SUBBA RAO, J. (Contra) - (1.) THE following Judgments of the court were delivered by :
(2.) I regret my inability to agree on the construction of S. 167(81) of the Sea Customs Act, 1878. The facts have been stated by my learned brother, Wanchoo, J., and I need not restate them. Clause (81) of S. 167 of the Sea Customs Act reads: "If any person knowingly, and with intent to defraud the government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is In any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid";.. .. The penalty clause thereof reads: "such 959 person shall on conviction before a Magistrate be liable to imprisonment for any term pot exceeding two years or to fine) or to both". This clause introduces a criminal offence. It is triable by a magistrate. The person convicted is liable to imprisonment for a term not exceeding two years or to fine or to both. The rule or construction of such a clause creating a criminal offence is well settled. The following passage from the Judgment of the Judicial Committee in The Gauntlet, (1872) 4 CP 184 at p. 191 may be quoted: "No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included, and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of tne language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." The clause, therefore, must be construed strictly and it is not open to the court to strain the language in order to read a casus omissus. The court cannot fill up a lacuna: that is the province of the Legislature. The second rule of construction equally well settled is that a court cannot construe a section of a statute with reference to that of another unless the latter is in pari materia with the former. It follows that decisions made on a provision of a different statute in India or elsewhere will be of no relevance unless the two statutes are in pari materia. Any deviation from this rule will destroy the fundamental principle of construction, namely, the duty of a court is to ascertain the expressed intention of the Legislature. I am led to make these general remarks, as an attempt was made by the learned counsel for the appellant to persuade us to interpret the words of the clause in the light of the decisions of the English courts on an analogous provision in an Act intended to prevent smuggling. It is not possible to state that the English and the Indian Acts are in pari materia, though their general purposes are the same and though there is some resemblance in the terminology used in them. The English decisions, therefore, must be kept aside in construing the relevant provisions of the Indian statute. Now coming to the relevant clause. the following material ingredients constitute an offence thereunder: (1) a person must have a knowledge that there is a prohibition or restriction against doing any of the enumerated acts with respect to goods imported or exported contrary to the restriction or prohibition imposed against their import or export; (2) he must nave acted with an intention to evade such a restriction or prohibition; there is no offence unless the said two elements of mens rea, namely. knowledge and intention, are established. It is not enough if a person has only knowledge of such a prohibition or restriction; in addition he shall have the intention to evade such a prohibition or restriction against the import or export of goods as the case may be. A person who knowingly purchases smuggler goods from an importer cannot have an intention to evade a prohibition against import, for the prohibited goods have already been imported. A person who receives goods with the knowledge that they are stolen goods cannot possibly have an intention to commit theft, for the theft has already been committed, though he may have the intention to receive the stolen goods. Knowledge of an offence cannot be equated with an intention to commit the offence. Such a construction effaces the distinction between the two distinct elements of mens rea, knowledge and intention, laid down in the clause. The only possible way out of the inevitable effect of the plain words used in the said clause is to give a meaning to the expression "import" which that word cannot bear. To accept the argument of the learned counsel for the appellant is to hold that the process of import continues through innumerable transactions between different persons without reference to time or place and whether the goods existed or ceased to exist. Ordinarily the process of import commences the moment the goods cross the customs barrier. That is the meaning given to that word by this court in T. V. Gokal and Co. v. Assistant Collector of Sales Tax, 1960) 2 SCR 852 (857, 858): (AIB 1960 SC 595 at pp. 597, 598). But the said clause gives that expression a wider meaning. The enumerated .dealings with the goods prohibited or restricted covered a field beyond the point of import normally understood by that expression. But all the said dealings have an intimate nexus with the import of goods under the Act. Goods may be 960 amported through the machinery provided under the Act: yet, a person may evade the restrictions by fraud or otherwise. Goods may also be illegally imported into India outside the machinery so provided This is done stealthily at different points of the vast sea line of our country. But in either case diflerent persons may take part in carrying removing depositing, harbouring, keeping or concealing or in any other manner dealing with any goods so imported. They are the necesaary acts to complete the process of import. Such acts may be done by persons between whom there was a pre-arranged plan before the goods were brought into India. Different persons may also take part in such dealings with the requisite knowledge or intention for the purpose of completing the import vis-a-vis the importer Under the said