Case Note & Summary
The matter arose from an incident on 13 December 1961 at Pakur Railway Station in the Santhal Parganas, Bihar. Nazir Mian, one of the appellants, was found by Central Excise Inspectors Uma Shankar and Bisuddha Nand Jha and Constable Bishan Singh inside a locked latrine of a railway compartment, in possession of two bags of cloves. Upon inquiry, he admitted that no duty had been paid. The Inspectors seized the cloves and arrested Nazir Mian. During the process, the train was stopped, and the excise staff got off with the accused. A scuffle ensued in which other appellants—Ram Kirpal Bhagat and Ganga Dayal Shah—and other persons allegedly rescued Nazir Mian, assaulted the Inspectors causing grievous and simple injuries, and took away the bags of cloves. The accused were tried before the Assistant Sessions Judge, Dumka, on charges under sections 147, 149, 333, 379, 332, and 225 of the Indian Penal Code, as well as under the Land Customs Act, 1924, Sea Customs Act, 1878, and the Imports and Exports (Control) Act, 1947. The trial court convicted the appellants and another person, while acquitting one accused. The Patna High Court dismissed their appeals. In appeal by special leave to the Supreme Court, the main contention was that the Sea Customs Act, 1878 and the Land Customs Act, 1924 did not apply to the Santhal Parganas, and therefore the Inspectors had no authority to arrest or seize, rendering the entire prosecution unlawful. The appellants argued that section 3(2) of the Imports and Exports (Control) Act, 1947 only attracted section 19 of the Sea Customs Act and not its other provisions; that Bihar Regulation I of 1951 extending the Act was ultra vires the Governor’s power; and that section 178A could not apply without a special notification. The State of Bihar, supported by the Union of India, maintained that the Sea Customs Act was fully applicable, the officers were duly authorised, and the arrest and seizure were based on reasonable suspicion. The Supreme Court, per Ray J., held that section 3(2) of the Imports and Exports (Control) Act, 1947 deems prohibited goods to be goods prohibited under section 19 of the Sea Customs Act and expressly makes all provisions of that Act effective. This incorporation-by-reference extended the Sea Customs Act to the Santhal Parganas because the Imports and Exports (Control) Act had been validly applied by Bihar Regulation I of 1951, which itself was a valid exercise of the Governor’s plenary regulation-making power under the Fifth Schedule of the Constitution. The Land Customs Act did not independently apply, but by two notifications—dated 28 September 1951 and 25 January 1958—the Inspectors were appointed Land Customs Officers and thus Officers of Customs under the Sea Customs Act. On the facts, the concealment of cloves in a latrine, non-payment of duty, proximity to the East Pakistan border, and the fact that cloves are not grown in India together gave the officers reasonable suspicion to arrest under section 173 and seize under section 178. The absence of a notification under section 178A meant the onus of proof could not be shifted, but since the goods had been removed by the accused, no order could be passed, making the point academic. Accordingly, the Supreme Court dismissed the appeal and upheld the convictions.
Headnote
A) Customs Law - Applicability of Sea Customs Act - Section 3(2) of Imports and Exports (Control) Act, 1947 - Effect of deeming provision - The Court held that under Section 3(2) of the Imports and Exports (Control) Act, 1947, goods to which an order under sub-section (1) applies are deemed to be goods of which import or export has been prohibited under Section 19 of the Sea Customs Act, 1878, and all provisions of that Act have effect accordingly; this incorporates the provisions of the Sea Customs Act into the later Act, making it applicable to the Santhal Parganas where the later Act was validly extended by Bihar Regulation I of 1951. (pp. 242 H-250 D) B) Constitutional Law - Power of Governor to Extend Laws - Paragraph 5 of the Fifth Schedule to the Constitution of India, 1950 - Validity of Bihar Regulation I of 1951 - The Court rejected the contention that the Governor's power did not include applying laws, holding that the Governor's regulation-making power under Paragraph 5 of the Fifth Schedule is plenary and includes the power to apply any law to scheduled areas; Bihar Regulation I of 1951 was a valid piece of legislation. (pp. 245 B-C, H) C) Customs Law - Authority of Officers - Section 6 of Sea Customs Act, 1878 and Notifications - Land Customs Officers as Customs Officers - The Court found that by Notification No. 69-Cus. dated 28 September 1951 and CBR Notification I.L.Cus. dated 25 January 1958, the Inspectors of Central Excise were appointed Land Customs Officers and thereby became Officers of Customs under Section 6 of the Sea Customs Act, 1878, vesting them with authority to arrest and seize. (pp. 246 H; 251 B-D) D) Customs Law - Arrest and Seizure - Sections 173 and 178 of Sea Customs Act, 1878 - Reasonable Suspicion - The evidence showed that the appellant had concealed two bags of cloves on which no duty was paid, near the East Pakistan border, and cloves are not grown in India; these facts gave the officers reasonable suspicion to arrest under Section 173 and seize under Section 178 of the Sea Customs Act, 1878. Held that the arrest and seizure were lawful. (pp. 250 A, 251 E) E) Customs Law - Onus of Proof - Section 178A of Sea Customs Act, 1878 - Necessity of Notification - The Court observed that in the absence of a special notification under Section 178A specifying the goods to which the section applies, the onus of proof cannot be placed on the person from whom goods are seized; however, as the seized goods were removed by the accused, no order could be enforced, so the issue was academic. (p. 251 E)
Issue of Consideration
Whether the Sea Customs Act, 1878 applied to the Santhal Parganas and whether the arrest and seizure under sections 173 and 178 of the Act were lawful; if not, the convictions could not stand.
Final Decision
Appeal dismissed. Convictions upheld. Court held that Sea Customs Act, 1878 was applicable to Santhal Parganas by virtue of section 3(2) of Imports and Exports Control Act, 1947, read with Bihar Regulation I of 1951; Land Customs Act not directly applicable, but the Inspectors had authority under notifications as Land Customs Officers and Customs Officers; arrest under section 173 and seizure under section 178 were justified on facts; section 178A not attracted, but irrelevant as goods removed. The court found no infirmity in the lower courts' decisions.
Law Points
- Legal points not extracted
- Effect of s. 3(2) of Imports & Exports Control Act
- 1947
- Applicability of Sea Customs Act to scheduled areas
- Power of Governor under Art. 244 & Fifth Schedule of Constitution of India to extend laws
- Cloves whether prohibited goods
- Power of Inspectors to arrest and seize under Sea Customs Act
- Onus of proof under s. 178A of Sea Customs Act
