{"id":95699,"date":"1965-10-05T00:00:00","date_gmt":"1965-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-mysore-vs-padmanabhacharya-etc-p-b-on-5-october-1965"},"modified":"2015-02-01T15:25:56","modified_gmt":"2015-02-01T09:55:56","slug":"the-state-of-mysore-vs-padmanabhacharya-etc-p-b-on-5-october-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-mysore-vs-padmanabhacharya-etc-p-b-on-5-october-1965","title":{"rendered":"The State Of Mysore vs Padmanabhacharya Etc.[P. B. … on 5 October, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Mysore vs Padmanabhacharya Etc.[P. B. … on 5 October, 1965<\/div>\n
Equivalent citations: 1966 AIR 602, \t\t 1966 SCR (1) 994<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Sikri, S.M.<\/div>\n
           PETITIONER:\nTHE STATE OF MYSORE\n\n\tVs.\n\nRESPONDENT:\nPADMANABHACHARYA ETC.[P.    B.\t GAJENDRAGADKAR,   C.J.,  K.\n\nDATE OF JUDGMENT:\n05\/10\/1965\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nGAJENDRAGADKAR, P.B. (CJ)\nHIDAYATULLAH, M.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n 1966 AIR  602\t\t  1966 SCR  (1) 994\n CITATOR INFO :\n E\t    1969 SC 118\t (20,26)\n D\t    1972 SC1767\t (25)\n E\t    1973 SC 671\t (1,4)\n R\t    1973 SC1146\t (8)\n RF\t    1975 SC1646\t (5)\n D\t    1976 SC2250\t (18)\n\n\nACT:\nSea Customs Act (8 of 1878), s. 167(81)-Liability of  person\nother  than importer-\"Concerned in or dealing  with  goods\",\nmeaning of.\n\n\n\nHEADNOTE:\nThe  1st  respondent had gone to, the 2nd  respondent  after\nprevious arrangement with him, with a large sum of money  to\npurchase gold which was known to them to be smuggled and  to\nhave  been  imported  into India  against  the\trestrictions\nimposed\t on  the  import of gold.   The\t police\t intervened.\nrecovered  the\tgold  and  arrested  them.   The  gold\t was\nconfiscated  under s. 167(8) of the Sea Customs\t Act,  1878.\nThe  respondents  were prosecuted for an  offence  under  s.\n167(81)\t and  they were convicted by the  trial\t court.\t  On\nappeal\tthe High Court acquitted the 1st respondent  because\nit  was\t of  the  view that as\tthe  1st  respondent  merely\nattempted to purchase the gold it could not be said that  he\nwas  concerned in dealing with the smuggled gold within\t the\nmeaning\t of the section.  The High Court also acquitted\t the\n2nd respondent because it held that before a person could be\nconvicted  under  s. 167(81), it must be shown that  he\t was\neither\ta  direct importer or concerned in some way  in\t the\nimport\tof the smuggled article,, and that the\tsection\t did\nnot include in its scope a person who subsequently  obtained\nthe  smuggled  -goods and then dealt with them,\t though\t the\nsmuggled goods themselves might be liable to confiscation.\nIn appeal to this Court,\nHELD,  (per Wanchoo, Shah, Sikri and Ramaswami, JJ.)  :\t (i)\nThe  High Court was in error in holding that simply  because\nthe  purchase  was not complete the 1st respondent  was\t not\nconcerned  in dealing with the smuggled gold which was\twith\nthe 2nd respondent. [14 D]\nThe  words  \"in any way concerned or in any  manner  dealing\nwith  any  goods\" in the section, are of very  wide  import.\nThe  words \"concerned in\" mean \"interested in, involved\t in,\nmixed  up with\", while the words \"deal with\" mean  \"to\thave\nsomething to do with, to concern one self, to treat, to make\narrangement,  to  negotiate  with respect  to  some  thing.\"\nTherefore,   when  a  person  enters,  into  some  kind\t  of\ntransaction   or  attempts  to\tenter  into  some  kind\t  of\ntransaction  with  respect to prohibited goods,\t and  it  is\nclear  that  the  act  was done\t with  some  kind  of  prior\narrangement or agreement, it must be held that such a person\nis concerned in dealing with prohibited goods. [13 A-B; H]\n(ii) On the language of the section, it applies not only  to\nan  actual smuggler or a person concerned in  smuggling\t but\nalso to all others who may be concerned with smuggled  goods\nafter  the  smuggling is over provided they  know  that\t the\nsmuggled  into\tthe  country in spite of  a  prohibition  or\nrestriction,  or  they knew that the duty  thereon  had\t not\nbeen  paid.   It  follows that the 1st\trespondent  had\t the\nnecessary  knowledge and intent or evade the prohibition  or\nthe restriction even though he dealt\n2\nwith  the gold after the smuggling was over and was  not  in\nany  way  concerned  with the  actual  smuggling.  He  would\ntherefore  be guilty under the section. The  2nd  respondent\nwag  also  guilty  under -the section  inasmuch\t as  he\t was\ndealing\t with  prohibited or restricted good  sand  had\t the\nnecessary  knowledge  and  intent  as  required\t under\t the\nsection.[21 B, C, E]\nIf   the   intention  of  the  legislature  was\t  that\t the\nperson guilty under s.167(81) could only be a person  who\nwas  concerned\tin  some  way  or  other  with\tthe   actual\nimportation or exportation it would have been easy for it to\nuse  the  same words as were used in the first\tpart  of  s.\n167(8) but it has not done so,.\t What s. 167(81) requires is\nthat  the  person who comes inter alia\tinto  possession  of\nprohibited goods must know that there is some prohibition in\nforce  with respect thereto.  But before he is found  guilty\nit  has\t further to be shown that he intends  to  evade\t the\nprohibition.   Where the case is not of prohibition  but  of\nduty, the person accused under the section must be shown  to\nknow  that the duty has not been paid and also to  have\t the\nintention to, defraud the government of the duty payable  on\nthe goods.  So. long as the duty is payable and has not been\npaid or so long as the prohibition or restriction remains in\nforce,\tany person acquiring possession of goods,  on  which\nduty  has  not\tbeen  paid or  with  respect  to  which\t the\nrestriction  or prohibition has been evaded, would have\t the\nintent either to defraud the government of the duty payable,\nfor  he acquires goods at a lower price, or would  have\t the\nintention to evade the restriction or prohibition because no\none  would take the risk of smuggling unless he can  find  a\npurchaser  for\tthe smuggled 'goods.  If this were  not\t so,\nthere  would  be a premium on successful smuggling  and\t the\npurpose\t of the section to punish smuggling and stop  it  if\npossible, would be completely defeated, as there would be  a\nserious lacuna in the provision. [15 E-G; 17 A-D]\nCases under the English Act referred to.\nPer Subba Rao, J. (Dissenting) : it had not been  establish-\nad  that  the respondents had dealt with the  gold  with  an\nintention to evade any restriction or prohibition imposed on\ntheir import. [7 F]\nIt  is\tnot open to the court to strain the  language  of  a\nstatute\t in  order to read a causes omissus  and  the  court\ncannot\tfill up a lacuna.  Also, the court  cannot  construe\nthe  section  with reference to\t the  corresponding  English\nSection\t and  English  decisions  because,  the\t Indian\t and\nEnglish sections are not in pari materia.  Under s.  167(81)\nthe material ingredients constituting an offence are; (i)  a\nperson must have a knowledge that there is a prohibition  or\nrestriction  against doing any of the enumerated  acts\twith\nrespect\t to  goods  imported or\t exported  contrary  to\t the\nrestriction  or prohibition imposed against their import  or\nexport,\t and  (ii) he must have acted with an  intention  to\nevade  such a restriction or prohibition.  That is, the\t two\nelements  of mens rea, namely, knowledge and intention\tmust\nbe  established, because, knowledge of an offence cannot  be\nequated\t with an intention to commit the offence.  The\tcrux\nof  the\t offence is the import of goods with  the  requisite\nintent\tcontrary  to  the  prohibition.\t  The  importer\t who\nsmuggles  the  goods is certainly guilty under\tthe  section\nbecause he imports them in derogation of the prohibition  or\nrestriction.   Also, any person who deals with the goods  in\nthe  context of the import in any of the connected ways\t set\nout  in\t the  section,\twith  the  requisite  knowledge\t and\nintention  would equally be guilty of the offence,  because,\nthe  enumerated\t dealings  with\t the  goods  prohibited\t  or\nrestricted may be necessary to complete the import vis-a-vis\nthe  importer,\teven though they cover a  field\t beyond\t the\npoint  of import as normally understood, that is,  when\t the\ngoods  cross  the  customs barrier.  But  the  intention  to\ncontravene  the prohibition cannot be imputed to  subsequent\ndealers in\n3\nthe  goods  after the importer parts with them,\t though\t the\ngood.%\tthemselves  can\t be  confiscated  in  the  hands  of\nwhomsoever they are found. [4H; 5C, E-F; 6B-C, H]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.\t 192
\nof 1961 and 183 of 1962.\n<\/p>\n
Appeals\t from the judgment and orders dated August 11,\t1961
\nof  the Calcutta High Court in Criminal Appeals Nos. 360  of
\n1959 and 345 of 1959 respectively.\n<\/p>\n
\t\t\t    WITH
\nCriminal Appeals Nos. 41 of 1964 and 42 of 1964.
