judgement:
iminal Appeals Nos.
192 of 1961 and 183 of 1962.
Appeals from the judgment and orders dated August 11, 1961 of the Calcutta High Court in Criminal Appeals Nos.
360 of 1959 and 345 of 1959 respectively.
WITH Criminal Appeals Nos. 41 of 1964 and 42 of 1964.
Appeals by special leave from the judgment and orders dated March 25, 1963 of the Bombay High Court in Criminal Appeals Nos.
1640 of 1962 and 1359 of 1962 respectively.
Niren De, Additional Solicitor General, D. R. Prem, R. H. Dhebar and B. R. G. K. Achar, for the appellant (in Cr.
192 of 1961 and 183 of 1962).
D. R. Prem, B. R. G. K. Achar, Yogeshwar Prasad, for appellant (in Cr.
Nos. 123 of 1962 and 41 and 42 of 1964).
section C. Mazumdar, for respondent No. 1 (in Cr. A. No. 123 of 1962).
P. K. Chatterjee and section P. Varma, for respondent No. 1 (in Cr. A. No., 123 of 1962).
B. M. Mistry, P. R, Vakil, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent (in Cr. A. No. 41 of 1964).
B. R. Agarwala and H. K. Puri, for respondent (in Cr. A. No. 42 of 1964).
P. R. Vakil, B. M. Mistry, J. B. Dadachanji, for the interveners (in Cr. A. Nos. 41 and 42 of 1964).
SUBBA RAO J. delivered a dissenting Opinion.
The Judgment of WANCHOO SHAH, SIKRI and PAMASWAMI JJ.
was delivered by WANCHOO J. Subba Rao, J. I regret my inability to agree on the construction of section 167 (81) of the , 1 8 7 8.
The Acts have been stated by my learned brother, Wanchoo, J., and need not restate them.
Clause (81) of section 167 of the reads "If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to 4 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 person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years or to fine, or to both".
This clause introduces a criminal offence.
It is triable by a Magistrate.
The person con victed is liable to, imprisonment for a term not exceeding two years or to fine or to both.
The rule of 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(1) 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 the 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 (1) ,191.
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 have 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 smuggled goods from an importer cannot have an intention to evade a provision 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 expres 6 sion "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 J. V. Gokal & Co. vs Assistant Collector or Sales Tax(1).
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 imported 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 different 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 necessary acts to complete the process of import.
Such acts may be done by persons between whom there was a prearranged 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 imports 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 regard to 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 importer or a purchaser from the said purchaser, and so on, has an intention to evade the prohibition or restriction, though he may have the intention to receive the smuggled goods.
How does such a purchaser evade the prohi bition against import which has already been affected ? The contrary construction will lead to the anomaly of a purchaser, (1) ; , 857, 858.
7 even after 20 years of the import, 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 be not accepted, many a person who purchases smuggled goods will escape punishment.
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 State 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 section 167 of the 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.
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.
Wanchoo, J. 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 section 167 (81) of the ,.
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 August 25, 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 8 these persons and decided to follow them.
These two persons got into a bus and the constable also boarded the same bus.
They got down at the unction 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 taxi.
When the taxi was about to start, the 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 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 section 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 section 167(81) of the Act.
These facts were held to be proved by the Magistrate so far as the Chinese accused and Sitaram were concerned.
He therefore convicted them.
The case against the third man was held to be doubtful and he was acquitted.
Two convicted persons then filed separate appeals in the High Court.
The High Court accepted the findings of fact recorded by the learned Magistrate and came to the conclusion that on the facts proved there was 9 no doubt that Sitaram had gone with a large sum of money to meet the Chinese accused in order to purchase the, gold bars which had been recovered from the, packets thrown away by the Chinese accused.
The High Court then addressed itself to the question whether on the facts proved the conviction of the two respondents could be sustained in law.
The charge against Sitaram Agarwala was that on the date in question and at the time and place which appeared in the evidence he had gone there by previous arrangement to purchase the smuggled gold bars from the Chinese accused and was therefore concerned in dealing with smuggled gold and thereby committed an offence under section 167(81) of the Act.
The charge against the Chinese accused was that he had in his possession 23 smuggled gold bars which he wanted to sell to Sitaram Agarwala and another person by previous arrangement and as such he was concerned in dealing with smuggled gold and was guilty under section 167 (81) of the Act.
So far as Sitaram Agarwala was concerned, the High Court held that by merely going to the park in order to purchase smuggled gold by previous arrangement, it could not be said that Sitaram Agarwala was in any manner dealing with smuggled gold.
The High Court was of the view that there was a mere attempt to purchase smuggled gold on the part of Sitaram Agarwala, but as the purchase was not completed it could not be said that Sitaram Agarwala was concerned in dealing with the smuggled gold.
The High Court therefore ordered the acquittal of Sitaram Agarwala, respondent.
As to the Chinese accused, the High Court held that though he was found in possession of smuggled gold, which he knew to be such, and had attempted to sell that gold surreptitiously, section 167(81) required knowledge that the article in question was smuggled and intention 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 the Act.
In view of the intent necessary, the High Court was of the view that before a person could be convicted under section 167(81) it must be shown that he was either a direct importer or concerned in some way in the import of the smuggled article.
In other words, the High Court thought that the section dealt with goods while they were being smuggled; it did not include in its scope a person who subsequently obtained the smuggled goods and then dealt with them, though the smuggled goods themselves might be liable to confiscation when seized.
Consequently, the High Court ordered the acquittal of the Chinese accused also.
As the inter 10 pretation of section 167(81) was involved, the High Court granted certificates; and that is how the two appeals have come up before us.
The facts are not in dispute in this case and have been set out above.
Thus the question that arises before us is the interpretation of section 167(81) and two aspects of that section have to be considered.
