PETITIONER: HARIVANSH LAL MEHRA Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT19/03/1971 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. MITTER, G.K. REDDY, P. JAGANMOHAN CITATION: 1971 AIR 1130 1971 SCR 113 1971 SCC (2) 54 ACT: Prevention of Corruption Act 2 of 1947, s. 5(2) read with s. 5(1) (d)--Official sending goods from Goa to Bombay after Goa had become Part of Indian territory without payment of customs duty--No offence is committed because no customs duty was leviable--Duty can be levied only by law and not by administrative instructions. HEADNOTE: The appellant was convicted of a charge under a. 5(2) read with a. 5(1) (d) of the Prevention of Corruption Act. The allegation against him was that by utilizing his position as a government servant he sent various articles such as Radios, Transistors, Clothes etc., from Goa to Bombay without paying customs duty thereon. Against the order of the High Court maintaining his conviction appeal was filed in this Court. The question for consideration was whether any customs duty was leviable on goods alleged to have been sent by the appellant to Bombay from Goa which when the goods were sent, had become a part of India. HELD: Goa was liberated on December 20, 1961. The twelfth amendment to the Constitution which received the assent of the President on 27th March 1962 made Goa a part of India. All territories that this country may acquire in whatever manner become a part of India in view of Art. 1(3) (c). [115G-116C] According to the prosecution the goods complained of were all sent from Goa to Bombay after March 27, 1962. There was no statute or statutory rule to show that any customs duty had been imposed on the goods transferred from Goa to other parts of India after December 20, 1961. The trial court and the High Court wrongly held that certain customs duties were leviable because of some administrative instructions. No tax or duty can be levied or collected except by authority of law. Moreover no administrative instructions were produced before the court, privilege being strangely claimed for them on the ground that they were confidential documents. [116C-F] The notification issued in 1950 declaring Goa to be a foreign territory and thus bringing the exports from that country to India within the purview of the Land Customs Act, could not continue to have legal effect after Goa became a part of India, for it then ceased to be a foreign territory. [116G] Section 5 of the Indian Tariff Act 1934 as it stood in 1950 empowered the Government to declare any territory outside India as a foreign territory for the purpose of that provision. That provision did not empower the government to declare any part of India as a foreign territory. Once Goa became a part of India the Government was incompetent to declare that territory as a foreign territory. Nor did it appear that any such declaration was made after December 20, 1961. [117C-D] There was thus no legal basis for holding that the appellant had utilised his official position to evade customs duty. His appeal must accordingly be allowed. [117E-G] 8--1 S.C. India/71 114 JUDGMENT:
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 80 of
1967.
Appeal from the judgment and order dated April 17, 1967 of
the Bombay High Court in Criminal Appeal No. 1210 of 1965.
A.S.R. Chari, M. J. Mirchandani, K. K. Jain, H. K. Puri and
R. Nagratnam, for the appellant.
P. K. Chatterjee, B. D. Sharma and S. P. Nayar, for the
respondent.
The Judgment of the Court was delivered by
Hegde, J.-The appellant and one R. B. Mathur were tried
before the learned Special Judge for Greater Bombay under
various charges including a charge of conspiracy. Mathur
was acquitted and the appeal against his acquittal was
unsuccessful. The appellant was also acquitted of all
charges excepting a charge under Section 5(2) read with
Section 5(1) (d) of the Prevention of Corruption Act. For
that offence he was sentenced to suffer rigorous
imprisonment for two years and pay a fine of Rs. 5,000, in.,
default to suffer further rigorous imprisonment for four
months. The substance of the charge under which he was
convicted is that he by utilizing his position as a
Government servant sent various articles such as Radios,
Transistors, Clothes etc., from Goa to Bombay without paying
customs duty. He was also held guilty of sending his
personal articles in the vehicles engaged by the postal
department without paying any charge. The trial court
supported its conclusion on a further ground namely that the
assets of the appellant were more than that he could have
acquired by his known sources of income.
The charges framed against the appellant made no reference
to the fact that his assets were more than that he could
have acquired by his known sources of income. In appeal the
learned. judges of the High Court did not go into that
aspect of the case. Nor was that aspect of the case pressed
before us at the hearing. Therefore it is not necessary to
go into that aspect. Even otherwise that accusation appears
to be without any solid basis. The learned Judges of the
High Court also did not go into the allegation that the
appellant utilised his official position in sending his
personal goods in the vehicles engaged by the postal
department. The accusation is that the appellant sent some
of his goods in the vehicles engaged, by the postal
department from Panjim in Goa to Margoa or Sawanthwadi or
Belgaum. These places are not very far from Panjim. The
High Court held that the offence committed by the appellant
in that regard if true, is of a technical nature and
therefore it thought it unnecessary to examine the evidence
relating to the same. Evidently in its view the accusation
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regarding the sending of some articles in the vehicles
engaged by the postal department was of a trifling nature
and therefore riot worth examining. But the High Court
agreed with the trial (court that the appellant was guilty
of evading payment of customs duty and he did so by
utilizing his official position. In order to ,examine the
correctness of this finding, it is necessary to set out the
material facts.