\nAppeals by special leave from the judgment and orders  dated
\nMarch 25, 1963 of the Bombay High Court in Criminal  Appeals
\nNos. 1640 of 1962 and 1359 of 1962 respectively.
\nNiren  De, Additional Solicitor-General, D. R. Prem,  R.  H.
\nDhebar and B. R. G. K. Achar, for the appellant (in Cr.\t As.
\nNos. 192 of 1961 and 183 of 1962).\n<\/p>\n
D.   R.\t Prem,\tB.  R. G. K. Achar,  Yogeshwar\tPrasad,\t for
\nappellant  (in Cr.  As.\t Nos. 123 of 1962 and 41 and  42  of
\n1964).\n<\/p>\n
S.   C. Mazumdar, for respondent No. 1 (in Cr. A. No. 123 of
\n1962).\n<\/p>\n
P.   K. Chatterjee and S. P. Varma, for respondent No. 1 (in
\nCr. A.\t  No., 123 of 1962).\n<\/p>\n
B.   M. Mistry, P. R, Vakil, J. B. Dadachanji, O. C. Mathur
\nand  Ravinder Narain, for respondent (in Cr.  A. No.  41  of
\n1964).\n<\/p>\n
B.   R. Agarwala and H. K. Puri, for respondent (in Cr.\t  A.
\nNo. 42 of 1964).\n<\/p>\n
P.   R.\t Vakil,\t B.  M. Mistry, J. B.  Dadachanji,  for\t the
\ninterveners (in Cr.  A. Nos. 41 and 42 of 1964).
\nSUBBA  RAO J. delivered a dissenting Opinion.  The  Judgment
\nof  WANCHOO SHAH, SIKRI and PAMASWAMI JJ. was  delivered  by
\nWANCHOO J.\n<\/p>\n
\t       Subba Rao, J. I regret my inability to  agree
\n\t      on the construction of s. 167 (81) of the\t Sea
\n\t      Customs  Act,  1\t8 7 8. The  Acts  have\tbeen
\n\t      stated by my learned brother, Wanchoo, J., and
\n\t      need not restate them.\n<\/p>\n
\t       Clause (81) of S. 167 of the Sea Customs\t Act
\n\t      reads
\n\t       “If any person knowingly, and with intent  to
\n\t      defraud  the  Government of any  duty  payable
\n\t      thereon, or to
\n4<\/span>
\n\t       evade any prohibition or restriction for\t the
\n\t      time being in force under or by virtue of this
\n\t      Act  with respect thereto acquires  possession
\n\t      of,  or is in any way concerned  in  carrying,
\n\t      removing,\t depositing, harbouring, keeping  or
\n\t      concealing  or in any manner dealing with\t any
\n\t      goods which have been unlawfully removed\tfrom
\n\t      a\t warehouse  or which are chargeable  with  a
\n\t      duty  which has not been paid or with  respect
\n\t      to  the  importation or exportation  of  which
\n\t      ‘any  prohibition\t or restriction is  for\t the
\n\t      time\t being\t     in force as
\n\t      aforesaid”;…………..\n<\/p>\n
\t       The  penalty  clause thereof  reads  :  “such
\n\t      person shall on conviction before a Magistrate
\n\t      be  liable  to imprisonment for any  term\t not
\n\t      exceeding\t two years or to fine, or to  both”.
\n\t      This clause introduces a criminal offence.  It
\n\t      is  triable by a Magistrate.  The person\tcon-
\n\t      victed  is liable to, imprisonment for a\tterm
\n\t      not exceeding two years or to fine or to both.
\n\t      The  rule\t of construction of  such  a  clause
\n\t      creating\ta criminal offence is well  settled.
\n\t      The following passage from the judgment of the
\n\t      Judicial\tCommittee in The Gauntlet(1) may  be
\n\t      quoted :\n<\/p>\n
\t       “No  doubt  all\tpenal  statutes\t are  to  be
\n\t      construed strictly, that is to say, the  court
\n\t      must see that the thing charged as an  offence
\n\t      is within the plain meaning of the words used,
\n\t      and  must not strain the words on\t any  notion
\n\t      that  there  has been a slip, that  there\t has
\n\t      been  a  casus omissus that the  thing  is  so
\n\t      clearly within the mischief that it must\thave
\n\t      been  intended to be included, and would\thave
\n\t      been  included  if thought of.  On  the  other
\n\t      hand,  the person charged has a right  to\t say
\n\t      that  the thing charged, although\t within\t the
\n\t      words,  is  not  within  the  spirit  of\t the
\n\t      enactment.   But\twhere the thing\t is  brought
\n\t      within the words and within the spirit,  there
\n\t      a penal enactment is to be construed, like any
\n\t      other   instrument,  according  to  the\tfair
\n\t      commonsense meaning of the language used,\t and
\n\t      the court is not to find or make any doubt  or
\n\t      ambiguity in the language of a penal  statute,
\n\t      where  such doubt or ambiguity  would  clearly
\n\t      not  be found or made in the same language  in
\n\t      any other instrument.”\n<\/p>\n
The clause, therefore, must be construed strictly and it  is
\nnot  open  to the court to strain the language in  order  to
\nread  a casus omissus.\tThe court cannot fill up  a  lacuna:
\nthat is the province
\n(1)  (1872) L.R. 4 P.C. 184,191.\n<\/p>\n
of the Legislature.  The second rule of construction equally
\nwell settled is that a court cannot construe a section of  a
\nstatute with reference to that of another unless the  latter
\nis  in\tpari  materia  with the\t former.   It  follows\tthat
\ndecisions  made\t on a provision of a  different\t statute  in
\nIndia  or elsewhere will be of no relevance unless  the\t two
\nstatutes are in pari materia.  Any deviation from this\trule
\nwill  destroy  the fundamental\tprinciple  of  construction,
\nnamely,\t the duty of a court is to ascertain  the  expressed
\nintention  of  the  Legislature.  I am\tled  to\t make  these
\ngeneral\t remarks,  as  an attempt was made  by\tthe  learned
\ncounsel\t for the appellant to persuade us to  interpret\t the
\nwords  of  the clause in the light of the decisions  of\t the
\nEnglish courts on an analogous provision in an Act  intended
\nto prevent smuggling.  It is not possible to state that\t the
\nEnglish\t and  the Indian Acts are in  pari  materia,  though
\ntheir  general\tpurposes are the same and  though  there  is
\nsome:  resemblance  in the terminology used  in\t them.\t The
\nEnglish\t  decisions,  therefore,  must\tbe  kept  aside\t  in
\nconstruing the relevant provisions of the Indian statute.
