High Court ought not to have B
set aside the penalty. Counsel further submits that under· ihe Customs
Act there would be no double jeopardy if in an appropriate case one
- >er has been prosecuted and punished under the sections in Chapter XVI
of theAct and also subjected to penalty under the provisions other
than those in Chapter XVI of the Act for offences including those in
Chapter XVI of the Act.
• c
None appears for the respondents.
To weigh the submissions, we may examine the relevant provi-
sions of the Act. Admittedly, 'offence' has not been defined in the
Act. Chapter XVI in ss. 132 to 140A deals with "Offence~. and Pro- D
secutions". Section 132 constitutes false declaration, false documents,
etc. an offence. Section 133 constitutes obstruction of officer of
customs an offence. Similarly, by s. 134, refusal to be ex-rayed, by
S. 135, evasion of duty or prohibition are constituted offences. It may
")'
be noted that S. 135(1) is 'without prejudice to any action that may be
taken under this Act.' This clearly envisages any action that may be E
taken under this Act over and above the prosecution and punishment
prescribed under this Section. Section 137 deals with "Cognizance of
- Offences by Courts". Section 138 says that offences are to be summa-
rily tried, except those stated under the section. Section 138A provides
for presuming the existence of culpable mental state where such a state
/ is necessary. F
\
Chapter XIV in ss. 111-127 deals with confiscation of goods and
conveyance and imposition of penalties. Section 120 provides for con-
fiscation of smuggled goods notwithstanding any change in form etc.
Section 122 deals with adjudication of confiscations and penalties.
Under this section, in every case under this Chapter in which anything G
is liable to confiscation or any person is liable to a penalty, such confis-
cation or penalty may be adjudged by appropriate customs authorities.
---~- Section 123 deals with burden of proof in certain cases and in some
cases puts in on the owner or possessor of the goods. Section 127 says
that the award of any confiscation or penalty under this Act by an
officer of Customs shall not prevent the infliction of any punishment to H
710 SUPREME COURT REPORTS [1990] 3 S.C.R.
A which the person affected thereby is liable under the provisions of
Chapter XVI of the Act or under any other law. This clearly shows
that there will be no double jeopardy if for the same transaction, act or
occurrence there is an award of any confiscation or penalty under the
"'
relevant provisions of the Act and also infliction of any punishment
under the provisions of Chapter XVI of the Act or under any other
B
law. Section 117, included in Chapter XIV, deals with penalties for
contravention etc. not expressly mentioned. It says:
....... -
"Any person who contravenes any provision of this Act or
abets any such contravention or who fails to comply with
any provision of this Act with which it was his duty to
c comply, where no express penalty is elsewhere provided
for such contravention or faiiure, shall be liable to a penalty
not exceeding Rs. !,000.
-
Though included in Chapter XIV, S. 117 provides for penalties
for contravention of any provision of the Act, an abetment of any such
D
contravention or failure to comply with any provisi?,_n of the Act with
which it was one's duty to comply but no express penalty is elsewhere
provided. For such contravention or failure a penalty of not exceeding
Rs.1,000 has been prescribed.
From the foregoing provisions, we find that for the same transac- 'I'"
E _tion, act or occurrence in an appropriate case, there may be prosecu-
tion and punishment under Chapter XVI and confiscation of goods
and conveyances and also imposition of penalty not exceeding one
thousand rupees for contravention of any of the provisions of the Act
or abetment of any such contravention and or failure to comply with
any provisions of the Act with which it was one's duty to comply where
F no express penalty is elsewhere provided for such contravention or
failure. It may also be possible that an act or event which entails '
""'
punishment under Chapter XVI may be itself or with other ingredients
also amount to a contravention of any of the provisions of the Act or
abetment of any such contravention. Where the same act or event
constitutes an offence under Chapter XVI and at the same time consti-
G lutes a contravention or abetment of contravention of any of the provi-
sions of the Act or failure to perform any duty prescribed under the
Act or amounts to non-compliance with any of the provisions of the
Act, there will be possibility of prosecution and punishment under .A__.
Chapter XVI of the Act and any other provision of law and at the same
time confiscation and penalty under Chapter XIV of the Act.
H
•
COLLECTOR OF CUSTOMS v. PARADIP PORT TRUST [SAIKIA, J.} 711
As regards the allegations in the case, under s. 106(1) of the Act A
where the proper officer has reason to believe that any vessel in India
or within the Indian customs waters has been, is being, or is about to
be, used in the smuggling of any goods or in the carriage of any goods
which have been smuggled, he may at any time stop any such vessel and
(a) rummage and search any part of the vessel (b) examine and search
any goods in the vessel. Under .S. 110( 1) if the proper officer has B
reason to believe that any goods ,are liable to confiscation under the
Act, he may seize such goods. Se~tion 111 provides for confiscation of
improperly imported goods. Und.er the facts alleged in this case, the
vessel could, therefore, lawfully b.e detained, rummaged and the goods
suspected seized. It was alleged ihat the shifting of the vessel was on
order of the second respondent apd that because of the shifting to the
reads away in the deep sea the proper officers had to leave the vessel C
----- --
with the seized goods and the vessel had to remain unguarded for 38
hours during which period the contraband goods happened to be illeg-
ally disposed of.
Section 133 read~: D
"133. Obstruction of officer of customs: If any person
intentionally obstruct~ any officer of customs in the exer-
cise of any powers ccinferred under this Act, such person
shall be punishable with imprisonment for a term which
may extend to six months, or with fine, or with both." E
There may be scope for ,holding that there was intentional
obstruction on the part of the se<iond respondent if the allegations are
proved. In Santosh Kumar v. State, AIR 1951SC201: [1951] SCR 303
it was held that where there was' an order for seizure it would amount
'I.. to obstruction under s. 186 IPC _if the goods were not allowed to be F
removed. On the authority of Hinchliffe v. Sheldon, [1955] 1 WLR
1207 it can be said that the obstruction is not confined to physical
obstruction and it includes anything which makes it more difficult for
the police or public servant to carry out their duties. But the question
is did it also amount to abetment of contravention of any of the prov-
sions of the Act? Was there any abetment to alleged smuggling of the G
goods seized and those which could have been seized?
In the Collectors orders, though there was discussion of offence
under S. 133 and failure to perform duty under S. 151, the order itself
was passed ex facie under the provisions of S._ 117 of the Act. On
perusal of the impugned judgment of the High Court, we do not find H
712 SUPREME COURT REPORTS (1990] 3 S.C.R.
A any discussion on this aspect of the matter and there is no indication as ~
to whether this was urged or not before the High Court. Since the
learned Additional Solicitor General has emphasised this aspect and
we are inclined to agree with him to the extent indicated above, and as
the second respondent is not represented before us, we are inclined to
set aside the impugned order and remand the cases to the High Court
B for fresh disposal in accordance with law in the light of the observa-
tions made hereinabove after giving opportunities to the parties for
making their submissions on the basis of the evidence already on - "'-a..-
record; and we order accordingly.
G.N. Appeal allowed.
--4
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