In 1961, the appellant was working as a Senior Superinten-
,dent of Post Offices at Jaipur. On December 20, 1961 Goa
was liberated by the Indian Army. Thereafter the appellant
was ,deputed as a Special Duty Officer to Goa. He took
charge in Goa on December 25, 1961. He assumed additional
charge as Director of Posts and Telegraphs on May 11, 1962
and he held that office till August 11, 1962. Thereafter he
went back to Jaipur. It is alleged that during the
period of appellant’s stay in Goa, he made large purchases
of certain luxury articles. Utilising his official position
in the Posts and Telegraphs department at profits. The
prosecution relied in support of that charge on four
different instances. Voluminous evidence was led in support
of the prosecution case. But it is not necessary to go into
that evidence as in our opinion the charge under which the
appellant was convicted is without any legal basis. The
learned Counsel for the appellant, Mr. A. S. R. Chari has
assailed the judgments of the High Court and the trial court
on various grounds. He contended that the evidence adduced
in, support of the prosecution case is unreliable and
insufficient to suport the conviction of the appellant. He
also raised various legal pleas in support of the appeal. He
contended that as the Prevention of Corruption Act was not
in force in Goa at the relevant time, the appellant could
not have been held guilty of an offence under that Act.
According to him, the investigation of this case was illegal
as the required sanction had not been obtained. But the
most important plea taken by him is that no custom duty was
leviable on the articles said to have been sent by the
appellant from Goa to Bombay and as such the entire fabric
of the prosecution case must fall to the ground. There is
force in this contention. Hence it is not necessary to
examine the other contentions.
As mentioned earlier Goa was liberated on December 20, 1961.
Twelfth amendment to our Constitution which received the
assent of the President on 27th March 1962 made Goa a
part of India. It became a Union Territory. The amendment in
question is deemed to have come into force on December 20,
1961. Hence Goa must be considered as a part of India from
December 20, 1961 and indisputably at any rate from March
27, 1962. Article 1 of our Constitution says :
” 1. India, that is Bharat, shall be a Union
of States.
116
2. The states and the territories thereof
shall be as specified in the First Schedule.
3. The territory of India shall comprise-
(a) the territories of the States ;
(b) the union territories specified in the
First Schedule, and
(c) such other territories as may be
acquired.”
All the territories that this country may acquire in
whatever manner become part of India in view of Article 1
(3) (c). Further in the case of Goa by means of 12th
amendment to the Constitution, the same is included in the
1st Schedule. Therefore there is no room for the contention
that Goa was not a part of India during the relevant time.
It may be noted that according to the prosecution the goods
complained of were all sent from Goa to Bombay after March
27, 1962.
This takes us to the question whether there is any liability
to pay customs duty when someone sent goods from Goa to
Bombay in 1962. No statute or statutory rule was placed
before, the Court to show that any customs duty had been
imposed on the goods transmitted from Goa to other parts of
India after December 20, 1961. The only witness who spoke
about the liability to pay customs duties on the goods in
question is P. W. 56 Shaikh, the Dy. Superintendent of
Central Excise. According to him customs duty on those
articles was leviable because of certain administrative
instructions. But be refused to place those administrative
instructions before the court. He claimed privilege on the
ground that they are confidential documents a strange claim.
Stranger still is that the trial court appears to have
accepted that plea. No tax or duty can be levied or
collected except by authority of law. Hence no customs duty
was leviable on the basis of any administrative instruction.
Every levy of customs duty or any other tax must be
sanctioned, by law. It is surprising that both the trial
court as well as the High Court were of the opinion that
certain customs duties were leviable because of some
administrative instructions. It appears that there was a
notification issued in the year 1950 declaring Goa to be a
foreign territory and thus bringing the exports from that
country to India within the purview of Land Customs Act.
But that notification cannot continue to have a legal effect
after Goa became a part of India. On becoming a part of
India Goa ceased to be a foreign territory. The
notification in question must have been issued under Section
5 of the Indian Tariff Act, 1934 as it stood in 1950 (that
section has been repealed now). That section read:
“Where a customs duty at any rate prescribed
by or under this Act or any other law for the
time being in force is
117
leviable on any articles when imported into,
or any article when exported from, a port in
India the Central Government may, by
notification in the official gazette, direct
that a duty of customs at the like rate
shall be leviable on any such article when
imported or exported, as the case may be, by
land from or to any territory outside India
which it may, by, a like notification, declare
to be foreign territory for the purposes of
this section.”
The notification under this section could have been issued
only in respect of any territory outside India and not in
respect of any part of India. That provision empowered the
Government to declare any territory outside India as a
foreign territory for the purposes of that provision. That
provision did not empower the Government to declare any part
of India as a foreign territory. But it gave power to the
Central Government not to treat any territory outside
India as a foreign territory for the purposes of that
provision. To illustrate the position, the Central
Government could not have declared either Delhi or Bombay as
a foreign territory but it could have treated Nepal or
Bhutan as not a foreign territory for the purposes of that
provision. Once Goa became part of India, the Government
was incompetent to declare that territory as a foreign
territory. Nor does it appear that any such declaration was
made after December 20, 1961.
Unfortunately the High Court allowed itself to be influenced
by what it says the practical considerations. It is likely
that there were considerable foreign goods in Goa which had
been imported into that territory before it was liberated,
may be even without paying customs duty and those goods were
available for being transmitted to other parts of India.
But this circumstance does not change the position in law.
It is not necessary for us to consider whether after
integration of Goa, the Government could have imposed any
duty on the goods that were sent from Goa to other parts of
India. Suffice it to say that our attention was not invited
to any law imposing such duties. That being so, the
conclusion that the appellant had utilised his official
position to evade customs duty must fail.
In the result this appeal is allowed and the conviction and
sentence imposed on the appellant are set aside. He is on
bail. His bail bond do stand cancelled, and fine if paid
refunded.
G, C.
Appeal allowed.
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