RAGHUBAR DAYAL, - (1.) THE following judgment of the court was delivered by: :
(2.) A number of gold bars, held to be smuggled gold, were recovered from the person of the appellant on 17/09/1957, when he was going in a truck from Jaisalmer to Pokaran. The Superintendent of Land Customs issued a notice to the appellant on 4/12/1957, to show cause why penal action be not taken against him and as to why the goods should not be confiscated under s. 167(8) of the Sea Customs Act, 1878 (Act 8 of 1878), hereinafter called the Act. The appellant showed cause and on 21/03/1959, the Collector of central Excise and Land Customs, hereinafter shortly termed Collector, ordered the confiscation, of the gold seized from the person of the appellant and imposition of a penalty of Rs. 15,000.00 on him under S. 167(8) of the Act. The appellant presented writ application under art 226 of the Constitution to the High court of Punjab praying for the issue of a writ of certiorari quashing the order of the Collector dated 21/03/1959 and for the issue of a writ of mandamus directing the respondents not to take any steps against him for the realisation of the amount of penalty. The writ petition was allowed by the learned Single Judge on the ground that the Collector had not recorded a finding that the appellant was concerned in the act of smuggling gold into the country, in view of the decision of the division bench of the Punjab High court in Balbir Singh v. Collector of central Excise & Land Customs, New Delhi(1). On letters patent appeal the appellate bench set aside the order of the learned Single Judge and dismissed the writ petition. The appellate bench relied on the full bench decision of the Punjab High court in Union of India v. Jagdish Singh (2). It was held in that case that it was not necessary for the Collector of Customs to record a formal finding to the effect that the person proceeded against was concerned in the importing of the smuggled gold. The appellant then preferred this appeal, after obtaining special leave from this court. Mr. Sharma, for the appellant, does not question the finding that the gold was recovered from the person of the appellant as alleged or that the gold recovered was a smuggled gold. His contention is that these findings, by themselves, do not justify the conclusion to the effect that the appellant was concerned in committing the offence of importing gold illegally. His further contention is that the Collector did not record any finding to the effect that the appellant was concerned in such importation of the gold. It is therefore urged that the Collector was not competent to impose the penalty on the appellant.
(3.) MR. Prem, for the respondent, has urged that on these facts the appellant must be held to be 'interested in the importation' of the smuggled gold and that the word 'concerned' in S. 167(8) of the Act be construed in; the light of the policy of the Act and the difficulties in establishing the fact of a person found in possession of smuggled gold being actually concerned in the importing of it illegally. The relevant portion of S. 167(8) reads: "The offences mentioned in the first cohimn of the following schedule shall be punishabia to the extent mentioned in the third column. of the same with icterence to such offeaces respectively: JUDGEMENT_1072_AIR(SC)_1965Html1.htm The question is, who can be said to be 'concerned in any such offence for the purposes of the expression, used in the third column relating to penalties. Such a person would be one who is concerned in the importation or exportation of such goods whose importation into or exportation from India is contrary to the prohibition or restriction placed under Ch. IV of the Act. The offences described in the first. column have reference to Ss. 18 and 19 of the Act. Section 18 prohibits the bringing into India, whether by land or sea, of the goods mentioned in its several clauses. Section 19 empowers the central government to prohibit or restrict by notification in the Official Gazette, the bringing or taking by sea or land goods of any specified description into or out of India. across any customs frontier. It follows therefore that the person who can be penalised under S. 167(8) is one who is in "any way 'concerned' in the commission of the offence of bringing into India or taking out of the country goods with respect to which certain prohibitions or 1074 restrictions exist. It is not disputed that gold cannot be brought into the country without a valid permit from the authority empowered to issue it. It is not disputed also that the gold recovered from the appellant was imported into the country illegally. The appellant can therefore be said to be concerned in the commission. of the offence of illegally bringing into the country gold, if he had been in some way responsible for such 'bringing into the country'. He cannot be said to be so concerned in the commission of this offence if he is not responsible in this manner and if he got possession of the gold after it had been brought into the country. His being in possession of such gold, when arrested, can in no way raise the presumption that he actually brought such gold into the country from outside the border or that he was responsible for its being brought into the country by taking such action which led to the importing of the smuggled gold prior to its import. There is no evidence about any action taken by the appellant in connection with the import of the gold found in his possession. It is immaterial what meaning be attributed to the vord 'concerned'. It can have the meaning interested' as urged for the respondent. It may have the meanings 'involved' or 'engaged' or 'mixed up'. The requirements of the expression 'concerned in any such offence' in the penalty part of S. 167(8) are that the person to be penalised must be interested or involved or engaged or mixed up in the commission of the offence referred to in the first column of S. 167.(8). The interest or the involvement or the engagement or the mixing up of the appellant in the commission of the offence must be at a stage prior to the completion of the offence of illegal importation of gold into the country. Once the gold has been imported, any subsequent interest etc., in the smuggled gold cannot bring in the person showing such interest etc., within the purview of S. 167(8) for the purposes of the imposition of the penalty. The offence of importation of goods is complete when the goods have crossed the customs frontier. This is clear from the provisions of S. 19 and also from those of S. 18 which, however, does not use the actual expression 'across the customs frontier.' We are therefore of opinion that the mere finding of fact recorded by the Collector of Customs in this case about the smuggled gold being recovered from the possession of the appellant is not sufficient to conclude, as urged for the respondent, that the appellant was 'concerned' in the illegal importation of the smuggled gold into the country and therefore liable for the penalty under s. 1 67 (8) of the Act.;