The first aspect is the ambit of the words "in any way concerned in or in any manner dealing with any goods with respect to the importation of which any prohibition or restriction is for the time being in force as aforesaid".
The second aspect is with respect to the intent necessary under the section and whether that intent can arise where smuggling is over and smuggled goods are the possession of persons other than those actually concerned in the smuggling and are then dealt with by them in some manner or other.
We may briefly indicate the scheme of the Act in order to appreciate the purpose behind section 167(81).
The object of the Act is to provide machinery for the collection inter alia of import duties and for the prevention of smuggling.
With that object customs frontiers are defined, (Ch. 1); Customs officers are appointed with, certain powers, (Ch. 11); ports, wharves, customhouses, warehouses and boarding and landing stations are provided for, (Ch.
III); prohibitions and restrictions of imports and exports are envisaged, (Ch. IV); levy of and exemption from custom duties and the manner in which it has to be done is provided, (Ch.
V); drawbacks, i.e., refunds are provided in certain circumstances, (Ch.
VI); arrival and departure of vessels is controlled, (Ch.
VII and Ch.
VIII); provision is made for the discharge of cargo, (Ch. IX), and clearance of goods for home con sumption (Ch.
X); provision is also made for warehousing and transshipment, (Chapters XI, XII); provisions are also made for exportation or shipment and re landing (Ch. XIII); special provisions have been made relating to spirit (Ch.
XIV) and coasting trade (Ch. XV).
Then comes Ch.
XVI dealing with offences and penalties.
Offences enumerated in Ch.
XVI are of two kinds; first there are contravention of the Act and rules thereunder which are dealt with by Customs officers and the penalty for which is imposed by them.
These may be compendiously called customs offences.
Besides these there are criminal offences which are dealt with by Magistrates and which result in conviction and sentence of imprisonment and/or fine.
These two kinds of offences have been created to ensure that no fraud is committed in the matter of payment of duty and also to ensure that there is 11 no smuggling of goods, without payment of duty or in defiance of any prohibition or restriction imposed under Ch.
IV of the Act.
It is necessary for our purpose to set out two provisions of section 167 which is in Ch.
These are section 167 (8) and 167 (81 Section 167 (8) 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: (1) Offences "(8) If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India contrary to such prohibition or restriction: or Etc.
(2) Section of this Act to which offence has reference 18 & 19 (3) Penalties such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees.
" Section 167(81) with which we are particularly concerned reads thus (1) Offences (continue). "(81).
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 unlaw fully 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; or (2) Section of this Act to which offence has reference General (3) Penalties such person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years or to fine, or to both; L1sup.
C.I/66 2 12 It will be seen that section 167 (8) deals with what we have called customs offences while section 167(81) deals with criminal offences.
It is well settled by the decisions of this Court that goods which have been imported against the prohibition or restriction imposed under Ch.
IV of the Act are liable to confiscation at any time after import and this liability extends even in the hands of third persons who may not have had anything to do with the actual import.
So long as it is proved that the goods had been imported against the restrictions imposed under Ch.
IV, the goods remain liable to confiscation whenever found even if this is long after the import is over and even if they are in possession of persons who had nothing to do with the actual import.
It is also well settled by the decisions of this Court that the second part of the penalty relating to any person applies only to a person concerned in the importation or exportation of the goods and does not apply to a person found in possession of the smuggled goods who had nothing to do with the importation or exportation thereof: (see Shivanarayan Mahato vs Collector of Central Excise and Land Customs(1).
The main contention of the respondents which has found favour with the High Court was that section 167(81) when it deals with persons and subjects them to imprisonment and fine on conviction by a Magistrate is also concerned with persons who are in some way or other actually concerned in the import and has no application to third persons who had nothing to do with the actual import but might have come in possession of smuggled goods even knowingly after they had been smuggled.
Before however we consider this contention which has found favour with the High Court we should like to dispose of the other contention which was raised on behalf of Sitaram Agarwala and which also found favour with the High Court.
It will be seen that section 1 67 (8 1 ) deals with persons who do certain things with the knowledge and intent therein specified and one such person with whom that pro vision deals is a person who is, in any way concerned in or in any manner dealing with any goods with respect to importation of which any prohibition or restriction is for the time being in force.
The High Court has held on the facts in this case that Sitaram Agarwala cannot be said to have been concerned in or in any manner dealing with prohibited goods inasmuch as he was merely negotiating with the Chinese accused for their purpose but the deal had not been concluded.
The view which found favour with the High Court thus was that if the deal had been completed, Sitaram Agarwala could be said to have been concerned in dealing with the prohibited goods but as the deal was not completed and he (1) C.A. 288 of 1964, decided on 14 8 65. 13 was merely attempting to purchase the goods it could not be said that he was in any way concerned in or in any manner dealing with them.
We are of opinion that the view taken by the High Court is not correct.
The words "in any way concerned in or in any manner dealing with prohibited goods" are of very wide import.
It is neither desirable nor necessary to define all manner of connection with the prohibited goods which might come within the meaning of the words "in any way concerned in or in any manner dealing with such goods".
It will depend on the facts found in each case whether it can be said that any person was concerned in dealing with such goods.
We shall therefore confine ourselves to the facts of the present case and gee whether on these facts, it can be said that Sitaram was in any way concerned in or in any manner dealing with the goods.
Now the evidence which has been accepted by both the courts is that Sitaram had gone with a large sum of money to purchase the gold which was known to, be smuggled and to have been imported into India against the restrictions imposed on the import of gold.
It has also been proved that Sitaram did so after previous arrangement with the Chinese accused.
If the constable who was following Sitaram had ' not interfered the deal would have gone through and Sitaram would have paid the money and purchased the smuggled gold. 'This was a case therefore where by means of previous arrangement with a person in possession of a smuggled article, the intending purchaser had gone to purchase it and the deal did not go, through only because the police intervened.
