Decided on September 17,1952



- (1.) THIS is an application by one Lala Gopikissen Gokuldass under section 45 of the Specific Relief Act and Order 13, Rule 7 (d) of the original Side Rules, for issuing a writ in the nature of a Mandamus directing the respondent, the Collector of Customs, Madras, and all his officers and subordinates to forbear from collecting or raising or taking any other steps whatsoever to recover the fines and/or penalties levied on the applicant in respect of the bills of entry dated 6th December, 1950, 20th January, 1951 and 19th February, 1951, or dealing in any manner with the 12 Diesel engines covered thereby, and to direct the respondent and his officers and subordinates to issue orders permitting the clearing of the goods relating to the aforesaid bills of entry, without any penalty or fine, subject only to the payment of such levies or duties or other charges as may be leviable or recoverable for such goods duly and lawfully imported.
(2.) THE 12 Diesel engines in question were imported under two licences, exhibits, P-3 and P-4, issued by the Deputy Chief Controller of imports, Calcutta, in 1950, allowing the petitioner to import by sea into India diesel engines above 20 H. P. of the value of Rs. 2, 00, 000 and Rs. 6, 00, 000 respectively. But, actually, the petitioner imported 12 Diesel engines of 20 to 22 H. P. each, relying on a certain order of the Bombay Customs Collector that diesel engines of 20 to 22 H. P. could be imported under such licences, and after ascertaining from the manufacturers about a custom like that. Now, he relies also on an order of the Calcutta Customs Collector allowing the import of 20 to 22 H. P. Diesel engines under licences like these for importing Diesel engines above 20 H. P. THE Madras Customs Collector held that the licences in question would not allow or authorise the import of these 12 engines of 20 to 22 H. P. as they were not clearly above 20 H. P. (the basic 20 being there, in 20-22 ). Various letters shown to him from manufacturers and others, including the order of Bombay Customs Collector that such engines would come within the term " above 20 H. P. " covered by these licences, did not make the least impression on him. He held to his views, and under section 167 (8) of the sea Customs Act, confiscated all the 12 Diesel engines, but allowed the petitioner either to clear the engines in question and use them for home consumption after paying Rs. 70, 550 in all, as fines, or to re-ship the goods to the senders on paying various lesser sums, which need not be detailed here, as the petitioner is not interested in reshipping the goods and never had the idea of doing so. THE petitioner refused to pay the fine of Rs. 70, 550 as the price of the 12 engines was only Rs. 72, 000 and he thought that this fine nullified the concession or indulgence granted to him under the Act and amounted to an illegal order passed without judicial discretion, and, so, has filed this petition. This petition is strongly opposed on various grounds which will be discussed hereafter. The main grounds are that the petition cannot be entertained by this court on its Original Side under Section 45 of the Specific Relief Act, and it is doubtful whether it can ever be entertained by this Court even under Art. 226 of the Constitution of India, as the Sea customs Act is a complete enactment in itself, forming a complete code and giving a solution for every difficulty arising therefrom and relief wherever called for or justifiable. The next ground was that the order of the Customs collector was a perfectly valid order, passed after hearing the parties and paying full regard to justice, equity and good conscience, and does not deserve to be interfered with. The third ground was that there were two other and specific legal remedies open to the petitioner, namely : (1) an appeal under section 188 of the Sea Customs Act and (2) a revision under section 191 of the sea Customs Act and that the petitioner wantonly and deliberately refrained from filing the appeal within the limit of three months fixed therein, knowing the hollowness of his case, and did not also apply for revision, knowing, that nothing would come out of it; it was urged that it is still open to him to apply for revision with a petition to excuse the long delay, and that, till he has exhausted this right of revision, this Court, cannot, even if it has got powers, under Section 45 of the Specific Relief Act, or Art. 226 of the constitution of India, give him any relief whatever or issue any directions to the respondent. The case was arguably by Mr. V. C. Gopalaratnam, for the petitioner, and Mr. Venkatesan, for the respondent. Mr. V. C. Gopalaratnam for the petitioner, raised three contentions. The first was that the respondent had no real reason to hold that the licences did not cover the import of these 12 diesel engines and ought to have followed the view of the Customs Collectors of bombay and Calcutta that the licences for importing 12 diesel engines above 20 h. P. will include the import of diesel engines of 20 to 22 H. P. especially as the manufacturers have certified that the maximum capacity of each of these 12 engines, when worked to capacity, would be 22 H. P. I cannot agree with this contention. The respondent had a perfect right to come to his own decision regarding the validity of the licences for these imports, as there is no rule, much less any law, requiring him to follow the rulings of the Bombay and