RAM KIRPAL BHAGAT & ORS. versus STATE OF BIHAR

RAM KIRPAL BHAGAT & ORS.

STATE OF BIHAR

November 13, 1969

[M. HIDAYATULLAH, C.J., S. M. Suoo, G. K. MITTER, A. N. RAY AND P. JAGANMOHAN REDDY, JJ.]

Sea Customs Act 8 of 1878-lmports & Exports Act 18 of 1947-Efject of s. 3(2) of Act 18 of 1947-Whether only s. 19 of Act 8 of 1878 attracted or other provisions also--Sec Customs Act whether appli-cable to Santhal Parganas in Bihar-Land Custllm.1 Act 19 of 1924 ll'hether applicable to Sc:nthal Parganas-Pol1.'er of Gorernor under Art. 244 ,& Fifth Schedule of Constitution of India 1950 to extend laws to sclie<luled areas-Cloves whether 'prohibited goods' under Act 18 of 1941 and 1111ports Control Order 1955-Whether dutiable under Indian Tariff Act J 934-Power of Inspectors of Central Excise cniployed on Central t.'xcise & Custon1s Intelligence ivork to 1nake crreJts and seize ciol'es under .1·. 173 & s. 178 of Sea Customs Act-Effect of notifications under .1. 6 of Sea Customs Act, namely, Notification No. 69-Cus. dared 28 September 1951 and CBR Notification I. L. Cus. dmed 25th January, 1958 Sea Cust'oms Acts. 178A-Onus of proof u1rder.

One Nazir Mian \Vas arrested at Pakur Railwav Station in the Santhal Parganas of Bihar hy two Inspectors and constable belonging to the Central Excise Department. · The Inspectors were employed on Central Excise and Customs Prevention Intelligence work. Two bags of cloves on which duty was requi'rcd to be paid under the In1ports Control Order 1955, but had not been paid, were seized from the possession of Nazir mian who had locked himself inside the latrine of railway compartment in the said station. The arrest and seizure were effected under ss. 173 and 178 of the Sea Customs Act 1878. Helped by certain persons, Nazir i\fian escaped and the cloves we:re also taken away. In the scuffle the said two Jnspectors were injured, one grievously. Alongwith four others '.\iazir Mian was tried in connection with the incident. The charges against the accused included the offences of offering resistance to the lawful apprehension of Nazir Mian and of causing hurt to public servant in the discharge of his official duties. Four of the accused including the three appellants were convicted by the trial Court. The High Court dismissed their appeals. In appeal by special leave against the judgment of the High Court the appellants contended before this Court that : ( 1 ) The Sea Customs Act. 1878 did not apply to the place of occurrence and, therefore, the arrest purporting to have beefi. made under ss. 173 and 178 of that Act and the seizure of the cloves\ were unlawful. (ii) The Land Customs AcUl 924 did not apply to the place of occurrence and therefore the Jnspecto were not officers ot Customs who could invoke the autho· ritv of the , nd Customs Act. 1924 to arrest and seize the appellant ~~zir Mian: (iii) The seizure of cloves was not authorised by s. 178 of the Sea Customs Act 1878 nor was the arrest authorised under s. 173 of the Sea Customs Act 1878; (iv) Section 178A of the Sea Customs Act 1878 eoulJ not apply because there was no notification to attract the application of the said section.

HELD: (i) The Sea .Customs Act. 187R was applic:ibk ro the Santhal P<.irg:anas by virtue of s. 3('!) of the Jn1porls & Export, Cctntrol /\er. J.94"7 1.r.su11 c.l./iO· 1r;

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"'·hich.\h?d. been niadc applicable bY. th~ ~·overno~ to the-Santhal :arganas . under B1har Regulation I of 1951. - \ -

Sub-secti9n (2) of •: 3 of the Imports & Exports Control Act, 1947 enacts that goods to which ai;iy orde:r: under sub-section (I) applies shaU be deemed to be goods of which the 1mpd.rt or export has been prohibited under s. 19 of the Sea Customs Act, 1878 and the second limb of sub-. section (2) of-s. 3 is that all the provisions of that Act (The Sea Customs Act, 1878) shall have effect accordingly. To accede to the contention on behalf of the appellants that only s. · 19 of the Sea' Customs Act 1878 will apply and no, other provisions of- the Sea Customs Act 18J8 will be effective or operative \\'ill-be· not only to render the words '"and all the provisions of that Act shall have effect" otiose but also nugatory. When the statute enacts that all the provisions of that Act shall have effect accordingly, it \\[1]ill be an erro'r to hold iti spite Of the Ianguacre of such legislation that the provisions of the Sea Customs act shall not have effect. !Jle effect of !'ringing into -an Act~ the proVisions of an earlier Act is to introduce the incorporated sections of the earlier Act into the subsequent Act as. if these provisions have been enacted in-it for the first time. [242 H-250 01

All that_ can be said on the authority of the Madras Custonzs case is that if s. 19 of the Sea Customs Act 1878 were repealed then the Sea _Customs Act 1878 would not be attracted. Section 19 of the Sea -Customs Act, ·1878 has not been repealed and was extant and is now re-enacted as -s. l _l in the Sea Customs Act. 1962 and there has been corresponding -change in the Imports and Exports Control Act, 1947 by reference to the Sea Customs Act,· 1962 and s. 11 ther_eof. (243 HJ

The Collector of Custo1ns, MGdras v. Nathello Anr., [1962) 3 S.C.R. 786, explained.

Sa111pathu Chetty &

The Secretary of State for India in Council v. Hindustan Co-opera-,five Insuranct; Societ.v Ltd., referred to.

Re: Wood's Estate, [1881J 31 Ch. D. 607, applied.