In such circumstances where by previous agreement or arrangement a person goes to purchase an article which he knows to be smuggled it would in our opinion be a case where such a person must be held to be concerned in dealing with the prohibited goods.
Where a person does any overt act in relation to prohibited goods which he knows to be such and the act is done in consequence of a previous arrangement or agreement it would in our opinion be a case were the person doing the act is concerned in dealing with the, prohibited goods.
In other words any transaction relating to pro hibited goods which is done or attempted to be done after some kind of prior arrangement or agreement would in our opinion clearly amount to the person being concerned in dealing with the prohibited goods.
Both the words "concerned" and "deal" have a wide connotation.
The words "concerned in" mean "interested in,, involved in, mixed up with" while the words "deal with" mean "to have something to do with, to concern one self, to treat, to make arrangement, to negotiate with respect to something".
Therefore when a person enters into some kind of transaction or attempts tee 14 enter into some kind of transaction with respect to prohibited goods and it is clear that the act is done with some kind of prior arrangement or agreement, it must be held that such a person is concerned in dealing with prohibited goods.
The fact that the act stopped at an attempt to purchase as in the present case when the police intervened does not in any way mean that Sitaram was not concerned in dealing with the smuggled gold.
The evidence shows that there must have been a previous arrangement with the Chinese accused to purchase the smuggled gold.
Sitaram went to the appointed place and met the Chinese accused surreptitiously and had a large ' sum of money with him to pay for the gold.
He had sat down with the Chinese accused in the taxi and there is no doubt that if the taxi had not been stopped, the transaction for the purchase of the smuggled gold would have gone through.
In these circumstances even though Sitaram had not come into actual possession of the smuggled gold before the police intervened, there is no doubt that he was concerned in dealing with prohibited goods.
We are therefore of opinion that the High Court was in error in holding simply because the purchase was not complete that Sitaram was not concerned in dealing with the smuggled gold which was found with the Chinese accused.
The acquittal of Sitaram on this ground must therefore be set aside.
This brings us to the main question which arises in the present appeal, namely, what is the intent required in a case coming under section 167(81) and whether such intent can be said to arise at all in a case where the import is complete and the prohibited goods are in the possession of a third person who had nothing; to do with the import.
For this purpose we shall refer to that part of section 167(81) which deals with the acquisition of possession of prohibited goods and what we say about that part will equally apply to the other parts of section 167(81).
We may add that we are dealing here with the first half of section 167(81) and not with the second half.
This part of section 167(81) which we have taken for the purpose of finding out what is the knowledge and intent that section 167(81) requires would run thus : "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 the Act with respect thereto acquires possession of any goods with respect to which duty has not been paid or with respect to the importation of which any prohibition or restriction is for the time being in force.
" The argument which has found favour with the High Court is that the section, requires knowledge on the part of the accused 15 that the goods were imported against the prohibition or restriction in force.
This is undoubtedly so.
The section further requires that the person who has this knowledge should also have the intention either 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 the Act.
Mere knowledge that the goods are prohibited goods or goods on which duty has not been paid would not be enough; the section further requires that there should be an intent to defraud the Government of the duty payable or to evade any prohibition or restriction.
The argument on behalf of the respondents which has been accepted by the High Court is that once the goods have evaded the payment of duty or have evaded the prohibition or restriction.
with respect to their import and the smuggling whether of dutiable or prohibited goods is complete, a third person who comes into possession of such goods thereafter and who had nothing to, do with the smuggling itself cannot be said to have the intent to defraud the Government of any duty payable (for such defrauding had already taken place) or to evade any prohibition or restriction (for such prohibition or restriction had already been evaded).
In effect, the argument is that this part of section 167(81) corresponds to section 167(8) where a person has to be concerned, in the actual importation before he can be liable to a penalty.
Now if the intention of the legislature was that the person guilty under section 167(81) could only be a person who was con cerned in some way or other with the actual importation or exportation it would have been easy for it to use the same words in section 167(81) as were used in the first part of section 167(8).
But the legislature has not done so and the question is whether the words used in section 167(81) have a different meaning from those used in section 167(8).
What section 167(81) requires is that the person who comes inter alia into possession of prohibited goods must know that there is some prohibition in force with respect thereto.
But before he can be guilty under section 167(81) it has further to be shown that he intends to evade the prohibition.
Where the case is not of prohibition but of duty, the person accused under section 167(81) must be shown to know that the duty has not been paid and also to have the intention to defraud the Government of the duty payable on the goods.
The question that arises is whether the third person who has come into possession knowingly that the goods are prohibited or the goods are dutiable and the duty has not been paid can be said to have the intention of evading the prohibition or to defraud the Government of the duty 16 payable, even though he may not have anything to do with the smuggling of the goods.
It seems to us (taking a case of prohibition) that if the prohibition is still in force, the person who acquires possession of prohibited goods knowing them to be prohibited intends to evade the prohibition by the action, even though he may not have been concerned in the actual smuggling of the goods.
So long as the prohibition lasts any person who comes into possession of prohibited goods, though he may not be concerned in the actual smuggling would stiff in our opinion have the intent to evade the prohibition when he remains in possession of the goods which are prohibited.
The prohibition in our opinion does not come to an end as soon as the Customs frontier is crossed.
So long as prohibition is in force and the goods are prohibited goods any person in possession thereof, even though he may not be concerned with the actual smuggling would still be guilty of evading the prohibition by keeping the goods in his possession.
If this were not so, it would mean that once the prohibition has been successfully evaded by the actual smuggler the goods would be free from the taint of prohibition and could be dealt with by any person as if there is no prohibition with respect to them.
If that were to be the meaning of section 167(81) there would be a serious lacuna in this provision which is meant to prevent smuggling.
