Decided on June 30,1983



A.S.QURESHI - (1.) These two appeals are filed by the State of Gujarat and the Customs Department Original complainant against the Judgment and order dated 17/03/1979 passed by the Additional Chief Judicial Magistrate Valsad acquitting the accused of the offence alleged to have been committed by him. The accused was charged under sec. 135 The prosecution case was that the accused had engaged certain persons for carrying silver from Bombay to Daman with the intention to sell it there to some unknown parties who engaged themselves in the export of silver out of India. A total quantity of 287.472 Kg. of silver valued at Rs. 1 60 637 was seized at Udwada from several persons who were used as carriers of silver to Daman. The accused in his statement to the Investigating officer of the Customs Department had stated that he was transferring this quantity of silver of a party from Bombay to Daman as he knew that in Daman the silver fetched 20% more price. He also stated that he knew that some fishermen purchased silver at Daman at a higher price with a view to transport it illegally out of India in their fishing boats. He further stated that out of this 20% higher price he was to get 5% of the price by way of commission. The accused has substantially stood by this story in his statement under sec. 313 of the Criminal Procedure Code.
(2.) Miss V.P. Shah the learned Standing Counsel for the Union of India concedes that to ban the preparatory activity in furtherance of illegal export and import the Customs Act 1962 (Act 52 of 1962) has been amended by the Act 12 of 1969 which came into force on 3 Three new Chapters IVA IVA and IVC are added after sec 11 of the said Act which cover sec. 11A to 11N which expressly prohibit all the preparatory acts in furtherance of smuggling. These newly created offences are made punishable under the added sec. 135 of the Customs Act 1962 But according to her these provisions brought in by the amendment were only with a view to clarify and to make the preparatory activity specifically punishable. According to her even prior to the amendment the activity in furtherance of smuggling was prohibited. This becomes evident according to her by reading the provisions contained in secs. 11 and 135 of the Customs Act read with sec. 3 of the Exports and Imports (Control) Act 1947 According to Miss Shah sec 3 of the Exports and Imports (Control) Act 1947 empowers the Central Government to make provisions for prohibiting restricting or otherwise controlling the export import etc. of such goods as it considers proper. Miss Shah states that under the Export Control Order the export of silver was not banned originally as it was not included in the list of articles in Schedule I to the said order; but by its notification No. E(C) 1962 AM (109) dated 7/10/1966 silver was also included in the said Schedule I to the Export Control Order. Thus according to her from the date of the said Notification not only Re export of silver was prohibited but also any act done in furtherance of the illegal export also was punishable even under the law as it stood prior to the aforesaid amendment of 1969.
(3.) Mr. K.J. Shethna the learned Counsel for the accused submits that the learned Magistrate has very rightly acquitted the accused as he arrived at the conclusion that no offence was proved to have been committed by the accused. According to him prior to the aforesaid amendment of the Customs Act any preparatory act done in furtherance of the object of smuggling of silver out of India was not an offence and there was no question of convicting and punishing the accused. According to Mr. Shethna sec. 3 of the Imports and Exports (Control) Act 1947 is an enabling section which gives power to the Central Government to declare any article to be prohibited from being exported or imported; but there was no provision in the Customs Act prior to the amendment of 1969 for punishing any activity which may be regarded as preparatory to or in furtherance of the illegal export of silver out of India Mr. Shethna urges that if such preparatory activity was already punishable there was no need to bring in such an extensive amendment and adding three new Chapters declaring such preparatory activity illegal and provide punishment for them by adding a new punishing sec. 135A.;

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