\nNow  coming to the relevant clause, the following  material’
\ningredients constitute an offence thereunder : (1) a  person
\nmust  have  a  knowledge  that there  is  a  prohibition  or
\nrestriction  against doing any of the enumerated  acts\twith
\nrespect\t to  goods  imported or\t exported  contrary  to\t the
\nrestriction  or prohibition imposed against their import  or
\nexport;\t (2) he must have acted with an, intention to  evade
\nsuch  a\t restriction  or prohibition; there  is\t no  offence
\nunless the said two elements of mens rea, namely,  knowledge
\nand  intention,\t are  established.  It is not  enough  if  a
\nperson\t has  only  knowledge  of  such\t a  prohibition\t  or
\nrestriction;  in  addition he shall have  the  intention  to
\nevade  such a prohibition or restriction against the  import
\nor  export  of\tgoods,\tas the case may\t be.  A\t person\t who
\nknowingly  purchases smuggled goods from an importer  cannot
\nhave  an intention to evade a provision against import,\t for
\nthe  prohibited goods have already been imported.  A  person
\nwho receives goods with the knowledge that they are stolen,.
\ngoods cannot possibly have an intention to commit theft, for
\nthe theft has already been committed, though he may have the
\nintention  to  receive the stolen goods.   Knowledge  of  an
\noffence\t cannot be equated with an intention to\t commit\t the
\noffence.   Such\t a  construction  effaces  the\t distinction
\nbetween the two distinct elements of mens rea, knowledge and
\nintention, laid down in the clause.\n<\/p>\n
The  only possible way out of the inevitable effect  of\t the
\nplain words used in the said clause is to give a meaning  to
\nthe expres-\n<\/p>\n
6<\/span><\/p>\n
sion  “import” which that word cannot bear.  To\t accept\t the
\nargument of the learned counsel for the appellant is to hold
\nthat  the  process of import continues\tthrough\t innumerable
\ntransactions between different persons without reference  to
\ntime  or  place and whether the goods existed or  ceased  to
\nexist.\t Ordinarily  the  process of  import  commences\t the
\nmoment\tthe  goods cross the customs barrier.  That  is\t the
\nmeaning\t given to that word by this Court in J. V.  Gokal  &
\nCo.  v. Assistant Collector or Sales-Tax(1).  But  the\tsaid
\nclause\t gives\tthat  expression  a  wider   meaning.\t The
\nenumerated dealings with the goods prohibited or  restricted
\ncovered\t a  field  beyond  the\tpoint  of  import   normally
\nunderstood  by that expression.\t But all the  said  dealings
\nhave  an intimate nexus with the import of goods  under\t the
\nAct.   Goods may be imported through the machinery  provided
\nunder  the Act; yet, a person may evade the restrictions  by
\nfraud  or otherwise.  Goods may also be\t illegally  imported
\ninto India outside the machinery so provided.  This is\tdone
\nstealthily  at different points of the vast sea line of\t our
\ncountry.  But in either case different persons may take part
\nin  carrying, removing, depositing, harbouring, keeping\t -or
\nconcealing or in any other manner dealing with any goods  so
\nimported.   They  are  the necessary acts  to  complete\t the
\nprocess of import.  Such acts may be done by persons between
\nwhom  there  was a prearranged plan before  the\t goods\twere
\nbrought into India.  Different persons may also take part in
\nsuch dealings with the requisite knowledge or intention\t for
\nthe purpose of completing the import vis-a-vis the importer.
\nUnder the said-clause, therefore, the process of import does
\nnot  end immediately the prohibited goods are  brought\tinto
\nIndia,\tbut continues till the goods :are delivered  to\t the
\nimporter,  physically or constructively.  The  importer\t who
\nsmuggles  the goods is certainly guilty under  the  -clause,
\nbecause he imports them in derogation of the prohibition -or
\nrestriction.   Any  person who deals with the goods  in\t the
\ncontext\t of the import as explained above in any one of\t the
\nconnected  ways -with the requisite knowledge and  intention
\nwould equally be guilty of the offence.\t But the  subsequent
\ntransactions  in  regard to the said goods are\toutside\t the
\nprocess\t of  the  enlarged  definition\tof  the\t expression,
\n“import”.  It would be incongruous to hold that a  purchaser
\nfrom  the importer or a purchaser from the  said  purchaser,
\nand  so\t on, has an intention to evade\tthe  prohibition  or
\nrestriction, though he may have the intention to receive the
\nsmuggled goods.\t How does such a purchaser evade the  prohi-
\nbition against import which has already been affected ?\t The
\ncontrary  construction\twill  lead  to\tthe  anomaly  of   a
\npurchaser,
\n(1) [1960] 2 S.C.R 852, 857, 858.\n<\/p>\n
\t\t\t     7<\/span><\/p>\n
even  after  20 years of the import,  being  attributed\t the
\nintention to evade the prohibition against import.   Suppose
\nbefore\tthe  purchase  of  the\tgoods  by  a  stranger\t the
\nprohibition  was  lifted.   In such a  situation,  does\t the
\npurchaser commit an offence ? If the contention is sound, he
\ndoes.  This illustrates that the crux’ of the offence is the
\nimport\tof goods with the requisite intent contrary  to\t the
\nprohibition.\tFor  the  said\treasons\t the  intention\t  to
\ncontravene  the prohibition cannot be imputed to  subsequent
\ndealers\t in  the said goods after the  importer\t parts\twith
\nthem.\n<\/p>\n
It is said that if the construction suggested by the learned
\ncounsel for the appellant be not accepted, many a person who
\npurchases  smuggled  goods will escape punishment.   A\tfair
\nreading\t  of  the  Act\tdiscloses  that\t the  Act  makes   a
\ndistinction  between  a\t customs  offence  and\ta   criminal
\noffence.  The smuggled goods in the hands of whomsoever they
\nare  found can be confiscated and, therefore, the State\t can
\nalways\t trace\t the  smuggled\tgoods  to   their   ultimate
\ndestination.  The smuggler and the persons concerned in\t the
\nsmuggling are guilty of both customs and criminal  offences.
\nThe Legislature, either intentionally or otherwise, has\t not
\nmade the dealings in such goods by persons other than  those
\nmentioned  in  cl.  81 of s. 167 of the Sea  Customs  Act  a
\ncriminal  offence.  When the clause does not bring them\t in,
\nthe  court  cannot, by construction, bring such a  class  of
\npersons\t within the said clause.  It is for the\t Legislature
\nto  do so and we are told that it has recently\tamended\t the
\nsection.\n<\/p>\n
I, therefore, agree with the High Court that it has not been
\nestablished  that the respondents have dealt with the  goods
\nwith  an intention to evade any restriction  or\t prohibition
\nimposed on the import of the said goods.\n<\/p>\n
In the result, all the appeals should be dismissed.
\nWanchoo, J. These two appeals on certificates granted by the
\nCalcutta  High Court arise out of the same trial of the\t two
\nrespondents  for  an offence under s. 167 (81)\tof  the\t Sea
\nCustoms\t Act,.\tNo. 8 of 1878, (hereinafter referred  to  as
\nthe Act) and will be dealt with together.  The facts are not
\nin dispute and have been found as below.\n<\/p>\n
On  August 25, 1958, a constable attached to  the  Detective
\nDepartment, noticed Sitaram Agarwala respondent and  another
\nperson at the crossing of Hariram Goenka street and  Kalakar
\nstreet.\t The constable had certain information with  respect
\nto
\n8<\/span>
\nthese persons and decided to follow them.  These two persons
\ngot into a bus and the constable also boarded the same\tbus.
\nThey  got down at the unction of B. K. Pal Avenue and J.  M.