clause, therefore, the process of import does not end immediately the prohibited goods are brought into India, but continues till the goods are delivered to the importer, physically or constructively The importer who smuggles the goods is certainly guilty under the clause, because he im ports them in derogation of the prohibition or restriction. Any person who deals with the goods in the context of the import as explained above in any one of the connected ways with the requisite knowledge and intention would equally be guilty of the offence. But the subsequent transactions in regardto the said goods are outside the process of the enlarged definition of the expression "import". It would be incongruous to hold that a purchaser from the im porter or a purchaser from the said pur chaser. and so on. has an intention to evade the prohibition or restriction, though he may have the intention to receive the smuggled goods. How docs such a purchaser evade the prohibition against import which has already been effected? The contrary a construction will lead to the anomaly of purchaser, even after 20 years of the im port. being attributed the intention to evade the prohibition against import. Suppose before the purchase of the goods by a stranger the prohibition was lifted. In such a situation, does the purchaser commit an offence? If the contention is sound, he does. This illustrates that the crux of the offence is the import of goods with the requisite intent contrary to the prohibition For the said reasons the intention to contravene the prohibition cannot be imputed to subsequent dealers in the said goods after the importer parts with them. It is said that if the construction suggested by the learned counsel for the appellant he not acceptcd many a person who purchases smuggled goods will escape punidhment. A fair reading of the Act discloses that the Act makes a distinction between a customs offence and a criminal offence. The smuggled goods in the hands of whomsoever they are found can be confiscated and therefore, the States can always trace the smuggled goods to their ultimate destination. The smuggler and the persons concerned in the smuggling are guilty of both customs and criminal offences. The Legislature, either intentionally or otherwise. has not made the dealings in such goods by persons other than those mentioned in Cl. (81) of S. 167 of the Sea Customs Act a criminal offence. When the clause does not bring them in, the court cannot, by construction, bring such a class of persons within the said clause. It is for the Legislature to do so and we are told that it has recently amended the section.
(3.) I, therefore, agree with the High court that it has not been established that the respondents have dealt with the goods with an intention to evade any restriction or prohibition imposed on the import of the said goods. In the result, all the appeals should be dismissed. In Cr. As. Nos. 192 of 1961 and 183 of 1962. Wanchoo, J. (For himself. J C. Shall, S. M. Sikri and V Ramaswami, JJ.): These two appeals on certificates granted by the Calcutta High court arise out of the same trial of the two respondents for an offence under S 167(81) of the Sea Customs Act. No. 8 of 1878. (hereinafter referred to as the Act) and will be dealt with together. The facts are not in dispute and have been found as below On 25/08/1958 a constable attached to the Detective Department, noticed Sitaram Agarwala respondent and another person at the crossing of Hariram Goenka street and Kalakar street The constable had certain information with respect to these persons and decided to follow them. These two persons got into a bus and the constable also bearded the same bus. They got down at the junection of B. K Pal Avenue and J M. Avenue and so did the constable. They then went to Narendra Dev Square which is a kind of park. The constable kept watch over them from a distance. After a short time these two men came out of the park and stood on the western foot-path of J M Avenue. Shortly thereafter a small taxi came there from the South and stopped Respondent Wang Chit Khaw (hereinafter referred to as the Chinese accused) was in that taxi He came down and shook hands with Sitaram Agarwala and the three got into the axi. When the taxi was about to start, the 961 constable disclosed his identity to the driver and asked him to stop. He also asked the three persons to accompany him to the thana. Thereupon Sitaram Agarwala and the other man who was with him came out of the taxi and tried to run away. The constable caught hold of them and put them in the police wagon which happened to come up just then. The Chinese accused also tried to run away. The constable appealed to the members of the public to help him in securing the Chinese accused and he was secured with the help of two college students and one other youngman. As the Chinese accused was running away, he threw away three packets which were picked up. In the meantime Sergeant Mukherjee came there on a motor-cycle from the opposite direction and detained the Chinese accused. The three packets thrown away by him were also handed over by the three youngmen to the Sergeant. Thereafter all the three persons who were arrested were taken to the police station along with the three packets. It was found in the police station that the three packets contained 23 gold bars of about sixteen tolas each with Chinese inscription thereon. On search of the person of Sitaram Agarwala, a sum of Rs. 49,320.00 in notes of various denomination was found on him. The customs authorities were informed and took charge of the gold bars. Eventually, the gold bars were confiscated under S. 167(8) of the Act and thereafter the police after investigation prosecuted the two respondents and the third man in respect of the offence under S. 167(81) of the Act. ;