Smuggling does not only stop at importing the goods in the face of prohibition; it envisages subsequent transactions like sale of the smuggled goods, for no one would take the risk of smuggling unless he can find a market for smuggled goods.
Therefore the purchaser of smuggled goods though he may not be concerned in the smuggling would in our opinion be equally guilty of evading the prohibition by making the purchase.
The same in our opinion applies to defrauding the Government of the duty.
Where goods had been smuggled in without paying duty the smuggler in such a case also intends to sell the goods and make profit thereby.
The purchaser of such smuggled goods even though he may have nothing to do with actual smuggling, usually acquires the goods at a lower price because the payment of duty has been evaded.
Therefore when such goods reach even third hands there is always the intention to defraud the Government of the duty payable on the goods.
This appears to us to be the true interpretation of section 167(81), which as we have said earlier is in different words from the first part of section 167(8), which deals with actual importation or exportation.
Section 167(81) does not deal with actual importation or exportation; it deals with defrauding the Government of the duty payable or evading the prohibition or 17 restriction.
So long as the duty is payable and has not been paid, or so long as the prohibition or restriction remains in force any person acquiring possession of goods on which duty has not been paid or restriction or prohibition has been evaded would have the intent either to defraud the Government of the duty payable for he acquires goods at a lower price or would have the intention to evade restriction or prohibition.
If this were not so, there would be a premium on successful smuggling and once the goods have entered the country without paying 'duty or have entered the country after evading the prohibition or restriction, they can be dealt with as if they were duty paid goods or goods which had not evaded the prohibition or restriction.
The purpose of section 167(81) is to punish smuggling and stop it if possible.
That purpose in our opinion would be completely defeated if the interpretation which has found favour with the High Court were accepted.
We cannot therefore accept that the words used in section 167(81) only apply up to the stage of actual importation and the person who is guilty thereunder must be somehow concerned in the actual importation.
It seems to us that they apply in the case of prohibited or restricted goods so long as the prohibition or restriction lasts and whoever is in possession of such goods or comes into possession thereof, even after the smuggling is over must be attributed with the intention of evading the prohibition or restriction provided he knows that the goods were smuggled into the country in spite of the prohibition or restriction.
Similarly where the goods are dutiable and the duty has not been paid on them any person acquires them with the knowledge that the duty thereon has not been paid would have the intention to defraud the Government of duty, even though he may not be the person actually concerned in the smuggling.
We therefore hold that section 167(81) has a wider sweep than section 167(8) and it does not only apply to a person who may have been actually concerned in some way or other with smuggling but also inter alia to persons who may have come into possession of goods even after the smuggling was over.
So long as the prohibition or restriction remains in force or the duty has not been paid even a third person coming into possession of such goods would have the intention either to evade the prohibition or restriction or to defraud the Government of the duty payable thereon.
It remains now to refer to a few English cases because our Act of 1878 was modeled on the English Customs Consolidation Act, 1876.
Decisions of English courts therefore with respect to corresponding provisions of the English Act would in our opinion be helpful in the matter of the interpretation of section 167(81).
18 Section 186 of the English Act corresponds to many of the provisions contained in section 167 of the Act.
In particular, the provision corresponding to section 167(81) is in these terms: "Every person who. . shall be in any way knowingly concerned in carrying, removing, depositing, concealing, or in any manner dealing with any such goods with intent to defraud Her Majesty of any duties due thereon or to evade any prohibition or restriction of or application to such goods. . " Such goods" in the context of the section mean either prohibited or restricted goods or goods on which duty is leviable.
The other clauses of section 186.
of the English Act do not specifically contain words relating to intent.
But in Frailey vs Charlton (1) it was decided that intent to defraud the revenue or to evade a restriction or prohibition would apply to other clauses of section 186 also.
Thus the English Act by section 186 also requires that a person who was concerned in carrying, removing etc., or in any manner dealing with any prohibited or restricted goods or dutiable goods must do so knowingly and with intent to defraud His Majesty of any duty due thereon or to evade any restriction or prohibition.
The interpretation of this provision in section 186 was considered in Beck vs Binks (2).
In that case the facts were that a person was found in possession of uncustomed goods in London and it was urged, as was urged before the High Court in the present case, that the person concerned could not be said to be carrying the uncustomed goods with intent to defraud His Majesty of the duty because such an offence could only be committed by the actual smugglers or importers of goods or persons engaged in carrying the goods from the ship etc.
at the port of importation with intent to evade the payment of duty or tax.
This contention was nega tived and the court held that "the offence of knowingly carrying or in any manner dealing with uncustomed goods with intent to defraud His Majesty of the duty due thereon contrary to section 186 is not only committed at the port of entry or the place where the goods are actually landed; it is committed anywhere in the realm by a person acting in the manner described by the sub section".
Lord Goddard C.J. made the following observations at p. 252 "If a person is knowingly carrying uncustomed goods, he is assisting in the smuggling of the goods; for while goods are no doubt smuggled when they are brought into (1) (2) 19 the country it is no good bringing smuggled goods into, the country unless something can be done with them" Such a person is intending to defraud His Majesty of the customs as much as anybody else.
The intent is there : it is all part of one operation. . .
Otherwise, a most extraordinary lacuna is left in the Act, for it can then be said that, once a man has got away from the port of entry or from the place where the goods were actually landed, no one dealing with the smuggled goods and carrying them inland will ever be guilty of an offence.
I do not think that has ever been held, and I am certainly not prepared to hold it now, I think it clear that this appellant was dealing with that is, carrying uncustomed goods and that he was carrying them with intent to defraud His Majesty of the duties thereon.
" The next case to which reference may be made is Rex vs Cohen(1).
In that case 352 Swiss watches which were uncustomed were recovered from the accused and he was charged with being in possession of uncustomed goods with intent to defraud His, Majesty of the duties thereon contrary to section 186 of the English Act.