\nAvenue and so did the constable.  They then went to Narendra
\nDev  Square  ‘Which is a kind of park.\tThe  constable\tkept
\nwatch  over them from a distance.  After a short time  these
\ntwo men came out of the park and stood on the western  foot-
\npath  of J. M. Avenue. Shortly thereafter a small taxi\tcame
\nthere from the South and stopped.  Respondent Wang Chit Khaw
\n(hereinafter referred to as the Chinese accused) was in that
\ntaxi.\tHe came down and shook hands with  Sitaram  Agarwala
\nand the three got into the taxi.  When the taxi was about to
\nstart,\tthe constable disclosed his identity to\t the  driver
\nand asked him to stop.\tHe also asked the ‘three persons  to
\naccompany him to the thana.  Thereupon Sitaram Agarwala\t and
\nthe  other  man who was with him came out -of the  taxi\t and
\ntried  to run away.  The constable caught hold of  them\t and
\nput them in the police wagon which happened to come up\tjust
\nthen.\tThe  Chinese accused also tried to  run\t away.\t The
\nconstable -appealed to the members of the public to help him
\nin securing the Chinese accused and he was secured with\t the
\nhelp of two college students and one other youngman.  As the
\nChinese accused was running away he threw away three packets\n<\/p>\n
-which\twere picked up.\t In the meantime Sergeant  Mukherjee
\ncame there on a motor-cycle from the opposite direction\t and
\ndetained the Chinese accused.  The three packets thrown away
\n‘by him were also handed over. by the three youngmen to\t the
\n‘Sergeant.   Thereafter\t all  the  three  persons  who\twere
\narrested  ‘were taken to the police station along  with\t the
\nthree packets.\tIt was found in the police station that\t the
\nthree packets contained 23 gold bars of about sixteen  tolas
\neach  with Chinese inscription -thereon.  On search  of\t the
\nperson of Sitaram Agarwala, a sum of Rs. 49,320 in notes  of
\nvarious\t denomination  was  found  on  him.   ‘The   Customs
\nauthorities were informed and took charge of the gold  bars.
\nEventually,  the gold bars were confiscated under s.  167(8)
\nof  the\t Act and thereafter the police\tafter  investigation
\nprosecuted the two respondents and the third man in  respect
\nof -the offence under s. 167(81) of the Act.
\nThese facts were held to be proved by the Magistrate so\t far
\nas  the\t Chinese  accused and Sitaram  were  concerned.\t  He
\ntherefore  convicted them.  The case against the  third\t man
\nwas  held  -to\tbe  doubtful  and  he  was  acquitted.\t Two
\nconvicted  persons then filed separate appeals in  the\tHigh
\nCourt.\t The  High  Court -accepted  the  findings  of\tfact
\nrecorded   by  the  learned  Magistrate\t and  came  to\t the
\nconclusion that on the facts proved there was
\n9<\/span>
\nno doubt that Sitaram had gone with a large sum of money  to
\nmeet the Chinese accused in order to purchase the, gold bars
\nwhich  had been recovered from the, packets thrown  away  by
\nthe Chinese accused.\n<\/p>\n
The High Court then addressed itself to the question whether
\non  the facts proved the conviction of the  two\t respondents
\ncould  be  sustained  in law.  The  charge  against  Sitaram
\nAgarwala  was that on the date in question and at  the\ttime
\nand  place which appeared in the evidence he had gone  there
\nby  previous arrangement to purchase the smuggled gold\tbars
\nfrom  the  Chinese accused and was  therefore  concerned  in
\ndealing with smuggled gold and thereby committed an  offence
\nunder S. 167(81) of the Act.  The charge against the Chinese
\naccused\t was that he had in his possession 23 smuggled\tgold
\nbars which he wanted to sell to Sitaram Agarwala and another
\nperson by previous arrangement and as such he was  concerned
\nin  dealing with smuggled gold and was guilty under  s.\t 167
\n(81) of the Act.  So far as Sitaram Agarwala was  concerned,
\nthe  High  Court held that by merely going to  the  park  in
\norder to purchase smuggled gold by previous arrangement,  it
\ncould  not be said that Sitaram Agarwala was in\t any  manner
\ndealing with smuggled gold.  The High Court was of the\tview
\nthat  there was a mere attempt to purchase smuggled gold  on
\nthe  part of Sitaram Agarwala, but as the purchase  was\t not
\ncompleted  it  could not be said that Sitaram  Agarwala\t was
\nconcerned in dealing with the smuggled gold.  The High Court
\ntherefore   ordered  the  acquittal  of\t Sitaram   Agarwala,
\nrespondent.  As to the Chinese accused, the High Court\theld
\nthat  though  he was found in possession of  smuggled  gold,
\nwhich  he  knew to be such, and had attempted to  sell\tthat
\ngold surreptitiously, s. 167(81) required knowledge that the
\narticle\t in question was smuggled and intention\t to  defraud
\nthe  Government of any duty payable thereon or to evade\t any
\nprohibition or restriction for the time being in force under
\nor  by virtue of the Act.  In view of the intent  necessary,
\nthe High Court was of the view that before a person could be
\nconvicted  under  s. 167(81) it must be shown  that  he\t was
\neither\ta  direct importer or concerned in some way  in\t the
\nimport\tof the smuggled article.  In other words,  the\tHigh
\nCourt  thought that the section dealt with goods while\tthey
\nwere  being  smuggled;\tit did not include in  its  scope  a
\nperson who subsequently obtained the smuggled goods and then
\ndealt with them, though the smuggled goods themselves  might
\nbe  liable to confiscation when seized.\t  Consequently,\t the
\nHigh  Court  ordered the acquittal of  the  Chinese  accused
\nalso.  As the inter-\n<\/p>\n
10<\/span><\/p>\n
pretation of s. 167(81) was involved, the High Court granted
\ncertificates;  and that is how the two appeals have come  up
\nbefore us.\n<\/p>\n
 The facts are not in dispute in this case and have been set
\nout  above.  Thus the question that arises before us is\t the
\ninterpretation of s. 167(81) and two aspects of that section
\nhave to be considered.\tThe first aspect is the ambit of the
\nwords “in any way concerned in or in any manner dealing with
\nany  goods  with  respect to the importation  of  which\t any
\nprohibition or restriction is for the time being in force as
\naforesaid”.  The second aspect is with respect to the intent
\nnecessary  under  the section and whether  that\t intent\t can
\narise  where  smuggling is over and smuggled goods  are\t the
\npossession of persons other than those actually concerned in
\nthe smuggling and are then dealt with by them in some manner
\nor other.\n<\/p>\n
We  may briefly indicate the scheme of the Act in  order  to
\nappreciate the purpose behind S. 167(81).  The object of the
\nAct is to provide machinery for the collection inter alia of
\nimport\tduties\tand for the prevention of  smuggling.\tWith
\nthat object customs frontiers are defined, (Ch. 1);  Customs
\nofficers  are  appointed  with, certain\t powers,  (Ch.\t11);
\nports,\twharves, customhouses, warehouses and  boarding\t and
\nlanding-stations are provided for, (Ch.\t III);\tprohibitions
\nand restrictions of imports and exports are envisaged,\t(Ch.
\nIV); levy of and exemption from custom duties and the manner
\nin which it has to be done is provided, (Ch.  V); drawbacks,
\ni.e.,  refunds are provided in certain\tcircumstances,\t(Ch.
\nVI);  arrival and departure of vessels is  controlled,\t(Ch.
\nVII  and Ch.  VIII); provision is made for the discharge  of
\ncargo,\t(Ch.   IX),  and clearance of goods  for  home\tcon-
\nsumption  (Ch.\tX); provision is also made  for\t warehousing
\nand  transshipment, (Chapters XI, XII); provisions are\talso
\nmade for exportation or shipment and re-landing (Ch.  XIII);
\nspecial\t provisions have been made relating to\tspirit\t(Ch.
\nXIV)  and  coasting trade (Ch.\tXV).  Then  comes  Ch.\t XVI
\ndealing with offences and penalties.  Offences enumerated in
\nCh.  XVI are of two kinds; first there are contravention  of
\nthe Act and rules thereunder which are dealt with by Customs
\nofficers  and  the  penalty for which is  imposed  by  them.
\nThese may be compendiously called customs offences.  Besides
\nthese  there are criminal offences which are dealt  with  by
\nMagistrates  and which result in conviction and sentence  of
\nimprisonment and\/or fine.  These two kinds of offences\thave
\nbeen  created  to ensure that no fraud is committed  in\t the
\nmatter of payment of duty and also to ensure that there is
\n11<\/span>
\nno   smuggling\tof  goods,  without payment of\tduty  or  in
\ndefiance of any prohibition or restriction imposed under Ch.
