SHEIKH MOHD. OMER versus COLLECTOR OF CUSTOMS, CALCUTTA & ORS.

SHEIKH MOHD. OMER

COLLECTOR OF CUSTOMS, CALCU1TA I: ORS.

September 4, 1970

[K. S. HEGDE AND A. N. GROVER, JJ ]

C11.H01ns Act, 1962, s. l l l (d)-"Any prOhibition" if includes restric-tion\-Afare i111ported for brecdinR. if pet aninzal.

The appellant, breeder of horse' imported into India mare "Jury Maid ... for purpose of breeding. The customs authorities objected on the ground that the mare had ·been imported in contravention of the pro-visions of the Imports and Exports (Control) Act. 1947 and confiscated the mare. On the questions, (i) whether the mare was "'pet animal" \\'ithin the meaning of that expression in the notification dated January 2. I 961 ·issued by the Government and therefore exempt as personal baggage and (ii) whether the expression .. prohibition" contained in s. 11 I ( d) of the Custom. Act. I962 includes prohibition of imports coupled with p0\1,:cr to pennit importation under certain conditions,

HELD: (il The mare .. Jury Maid" was not 'pet animal'. pet is .. any animal tamed _and fondled". There was no evidence to show that jury maid was tamed or treated with fondness by the appellant. He obtained that· animal on lease for certain specified purpose and in respect of that animal he had only business connection. (ii) The expression .. any prohibition" in s. ll l (d) of the Customs Act. I 962. include-s restrictions. Merely because s. 3 of the Imports and EX ports (Control) Act, 194 7, uses three different expressions "prohibit-ing"'. "restricting" er .. otherwise ~controlling," the amplitude of the word "anv prohibition in s. 111 (d) of the Act cannot be cut down. "Any prohihition" means every prohibition and restriction is one type of pro· hibition. From item ([) of Sch. I Part IV to Imoort Control Order, 1955. it is clear that im.port of living animals of air sorts is prohibited. But certain exc,ptions are provided for. But none the less the prohi-F bition continues.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1645 of 1966.

Appeals from the Judgment and order dated February 7, 1966 of the Calcutta High Court in Appeal No. 114 of 1965.

A. N. Sinha and P. K. Mukherjee, for the appellant.

8. Sen and S. P. Nayar, for the respondent.

The Judgment of the Court was .delivered by

Hegde, J. In this appeal by certificate two questions of law arise namely (I) whether on. the facts of this case the mare "Jury Maid" can be considered as "pet animal" within the meaning of that expression in the notification issued by the Government of

[1971 J 2 S.C.R

India, Ministry of Commerce and Industries, Import Trade Control Public Notice No. l-I.T.C.(PN)/61 dated 2nd January 1961 and (2) whether the expression "prohibition" contained ins. Ii l(d) of the Customs Act 1962 (which will hereinafter be referred to as lhe Act) includes prohibition of imports coupled with power to per-mit importation under certain conditions.

The facts relevant for the purpos~ of deciding the jlOints in issue are not many. They may now be stated. The appellant, .Sheikh Mohd. Omer, as found by the High Court was deaier in horses especially"in racing horses. He was breeding hmses oul ol mares owned by him. He owned two stallions by name "Pida" and "Rontgen". He claimed to have had considerable reputa-tion as race horse own~r and for racing with horses bred by him-self. He appears to have won several prizes awarded for horse races. In September, 1964, the appellant went to Europe. Whil~ he was in Switzerland he received letter from M/s. British Blood-stock Agency Ltd., lqndon informing him that one of its clients was interested in obtainif)g foal by stallion "Pieta" from the said client's Brood Mare. After some correspondence it WP.s agreed that the Glasgow Stud Farm would lease brown English rnare to the aopellant which would be shipped to India and would be kept there "pending her producing two foals by the appellant's breeding race horse "Pieta" after which the mare will be return.:d to Englai;d with on:? foal. The appellal't returned to Calcutta on November 7, 1964 by air. At the Duin Dum Airport he gave declaration showing that his seven uhaccompanied baggages will follow him by sea r.r by air. Eventu11lly, "Jury Maid" was shipped to Calcutta by s.1. 'Chinkoa" which reached Calcutta port on December 25, 1964. When the appellant tried t-0 take delivery of the same, the Customs authorities objected on the ground that the mare had been imported in contravention of the provisions o~ the Imports and Exports (Contrail Act, 1947. After due enqmry the Customs au-thorities confiscated the mare. At tl)is stage, it may be mentioned that when the mare came to India, it was pregant. After its arri-val in India it gave birth to foal and thereafter irdied. The foal given birth by it is alive.

The first question that arises for decision is whether by import-ing the mare in question the appellant contravened the provisions ·Of the Act.

Section 111 ( d) of the Act provides :

'The following goods brought from place out-side India shall be liable to confiscation :-

(d) any goods which are imported or attempted to be imported or are brought within the Indian customs

waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force."

"Prohibited goods" is defined in s. 2(33) of the Act. That definition reads : " "prohibited goods" means any goods the import or

" "prohibited goods" means any goods the import or export of which is subject to any prohibition under, this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with."