Dealing with the question of intent to defraud, it was held ' that if the accused knew that the goods were uncustomed, the intention to defraud the revenue may be inferred.
Here also the uncustomed goods were recovered from the house of the accused at Edgware and there was nothing to show that he was in any way concerned with actual smuggling.
Even so, the court held that he must be held to be intending to defraud the revenue.
The next case to which reference may be, made is Sayce, vs Coupe(2).
In that case the accused was in possession of certain American cigarettes on which duty had not been paid.
It was held that where a person has in his possession goods which are to.
his knowledge uncustomed and which he intends to use or sell,, he is guilty of the offence of keeping uncustomed goods with intent to defraud the revenue of the duties thereon contrary to section 186.
In that case there was nothing to show that the accused had anything to do with the importation or smuggling of the goods.
Even so, it was held that he had the intent to defraud the revenue.
The next case to which reference may be made is Schneider vs Dawson(3).
That was a case where a civilian bought from American servicemen cigars and spirits which had been imported free of duty for the use of United States Servicemen under art (1) L.R. [1951]1 K.B. 505.
(2) (3) L.R. [1960]2 Q.B. 106.
20 agreement between the British and American Governments and kept them for his own use.
He was charged with knowingly and with intent to defraud Her Majesty of the duty payable thereon being concerned in keeping goods which were chargeable with duty on which duty had not been paid.
It was held that the person 's conduct clearly amounted to keeping the smuggled goods and there was intent to defraud the revenue.
This case was under the English Customs and Excise Act of 1952, but the principle under the English Act of 1876 was followed.
These cases clearly indicate that the offence under the corresponding provision of the English Act can be committed long after the actual smuggling is over and even if the person found in possesSion of goods on which duty had not been paid had nothing to do with smuggling.
These cases thus clearly support the interpretation we have put on the relevant words of section 167(81).
Further the case of Schneider(2) shows that it has always been held in England that if dutiable goods have been brought into the country without paying the duty, the duty attaches to the goods brought into the country and though it may not have been paid at the moment of bringing the goods for some special reasons (as, for example, where it is meant for a foreign ambassador) the duty is leviable later on when the goods pass into the hands of persons other than the privileged person.
The same in our view applies equally to goods which are smuggled into the country and the duty has been evaded.
The duty always remains payable on goods which have been brought in without payment of duty and whoever deals with them even at a later stage after the operation of smuggling is over would still be liable to pay the duty and if he does not, he must have the intention to defraud the Government of revenue.
The same applies to prohibition and restriction and so long as the prohibition or restriction remains in force, the person dealing with the smuggled goods which had evaded the prohibition or restriction must also be held to evade the prohibition or restriction.
In the view that we have taken it is therefore unnecessary to consider when the import or smuggling ends, for section 167(81) hits not only persons concerned in smuggling or importing but also all others who come into possession of or deal with smuggled goods after the smuggling is over.
Lastly learned counsel for the respondents refers us to section 135 of the Customs Act (No. 52 of 1962).
That section provides for what was formerly provided in section 167 (81) of the Act.
The argument is that it is in very different terms.
That is undoubtedly so.
(1) 21 But it does not follow from the fact that the corresponding section ' in the 1962 Act is differently worded that the provision in section 167 (81).
cannot have the meaning which is being pressed before us on behalf of the appellant.
The interpretation of section 167(81) must depend upon the language of that provision itself and on the language used in section 167(8) we have, no doubt that it applies not only to an actual smuggler or a person concerned in smuggling but also to all others who may be concerned with smuggled goods after the smuggling is over.
In the view that we have taken of the meaning of section 167(81) it follows that on facts found Sitaram Agarwala was concerned in dealing with prohibited or restricted goods.
It also follows on facts found that he had the necessary knowledge and intent to evade the prohibition or the restriction even though he dealt with the goods after the smuggling was over and was not in any way concerned with actual smuggling.
He would therefore be guilty under section 167(81) of the Act.
We therefore allow the appeal, set aside the order of acquittal made by the High Court, restore the order of the Presidency Magistrate and confirm the sentence passed on Sitaram Agarwala by the Magistrate.
It also follows on facts found that Wang Chit Khaw is guilty under section 167 (81) inasmuch as he was dealing with prohibited or restricted goods and had the necessary knowledge and intent as required under that section.
We therefore allow the appeal, set aside the order of the High Court, restore that of the Presidency Magistrate and confirm the sentence passed on him by the Magistrate.
ORDER In accordance with the opinion of the majority the appeals are allowed, the orders of the High Court are set aside, the orders of the Presidency Magistrate are restored and the sentences on the respondents are confirmed.

summary:
The 1st respondent had gone to, the 2nd respondent after previous arrangement with him, with a large sum of money to purchase gold which was known to them to be smuggled and to have been imported into India against the restrictions imposed on the import of gold.
The police intervened.
recovered the gold and arrested them.
The gold was confiscated under section 167(8) of the .
The respondents were prosecuted for an offence under section 167(81) and they were convicted by the trial court.
On appeal the High Court acquitted the 1st respondent because it was of the view that as the 1st respondent merely attempted to purchase the gold it could not be said that he was concerned in dealing with the smuggled gold within the meaning of the section.
The High Court also acquitted the 2nd respondent because it held that before a person could be convicted under section 167(81), it must be shown that he was either a direct importer or concerned in some way in the import of the smuggled article,, and that the section did not include in its scope a person who subsequently obtained the smuggled goods and then dealt with them, though the smuggled goods themselves might be liable to confiscation.
In appeal to this Court, HELD, (per Wanchoo, Shah, Sikri and Ramaswami, JJ.) : (i) The High Court was in error in holding that simply because the purchase was not complete the 1st respondent was not concerned in dealing with the smuggled gold which was with the 2nd respondent.