\nIV of the Act.\n<\/p>\n
It is necessary for our purpose to set out two provisions of
\ns.   167 which is in Ch.  XVI.\tThese are s. 167 (8) and 167
\n(81 Section 167 (8) is in these terms :-\n<\/p>\n
“167.\tThe  offences mentioned in the first column  of\t the
\nfollowing  schedule  shall  be\tpunishable  to\tthe   extent
\nmentioned in the third column of the same with reference  to
\nsuch offences respectively:-\n<\/p>\n
(1) Offences
\n“(8)  If any goods, the importation or exportation of  which
\nis  for the time being prohibited or restricted by or  under
\nChapter\t IV of this Act, be imported into or  exported\tfrom
\nIndia  contrary to such prohibition or restriction: or\tEtc.
\nEtc.\n<\/p>\n
(2) Section of this Act to which offence has reference 18  &
\n19<\/span>
\n(3) Penalties
\nsuch  goods shall be liable to confiscation; and any  person
\nconcerned  in any such offence shall be liable to a  penalty
\nnot  exceeding\tthree times the value of the goods,  or\t not
\nexceeding one thousand rupees.”\n<\/p>\n
Section\t 167(81)  with which we are  particularly  concerned
\nreads thus
\n(1) Offences (continue)..\n<\/p>\n
“(81).\tIf any person knowingly,  and with intent to defraud
\nthe Government of any duty payable thereon, or to evade any,
\nprohibition or restriction for the time being in force under
\nor  by\tvirtue\tof this Act with  respect  thereto  acquires
\npossession  of,\t or  is in any way  concerned  in  carrying,
\nremoving,  depositing, harbouring, keeping or concealing  or
\nin any manner dealing with any goods which have been  unlaw-
\nfully removed from a warehouse or which are’ chargeable with
\na  duty\t which\thas not been paid or  with  respect  to\t the
\nimportation  or\t exportation  of which\tany  prohibition  or
\nrestriction is for the time being in force as aforesaid; or
\n(2) Section of this Act to which offence has reference
\nGeneral
\n(3) Penalties
\nsuch  person  shall  on conviction before  a  Magistrate  be
\nliable to imprisonment for any term not exceeding two  years
\nor to fine, or to both;\n<\/p>\n
L1sup. C.I\/66-2
\n12<\/span>
\nIt  will  be seen that S. 167 (8) deals with  what  we\thave
\ncalled customs offences while s. 167(81) deals with criminal
\noffences.  It is well-settled by the decisions of this Court
\nthat goods which have been imported against the\t prohibition
\nor  restriction imposed under Ch.  IV of the Act are  liable
\nto confiscation at any time after import and this  liability
\nextends even in the hands of third persons who may not\thave
\nhad anything to do with the actual import.  So long as it is
\nproved\tthat  the  goods  had  been  imported  against\t the
\nrestrictions imposed under Ch.\tIV, the goods remain  liable
\nto  confiscation whenever found even if this is\t long  after
\nthe  import  is over and even if they are in  possession  of
\npersons who had nothing to do with the actual import.  It is
\nalso  well-settled by the decisions of this Court  that\t the
\nsecond\tpart of the penalty relating to any  person  applies
\nonly to a person concerned in the importation or exportation
\nof  the\t goods\tand  does not apply to\ta  person  found  in
\npossession of the smuggled goods who had nothing to do\twith
\nthe  importation or exportation thereof:  (see\tShivanarayan
\nMahato v. Collector of Central Excise and Land Customs(1).
\nThe  main  contention  of the respondents  which  has  found
\nfavour with the High Court was that s. 167(81) when it deals
\nwith  persons and subjects them to imprisonment and fine  on
\nconviction  by a Magistrate is also concerned  with  persons
\nwho  are  in  some way or other actually  concerned  in\t the
\nimport\tand  has  no application to third  persons  who\t had
\nnothing to do with the actual import but might have come  in
\npossession  of smuggled goods even knowingly after they\t had
\nbeen  smuggled.\t Before however we consider this  contention
\nwhich has found favour with the High Court we should like to
\ndispose\t of the other contention which was raised on  behalf
\nof  Sitaram  Agarwala and which also found favour  with\t the
\nHigh Court.  It will be seen that s. 1 67 (8 1 ) deals\twith
\npersons who do certain things with the knowledge and  intent
\ntherein\t specified and one such person with whom  that\tpro-
\nvision deals is a person who is, in any way concerned in  or
\nin  any\t manner\t dealing  with any  goods  with\t respect  to
\nimportation  of which any prohibition or restriction is\t for
\nthe  time  being in force.  The High Court has held  on\t the
\nfacts  in this case that Sitaram Agarwala cannot be said  to
\nhave  been  concerned  in  or in  any  manner  dealing\twith
\nprohibited goods inasmuch as he was merely negotiating\twith
\nthe  Chinese accused for their purpose but the deal had\t not
\nbeen  concluded.  The view which found favour with the\tHigh
\nCourt thus was that if the deal had been completed,  Sitaram
\nAgarwala  could\t be said to have been concerned\t in  dealing
\nwith the prohibited goods but as the deal was not  completed
\nand he
\n(1)  C.A. 288 of 1964, decided on 14-8-65.\n<\/p>\n
\t\t\t     13<\/span><\/p>\n
was merely attempting to purchase the goods it could not  be
\nsaid  that he was in any way concerned in or in\t any  manner
\ndealing with them.  We are of opinion that the view taken by
\nthe  High  Court  is not correct.  The\twords  “in  any\t way
\nconcerned in or in any manner dealing with prohibited goods”
\nare  of\t very  wide import.  It\t is  neither  desirable\t nor
\nnecessary  to  define  all manner  of  connection  with\t the
\nprohibited goods which might come within the meaning of\t the
\nwords “in any way concerned in or in any manner dealing with
\nsuch goods”.  It will depend on the facts found in each case
\nwhether\t it  can be said that any person  was  concerned  in
\ndealing\t with  such  goods.   We  shall\t therefore   confine
\nourselves  to the facts of the present case and gee  whether
\non  these facts, it can be said that Sitaram was in any\t way
\nconcerned  in or in any manner dealing with the goods.\t Now
\nthe  evidence which has been accepted by both the courts  is
\nthat Sitaram had gone with a large sum of money to  purchase
\nthe  gold which was known to, be smuggled and to  have\tbeen
\nimported into India against the restrictions imposed on\t the
\nimport of gold.\t It has also been proved that Sitaram did so
\nafter previous arrangement with the Chinese accused.  If the
\nconstable who was following Sitaram had’ not interfered\t the
\ndeal would have gone through and Sitaram would have paid the
\nmoney  and  purchased the smuggled gold.  ‘This was  a\tcase
\ntherefore  where  by means of previous\tarrangement  with  a
\nperson\tin possession of a smuggled article,  the  intending
\npurchaser  had gone to purchase it and the deal did not\t go,
\nthrough\t only  because\tthe  police  intervened.   In\tsuch
\ncircumstances  where by previous agreement or arrangement  a
\nperson\tgoes  to purchase an article which he  knows  to  be
\nsmuggled  it  would in our opinion be a case  where  such  a
\nperson\tmust  be held to be concerned in  dealing  with\t the
\nprohibited  goods.   Where a person does any  overt  act  in
\nrelation  to prohibited goods which he knows to be such\t and
\nthe act is done in consequence of a previous arrangement  or
\nagreement it would in our opinion be a case were the  person
\ndoing  the act is concerned in dealing with the,  prohibited
\ngoods.\t In  other words any transaction  relating  to\tpro-
\nhibited\t goods which is done or attempted to be\t done  after
\nsome  kind  of prior arrangement or agreement would  in\t our
\nopinion\t clearly  amount to the person\tbeing  concerned  in
\ndealing\t  with\tthe  prohibited\t goods.\t  Both\t the   words
\n“concerned”  and “deal” have a wide connotation.  The  words
\n“concerned  in” mean “interested in,, involved in, mixed  up
\nwith” while the words “deal with” mean “to have something to
\ndo with, to concern one-self, to treat, to make arrangement,
\nto  negotiate with respect to something”.  Therefore when  a
\nperson enters into some kind of transaction or attempts tee
\n14<\/span>
\nenter  into  some  kind\t of  transaction  with\trespect\t  to
\nprohibited  goods and it is clear that the act is done\twith
\nsome kind of prior arrangement or agreement, it must be held
\nthat  such a person is concerned in dealing with  prohibited
\ngoods.\t The  fact  that the act stopped at  an\t attempt  to
\npurchase  as in the present case when the police  intervened
\ndoes  not in any way mean that Sitaram was not concerned  in
\ndealing\t with  the smuggled gold.  The evidence\t shows\tthat
\nthere must have been a previous arrangement with the Chinese
\naccused to purchase the smuggled gold.\tSitaram went to\t the
\nappointed place and met the Chinese accused  surreptitiously
\nand had a large’ sum of money with him to pay for the  gold.