Bihar Regulation 1 of 1951 was not in excess of the Governor's powers. _The Santhal Parganas are included in the Scheduled Areas dealt "With in Art. 244, and the Fifth Schedule to_ the Constitution. Paragraph :5 in -the Fifth Schedule deals with laws applicable to Scheduled Areas. SuQ-paragraph 2 of Paragrapfi 5 enacts that the Govemo~ may make re-gulations for the peace and good government of any area in State which is for the time being Scheduled Area. Under sub-paragraph ~ of para-graph 5 the Governor may repeal or amend any. ~ct of Parh_ame:it or any Act of the legislature of the Stat~ or any e~ishng .la~ w·h1ch ts ~or the time being applicable. to the area in question._ The B1har Re~lat~on I of 1951 is valid piece of legislation emanating from. the leg1sla.ttvc authority of the. Governor in its plenitude of power. The contentions that ~the Governor's power of making regulations. did not incl~de . the power to_ apply l~ws and that the. Bihar ~egulat10~ I ~f 1951 is either piece of <lelej.rated legislation or, cond1t1onal leg1slahon, could not he accepted. [245 B-C, HJ · .

Riel v. The Queen. LR. 10 A.C. 657, refe'rred to.

(ii) The Land Customs Act. 1924 was not applicable to the Santhal Parganas as an 'existing Jaw' v.'ithin the f!leaning of Art. 372( 1) of the Constitution. It was also not made a2phcable to the Santhal Pargan~s by the Governor bv the exercise of power un~er th~ Gov~rnm:nt of India Act or the Constitution. Nevertheless by virtue of notification No. 69

. I....

t{A.~I KIRPAL V. HlllAR

Cus. dalcJ 18th Scplcmhcr, 195 l under ~ccLion .6 of Lhc Sea Custom~ct, I X78 and notifi9ation No. ('BR Notitis;:alion 1. L. Cus. dated 25th Janq3ry, 1958 (as umcndell in Muy, 1958) the '1:\VO Jnspccto'rs in the present case IHJ<l <lllthority to ;.1rrcsr the :.1ppcllunt N;.1zir J\-fittn and lo seize the ha~of i:loVes in hi.Ii posscssiol).J

Fron1 the sai<l notificutions it appenrc<l that under !<.. 6 of the ~ca Custorhs Act.· 181 N Lund Custon1!rl Officers arc appointed Officers of Cus· 1oms. SeconJly, the potification ,under the Lunt.I Customs Act is that all the .officers n1cntio~J -..therein including the Inspectors of Central Excise L'mPloyc<l on the Central Excise Or ('uston1s Prevention ·Intelligence Work and attached to the Headquarter"s are- Land Customs Officers. The corn· hinc<l effect of both the notificaticins is that the J nspectors of Central Excise in the present c:.1se \Vere Land_ Custon1s Officers un<l Officers of Customs as result of the application of the Sea ('ustoms Act, I X7X. 1246 H; 251 B-DJ

(iii) (a) The in1port of cloves \\'Us prohibi1cd under the Imports Cont:rol Order 1955 m:u.lc under s. 3 of the Imports & Exports Control Or<lcr I 94 7. Thoy w_crc ~ilso dutiable !!Ooµs unLic r thl! Jn.di1.1n ·rariff Act. 1934 which, \\'as af)plicahlc to the Sunthal Parganus heing one of the Acts mentioned ~n the Schedule to the Santhal Parganas Scttlcn1cnt Regulation. 1872. Hcipg prohihitcd goods under the Imports & Exports Control Act, J 947 clov~s un: <.1ee1ned to he prohihih.:<l under s. 19 of the Sea Customs Act, !878. [250· A]

(h) 1"he evidence in the p·rcsent case estahlished the follo\ving facts. First. the appellant Nazir Mian ha<l in possession two hags of cloves ahd no <luty \\~u"s gaid on those cloves. Secondly the said appellant kept the cloves in two hags arid concealed the same in the latrine of the failw~s cou1partmcnt Thirdly, the cloves \Vere dutiable goods "an<l there was prOl\ibition ·on the imPort of those goods. Fourthly. the place of occurrence was at distance of only 11 & 12 n1iles from the East Pakistan border. Fifthly, cloves are not grown in India. These eireums-ranccs indicated rcasonabJC suspicion :.ind. therefore the Officers \\[1]erl! iustifieU in arresting the aopellant Nazir f\fian under :-;ection 173 of the S.Oa Customs Act. 1878. 1251 El ·

(iv) In the absence of special notificution und1.:r s. I 78A of the Sen ("u!<.toms Act. 1878 specifying goods to \\'hich the section applies. the onus of proof ui:ider ttiat section cannot he placed on persons '"hose gooJs i1re seizeJ for violatioq ;of othcr''P·roVisions of the Sea Custon1s Act. 1878. In vic\v bf the fact that in the present c<1sc the scizeJ articles \\'ere rc-n1oved bv the accusct.1 it n:.is unncccssury to denl uny further \\'ith this aspect of the case because if any order \Vas passed for return of th1.: hags the order could not he enforced ~I :!51 H1

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal )';'0. 182 of 1966.

Appeal by special leave from the judgment and order dat~d January 31, 1966 of the Patna High Court in Criminal. Appeal No. 210 of 1966.

Ramesl11var Dial and A. D. Mathur, for the appe!lai1ts.

Lal Narayan Sinha, Atlvncat~-GrnC'raf ;or tfl<' Stare of Bilwr a·nd U. P. Sing/1, for the respondent.

L. M. Si11gh1·; and S, P. Nayar, fdr t\le Union of India.

Lal Narayan Sinha, Advocate-Genera/ for ihe State of Bihar and D. Gob11rd/111n, for the State of Bihar.