[14 D] The words "in any way concerned or in any manner dealing with any goods" in the section, are of very wide import.
The words "concerned in" mean "interested in, involved in, mixed up with", while the words "deal with" mean "to have something to do with, to concern one self, to treat, to make arrangement, to negotiate with respect to some thing." Therefore, when a person enters, into some kind of transaction or attempts to enter into some kind of transaction with respect to prohibited goods, and it is clear that the act was done with some kind of prior arrangement or agreement, it must be held that such a person is concerned in dealing with prohibited goods.
[13 A B; H] (ii) On the language of the section, it applies not only to an actual smuggler or a person concerned in smuggling but also to all others who may be concerned with smuggled goods after the smuggling is over provided they know that the smuggled into the country in spite of a prohibition or restriction, or they knew that the duty thereon had not been paid.
It follows that the 1st respondent had the necessary knowledge and intent or evade the prohibition or the restriction even though he dealt 2 with the gold after the smuggling was over and was not in any way concerned with the actual smuggling.
He would therefore be guilty under the section.
The 2nd respondent wag also guilty under the section inasmuch as he was dealing with prohibited or restricted good sand had the necessary knowledge and intent as required under the section.[21 B, C, E] If the intention of the legislature was that the person guilty under s.167(81) could only be a person who was concerned in some way or other with the actual importation or exportation it would have been easy for it to use the same words as were used in the first part of section 167(8) but it has not done so,.
What section 167(81) requires is that the person who comes inter alia into possession of prohibited goods must know that there is some prohibition in force with respect thereto.
But before he is found guilty it has further to be shown that he intends to evade the prohibition.
Where the case is not of prohibition but of duty, the person accused under the section must be shown to know that the duty has not been paid and also to have the intention to, defraud the government of the duty payable on the goods.
long as the duty is payable and has not been paid or so long as the prohibition or restriction remains in force, any person acquiring possession of goods, on which duty has not been paid or with respect to which the restriction or prohibition has been evaded, would have the intent either to defraud the government of the duty payable, for he acquires goods at a lower price, or would have the intention to evade the restriction or prohibition because no one would take the risk of smuggling unless he can find a purchaser for the smuggled 'goods.
If this were not so, there would be a premium on successful smuggling and the purpose of the section to punish smuggling and stop it if possible, would be completely defeated, as there would be a serious lacuna in the provision.
[15 E G; 17 A D] Cases under the English Act referred to.
Per Subba Rao, J. (Dissenting) : it had not been establish ad that the respondents had dealt with the gold with an intention to evade any restriction or prohibition imposed on their import.
[7 F] It is not open to the court to strain the language of a statute in order to read a causes omissus and the court cannot fill up a lacuna.
Also, the court cannot construe the section with reference to the corresponding English Section and English decisions because, the Indian and English sections are not in pari materia.
Under section 167(81) the material ingredients constituting an offence are; (i) 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, and (ii) he must have acted with an intention to evade such a restriction or prohibition.
That is, the two elements of mens rea, namely, knowledge and intention must be established, because, knowledge of an offence cannot be equated with an intention to commit the offence.
The crux of the offence is the import of goods with the requisite intent contrary to the prohibition.
The importer who smuggles the goods is certainly guilty under the section because he imports them in derogation of the prohibition or restriction.
Also, any person who deals with the goods in the context of the import in any of the connected ways set out in the section, with the requisite knowledge and intention would equally be guilty of the offence, because, the enumerated dealings with the goods prohibited or restricted may be necessary to complete the import vis a vis the importer, even though they cover a field beyond the point of import as normally understood, that is, when the goods cross the customs barrier.
But the intention to contravene the prohibition cannot be imputed to subsequent dealers in 3 the goods after the importer parts with them, though the good.% themselves can be confiscated in the hands of whomsoever they are found.
[4H; 5C, E F; 6B C, H]


judgement:
Appeal No. 649 of 1964.
Appeal by special leave from the judgment and order dated March 30, 1963 of the Andhra Pradesh High Court in W.P. No. 1061 of 1962.
Arun B. Saharya and Sardar Bahadur, for the appellant.
P. Ram Reddy and T. V. R. Tatachari, for respondent No. No. 1.
The Judgment of the Court was delivered by Wanchoo, J.
This is an appeal by special leave against the judgment of the Andhra Pradesh High Court.
The appellant manufactures drugs in Hyderabad and among the drugs manufactured by it is chloral hydrate.
In September 1962, the State of Andhra Pradesh issued rules called the Andhra Pradesh (Telangana Area) Chloral Hydrate (Chloral) Rules, 1962 with respect to manufacture, possession, sale, import, export and transport of chloral hyd 12 rate (hereinafter referred to as the Rules).
We shall refer to the Rules in detail later; but in brief they provide that the manufacture of chloral hydrate shall take place only in accordance with the conditions of a licence granted by the Excise Commissioner and only on payment of excise duty of Rs. 5001 per annum.
The Rules also provide for possession, import, export, sale and transport of chloral hydrate.
In consequence of the issue of the Rules, the appellant was called upon to take out a licence and pay the necessary excise duty.
The appellant refused to do so and in November 1962 filed a writ petition in the High Court challenging inter alia the validity of the Rules.
It may be mentioned that the Rules were issued under the Andhra Pradesh (Telangana Area) Intoxicating Drugs Act, No. IV of 1333 Fasli, (hereinafter referred to as the 1333 F Act) as amended by the Hyderabad Opium and Intoxicating Drugs (Amendment) Act, No. XXII of 1953.
The main contention of the appellant in the High Court was that the 1333 F Act had been repealed in toto on the introduction of the Dangerous Drugs.
Act, No. 2 of 1930 by the Opium and Revenue Laws (Extension of application) Act, No. 33 of 1950, and of the Drugs Act, No. 23 of 1940 by the Part B States (Laws) Act, No. III of 1951, and therefore there was no power in the Hyderabad legislature to amend it by Act 22 of 1953.