\nHe  had\t sat down with the Chinese accused in the  taxi\t and
\nthere is no doubt that if the taxi had not been stopped, the
\ntransaction for the purchase of the smuggled gold would have
\ngone  through.\tIn these circumstances even  though  Sitaram
\nhad  not  come into actual possession of the  smuggled\tgold
\nbefore the police intervened, there is no doubt that he\t was
\nconcerned  in  -dealing\t with  prohibited  goods.   We\t are
\ntherefore  of  opinion that the High Court was in  error  in
\nholding\t simply because the purchase was not  complete\tthat
\nSitaram was not concerned in dealing with the smuggled\tgold
\nwhich was found with the Chinese accused.  The acquittal  of
\nSitaram on this ground must therefore be set aside.
\nThis  brings  us to the main question which  arises  in\t the
\npresent\t appeal,  namely, what is the intent required  in  a
\ncase coming under s. 167(81) and whether such intent can  be
\nsaid to arise at all in a case where the import is  complete
\nand  the prohibited goods are in the possession of  a  third
\nperson\twho  had nothing; to do with the import.   For\tthis
\npurpose\t we  shall refer to that part of  s.  167(81)  which
\ndeals with the acquisition of possession of prohibited goods
\nand  what we say about that part will equally apply  to\t the
\nother  parts of s. 167(81).  We may add that we are  dealing
\nhere  with  the first half of s. 167(81) and  not  with\t the
\nsecond half.\tThis part of s. 167(81) which we have  taken
\nfor  the  purpose of finding out what is the  knowledge\t and
\nintent that s. 167(81)\t requires  would run thus : “If\t any
\nperson knowingly, and with intent to defraud the  Government
\nof any duty payable thereon,  or to evade any prohibition or
\nrestriction  for the time being in force under or by  virtue
\nof  the Act with respect thereto acquires possession of\t any
\ngoods  with respect to which duty has not been paid or\twith
\nrespect\t to  the  importation of which\tany  prohibition  or
\nrestriction  is for the time being in force.”  The  argument
\nwhich  has  found  favour with the High Court  is  that\t the
\nsection, requires knowledge on the part of the accused
\n\t\t\t     15<\/span>
\nthat  the  goods were imported against\tthe  prohibition  or
\nrestriction in force.  This is undoubtedly so.\tThe  section
\nfurther\t requires  that the person who\thas  this  knowledge
\nshould\talso  have  the\t intention  either  to\tdefraud\t the
\nGovernment  of\tany  duty payable thereon or  to  evade\t any
\nprohibition or restriction for the time being in force under
\nor by virtue of the Act.  Mere knowledge that the goods\t are
\nprohibited  goods or goods on which duty has not  been\tpaid
\nwould not be enough; the section further requires that there
\nshould\tbe an intent to defraud the Government of  the\tduty
\npayable\t or  to evade any prohibition or  restriction.\t The
\nargument  on  behalf  of  the  respondents  which  has\tbeen
\naccepted  by  the  High Court is that once  the\t goods\thave
\nevaded the payment of duty or have evaded the prohibition or
\nrestriction. with respect to their import and the  smuggling
\nwhether of dutiable or prohibited goods is complete, a third
\nperson\twho comes into possession of such  goods  thereafter
\nand who had nothing to, do with the smuggling itself  cannot
\nbe said to have the intent to defraud the Government of\t any
\nduty  payable (for such defrauding had already taken  place)
\nor  to\tevade  any  prohibition\t or  restriction  (for\tsuch
\nprohibition  or\t restriction had already been  evaded).\t  In
\neffect,\t the  argument\tis  that this  part  of\t s.  167(81)
\ncorresponds to s. 167(8) where a person has to be concerned,
\nin  the\t actual\t importation before he can be  liable  to  a
\npenalty.\n<\/p>\n
Now if the intention of the legislature was that the  person
\nguilty under s. 167(81) could only be a person who was\tcon-
\ncerned\tin some way or other with the actual importation  or
\nexportation  it would have been easy for it to use the\tsame
\nwords  in  s. 167(81) as were used in the first part  of  s.
\n167(8).\t  But  the  legislature\t has not  done\tso  and\t the
\nquestion  is  whether the words used in s.  167(81)  have  a
\ndifferent  meaning  from those used in s. 167(8).   What  s.
\n167(81)\t requires  is that the person who comes\t inter\talia
\ninto possession of prohibited goods must know that there  is
\nsome prohibition in force with respect thereto.\t But  before
\nhe can be guilty under s. 167(81) it has further to be shown
\nthat he intends to evade the prohibition.  Where the case is
\nnot of prohibition but of duty, the person accused under  s.
\n167(81)\t must  be shown to know that the duty has  not\tbeen
\npaid  and  also\t to  have  the\tintention  to  defraud\t the
\nGovernment  of the duty payable on the goods.  The  question
\nthat  arises is whether the third person who has  come\tinto
\npossession  knowingly that the goods are prohibited  or\t the
\ngoods  are  dutiable and the duty has not been paid  can  be
\nsaid to have the intention of evading the prohibition or  to
\ndefraud the Government of the duty
\n16<\/span>
\npayable, even though he may not have anything to do with the
\nsmuggling of the goods.\n<\/p>\n
 It  seems to us (taking a case of prohibition) that if\t the
\nprohibition  is\t still\tin force, the  person  who  acquires
\npossession of prohibited goods knowing them to be prohibited
\nintends to evade the prohibition by the action, even  though
\nhe  may not have been concerned in the actual  smuggling  of
\nthe goods.  So long as the prohibition lasts any person\t who
\ncomes into possession of prohibited goods, though he may not
\nbe  concerned  in the actual smuggling would  stiff  in\t our
\nopinion\t have  the intent to evade the prohibition  when  he
\nremains\t in  possession of the goods which  are\t prohibited.
\nThe  prohibition in our opinion does not come to an  end  as
\nsoon  as  the  Customs\tfrontier is  crossed.\tSo  long  as
\nprohibition  is in force and the goods are prohibited  goods
\nany person in possession thereof, even though he may not  be
\nconcerned with the actual smuggling would still be guilty of
\nevading\t the  prohibition  by  keeping\tthe  goods  in\t his
\npossession.   If this were not so, it would mean  that\tonce
\nthe  prohibition has been successfully evaded by the  actual
\nsmuggler  the  goods  would  be\t free  from  the  taint\t  of
\nprohibition  and  could be dealt with by any  person  as  if
\nthere is no prohibition with respect to them.  If that\twere
\nto  be\tthe meaning of s. 167(81) there would be  a  serious
\nlacuna\t in  this  provision  which  is\t meant\tto   prevent
\nsmuggling.   Smuggling does not only stop at  importing\t the
\ngoods  in the face of prohibition; it  envisages  subsequent
\ntransactions  like  sale of the smuggled goods, for  no\t one
\nwould take the risk of smuggling unless he can find a market
\nfor  smuggled  goods.  Therefore the purchaser\tof  smuggled
\ngoods though he may not be concerned in the smuggling  would
\nin our opinion be equally guilty of evading the\t prohibition
\nby making the purchase.\t The same in our opinion applies  to
\ndefrauding the Government of the duty.\tWhere goods had been
\nsmuggled in without paying duty the smuggler in such a\tcase
\nalso intends to sell the goods and make profit thereby.\t The
\npurchaser  of  such smuggled goods even though he  may\thave
\nnothing\t to do with actual smuggling, usually  acquires\t the
\ngoods at a lower price because the payment of duty has\tbeen
\nevaded.\t  Therefore when such goods reach even\tthird  hands
\nthere  is always the intention to defraud the Government  of
\nthe duty payable on the goods.\tThis appears to us to be the
\ntrue  interpretation  of s. 167(81), which as we  have\tsaid
\nearlier\t is  in different words from the first\tpart  of  s.
