Full Judgment
"(1) In view of the above statutory provisions of the Customs Act, 1962 and Defence of India Rules, 1962, when a person has been charged and punished for abetment separately under the Customs Act, 1962 as well as under efence of India Rules, 1962, and he has been absolved of the charge of abetment in the absence of evidence under the Customs Act, 1962, can the charge of abetment under Defence of India Rules, 1962, Survive? (2) When there is no evidence for abetment in the offence so as to warrant imposition of penalty under Section 112 of the Customs Act, 1962, how the imposition of penalty under Rule 126L-16 of Defence of India Rules, 1962 (Part XII-A Gold Control) for abetment in the same offence legally sustainable?" 2. The facts leading to the application in hand are as follows (as found by this Tribunal in its Order No. A.599 to 601/86-NRB, dated 13-11-1986.) 3. Factual backdrops: It is the case of the Department that as a result of the search of luggage of the appellants on 24-1-1968 while they were waiting on Platform No.5 of Bareilly Junction, one silver bar weighing 5.500 Kgs, one wrist watch (Henry Sandoz) 17 jewels, and one slip of paper with some accounts written on it were recovered from the luggage of the appellant Shri Madhav Saran. Likewise 45 slabs of foreign marked gold weighing 450 tolas of foreign markings and two basnis made of cotton cloth were recovered from the luggage of the appellant Shri Gopal Saran. The same were seized on a reasonable belief under the provisions of Section 11 of the Customs Act, 1962 and Rule 126-H(2Xd) of the Defence of India Rules, 1962 Part XII-A (Gold Control). After the usual investigation Show Cause Notice was issued to the appellants to show cause as to why the seized foreign marked gold be not confiscated and penalty be not imposed. In their replies to the Show Cause Notice both the appellants, inter alia, pleaded that they had no concern with the recovered 45 slabs of foreign marked gold weighing 450 tolas. After the usual enquiry the Adjudicating Authority, vide its Order-in-Original No. 12-Customs/76, dated 19-10-1976, confiscated the recovered 45 slabs of foreign marked gold absolutely and imposed a personal penalty of Rs. 8,000/- on the appellant Shri Madhav Saran under Section 112 of the Customs Act and also imposed a penalty of Rs. 7,000/- on him under Rule 126-L(16) of Defence of India Rules, 1962 Part XII-A (Gold Control) read with Section 74 of the Gold Control Act, 1968. Likewise, a penalty of Rs. 8,000/- under Section 112 of the Customs Act, 1962 and another penalty of Rs. 7,000/- under Rule 126-L(16) of Defence of India Rules, 1962 Part XII-A (Gold Control) read with Section 74 of the Gold Control Act, 1968 was also imposed on the appellant Shri Gopal Saran. Being dis-satisfied both the appellants filed their separate appeals against the imposition of penalty under the Customs Act before the Central Board of Excise and Customs. The Central Board of Excise and Customs, vide its impugned order-in-Appeal No. 116-117/80, dated 9-3-1981 dismissed the appeal of the appellant Shri Madhav Saran, but allowed the appeal of the other appellant Shri Gopal Saran. Being dis-satisfied, the present appellant Shri Madhav Saran has filed his present appeal No. 1834/81. Both the appellants also filed their separate appeals against the aforesaid Order-in-Original No. 12/Customs/76, dated 19-10-1976 before the Gold Control Administrator challenging the penalty imposed upon them under the Defence of India Rules, 1962 read with Section 74 of the Gold Control Act, 1968, but without success. Against this common Order-in-Appeal, both the appellants have filed their present appeals No. 8/80 and 10/80.
4. Before we proceed to dispose of the alleged questions of law as framed by the applicant it would be appropriate to mention here that the same argument was advanced before us at the time of hearing of the main appeal. The same was disposed of in these terms.