From this definition, it is clear that "prohibited goods" under the Act includes also such goods as may be imported by com-plying with the prescribed conditions. It is admitted that the im-port of horses or mares is not prohibited under the Act. Therefore the question is whether such import is prohibited "by any other law for the time being in force."

Section 3(1) of the Imports and Exports (Control) Act, 1947 provides:

"Powers to prohibit or restrict imports and exports.-

(!) The Central Government may, by order publish-ed in the Official Gazette, make provision for prohibit-ing, restricting or otherwise controlling, in all cases or in specified classes of cases and subject to such excep-tions, 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."

In exercise of the powers conferred by s. 3 of the Imports and Exports (Control) Act, 1947, the Government of India promul-gated an order known as the "Imports Control" Order, 1955 dated 7th December, 1955. Clause 3(1) of the said order reads :

"Restriction on Import of Certain Goods.-(!) Save as otherwise provided in this order, no person shall im-port any goods of the description specified in Schedule I, except under, and in accordance with, licence or customs clearance permit granted by the Central Gov-ernment or by any officer specified in Schedule IL"

The relevant Entry is to be found in Item I of Schedule I in part IV which is as follows :-

Na:ne of Artklc

ltc1n of First S1Jhcdul>J.: .. to Indian Tariff Act 1934.

- - - _ _,._____._

Part IV

.1. Ani111ab, -:!Orts.

livini :ill I and l (I). ··

By the notification dated January 2, 1961 referred to earlier certain exemptions were provided for personal baggage of pas-senger. One of the ex.emptions granted is for clearance of one dog, pet animal and birds in limited number subject to certain conditions.

Now we shall go back to the question whether ··Jury Maid"

can be considered as pet animal. pct is explained in Concise Oxford Dictionary of Current En11ish as "any animal tamed and kept as favourite or treated with fondness."

The shorter Oxford Dictionary explains that word thus :

"Any animal that is domesticated or tamed and kept as favourite or treated with fondness. esp. applied to lamb reared by hand."

The same word is explained in Chamber's Twentieth Century Dic-tionary thus :

"Any animal, tamed and fondled."

There is no evidence to show that "Jury Maid" was tamed. That apart the "Jury Maid" was not fondled or treated with fond-ness by the appellant. He obtained that animal on lease for cer-tain specified purpose. In respect of that animal he had only business connection. Rejecting the .contention of the appellant that"Jury Maid" is pet animal, the learned judges of the appel-late bench of the Calcutta High Courr observed :

"There is no such species of animal known as "Pet animal". What happens is that certain kind of animals or birds are often domesticated and when particular person becomes fond of such an animal or bird it may be said to have become "pet" of that person and may be called "pet animal". It is subjective expression. In the present case, the mare "Jury Maid" was not the "pet" of any particular person. So far as the appellant is concerned, he had not even seen the mare when it arrived in India. It cannot be said that he became fond of it at any relevant point of time. · In actual life we find that mell have at :wmes fond of strange animals like

lions, tigers and even c~ocodiles. It was not intended to make the baggage mies warrant for transforming pas-sengers ships into Noah's Ark .... "

We entirely agree with those observations and reject the con-tention of the appellant that "Jury· Maid" was pet animal.

This takes us to the. question whether by importing the. mare "Jury Maid" the appellant contravened s. l ll(d) read with s. 125 of the Act. It was urged on behalf of the appellant that expres-sion "prohibition" ins. lll(d) must be considered r.s total pro-hibition and that expression does not bring within its fold the res-trictions imposed by cl. (3) of the Imports Control Order, 1955. According to the learned Counsel for the appellant cl. (3) of that order deals with the restrictions of import of certain 5oods. Such restriction cannot be considered as prohibition under s. l ll(dJ of the Act. While elaborating his argument the learned Counsel invited our attention to the fact that while s. 111 (d) of the Act uses the word "prohibition", s. 3 of the Imports and Exports (Control) Act, 194 7 takes in not merely prohibition of imports and exports, it also includes "restrictions or otherwise controliini.;'" all imports and exports. According to him restrictions caM8t bt' considered as prohibition more particularly under the Imports and Exports (Control) Act, i 94 7 as that statute deals with "restric-tions or otherwise controlling" separately from prohibitions. We are not impressed with this argument. What cl. ( d) of s. 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country"' is liable to be confiscated. "Any prohibition" referred to in that section applies to every 4l'11e of "prohibition". T~at prohibition may be complete or partial. Anv restriction on import or export is to an extent prohibitimi The expression "any prohibition" in s. 111 (d) of the Customs Act 1962 includes restrictions. Merely because s. 3 of the Imports and Exports (C()ntrol) Act, 1947 uses three different expressions·"pro-hibiting" "restricting" or "otherwise controlling", we can~ot cut down the amplitude of the word "any prohibition·· in s. 11 Hd) of the Act. "Any prohibition" menns every prohibition. In other words all types of prohibitions. Restriction is one type of prohi-bition. From item (I) of Schedule I. Part IV to Jmpo1t Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided fer. But none the less the prohibition continues.

In the result this appeal is dismissed with costs. Y.P. ppeo/ dismissed.