Sarkar - (1.) THE Judgment of the court was delivered by
(2.) BY a notification dated 16/03/1953, the government of India gave general permission to all persons to import into India from certain countries any goods of any of the descriptions specified in the schedule annexed to the notification. Among the goods specified in the Schedule were the following: Iron and steel chains of all sorts assessable under item 63 (28) of the Indian Customs Tariff, excluding chains for automobiles and cycles whether cut to length or in rolls. The petitioner is an importer of goods. He states that relying on the notification mentioned above he placed an order with a company in Japan sometime in August, 1953, for the supply of certain goods called in the trade, Zip Chains. The goods arrived in the port of Calcutta in due course and the petitioner's bank paid the price of the goods amounting to Rs. 11,051-4-0. Before the goods could be cleared from the port of Calcutta, the petitioner received a communication from the Assistant Collector of Customs for Appraisement, Calcutta, dated 19/11/1953, in which it was stated that it had been found that the petitioner did not possess valid import licence for the goods and requiring him to show cause why the goods should not be confiscated and action taken against the petitioner under s. 167, item 8, of the Sea Customs Act. The communication also enquired if the petitioner wanted to be heard in person. The petitioner submitted in answer a written explanation stating that the Zip Chains imported by him were chains of the kind free import of which had been permitted by the notification of 16/03/1953, and therefore no licence to import them was necessary. He was thereafter again asked by the Customs-authorities whether he wanted a personal hearing to which he replied that he did not. Thereafter on 25/12/1953, the Collector of Customs made an order confiscating the goods and imposing a penalty of Rs. 1,000.00 on the petitioner. This order bore an endorsement that it had been despatched to the petitioner on 1/02/1954. It reached him on 3/02/1954. The order stated that an appeal would lie against it to the central Board of Revenue, New Delhi, within three months from the date of its despatch as noted on it. The petitioner preferred an appeal and posted the memorandum of appeal on 4/05/1954. The memorandum reached the central Board of Revenue on 6/05/1954, and was dismissed on the ground that it had been preferred after the expiry of the time limited for the purpose. The petitioner then made an application to the government of India for revision of the order of the central Board of Revenue but this application was rejected. The petitioner thereafter applied to the High court of Punjab under Art. 226 of the Constitution for an appropriate writ to quash the order confiscating his goods and imposing the fine on him but this application too was dismissed. pg:650 The petitioner has now applied to this court under Art. 32 of the Constitution challenging the validity of the order made against him. Learned counsel for the petitioner did not challenge the decision of the Customs-authorities that the goods were not covered by the notification of 16/03/1953. He conceded that he could not do so in this application. Nor did he challenge the Customs-authorities' power to confiscate the goods. Learned counsel however challenged the order of confiscation because it did not give the petitioner an option to pay a fine in lieu of confiscation. This contention was based on s. 183 of the Sea Customs Act which provides as follows: Whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. This section undoubtedly requires an option to pay a fine in lieu of confiscation, to be given and this was not done. A difficulty however is caused in the way of this argument by s. 3 of the Imports and Exports (Control) Act, 1947. The relevant portion of s. 3 is set out below: 3. (1) The central government may, by order published in the official Gazette, make provision for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order,(a) the import, export, carriage coastwise or shipment as ships' stores of goods of any specified description ; (b)............................... (2) All goods to which any order under subsection (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, 1878 (VIII of 1878), and all the provisions of that Act &hall have effect accordingly, except that section 183 thereof shall have effect as if for the word `shall` therein the word `may` were substituted. It is admitted that the Imports and Exports (Control) Act applies to the goods with which we are concerned and in this case the action that was taken was by virtue of this Act. That being so, s. 183 of the Sea Customs Act became applicable because of the Imports and Exports (Control) Act and it could hence be applied only as modified by the latter Act. So applied the section did not make it obligatory on the Customsauthorities when ordering confiscation, 'to give an option to the owner to pay a fine in lieu of confiscation but gave them a discretion whether to do so or not. The order of confiscation was not therefore bad even though it had not given the petitioner an option to pay a fine in lieu of confiscation. Learned Counsel for the petitioner then contended that the portion of s. 3(2) of the Act of 1947 which read `except that section 183 thereof shall have effect as if for the word ` shall ` therein the word ` may ` were, substituted `, left an uncontrolled discretion in the Customs-authorities to give or not to give an option to pay a fine in lieu of compensation and consequently offended Art. 14 of the Constitution. He therefore said that this portion of the section should be struck out of it. He said that after the offending portion was deleted from s. 3(2) of the Act of 1947 it would require s. 183 of the Sea Customs Act to be applied without any modification at all and therefore it would be obligatory on the Customs-authorities when making an order of confiscation to give an option to the petitioner to pay a fine in lieu of compensation even where the Act of 1947 applied. Learned counsel said that as this had not been done, the order of confiscation made in this case was bad.