"Shri J.S. Agarwal, learned Advocate for Shri Gopal Saran heavily contended that under the Customs Act, the appellant Shri Gopal Saran was exonerated by the Central Board of Excise and Customs in appeal on a finding that the charge of abetting the offence of smuggling cannot be sustained in the absence of clear evidence for abetting the offence of smuggling. On this premises Shri Agarwal, learned counsel for the appellant Shri Gopal Saran submitted that no charge under the Defence of India Rules, 1962 read with Section 74 of the Gold Control Act, 1968 can be sustained. In our considered opinion this argument has also no force. The Central Board of Excise and Customs, in the appeal filed by the appellant Shri Gopal Saran, no doubt has exonerated him on the finding that in the absence of clear evidence for abetting the offence of smuggling, the charge of abetment cannot be sustained, but from paragraph 7 of the same Order we also observe that the Central Board of Excise and Customs has specifically recorded a finding that both the appellants were involved in the dealing in contraband gold. It deserves to be highlighted here that the provisions of the Customs Act, 1962 and the provisions of the erstwhile Defence of India Rules, 1962 and the Gold Control Act, 1968 are quite different. Section 112 of the Customs Act makes a provision for the imposition of penalty for improper importation of goods whereas Rule 126-L(16) of Defence of India Rules, 1962 deals with the liability to the penalty and provides that any person who in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation or abets the doing or omission of such an act shall be liable to penalty. Erstwhile Rule 126-H(2)(d) of the Defence of India Rules, 1962 provides that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or otherwise acquire gold, not being ornament, except by succession, or in accordance with the permit granted by the authorities concerned. In the instant case, the fact that the contraband gold was of foreign origin and was rightly confiscated was not challenged before us.
Thus after finding that the contraband gold was recovered from the conscious possession and control of both the appellants there is no legal impediment in finding the appellant Shri Gopal Saran guilty for contravening the provisions of the Defence of India Rules, 1962 read with Section 74 of the Gold Control Act, 1968 even though he was not found guilty under Section 112 of the Customs Act for abetting the offence of smuggling of the contraband gold into India." Shri J.S. Agarwal, learned counsel for the applicant vehemently contended that the provisions of Sub-section (a) of Section 112 of the Customs Act, 1962 and Rule 126-L(16) of the Defence of India Rules, 1962, Part XII. A (Gold Control) are word to word the same and read as follows :- "PENALTY FOR IMPROPER IMPORTATION OF GOODS, ETC-Any Person - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or" (ii) Rule 126-L(16) of the Defence of India Rules, 1962, Part XII-A (Gold Control) ...
"Any person who in relation to any gold does or omits to do any act which act or omission would render such gold liable to confiscation under Rule 126M, or abets the doing or omission of such an act shall be liable, in addition to any liability for any punishment under this Part, to a penalty not exceeding five time the value of the gold or one thousand rupees, whichever is more." On this premises he submitted that when a person is charged for abetment separately under the Customs Act and stands absolved of the charge of abetment, he cannot be charged for abetment under the Defence of India Rules, 1962 and therefore the question of law arises. We are afraid that this contention has no force. Besides the reasonings which we had given in our Order No. A.599 to 601/86-NRB, dated 13-11-1986 as already extracted above we find that there is no legal impediment in punishing the person concerned under the provisions of the Defence of India Rules, 1962 read with Section 74 of the Gold (Control) Act, 1968 even though he might have been exonerated of the charge of abetment and the offence of smuggling of contraband gold into India under Section 112 of the Customs Act.
Before we proceed further it would be useful to state that as seen above we have recorded a finding in para 8 of our Order under reference that "contraband gold was recovered from the conscious possession and control of the appellants" that is to say, Shri Madhav Saran and Gopal Saran (who is applicant before us) his further question of abetment does not survive.