The Judgment of the ,Court was delivered by

Ray, J.-This is an ap'peal by special leave from the judgment rn' the High Court at Patna challenging first the authority of the Excise In,p~ctors as· Officers of Ct\~toms. namely, public servants and secondly their power fO arrest Nazir Mian and seize 2 bag' or cloves from his possession under1scctions 173 and 178 respec-ti\"cly of the Sea Customs Act, 1878. /

The. facts giving rise to this uppc;I ure us follo~s. Ot! ... - 13 December. 1961. Inspectors Uma Shankar and Bisiiddha Nanj Jha and Constable Bishan Singh, all belonging to the Cen-tral Excise Department were on checking patrol duty on 330 Dow·n Baruuni passenger train proceeding fro1n B'arharwa to Pakur .which are Railway Stations in. Santhal Parganas in Bihar. The appellant Nazir Mian. was travelling by Barauni passenger tr"in. When the train stopped at Pakur the excise staff found Nazir Mian in the latrine of one of the co111part1nents of the train \rith t\VO bags of clove's weighing about 2 n1aunds 10 seers. Th,; do,1r of the latrine \\'as closed. Inspector Vma Shankar pushed tho door when it was opened from inside. Uma Shankar dis-closed his i<.leptity and asked if duty had been paid for the cloves. l\azir Mian answered in the negative. lnspcctor Uma Shanhtr thereupon seized the bags and arrested l'<azir Mian. While thi' was being done, the train started. Shorlly after the train lu1d 'tarted it 'topped at level cro'5ing in ccmsequencc of one of the persons of the excise staff puliing the aiarnt chain. The excise staff got do\vn with Nazir M ian. ~fhc two bags of cloves were ab;:i brought down. Certain persons collected on the spot. Nazir Mian is allegqd to have been rescued by other appellants and the bags of cloves were taken away. Jn the scumc that ensued. one of the Inspectors received. sin\ple injuries and the other grievous injury'.

The three appellants Nazir Miah; Ram Kirpul Bhagat :ind Ganga Dayal Shah and two other persons Jhaman Mian and H.ughunath Prasad 'r' ad av were aIJ ·charged under section 147. 149.' 333 and 379 of the Indian Penal Code for forming an un-lawful assembly in u>Saulting Inspectors Uma ,Shankar and B. N . .I hu :.ind in rescuing accu:-;ed Nazjr f\.1ian frorn their Jaw'ful custody and in re111oving two bags of seized cloves fron1 their possession. The accused persons with the exception of Raghunath Prasad Yadav were further charged under section 332 of the Indian Penal Code for \"Oluntarily' causing hun to Uma Shankur public

RAM KIRPAL v. BIHAR (Ray, J.)

.A servant in the discharge of his public duties. The accused with the exception of Nazir Mian were charged under section 225 of the Indian Penal Code for intentionally offering resistance to the lawful apprehension of accused Nazir Mian. Nazir Mian was also charged under sectiol) 7 of the Land Customs Act, 1924 for contravention of section 5 of the said Act and also under section 167 item 81 of the Sea Customs Act, 1878 for contraven-tion of section 19 of the said Act and also under section 5 of the Imports and Exports Control Act, 1947 for contravention of section 3(1) of the Imports Control Order, 1955.At the tdal before the Assistant Sessions Judge, Dumka in Santhal Parganas, Raghunath Prasad Yadav was acquitted of all the charges and the appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah along with Jhaman Mian were all con-victed under sections 147 and 332 of the Indian Penal Code. Jhaman Mian, Ram Kirpal Bhagat and Ganga Dayal Shah ''ere also convicted under sections 225 and 333 of the Indian Penal Code. Ram Kirpal Bhagat and Nazir Mian were also convicted under section 379 of the Indian P"enal Code. The said four accused including the three appellants were sentenced to sehTa I terms of imprisonment and the said sentences were ordered lO run concurrently.

The Assistant Sessions Judge, Dumka, however, acquitted the appellant Nazir Mian of the charges under the Land Custcms Act, the Sea Customs Act, 1878 and the Imports and Exports Control Act. The Assistant Sessions Judge, Dumka held that section 6 of the Imports and Exports Control Act, 1947 raised bar of taking cognizance by any court except upon complaint in writing made by an officer authorised in that behalf by the Central Government by general or special order and in the absence of any complaint in writing by the officer concerned, the Assistant Sessions Judge, Dumka found that he had no jurisdic-tion to take cognizance of the offence under this Act. The Assistant Sessions Judge, Dumka, also held that section 187 of the Sea Customs Act, 1878 laid' down that cognizance as to offence was to be taken upon complaint in writing made by the. Chief Customs Officer or any other officers of customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs Officer. The Assistant Sessions Judge, Dumka, found that in the present case there was no such complaint, and, therefore, he did not take cognizance for the contravention of section 19 of the Sea Customs Act, . 1878 .

The appellants and Thaman Mian thereafter preferred an appeal to the 'High Conrt. Jn the High Court the appellant Nazir

Mian co1..ended that Inspector Uma Shankar had no power to arrest him and seize the cloves, and, therefore, · the Inspector could not be .held to have acted in the discharge of his public duties. In.aid of that contention it was submitted first, that the Imports arnf'Exports Control Act, 147, tl!e Land Customs Act, . 1924, the Sea Customs Act, 1878 and the Indian Tariff Act, 1934 were not extended to Santhal Parganas and were not, there-fore,. applicable. The second contention was that cloves were not dutiable articles. The third contention was that section 173 of the Sea Customs Act, 1878 had no application, because there was no evidence of reasonable suspicion that Nazir Mian was guilty of an offence under the Sea Customs Act, 1878. It was also cop tended· that Inspector Uma Shankar was not an officer of the Customs.

The High Coun came to the conclusion that the Sea Customs Act, 1878 and the Imports and Exports Control Act, 194 7 applied to the Santhal Parganas with the result that the import of cloves was prohibited; duty was payable on cloves; the Inspec· tors were officers of Customs within their respective jurisdiction, and, therefore, they could exercise power under section 17 3 of the Sea Customs Act, 1878 and they could seize· the goods under section 178 of the Sea Customs Act, 1878. Th(\ High Court further held that under section, 178A of the Sea Customs Act; 1878, the burden was on the appellant Nazir Mian to prove that . cloves seized were not smuggled goods and that the appellant Nazir Mian failed to do so.The High Court held that the appellants. had been rightly convicted for certain offences but the sentences under section 332 of the Indian Penal Code against Nazir Mian, Ganga Dayal Shah were set aside to correct an error in the judgment of the Assistant Sessions Judge, Dumka, who at one place convicted all the four accused under section 332 of the Indian Penal Code and• at another place found only Jhaman Mian and Ram Kirpal Bhagat guilty of the offences under section 332 of the Indian Penal Code. ' ·