Calcutta collectors of Customs. It is well known that the Madras High Court can stick to its own opinion regarding a point of law, even if the Bombay, Calcutta, Nagpur, allahabad and all other High Courts in India have taken a different view, as it is not bound by the decisions of those Courts and has only to consider them for what they are worth, before arriving at its own view. In the same way, the madras Customs Collector, the respondent, was not bound to follow the views of the Bombay and Calcutta Customs Collectors in this matter. Mr. V. C. Gopalaratnam frankly admitted that, in law, he was not bound to do so, and only urged that the reasoning contained in those orders would be convincing to anybody. Unfortunately as those orders have not been produced before me in original, or in full, the reasoning said to have been adopted by those officers is not before me. The records produced give no reasons for their views. So, it cannot be said that there was any irresistible and conclusive reason for coming to those conclusions. The next contention of Mr. V. C. Gopalaratnam was that a licence for importing diesel engines above 20 H. P. will, and must, be held to include the imports of diesel engines with 20 to 22 H. P. I cannot agree. No rule of interpretation followed by any Court so far, or directed in any Act, including the General Clauses Act, will support this contention. Whenever the word'above'is used, it means what it says, namely, that the engines imported must be clearly above 20 H. P. and not capable of being also of merely 20 H. P. as in this case. With regard to ages, whether prescribed by the law or the rules, above 30 has been interpreted in the same way, as not including just 30. The fact that some maker or manufacturer wrote to the petitioner, when in difficulty, that the engine if worked to capacity, would generate 22 H. P. is neither here nor there. If the manufacturers intended the engines to be so sold as 22 H. P. engines, or even as 21 H. P. engines, it was upto them to mark them like that, in which case the petitioner would not have had any difficulty, even with the Madras Customs Collector. But, having marked the engines as 20 to 22 hp. , they had no right to vary their public declaration and proclamation in private letters to men in difficulties, like the petitioner, and their private letters will have little value, especially as they have not come to Court and given evidence in support of such private letters. So, this contention also fails. Mr. Venkatesan was able to show me one very important circumstance relating to this matter and relevant to this case. In one of the documents he produced in Court, it is stated by the Government of India :- "it has further been decided that licences for import of diesel engines of more than 20 H. P. will be granted freely from all sources. "showing that licence for import of diesel engines of 20 H. P. or less would be much more difficult to get and would be far less easily granted. The petitioner has got these licences Ex. P-3 and P-4, freely and without the least difficulty, as he undertook to import diesel engines with more than 20 H. P. If he had wanted to import diesel engines of 20 to 22 H. P. , as he really did, the government of India might not have granted him the licences, or might have granted him licences for a far less number of engines or subject to more restrictions. The third contention of Mr. V. C. Gopalaratnam was that the import of Diesel engines of 20 H. P. or less was not absolutely prohibited under section 18 of the Sea Customs Act, but was only restricted, and required to be covered by licenses under section 19, and that, therefore, it is not a case for such draconian orders as the respondent passed but for a more indulgent and considerate order. He added that the petitioner had acted with good faith, and in the honest belief that he could import Diesel engines with 20 to 22 H. P. under the licences for importing Diesel engines above 20 H. P. and that it will be illegal and atrocious to confiscate Diesel engines of this nature when there was no criminal intention or Mens rea on the part of the petitioner to commit an offence under the Sea Customs Act. The latter part of the argument may be disposed of at once. Mens rea or guilty intention or knowledge, is not required under several Acts and sections of law where the public safety requires that no such intention or knowledge need be proved, as it is very difficult to prove it and the public would be endangered before the proof required is got and produced. Thus, under the Indian Arms Act, possession of a gun without a licence, or without renewing the license, even if the owner of the gun or possessor of the gun is not aware of the need for obtaining a license, or the need to renew it, or has forgotten to renew it in sheer carelessness, will be no answer against the conviction, and will be considered only as mitigating circumstance when passing the sentence. So too, if a man carried an obscene picture or image along a public street or a thoroughfare, thinking that it is a good thing to do, and that there is nothing wrong in it, that will be no answer when he is charged for that offence. It all depends on what the law says. The law, in this case, does not require any mens rea, or guilty knowledge or intention, but only the intention to do the act prohibited, which, of course, is not denied in this case, as the petitioner fully intended to import the 12 Diesel engines in question.