In consequence there was no law in force on the basis of which the Rules could be promulgated in 1962.
Secondly, it was contended that even if the 1333 F Act did not stand repealed as above, the Rules framed by the State of Andhra Pradesh in 1962 with respect to chloral hydrate were not within the powers conferred by the 1333 F Act as amended in 1953, as chloral hydrate was not a narcotic or narcotic drug and was not covered by item 51 of List II of the Seventh Schedule to the Constitution.
The petition was opposed on behalf of the State, and it con tended that there was no repeal of the 1333 F Act by the introduction of the Dangerous Drugs Act 1930 and the Drugs Act, 1940, and consequently the amendment of the 1333 F Act by the Hyderabad Act No. 22 of 1953 was good, and the 1333 F Act as amended was in force in 1962 when the Rules were framed.
It was further contended that the Rules were intra vires the 1333 F Act as amended in 1953 as chloral hydrate was a narcotic and an intoxicating drug.
The High Court repelled the contentions raised on behalf of the appellant and dismissed the writ petition.
The appellant then applied for a certificate for leave to appeal to this Court, which was 113 refused.
It then obtained special leave from this Court; and that is how the matter has come before us.
Before we consider the points raised in the High Court which have also been raised before us, we should like to refer to certain provisions in the three legislative Lists in the Seventh Schedule to the Constitution dealing with various aspects that arise in this case.
The first of these provisions is item 59, List I, which deals with "cultivation, manufacture, and sale for export, of opium".
Then there are.
two items in List 11, item 8 which deals with "intoxicating liquors, that is to say, the production, manufacture, possession, transport and sale of intoxicating liquors" and item 51 which deals with "duties of excise on the following goods manufactured or produced in the State. : (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub paragraph (b) of this entry".
Lastly reference may be made to item 19 of List III, which deals with "drugs and poisons, subject to the provisions of entry 59 of List I with respect to opium".
It will be seen from a perusal of these entries that a substance may fall in a number of them.
For example, opium falls under item 59 of List I for certain purposes mentioned therein but also falls in item 51 of List II for the purpose of duties of excise thereon and for such control as may be required for the purpose of collecting the duties of excise.
Thus for the purpose of cultivation and manufacture opium is exclusively a Union subject but for the purpose of duties of excise it is an exclusive State subject.
Take another substance like chloral hydrate with which we are concerned in the present appeal.
It is undoubtedly a drug and therefore falls under item 19 of List Ill. Drugs being in the Concurrent List both the Union and the States can legislate thereon.
There are two Central Acts which deals with drugs, namely, the Dangerous Drugs Act 1930 and the Drugs Act, 1940.
Now a substance may fall under the Dangerous Drugs Act if it is so defined there.
It may also fall under the Drugs Act and may be subject to its pro visions if so indicated therein.
But at the same time a substance which is a drug may also fall under item 51 of List 11 if it is a narcotic or is a narcotic drug.
Even intoxicating liquor which falls under entry 8 of List II as well as under entry 51 of List II may fall under entry 19 of List III if it is a drug.
This will show that even if a substance is governed by the Dangerous Drugs Act and the Drugs Act it may well be liable to duties of excise under entry 114 51 of List II and of such control as is incidental thereto.
It is in this background that we have to consider the points raised on behalf of the appellant.
We now come to the first point raised on behalf of the appellant, namely, whether the 1333 F Act survived the introduction of the Dangerous Drugs Act and the Drugs Act in the State of Hyderabad.
The 1333 F Act was in force in Hyderabad State as it was before the Constitution from 1924.
At that time the, State of Hyderabad was a sovereign State and had full power to deal with all subjects now contained in Lists 1, II and III of the Seventh Schedule to the Constitution subject of course to British paramountly and effect thereof on the sovereignty of the Hyderabad State.
The 1333 F Act dealt with opium and intoxicating drugs.
Intoxicating drugs were defined in this Act as meaning "ganja, bhang, charas, cocaine and all such things which are prepared therefrom and will also include such intoxicating substances which the Government may, by gazette notification, include in it, (section 2)".
This definition shows that besides the four substances mentioned therein, intoxicating drugs could include other substances if a notification was issued by the Government in that behalf.
We do not know as a fact whether any notification was issued after 1924 and before the Constitution came into force under this provision.
But in any case the 1333 F Act applied not only to the four substances mentioned therein but also to others which might be notified.
The 1333 F Act further provided that "save as authorised under this Act or rules thereunder, no person shall possess sell, manufacture, opium or intoxicating drug, (s ' 4)".
The Government was also given the power to make rules regarding administration and supervision, grant of licences and collection of duties of excise, (section 5)".
The 1333 F Act also provided for punishment for the contravention of the Act and the Rules and for confiscation under certain circumstances, (sections 7 to 11).
It gave powers to excise officers for search of houses and arrest of accused persons, (section 16).
It also provided for other powers for such officers, (section 17).
There were other provisions therein to which it is unnecessary to refer.
It will" be seen from this brief analysis of the 1333 F Act that it was in the nature of an excise Act and provided for licences and collection of duties of excise and made provisions incidental thereto.
We have already said that this Act applied not only to opium and 'he four intoxicating drugs mentioned therein but also to other substances which might be notified thereunder.
It continued in force in the Part B State of Hyderabad after the Constitution came into force in January 1950.
115 In 1950, Parliament applied the Opium Act (No. 13 of 1857), the Opium Act (t of 1878) and the Dangerous Drugs Act (No. 2 of 1930) to the Part B State of Hyderabad by Central Act 33 of 1950.
Section 4 of this Act inter alia provided that if immediately before the commencement of this Act there was in force in any Part B State, other than Jammu and Kashmir, any law corresponding to any of the Acts specified therein, that law would upon the commencement of this Act, stand repealed.