Counsel on behalf of the appellants contended first, that the Sea Customs Act, 1878 did not apply to the place of occurrence, and, therefore, the arrest and the seizure were unlawful. The second contention was that the Land Customs Act, 1924 did not apply · to the place of occurrence, and therefore, the Inspectors were not officers of Customs who could invoke the authority of the Land .Cl1stoms Act, 1924 to arrest and seize the appellant Nazir Mian. The third contention was that the seizure of cloves was not authorised by section 178 of the Sea Customs Act, 1878 nor was the arrest· authorised under section 173 of the Sea Customs ·

Act, 1878. The arrest and the seizure under the Sea Customs Act 1878 were impeached as illegal on the ground that the Sea Customs Act, 1878 did not apply to the place of occurrence, namely, Pakur in Santhal Parganas in Bihar. The fourth con-tention was that section l 78A of the Sea Customs Act, 1878 could not apply, because there was no notification to attract the application of the said section.

The first question which falls for decision is whether the Sea Customs Act, 1878 applies. In order to appreciate this con-tention it is necessary to refer to .the statutes by virtue of which the Sea Customs Act, 1878 is said to aprly to the place of occur-rence. The Bihar Regulation I of 1951 enacted t!lat rhe Imports and Exports Control Act, 194 7 was applicable to Santl}al Par-ganas.

The relevant sections under the Imports and Exports Control Act. 1947 in the present case are the two sub-sections in sec-tion 3 which are as follows :-

''3. Powers to prohibit or re.1·t1 ict imports and exports. ( 1) The Central Government may, by order published in. the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order:-

(a) the import, export, carriage coastwise or ship-ment as ships stores of goods of any specified descrip-tion;

( b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried.

( 2) All goods to which any order under sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly".

The first contention on behalf of the appellants is that sub- . section (2) of section 3 of the Imports and Exports Control Act, 1947 means that only section 19 of the Sea Customs Act, 1878 is applicable and the other section do not apply. The second contention on behalf of the appellants that the Bihar Regulation I of 19~1 is in excess of the power of the Governor contained in the Fifth Schedule to the Constitution will be dealt with here-inafter. Counsel on behalf of the appellants contended that sec-

ti on 3 ( 2) of the Imports and Exports Control Act, 194 7 meant that goods to which sub-section ( 1) of secti~~ 3 of t~e Act of 1947 applied were deemed to be goods of w111ch the nnport or export had been prohibited under section 19 of the Sea Customs Act, 1878, and, therefore, only section 19. of that Act was. to have effect for that restricted purpose. In aid of that comentilm reliance was placed on the decision of this Court in The Cv//ector of Customs, Madras v. Nathe//a Sampathu Chelly & A111'.\ '). The question for consideration in the ,Wadras Customs case was whether section l 78A of the Sea Customs Act, 1878 applied. The Collector of Customs there seized gold because he was, prima facie, of the view that it had been smuggled and notice was issued to the respondent to show cause why the gold should not be confiscat~d. Import of gold was dealt with by section $ of the Foreign Exchange Regulation Act, 194 7 which provided that the Central Government might by notification order that no person except with the general or special penrnssion of the . Reserve Bank and on payment of prescribed fee bring or send into India any gold or silver. Section 23A of the Forcig11 Exchange Regulation Act wh!d1 came into existence in the year 1952 was as follows :-

"23A. Without prejudice to the provisions of sec-ticn 23 or to any other provision contained in this Act the restrictions imposed ~J sub-sections ( 1) and (2) cf section 8, sub-section (I) of section 12 and clause (a) of sub-section (I ) of section 13 shall be deemed to have been imposed under section 19 of the Sea Cus-toms Act, 1878 and ail the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall" therein the word "r11ay" Vvere ~ubstituted".

·section 178A of the Sea Customs Act, 1878 was introduced into the Act in the year 1955. It was, therefore, contended that when the Foreign Exchange Regulation Act, 1947 was enacted the provisions of the Sea Customs Act, 1878 were not at ell attracted, and secondlv. when section 23A was introduced in 1952 as part of the. Foreign Exchange Regulation Act. !947 it would have the effect of bringing into operation only those sections of the Sea Customs Act. 1878 which were part of the Sea Customs Act, 1878 in 1952.

Counsel for the appellants relied on the observations at page 834 of the Report in the Madras Customs case(1) that "the effect of section 23A is to treat the text of the notification by ·the Central Government under section 8 (1) as if it had been

issued under section. 19 of the Sea Customs Act with the tit,e and the recital of tlie source of power appropriate to it by the creation of legal fiction". Counsel for the appellants extracted from these observations the proposition that only section 1 9 of the Sea Customs Act, 1878 would attracted in the present case to make effective the notifications under the Imports Control and Exports Control Act, 194 7 and the Imports Control Order, J 955 and no other section of the Sea Customs Act, 1878 would be attracted. The decision of this Court in the Madras Customs case(') does not support that contention for the Gbvious reason that section l 78A of the Sea Customs Act, 1878 was held to be applicable there. If only section 19 of the Sea Customs Act, 1878 were attracted for the purpose '.lf giving sanction to notifications under the Foreign Exchange Regulation Act section 178A of the Sea Customs Act, 1878 could not have · been held to be applicable in Madras Customs case(').Further this Court in the· Madras Customs case(') at page 799 of the Report held first, that on the law as it stood upto 1952 before section 23A of the Foreign Exchange Regulation Act was inserted, importation of gold in contravention of the notification of August, 1948 issued under section 8 (I) of the Foreign Exchange Regulation Act would have been an impor-tation contrary to section 19 of the Sea Customs Act, with the result that any person concerned in the act of importation would have been liable to the penalties specified in the third column of section 167 ( 8) of the Sea Customs Act and imported gold would have been liable to confiscation under the opening words of that column. This conclusion indicates that restriction on the import of gold by notification under the Foreign Exchange Regulation Act would be prohibition or restriction on importa-tion or exportation of gold under section 19 of the Sea Customs Act, 1878 which occurs in Chapter IV of the Sea Customs Act, 1878.