(3.) SO we are only left with the first part of this argument. There I agree with Mr. V. C. Gopalaratnam. Prima facie the petitioner is proved to have believed honestly that he could import Diesel engines of 20 to 22 H. P. under the licenses. Exhibits P-3 and P-4 and he had some ground for doing so, as the Bombay Customs Collector had already held like that, and as other people also told him so, including the makers and the manufacturers. It is also a point for consideration whether a company should not be prohibited from putting up such minimum, and maximum H. Ps to prevent people, like the petitioner, from being misled and getting into such trouble. A man may think that though the figure 20 is there as the base, he will escape as the figure 22 is there at the apex and is clearly above 20. It is, of course, illogical to think so. Just as a man cannot be held to have escaped so long as his feet are caught hold of and only rest of the body has escaped outside the window, so too, so long as the figure 20 H. P. remained, the fact that 22 H. P. also was mentioned, will not help the petitioner, as the machines were not clearly above 20 H. P. Still, that will only show that view of the respondent, holding that the Diesel engines in this case could not be imported under the licenses produced, was right. It will not show his draconian order regarding the fines, in lieu of confiscation, to be either right or to have been the result of a judicial exercise of the discretion vested in him under the law which empowered him to adjudge the offence, and deal with it, as all Courts and Judicial and quasi-judicial Officers in India are expected to do, with understanding, skill and sympathy and in the light of justice, equity, and good conscience, (in hindu Law parlance, (Yukti, Buddhi, dharma and nyaya) and not according to whims and caprices or whatever comes uppermost to the mind. I have no doubt whatever, that, in the circumstances of this case the proper order to pass (in the light of justice, equity and good conscience) regarding these 12 engines would have been to direct the petitioner to pay the full customs duty due thereon (it is said to be about 51/4 per cent of the value of the engines imported) and also 121/2 per cent, of the total value, as fine, in lieu of confiscation, for importing engines not allowed under the licences granted. Naturally, I would modify the order of the respondent like that, and issue a direction in the nature of mandamus to the respondent, if I had the jurisdiction to do under S. 45 of the Specific Relief Act. Mr. Venkatesan, for the respondent, urged three reasons for my not modifying the order, in the manner indicated, and issuing such a direction to the respondent. The first was that this Court, as the Original side Court, has no power, under section 45 of the Specific Relief Act, to hear such a petition at all, or grant such a relief, as no Civil Court has got ordinary jurisdiction to issue such an order in the nature of mandamus to the respondent after such modification. The second was that even if this Court had such jurisdiction, it would not exercise it, as the petitioner had another specific and adequate legal remedy, namely, a right of appeal under Section 188 of the Sea Customs Act, within three months, to the Chief Customs authority, and had want only and deliberately failed to do so, knowing his case to be hollow, and that, even now, he has another specific and adequate legal remedy, namely, to file a revision petition to the Central Government, under section 191 of the Sea Customs Act, and may do so, in spite of the lapse of 16 months, with an application to excuse the long delay. The third contention was that the customs Collector of Madras heard the petitioner and adjudged the case in the light of justice, equity and good conscience, and that his order is just and equitable and need not be modified, or directions given to him to release the engines after any such modification. I shall consider these objections seriatim below. Mr. Venkatesan was on very strong ground when he said that the ordinary Mufassil Civil Courts, like the District Court, the Dt. Munsif Court, the Panchayat Court and the Village Court had no powers to issue writ of mandamus or a writ analogous to a writ of mandamus under Section 45 of the Specific Relief Act, especially when the Sea Customs Act is a complete code providing for every possible situation and affording every possible relief required or necessitated by the circumstances. But he was not on strong ground at all when he said that the High Court, on its original side, has no such power. He Frankly admitted that the curb put on the powers of the Original side of the High Court by section 226 of the Government of India Act, 1935, has now been removed by the proviso to Art. 225 of the Constitution of India. It follows that this Court has now got all the powers it had before that curb. But he ingeniously argued that only the curb has been removed, and that, in spite of it, the original side will still not be able to exercise its powers under section 45 of the Specific Relief Act. That will be something like saying that though a thorn has been removed from the foot the hole left by the thorn should remain intact for other thorns to enter, as the thorn alone was pulled out but the hole was not filled up. Nature abhors a vacuum and the hole left by the thorn is, it is well known, filled up as soon as the thorn is removed. So too, the effect of the proviso to Art. 225 of the Constitution of India is, in my opinion, to restore, to the Original side of the High Court, all the powers it had under section 45 of the Specific Relief Act before the curb under section 226 of the Government of India Act, 1935. ;

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