\n167(8), which deals with actual importation or\texportation.
\nSection\t 167(81)  does not deal with actual  importation  or
\nexportation; it deals with defrauding the Government of\t the
\nduty payable or evading the prohibition or
\n\t\t\t     17<\/span>
\nrestriction.   So  long as the duty is payable and  has\t not
\nbeen  paid,  or so long as the\tprohibition  or\t restriction
\nremains in force any person acquiring possession of goods on
\nwhich  duty has not been paid or restriction or\t prohibition
\nhas been evaded would have the intent either to defraud\t the
\nGovernment  of the duty payable for he acquires goods  at  a
\nlower price or would have the intention to evade restriction
\nor  prohibition.   If  this were not so, there\twould  be  a
\npremium\t on  successful smuggling and once  the\t goods\thave
\nentered the country without paying ‘duty or have entered the
\ncountry\t after evading the prohibition or restriction,\tthey
\ncan  be dealt with as if they were duty paid goods or  goods
\nwhich  had not evaded the prohibition or  restriction.\t The
\npurpose of S. 167(81) is to punish smuggling and stop it  if
\npossible.   That purpose in our opinion would be  completely
\ndefeated  if the interpretation which has found favour\twith
\nthe  High Court were accepted.\tWe cannot  therefore  accept
\nthat the words used in S. 167(81) only apply up to the stage
\nof   actual  importation  and  the  person  who\t is   guilty
\nthereunder   must  be  -somehow\t concerned  in\tthe   actual
\nimportation.  It seems to us that they apply in the case  of
\nprohibited or restricted goods so long as the prohibition or
\nrestriction lasts and whoever is in possession of such goods
\nor  comes into possession thereof, even after the  smuggling
\nis over must be attributed with the intention of evading the
\nprohibition or restriction provided he knows that the  goods
\nwere  smuggled into the country in spite of the\t prohibition
\nor restriction.\t Similarly where the goods are dutiable\t and
\nthe duty has not been paid on them any person acquires\tthem
\nwith  the knowledge that the duty thereon has not been\tpaid
\nwould have the intention to defraud the Government of  duty,
\neven  though he may not be the person actually concerned  in
\nthe  smuggling.\t  We therefore hold that S.  167(81)  has  a
\nwider  sweep than S. 167(8) and it does not only apply to  a
\nperson\twho may have been actually concerned in some way  or
\nother with smuggling but also inter alia to persons who\t may
\nhave come into possession of goods even after the  smuggling
\nwas over.  So long as the prohibition or restriction remains
\nin  force or the duty has not been paid even a third  person
\ncoming\tinto  possession  of  such  goods  would  have\t the
\nintention either to evade the prohibition or restriction  or
\nto defraud the Government of the duty payable thereon.
\nIt  remains now to refer to a few English cases because\t our
\nAct of 1878 was modeled on the English Customs Consolidation
\nAct,  1876.   Decisions\t of English  courts  therefore\twith
\nrespect to corresponding provisions of the English Act would
\nin   our   opinion  be\thelpful\t in  the   matter   of\t the
\ninterpretation of S. 167(81).\n<\/p>\n
18<\/span><\/p>\n
Section\t 186 of the English Act corresponds to many  of\t the
\nprovisions  contained in s. 167 of the Act.  In\t particular,
\nthe  provision\tcorresponding  to s.  167(81)  is  in  these
\nterms:-\n<\/p>\n
\t      “Every  person who……. shall be in any\t way
\n\t      knowingly\t concerned  in\tcarrying,  removing,
\n\t      depositing,  concealing,\tor  in\tany   manner
\n\t      dealing  with  any such goods with  intent  to
\n\t      defraud Her Majesty of any duties due  thereon
\n\t      or to evade any prohibition or restriction  of
\n\t      or application to such goods……..”\n<\/p><\/blockquote>\n
Such  goods”  in  the context of  the  section\tmean  either
\nprohibited  or\trestricted goods or goods on which  duty  is
\nleviable.\n<\/p>\n
The  other  clauses  of s. 186. of the English\tAct  do\t not
\nspecifically  contain  words  relating to  intent.   But  in
\nFrailey\t v.  Charlton  (1) it was  decided  that  intent  to
\ndefraud the revenue or to evade a restriction or prohibition
\nwould  apply  to  other clauses of s. 186  also.   Thus\t the
\nEnglish\t Act by s. 186 also requires that a person  who\t was
\nconcerned  in  carrying,  removing etc., or  in\t any  manner
\ndealing with any prohibited or restricted goods or  dutiable
\ngoods  must do so knowingly and with intent to\tdefraud\t His
\nMajesty of any duty due thereon or to evade any\t restriction
\nor prohibition.\n<\/p>\n
The   interpretation  of  this\tprovision  in  s.  186\t was
\nconsidered  in\tBeck v. Binks (2).  In that case  the  facts
\nwere  that  a person was found in possession  of  uncustomed
\ngoods  in London and it was urged, as was urged\t before\t the
\nHigh  Court in the present case, that the  person  concerned
\ncould  not be said to be carrying the uncustomed goods\twith
\nintent\tto defraud His Majesty of the duty because  such  an
\noffence\t could only be committed by the actual smugglers  or
\nimporters of goods or persons engaged in carrying the  goods
\nfrom the ship etc. at the port of importation with intent to
\nevade the payment of duty or tax.  This contention was nega-
\ntived  and  the court held that “the  offence  of  knowingly
\ncarrying or in any manner dealing with uncustomed goods with
\nintent\tto  defraud  His Majesty of  the  duty\tdue  thereon
\ncontrary  to  s. 186 is not only committed at  the  port  of
\nentry  or the place where the goods are actually landed;  it
\nis committed anywhere in the realm by a person acting in the
\nmanner\tdescribed  by the sub-section”.\t Lord  Goddard\tC.J.
\nmade the following observations at p. 252
\n\t      “If a person is knowingly carrying  uncustomed
\n\t      goods, he is assisting in the smuggling of the
\n\t      goods;  for while goods are no doubt  smuggled
\n\t      when they are brought into
\n\t      (1) L.R. [1920] 1 K.B. 147.\n<\/p>\n
\t      (2) L.R. [1949] 1 K.B. 250.\n<\/p>\n
\t      19<\/span><\/p>\n
\t      the  country it is no good  bringing  smuggled
\n\t      goods  into, the country unless something\t can
\n\t      be done with them” Such a person is  intending
\n\t      to defraud His Majesty of the customs as\tmuch
\n\t      as anybody else.\tThe intent is there : it  is
\n\t      all   part   of\tone   operation………….\n<\/p>\n
\t      Otherwise, a most extraordinary lacuna is left
\n\t      in the Act, for it can then be said that, once
\n\t      a\t man has got away from the port of entry  or
\n\t      from  the place where the goods were  actually
\n\t      landed, no one dealing with the smuggled goods
\n\t      and  carrying them inland will ever be  guilty
\n\t      of  an offence.  I do not think that has\tever
\n\t      been held, and I am certainly not prepared  to
\n\t      hold  it\tnow,  I think  it  clear  that\tthis
\n\t      appellant\t was dealing with-that is,  carrying
\n\t      uncustomed goods and that he was carrying them
\n\t      with  intent  to defraud His  Majesty  of\t the
\n\t      duties thereon.”\n<\/p>\n
The  next  case\t to which reference may be made\t is  Rex  v.