The other conclusion of this Court in the Madras Customs case was that though section 187 of the Sea Customs Act, 1878 was introduced in. the year 1955 section 23A of the Foreign Exchange Regulation Act, 1947 which came into exist-G ence in 1952 would be operative to introduce the subsequent amendments of the Sea Customs Act, 1878 in dealing with con-travention of the Foreign Exchange Regulation Act in relation to importation or exportation of gold.

In dealing with the contemtion in the Madras Custom case that section 178A cf the Sea Customs Act, 1878 did not apply because it was not part of the Sea Customs Act, 1878 when section 23A of ihe Foreign Exchange Regulation Act was en-

acted in 1952, the decision of the Judicial Committee in The

Secretary of State for India in Council v. 'Hindustan Co-operative Insurance Society Ltd.(') was referred to by this Court for the purpose of showing that in the Hindustan Co-operative Insurance Society case the Calcutta Improvement Trust Act, 1911 referred to the provisions of the Land Acquisition Act by enacting that "the provisions of the Land Acquisition Act shall apply as if they were herein re-enacted" to mean that the Cal-cutta Improvement Trust Act 1911 in adopting the provisions of the Land Acquisition Act did not intend to bind themselves to any future additions which might be made to the Land Acqui-sition Act. The other consideration which weighed with the Judicial Committee was that the Calcutta Improvement Trust Act did nothing more than incorporate certain provisions from an existing Act, and for convenience of drafting did so by refer-ence to that Act instead of setting out for itself at length the provisions which it was desired to adopt. This Court said that !here was no analogy between the manner in which the provi-sions of the Land Acquisition Act had been incorporated in the Calcutta Improvement Trust Act, 1911 and the operation of the Sea Customs Act, 1878 as result of section 23A of the Foreign Exchange Regulation Act. Section 23A of the Foreign Exchange Regulation Act was construed to mean that the restrictions imposed by section 8 (I) of the Foreign Exchange Regulation Act shall be deemed to have been imposed under section 19 of the Sea Customs Act and all the provisions of the Sea Customs Act, 1878 shall have efiect accordingly. At page 837 of the Report this Court said that notification issued under section 8 ( l) of the Foreign Exchange Regulation Act was deemed for all pur-poses to be notification issued under section 19 of the Sea Customs Act and the contravention of the notification attracted to it each and every provision of the Sea Customs Act which was in force at the date of the notification.The ratio of the decision in the Madras Customs case([2 ]) is that the provisions of the Sea Customs Act, 1878 were attracted by relation to the provisions of section 19 of the Sea Customs Act, 1878 which deal with restrictions or prohibitions on import or export and the notifications under the Foreign Exchange Regulation Act prohibiting import of gold become an integral part of section 19 of the Sea Customs Act, 1878, and, therefore, the contravention of such notification would brin2 into effect each and every provision of the Sea Customs Act'. 1878.

In the present case, sub-section (2) of section 3 of the Imports and Exports Control Act, I 947 enacts that goods to which any

order under sub-section ( l ) applies shall be deemed to be goods of which the import or export_ has been prohibited under section 19 of the Sea Customs Act, 1878 and the second limb of sub-section (2) of section 3 is that all the provisions of that Act (meaning thereby the Sea Customs Act, 18 7 8) shall have effect accordingly. To accede to the contention of counsel for the appellants that only section 19 of the Sea Customs Act, 1878 will apply and no other provision of the Sea Customs Act, 1878 will be effective or operative will be not only to render the words "and all the provisions of that Act shall have effect only" otiose but also nugatory. When the statute enacts that all the provisions of that Act shall have effect accordingly, it will be an error to hold in spite of the language of such legislation that the provisions of the Sea Customs Act shall not have effect. The effect of bring-ing into an Act the provisions of an earlier Act is to introduce the incorporated sections of the ·earlier Act into the subsequent Act as if those provisions have been enacted in it for the first time. The nature of such piece of legislation was explained by Lord Esher M. R. in Re Wood's Estate(') that "if s-C!me clauses of former Act were brought into the subsequent Act the legal effect was to write those sections into the new Act Just as if they had been written in it with the pen".

This Court noticed in the Madras Customs case([2]) the distinction between mere reference to or citation of one statute in another· on the one hand and an incorporation on the other, for the purpose of showing as to what would be the effect of the repeal of the former statute on the latter statute. It is in that context that this Court observed that if section 19 of the Sea Customs Act, 1878 would be repealed then there would no longer be any legal foundation for invoking the penal provisions of the Sea Customs Act, 1878 to contravention of notification under section 8 ( 1) of the Foreign Exchange Regulation Act. The ratio is that if the contravention of the notification under the Foreign Exchange Regulation Act is equated with contraven-tion of the notification under section 19 of the Sea Customs Act, 1878, the effacement of section 19 of the Sea Customs Act, 1878 from the statute book would naturally remove the substratum of the Sea Customs Act, 1878.

In the present case, the provisions of the Sea Customs Act, 1878 are attracted by reason of the provisions contained in sec-tion 3 of the Imports and Exports Control Act, 194 7 and on the authority ·of the decision of this Court in the Madras Customs case(') all that can be said is that if section 19 of the Sea Customs Act, 1878 were repealed then the Sea Customs Act, 1878 would not be attrackd. Section 19 of the Sea Customs (I) i18811 31 Ch. D. 607. (2) [1962] 3 S.C.R. 785.

Act, 1878 has not been repealed and was extant and is now re-enacted as section 11 in the. Sea Customs Act, 1962 and there has been corresponding change in the Imports and Exports Con-trol Act, 194 7 by reference to the Sea Customs Act, 1962 and section 11 thereof.