6. Even otherwse the said question stands concluded by the Hon'ble Madras High Court in the case of Assistant Collector of Central Excise v. V.O.S. Ansari, 1982(10) ELT 69 (Mad.) (Criminal Appeal No. 833 of 1977 decided on 17-12-1979 and as reported in Cen-Cus Manual of Gold Control, 1st Edition, April, 1982 at page 570). In that case the accused was found guilty under Section 135(1)(b)(ii) of the Customs Act and under Section 85(ii) of the Gold Control Act. However, the trial Court imposed the penalty only under Section 135(1)(b)(ii) of the Customs Act and no separate sentence was imposed under Section 85(ii) of the Gold Control Act, 1968. Against that order the Assistant Collector of Central Excise preferred the Criminal appeal and contended that since the provisions of the Customs Act and the Gold Control Act are quite different the learned Magistrate erred in not imposing the separate sentence under Section 85(ii) of the Gold Control Act. While accepting the contention of the Assistant Collector of Central Excise the Hon'ble High Court held that under Section 111(d) of the Customs Act, 1962 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 shall be liable to confiscation.
Section 135(1)(b)(ii) of. that Act lays down that without prejudice to any action that may be taken under this Act the person concerned shall be punishable with imprisonment or with fine or with both. Whereas Section 8(1) of the Gold Control Act lays down that no person shall own or have in his possession, custody or control any primary gold and Section 85(ii) of that Act provides for the punishment. Thus the purpose and the scope of the two is quite different. The offence under Section 135(1)(b)(ii) of the Customs Act involves an element of importation of goods into India contrary to the provisions of the law concerned whereas the offence under the Gold Control Act does not involve any element of importation of gold. Therefore the prosecution need not prove the importation of gold for making out any offence under the Gold Control Act but can succeed if it establishes that the person concerned owned or was in possession or custody or control of any primary gold. The relevant portion of the said Judgment may be extracted below with advantage :- "Under Section 111(d) of the Customs Act, 1962 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 inforce shall be liable to confiscation. Section 135(1)(b)(ii) of that Act lays down that without prejudice to any action that may be taken under this Act, if any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 11 Kb) shall be punishable with imprisonment for a term which may extend to three years or with fine, or with both in case of an offence relating to any of the goods to which Section 123 applies and the market price whereof does not exceed one lakh of rupees. Section 8(1) of the Gold Control Act lays down that no person shall own or have in his possession, custody or control any primary gold. Section 85(ii) of that Act provides that whoever, in contravention of this provisions of the Act or any rule or order made thereunder owns or has in his possession, custody or control any primary gold shall without prejudice to any other action that may be taken under this Act, be punishable with imprisonment for a term which may extend to 3 years or with fine or with both if the value of the gold involved is a lakh of rupees or less. The offence under Section 135(1)(b)(ii) of the Customs Act, 1962 involves an element of importation of gold within the Indian Customs waters contrary to any prohibition imposed by or under the provisions of that Act or any other law for the time being in force. The offence under Section 85(ii) of the Gold Control Act does not involve any element of importation of gold. The prosecution need not prove the importation of gold for making out an offence under that section, but can succeed if it establishes that the person concerned owned or was in possession or custody or control of any primary gold. Therefore it is not possible to agree with the learned Chief Metropolitan Magistrate that the act for which the respondent has been found guilty under Section 135(1)(b)(ii) of the Customs Act, 1962 constitutes the offence for which the respondent has been found guilty under Section 85(ii) of the Gold Control Act, 1968 and no separate sentence is called for under the later Section 85(ii) of the Gold Control Act, 1968, and the learned Chief Metropolitan Magistrate should therefore have awarded a sentence for the offence under Section 85(ii) of the Gold Control Act." Thus the question whether a person can be convicted independentiy for the violation of Gold Control Act is no longer a question of law much less a disputed question of law.
7. Shri J.S. Agarwal, learned counsel for the applicant also cited the cases reported in AIR 1955 Bom. 451; AIR 1956 Andhra Pra. 203; 1970 Andhra Pra. 47; and AIR 1971 SC 815 and also invited our attention to Section 26 of the General Clauses Act and Article 20(2) of the Constitution of India. But in our considered view the said authorities are not applicable to the controversy in hand.
During the course of arguments Shri J.S. Agarwal, learned counsel for the applicant submitted that the proposed questions (1) & (2) overlaped each other and therefore the disposal of question No. (1) will also cover the disposal of question No. (2). We agree. For the reasons mentioned with respect to question No. (1) this question is also not referable.
9. In the result, the application is rejected as no question of law requiring reference is involved.