(3.) THIS argument is based on the contention that a portion of s. 3(2) of the Act of 1947 offends Art. 14 and has therefore to be deleted. THIS contention is wrong. By its own force no part of s. 3(2) purports to give any discretion to the Customs-authorities at all. There is nothing in it therefore to offend Art. 14. The only effect of s. 3(2) is to apply the Sea Customs Act to certain cases. It is impossible to say that a statute which only makes another statute applicable to certain cases, offends Art. 14. Such a statute has obviously nothing to do with Art. 14. It is true that s. 3(2) of the Act of 1947 makes s. 183 of the Sea Customs Act applicable with a modification. It was said that s. 183 so modified offends Art. 14. Assume that s. 183 as modified infringes Art. 14. What then? Clearly on this assumption s. 183 as modified becomes ultra vires and illegal and it goes out of the statute book. But that does not affect the question before us at all. It does not make the order of confiscation without an option to pay a fine in lieu thereof bad. The confiscation is not made under s. 183. It is made under another section of the Sea Customs Act, namely, s. 167, item 8, which so far as is relevant is in these terms: 167. The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively: JUDGEMENT_648_AIR(SC)_1957Html1.htm Pg: 651 Ch. IV of the Sea Customs Act contains s. 19. It has to be remembered that s. 3(2) of the Act of 1947 states that all goods to which any order under sub.s. (1) applies shall be deemed to be goods of which the import has been prohibited under s. 19 of the Sea Customs Act. Admittedly sub-s. (1) of s. 3 of the Act of 1947 applies to the goods with which this case is concerned. Under s. 3(2) of the Act of 1947 the import of these goods is to be deemed to have been prohibited under s. 19 of the Sea Customs Act. It follows that action under s. 167, item 8, of the Sea Customs Act can be taken in respect of these goods and they can be confiscated and the person concerned in the illegal import made liable to a penalty. Resort to s. 183 of the Sea Customs Act is not necessary to justify the order of confiscation made in this case at all. Indeed s. 183 does not authorise confiscation. It assumes a confiscation authorised by other provisions of the Sea Customs Act and provides that on a confiscation being adjudged, an option to pay a fine in lieu of it shall be given. It cannot therefore be said, even on the assumption that learned counsel was right in his contention that s. 183 as modified offends Art. 14 that the order of confiscation is bad. As to whether the contention of learned counsel is right or not we decide nothing as it is not necessary to do so. It was then contended that the effect of Art. 14 of the Constitution on s. 183 of the Sea Customs Act, as modified by the Act of 1947, was not to make the entire s. 183 illegal but to invalidate the amendment in it as it was this amendment alone which offended Art. 14, so that s. 183 as it stands in the Sea Customs Act had to be applied to this case and therefore again it was obligatory on the Customs authorities to give an option to the petitioner to pay a fine in lieu of confiscation. To accept this argument we would have to say that s. 3(2) of the Act of 1947 itself offends Art. 14, and it cannot modify s. 183 of the Sea Customs Act as it purports to do. We are unable to say this. In order to say that a statutory provision offends Art. 14, we have to examine that provision. We have here two statutory provisions. One is s. 3(2) of the Act of 1947 and that does not offend Art. 14. The reasons for this view we have stated earlier. The other is s. 183 of the Sea Customs Act as modified by the Act of 1947. As so modified we have for the present purpose assumed that it offends Art. 14. If it does it goes out as a whole. It is not really a statutory provision in two parts with regard to which it might have been possible to say that one part offends Art. 14 while the other part does not. Section 183 with or without the modification really contains one statutory provision and therefore it must go out of the statute book as a whole or not at all. This contention on behalf of the petitioner must therefore fail. ;