The second question which falls for consideration is whether the Bihar Regulation I of 1951 is in excess of the Governor's powers. The contentions were: first, that the Regulation I of 1951 ,;ould not at all have been made; secondly, that Regula-tions deal with the subject matter and did not mean power to apply law and thirdly, the power to extend Jaw passed by another legislature was said to be not legislative function, but was conditional legislation. The legislation, in the present case, is in relation. to what is described as Scheduled Areas. The Schedured Areas are dealt with by Article 244 of the Constitu-tion and the Fifth Schedule to the Constitution. Prior to the Constitution, the Excluded Areas were dealt with by sections 91 and 92 of the Government of India Act, 1935. The excluded and the partially excluded areas were areas so declared by order in Council under section 91 and under section 92 no act of the · Federal Legislature or of the Provincial Legislature was to apply to an excluded or partially excluded area unless the Governor by public notification so directed. Sub-section (2) of section 92 of the Government of India Act, 1935 conferred power on the Governor to make regulations for the peace and goods government of any area in Province which was an excluded or partially excluded area and any regulations so made might repeal or amend any Act of the Federal Legislature or the Provincial Legislature or any existing Indian law which was for the time being applicable to the area in question. The extent of the legislative power of the Governor under section 92 of the OoveliillOent of India Act, 1935 in making regulations for the peace and good government of any area conferred on the Governor in the words of Lord Halsbury "an utmost discretion of enactment for the attainment of the objects pointed to". (See Riel v. The Queen) (1). In that case the words which fell for consideration by the Judicial Com-mittee were "tpe power of the Parliament of Canada to make provisions for the administration, peace, order and good gov-ernment of .any territory not for the time being included in any province". It was contended. that if any legislation differed from the provisions which in England had been made for the adminis-tration, peace, order and good government then the same could not be sustained as valid. That contention was not accepted. These words were held to embrace the widest power to legislate for the peace and good government for the area in question .. (!) L.R. IO A.C. 657 at 658.

Prior to the sections 91

The Fifth Schedule to the Constitution consists of 7 para-graphs and consists of Parts, A, B, and D. Paragraph 6 in Part deals with Scheduled Areas as the President may by order declare and there is no dispute in the present case that the Santhal Parganas falls within the Scheduled Areas. Paragraph 5 in the; Fifth Schedule deals with Jaws applicajJJe to Scheduled Areas. Sub-paragraph 2 of paragraph 5 enacts that the Governor may make regulations for the peace and good government of any ·area in State which is for the time being Scheduled Area. Under· sub-paragraph 3 of paragraph 5 the Governor i:nay repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. It may be stated that contention was advanced by counsel for the appellants that section 92 of the 'Government of India Act, 1935 was still in operation and the Governor could Oitly act under that section. This contention is utterly devoid. ot any substance because section 92 of the Government of India Act, 1935 ceased to exist after repeal of the Government of India Act, 1935 by Article 395 of the Constitution. It was con-D tended that the power to make regulations did not confer power on the Governor to apply any law. It was said that under section 92 of the Government of India Act, 1935 the Governor could do so but under the Fifth Schedule of the Constitution the Governor is not competent to apply laws. This argument is without any merit for the simple reason that the power to make regulations embraces the utmost power to make laws arid to apply laws. Applying Jaw to an area is making regulations. which are laws. Further the power to apply laws is inherent when there is power to repeal or amend any Act, or any exist-ing law applicable· to the area in question. The power to apply laws is really to bring into legal effect sections of an Act as ;f the same Act had been enacted in its entirety. Application of laws is one of the recognised forms of legislation. Law can be made by referring to statute or by citing statute or by incor-porating statute or provisions or parts thereof in piece of legislation as the law which shall apply.

It was said by· counsel for the apppellants that the power to apply laws under the Fifth Schedule was synonymous with con-ditional legislation. In the present case, it cannot be said that the Bihar Regulation I of 1951 is either piece of delegated legislation or conditional legislation. The Governor had full power to make regulations which are laws and just as Parliament can enact that piece of legislation will apply to particul"r State, similarly, the Governor under paragraph 5 of the Fifth Schedule can apply specified laws to Scheduled area. The Bihar Regulation I of 1951 is an instance of valid piece of legislation

emanating from the legislative authority in its plenitude of power and there is no aspect of delegated or conditional legislation.

The question which next arises for consideration is whether the Land Customs Act, 1924 applied on the relevant date of occurrence namely 13 December, J 961 to the Santhal Parganas. The Land Customs Act was enacted in the year 1924 and it was declared to apply to the Santhal Parganas. Prior to the Constitu-tion the Central Acts or Federal Acts or Acts of the Dominion Legislature did not apply to an excluded or partially excluded area unless they were declared by the Governor to apply to those areas. After the enactment of the Constitution, Article 244 and the Fifth Schedule deal with excluded or partially excluded areas.It was contended on behalf of the State that after the enact-ment of the Constitution the Land Customs Act, 1924 became applicable to excluded or partially excluded areas because first it was an existing law and secondly the restriction under section 92 of the Government of India Act, 1935 which required specific declaration of the Governor to apply any legislation to the areas in question was no longer operative. Article 372(1) of the Constitution enacts that the law in force in the territory of India immediately before the commencement of the Constitu-tion is to continue in force until altered or repealed or amended by competent legislature or other comryetent authority. Expla-nation I -to Article 372 is that law in force in the Article shall include law passed or made by the legislature or other competent authority in the territory of India before the commencement of the Constitution notwithstanding that it or parts of it may not be then in operation either at all or in particular area or areas. The conten-tion on behalf of the respondent that the Land Customs Act, 1924 would apply to the Sanihal Parganas on the ground that it is an existing law is not acceptable. Article 3 72 in clause ( 1) thereof enacts that subject to the other provisions of this Constitution all the laws in force in the territory of India shall continue in force. The Fifth Schedule to the Constitution relates to excluded or partially excluded areas. The existing law in relation to the exduded areas is saved by Article 372 and Explanation I thereto in spite of operation of such laws in particular areas. s:milar!y, other laws which were applicable to territories other than the excluded or partially excluded areas are saved by Article 372 Exolanation I. Therefore, laws which were existing law in terri-tories other than excluded or partially excluded areas would not be existing law under Article 372 in relation to excluded or par-tially excluded areas. Nor would existing law for the rest of India be existing law to area in question .within the meaning of paragraph 5 in the Fifth Schedule to the Constitution. The Land

Customs Act, 1-924 cann_ot therefore be said to apply to Santhal Parganas as an existing law.