\nCohen(1).   In\tthat  case  352\t Swiss\twatches\t which\twere
\nuncustomed  were  recovered  from the  accused\tand  he\t was
\ncharged\t with being in possession of uncustomed\t goods\twith
\nintent\tto  defraud  His,  Majesty  of\tthe  duties  thereon
\ncontrary  to  s. 186 of the English Act.  Dealing  with\t the
\nquestion  of  intent to defraud, it was held’  that  if\t the
\naccused\t knew that the goods were uncustomed, the  intention
\nto  defraud  the  revenue may be inferred.   Here  also\t the
\nuncustomed  goods  were\t recovered from\t the  house  of\t the
\naccused at Edgware and there was nothing to show that he was
\nin  any way concerned with actual smuggling.  Even  so,\t the
\ncourt  held that he must be held to be intending to  defraud
\nthe revenue.\n<\/p>\n
The  next case to which reference may be, made is Sayce,  v.
\nCoupe(2).   In\tthat case the accused-was in  possession  of
\ncertain American cigarettes on which duty had not been paid.
\nIt was held that where a person has in his possession  goods
\nwhich are to. his knowledge uncustomed and which he  intends
\nto  use\t or sell,, he is guilty of the\toffence\t of  keeping
\nuncustomed  goods with intent to defraud the revenue of\t the
\nduties\tthereon contrary to s. 186.  In that case there\t was
\nnothing to show that the accused had anything to do with the
\nimportation or smuggling of the goods.\tEven so, it was held
\nthat he had the intent to defraud the revenue.
\nThe next case to which reference may be made is Schneider v.
\nDawson(3).   That  was a case where a civilian\tbought\tfrom
\nAmerican  servicemen  cigars  and  spirits  which  had\tbeen
\nimported  free\tof  duty  for  the  use\t of  United   States
\nServicemen under art
\n(1) L.R. [1951]1 K.B. 505.\t (2) L.R. [1953] 1 K.B. 1.
\n(3)  L.R. [1960]2 Q.B. 106.\n<\/p>\n
20<\/span><\/p>\n
agreement  between the British and American Governments\t and
\nkept  them for his own use.  He was charged  with  knowingly
\nand  with intent to defraud Her Majesty of the duty  payable
\nthereon\t  being\t concerned  in\tkeeping\t goods\twhich\twere
\nchargeable  with duty on which duty had not been  paid.\t  It
\nwas  held  that\t the person’s conduct  clearly\tamounted  to
\nkeeping\t the smuggled goods and there was intent to  defraud
\nthe  revenue.  This case was under the English\tCustoms\t and
\nExcise Act of 1952, but the principle under the English\t Act
\nof 1876 was followed.\n<\/p>\n
These  cases  clearly indicate that the\t offence  under\t the
\ncorresponding provision of the English Act can be  committed
\nlong  after  the actual smuggling is over and  even  if\t the
\nperson\tfound in possesSion of goods on which duty  had\t not
\nbeen  paid  had nothing to do with smuggling.\tThese  cases
\nthus  clearly support the interpretation we have put on\t the
\nrelevant words of s. 167(81).\n<\/p>\n
Further\t the case of Schneider(2) shows that it\t has  always
\nbeen  held  in\tEngland that if\t dutiable  goods  have\tbeen
\nbrought\t into the country without paying the duty, the\tduty
\nattaches to the goods brought into the country and though it
\nmay  not have been paid at the moment of bringing the  goods
\nfor some special reasons (as, for example, where it is meant
\nfor a foreign ambassador) the duty is leviable later on when
\nthe  goods  pass into the hands of persons  other  than\t the
\nprivileged person.  The same in our view applies equally  to
\ngoods  which are smuggled into the country and the duty\t has
\nbeen evaded.  The duty always remains payable on goods which
\nhave  been  brought in without payment of duty\tand  whoever
\ndeals with them even at a later stage after the operation of
\nsmuggling is over would still be liable to pay the duty\t and
\nif  he does not, he must have the intention to\tdefraud\t the
\nGovernment of revenue.\tThe same applies to prohibition\t and
\nrestriction  and so long as the prohibition  or\t restriction
\nremains in force, the person dealing with the smuggled goods
\nwhich had evaded the prohibition or restriction must also be
\nheld  to evade the prohibition or restriction.\tIn the\tview
\nthat  we have taken it is therefore unnecessary to  consider
\nwhen  the import or smuggling ends, for s. 167(81) hits\t not
\nonly  persons concerned in smuggling or importing  but\talso
\nall others who come into possession of or deal with smuggled
\ngoods after the smuggling is over.\n<\/p>\n
Lastly\tlearned counsel for the respondents refers us to  s.
\n135  of\t the  Customs Act (No. 52 of  1962).   That  section
\nprovides  for what was formerly provided in s. 167  (81)  of
\nthe  Act.   The\t argument is that it is\t in  very  different
\nterms.\tThat is undoubtedly so.\n<\/p>\n
(1)  L.R. [1960] 2 Q. B. 106.\n<\/p>\n
21<\/span><\/p>\n
But it does not follow from the fact that the  corresponding
\nsection’ in    the  1962 Act is differently worded that\t the
\nprovision  in s. 167 (81). cannot have the meaning which  is
\nbeing pressed before us\t on  behalf of the  appellant.\t The
\ninterpretation\tof s. 167(81) must depend upon the  language
\nof  that  provision itself and on the language\tused  in  s.
\n167(8)\twe  have, no doubt that it applies not\tonly  to  an
\nactual smuggler or a person concerned in smuggling but\talso
\nto all others who may be concerned with smuggled goods after
\nthe smuggling is over.\n<\/p>\n
In the view that we have taken of the meaning of s.  167(81)
\nit  follows  that  on  facts  found  Sitaram  Agarwala\t was
\nconcerned  in dealing with prohibited or  restricted  goods.
\nIt  also  follows on facts found that he had  the  necessary
\nknowledge  and\tintent\tto  evade  the\tprohibition  or\t the
\nrestriction  even though he dealt with the goods  after\t the
\nsmuggling  was\tover and was not in any way  concerned\twith
\nactual\tsmuggling.   He would therefore be guilty  under  s.
\n167(81)\t of  the Act.  We therefore allow  the\tappeal,\t set
\naside the order of acquittal made by the High Court, restore
\nthe  order  of\tthe Presidency Magistrate  and\tconfirm\t the
\nsentence passed on Sitaram Agarwala by the Magistrate.
\nIt also follows on facts found that Wang Chit Khaw is guilty
\nunder s. 167 (81) inasmuch as he was dealing with prohibited
\nor  restricted\tgoods and had the  necessary  knowledge\t and
\nintent\tas required under that section.\t We therefore  allow
\nthe  appeal, set aside the order of the High Court,  restore
\nthat  of the Presidency Magistrate and confirm the  sentence
\npassed on him by the Magistrate.\n<\/p>\n
\t\t\t   ORDER
\nIn  accordance with the opinion of the majority the  appeals
\nare allowed, the orders of the High Court are set aside, the
\norders\tof  the Presidency Magistrate are restored  and\t the
\nsentences on the respondents are confirmed.\n<\/p>\n
22<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Mysore vs Padmanabhacharya Etc.[P. B. … on 5 October, 1965 Equivalent citations: 1966 AIR 602, 1966 SCR (1) 994 Author: K Wanchoo Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Sikri, S.M. PETITIONER: THE STATE OF MYSORE Vs. RESPONDENT: PADMANABHACHARYA ETC.[P. B. GAJENDRAGADKAR, C.J., K. DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-95699","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Mysore vs Padmanabhacharya Etc.[P. B. ... on 5 October, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-mysore-vs-padmanabhacharya-etc-p-b-on-5-october-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Mysore vs Padmanabhacharya Etc.[P. 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