The present day sources of law making in the Santhal Par-ganas whi9h are included in the Scheduled Areas are Article 244 and the provisions in the Fifth Schedule to the Constitution. Clause 5 of the Fifth Schedule has two sub-clauses. Under sub-B clause (1 j the Governor is empowered notwithstanding anything in the Constitution to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to Scheduled Area or shall apply to Scheduled Area subject to such excep-tions and modifications as the Governor may specify in . the poti-fication. Sub-clause ( 1) of clause 5 of the Fifth Schedule to the Constitution speaks of Acts of Parliament or of the Legislature of the State and therefore Central Acts or Provincial Acts prior to the Constitution are not contemplated within sub-clause ( 1) of clause 5. Sub-clause (2) of clause 5 of he Fifth Schedule confers power on the Governor to make regulations for the peace and good Government of any area in State which is Scheduled Area. Under sub-clause (2) the Governor has power to make laws which will include the power to apply to Scheduled Areas Central laws or Provincial laws enacted prior to the Constitu-tion.

Prior to the Constitution section 92 of the Government of India Act, 1935 conferred power on the Governor to make regulations for excluded and partially excluded areas which included the Santhal Parganas. In making such regulation the Governor could repeal or amend any Central law or any Provincial Acts and the regulations were to be ~ubmitted to the Governor-General for assent. The Central or the Provincial Acts under sub-section (1 ) of section 92 of the Government of fodia Act, 1935 however were not applied to excluded and partially excluded areas unless the Governor so directed.Prior to the Government of India Act, 1935 the Governor-General-in-Council in 1872 promulgated the regulation known as "Santhal Parganas Settlement Regulation" and section 3 of the said Regulation provided the enactments specified in the Schedule thereto which would be in force in the Santhal Par-ganas. Section 3 (2) of the Santh~l Parganas Settlement Regu-lation of 1872 in so far as it seeks to affect future legislation would not have any. force atter 26th January, 1950.

In this background it appears that the Sea Customs Act, 1878 and the Land Customs Act, 1924 were not made applicable to Santhal Parganas either under the Sant~al ~arganas Settlem~nt Regulation of 1872 or under any notification issued under sectmn

92 of the Government of India Act, 1935. Neither the Sea Cus-toms Act, 1878 nor the Land Customs Act, 1924 has been speci-fically made applicable to the Santhal Parganas by any notification under sub-clause (2) of clause 5 of the Fifth Schedule. The Bihar Scheduled Laws Regulation being Regula-tion I of 1951 which was promulgated under sub-clause (2) of clause 5 of the Fifth Schedule for the purpose of applying cer-tain laws to Santhal Parganas however made the Imports and Exports (Control) Act, 194 7 and the Imports and Exports (Amendment) Act, 1949 applicable to Santhal Parganas.

We have already stated as to how the Sea Customs Act is made applica~le to Santhal Parganas by reason of the provisions contained in the Imports and Exports (Control) Act, 194 7. Though the Land Customs Act, 1924 does not apply to Samhal Parganas we have indicated hereinafter as to how because of the application of section 6 of the Sea Customs Act, officers of Land Customs appointed under the Land Customs Act are treated as Customs Officers having jurisdiction in the Santhal Parganas.

The Central Excise and Salt Act, 1944 was however made applicable to the Santhal Parganas by notification dated 14 Sep-tember, 1944 but the application of that Act is not in issue in the present appeal. One of the questions in the present appeal was whether the Indian Tariff Act, 1934 applied to the Santhal Parganas. The articles which were seized in the present aypeal, viz., cloves were dutiable articles being item 9(3) in column 3 in the First Schedule to the Indian Tariff Act, 1934. We have alr!!ady indicated as to how by reason of operation of section 3 of the Imports and Exports (Control) Act, 1947 cloves became an article the import or export of which was prohibited under section. 19 of the Sea Customs Act. No notification of applica-tion of the Indian Tariff Act, 1934 to the Santhal Parganas was shown to the High Court. It will appear in volume 7 page 5792 of the Bihar Local Acts ( 1793 to 1963) published by Bharat Law House, Allahabad in the year 1966 that the Indian Tariff Act, 1894 is found to be one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation, 1872 and the Indian Tariff Act, 1894 which was repealed by the Indian Tariff Act, 1934 was similarly declared to be in force in the Santhal Parganas.

The Inspectors, Uma Shankar and B. N. Jha were Customs Officers engqged in public duty. They arrested the appellant Nazir Mian under section 173 of the Sea Customs Act on reasonable suspicion. The Insoectors further arrested the apoel-lant .Nazir Mian under section 178 of the Sea Customs Act, 1878. Section 178 of the Sea Customs Act, 1878 empowered the

Customs Officer to seize smuggled goods under the Act. The questions which have to be decided in the present case are: first, whether the Inspectors Uma Shankar and B. N. Jha were acting in the discharge of public duties, secondly, whether they could arrest the appellants, and thirdly, whether they could seize the cloves. The oral evidence of Inspector Uma ~hankar is that he was an Inspector of Central Excis" and Customs and he worked in the Preventive and Intelligence Section. He said that he was posted at Barharwa since the month of January, 1961 and his jurisdiction was Pakur, Dumka and Sahibganj. He also said that his duty was the prevention of smuggling of contraband com-modities. Itlspector B. N. Jha in his oral evidence said that he was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence section and Pakur, Dumka and Sahibganj were within his jurisdiction of work

The Imports and Expert~ Control Act, 194 7 in sub-section (2) of sectipn 3 enaCted that goods to which sub-section (!) applied would be deemed to be goods the import or export of which would be restriction under section 1 \I or tne :;ea Cus-toms Act, 1878 and all the provisions of that Act shall have effect accordingly. The Imports and Exports Control Act, 194 7 conferred power on the Central Government io make provision• prohibiting, restricting and controlling import and export. Imports Control Order, 1955 was made by virtue of power con-E ferred by section 3 of the Imports and Exports Control Act, 194 7. Schedule I Part IV iiem 23 of the Imports Control Order, 1955 mentions cloves within the class of goods the import .of which is prohibited. Therefore, cloves come under the prohibition of section 3 of the Imports and Exports Control Act. 1947 read with clause 3 of the Imports Control Order, 1955 and are goods which are prohibited from being imported. The Imports Control Order, 1955 mentions that each entry in column 2 of Schedule I to the said Order has the same meanim:: as specified against the said item in column 3 of the First Schedule to the Indian Tariff Act. Schedule I to the Imports Control Order, 1955 gives in tabular form the names of articles as alsc> the corresponding items to the Indian Tariff Act. Cloves which are mentioned as item No. 23 of Schedule I of Part IV of the Imports Control Order, 1955 have the same meaning correspond-ing to item No. 9 ( 3) in column 3 in the First Schedule to the Indian Tariff Act, 1934. It. therefore, follows that cloves are goods the import of which is prohibited by the Imports and Exports Control Act, 1947 and they are dutiable goods by reason of that meaning of cloves in column 3 item No. 9 ( 3) of the First Schedule to the Indian Tariff Act, 1934 having been attracted by the Imports Control Order, 1955. Cloves are pro-

The ·

[1970] 3 S.C,R.

hibited goods within the Imports and Exports Control Act, 194 7 and are, therefore, deemed to be prohibited under section 19 of the Sea Customs Act, 1878.

The. Inspectors who arrested the appellant Nazir Mian and the other accused and seized the articles were Officers of Central Excise and Customs. In the present case, there are two notifica-tions. The first is notification No. 69-Cus. dated 28 Septem-ber, 1951 under section .6 of the Sea Customs Act, 1878 which is set out as follows :-

"In exercise of the powers conferred by section 6 of the Sea Customs Act, 1878 (VIII of 1878) and in supersession of the G.overnment of India in the Ministry of Finance (Revenue Division) Notification No. 71, dated the 12th August, 1950, the Central Govern-ment hereby appoints all the Land Customs Officers who have been appointed or may be appointed from time to time to be such under sub-section ( 1) of sec-tion 3 of the Land Customs Act, 1924 (XIX of 1924) to be Officers of Customs for their respective jurisdic-tion and to exercise the powers conferred and to per-form the duties imposed on such officers by the first named Act".

The second is notification No. C.B.R. Notification l.L.Cus. dated 25th January, 1958 as amended by No. 8-L.Cus. dated 17th May, 1958 under the Land Customs Act which is set out as follows :-

"In exercise of the powers conferred ·by sub-sec-tion ( 1) of section 3 of the Land Customs Act, 1924 ( 19 of 1924) read with the tnotification of the Gov-ernment of India in the late Finance Department (Central Revenue) No. 5944 dated the 13th Decem-ber, 1924 and in supersession of its notification No. 56-Customs, dated the 24th July, 1951 as subsequently amended, the Cemtral Board of Revenue hereby appoints all Deputy Collectors, Assistant Collectors, Headquarters Assistant Collectors, Superintendents, Deputy Superintendents, Inspectors, Nakedars, Super-visors, Range Officers, Assistant Range Officers, Women Searchers, Jemadars, Petty Officers, Ama\das, Sepoys and Peons, including all the officers of Central Excise employed for the time being on the Central Excise . or Customs Preventive Intelligence work and attacM\1. to the Headquarters and the Circle and Divi-sional. Officers of the Collectorate of Central Excise,

Delhi, Allahabad, Patna, Shillong, Madras, Bombay and Baroda, to be Land Customs Officers within the jurisdiction of the respective Col~ectors of Land Cus-toms under whom they are working".

It will appear from the aforementioned notifications first that under section 6 of the Sea Customs Act, 1878 Land Customs Officers are appointed Officers of Customs. It is manifest the provisions of the Sea Customs Act, 1878 apply, and, therefore, the Land Customs Officers are appointed Officers of Customs under tbe Sea Customs Act, 1878. Secondly, the notification under the Land Customs Act is that all the Officers mentioned therein including the Inspectors of the Central Excise employed on the Central Excise or Customs Preventive Intelligence work and attached to the Headquarters are Land Customs Officers. The combined effect of both the notifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as result of the application of the Sea Customs Act, 18 7 8.

Counsel on behalf- of the appellants contended that there was no evidence to warrant the Customs Officers to arrest the appel-lants under section 173 of the Sea Customs Act, 1878 because such an arrest could be made only if there was reasonable suspicion in existence. The evidence in the present case estab-E lished the following facts. First, the appellant Nazir Mian had in possession two bags of cloves and no duty was paid on those cloves. Secondly, the appellant Nazir Mian kept the cloves in two bags and concealed the same in the latrine of the railway compartment. Thirdly, the cloves were dutiable goods and there was prohibition on the import of those goods. Fourthly, Pakur was at distance of only 11 and 12 miles from the East Pakistan border. Fifthly, .cloves are not grown in India. These circum-stances indicated reasonable suspicion and, therefore, the Offi-cers were justified in arresting the appellant Nazir Mian under section 173 of the Sea Customs Act, 1878.

It was contended on behalf of the appellants that though under section 178 of the Sea Customs Act, 1878, the Customs Officers couH seize the goods there was no notification under section 178A of the Sea Customs Act, 1878 imposing restric-tions on import of cloves, and, therefore, the onus of proof could not be shifted to the appellants under section 178A of the Sea Customs Act, 1878. The correct legal position is that in the llbsence of special notification under section 178A specifying goods to which the section applies, the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the Sea Customs Act, 1878. In

view of the fact that in the present case the seized articles were removed by the accused it is unnecessary to deal any further with this aspect of the case because if any order were passed for return ,of the bags the order could not- be enforced.

For these reasons, ,the appeal fails and is dismissed. The appellants ·will surrender to the District Magistrate, Santhal Par-B ganas to serve the sentences.

Appeal dismissed.