The Dangerous Drugs Act deals with coca leaf, coca derivative, hemp including bhang, siddhi, ganja, charas, medicinal hemp, opium and opium derivative.
It also gave power to Central Government to notify any other narcotic substance as a manufactured drug under certain circumstances.
The Dangerous Drugs Act thus deals, among others, with coca leaf, hemp, opium and all manufactured drugs therefrom, though there is power in the Central Gov ernment to notify other substances.
The Act further provides for prohibition and control of these drugs.
Further section 39(1) lays down that "nothing in this Act or in the rules made thereunder shall affect the validity of any Provincial Act or an Act of any State Legislature for the time being in force, or of any rule made thereunder, which imposes any restriction not imposed by or under this Act, or imposes a restriction greater in degree than a corresponding restriction imposed by or under this Act, on the consumption of or traffic in any dangerous drug within India".
It will be seen that the Dangerous Drugs Act provides for prohibition or control, creates offences, provides for penalties and lays down procedure in that behalf.
It is not an Act imposing duties of excise.
Therefore, when this Act deals with hemp, which includes ganja, bhang and charas, it does not deal with that aspect of hemp which is concerned with the imposition and collection of duties of excise on it and with incidental provisions in that behalf.
We have already said that a substance can come both under the Dangerous Drugs Act as well as under the Drugs Act and may also be liable to duties of excise under entry 51 of List II of the Seventh Schedule.
The fact that hemp is defined as a dangerous drug under this Act would not therefore in any way affect any law dealing with the imposition and collection of duties of excise on hemp.
Consequently when the Dangerous Drugs Act was introduced in the Part B State of Hyderabad in 1950, it could not affect that part of the 1333 F Act which dealt with ganja, bhang and charas, as intoxicating drugs and provided for grant of licences and collection of duties of excise thereon.
Similarly, with the introduction of the Dangerous Drugs Act, the operation of the 1333 F Act could not be affected with respect even to opium insofar as that Act dealt with grant of licence and 116 collection of duties of excise thereon, though insofar as it dealt with manufacture of opium which comes under entry 59 of List 1, there was a repeal of the provisions relating to manufacture contained in the 1333 F Act and the Rules.
We are therefore of opinion that the introduction of the Dangerous Drugs Act in the Part B State of Hyderabad in 1950 did not result in complete effacement of the, 1333 F Act.
It remained alive even so far as opium, charas, bhang and ganja were concerned for the purpose of collection of duties of excise thereon.
It also remained alive with respect to other substances which might be notified as intoxicating drugs under the 1333 F Act.
If there was any such notifica tion between 1924 and 1950 that notification would remain valid and the 1333 F Act would apply ' to it.
If there was no such notification, the 1333 F Act would remain on the statute book as a conditional statute under which a notification in respect of any substance could be issued.
The argument that the introduction of the Dangerous Drugs Act in 1950 completely repealed the 1333F Act has no force and must fail.
Then we come to the Drugs Act of 1940 which was extended to the Part B State of Hyderabad by the Central Act III of 1951.
Section 6 of the 1951 Act provides that "if immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in this Act, stand repealed".
It is not in dispute that chloral hydrate was controlled under the Drugs Act, and the argument on behalf of the appellant is that on the coming into force of the Drugs Act, the 1333 F Act so far as it applied to intoxicating drugs which could be notified thereunder, must be deemed to have been repealed.
We are of opinion that there is no force in this argument either.
The Drugs Act is mainly concerned with standard and quality of drugs manufactured in this country and therefore controls the manufacture, sale and distribution of drugs.
It has nothing to do with duties of excise and with their imposition on 'narcotics and narcotic drugs.
We have already indicated that narcotics and %,narcotic drugs are to be found in entry 51 of List II, which provides for imposition of duties of excise on such drugs.
If a substance is a narcotic drug, it is liable to be controlled under the Drugs Act as a drug.
But at the same time it is liable to duties of excise under entry 51 of List 11, and such duties can be imposed only by the State legislature.
Further the State legislature will have power to enact necessary provisions for the imposition and collection of duties of excise and for all incidental matters which might be neces 117 sary for such imposition and collection.
The fact that the Drugs Act was introduced in the Part B State of Hyderabad in 1951 would not therefore affect in any way that part of the 1333 F Act which dealt with collection of duties of excise and provided for licences in that connection.
As we have said before, the 1333 F Act is more in the nature of an excise Act while the Drugs Act has nothing to do with the collection of duties of excise.
Further section 2 of the Drugs Act specifically provides that "the provisions of this Act shall be in addition to, and not in derogation of, the Dan gerous Drugs Act, 1930, and any other law for the time being in force.
" Therefore even if section 6 of the Central Act III of 1951 cad be said to have repealed any provision of the 1333 F Act which is concerned with matters other than collection of duties of excise thereunder, that will not affect the later amendment made in the 1333 F Act by the Hyderabad Act No. 22 of 1953, for that amendment will be treated in addition to the provisions of the Drugs Act so long as the 1333 F Act was not completely dead before the Hyderabad Act No. 22 of 1953 was passed.
We have already said when dealing with the Dangerous Drugs Act that the introduction of that Act could not be said to have completely repealed the 1333F Act which dealt with matters not covered by the Dangerous Drugs Act at all, (namely, collection of duties of excise and matters incidental thereto).
The same in our opinion applies to the Drugs Act which did not deal at all with the collection of duties of excise on drugs covered by it.
Therefore the 1333 F Act insofar as it deals with the collection of duties of excise on any drugs which are narcotics or narcotic drugs would remain alive to that extent.
There can be no doubt therefore that the 1333 F Act continued in existence so far as it dealt with collection of duties of excise on substances covered by it and it could therefore be amended by Hyderabad Act No. 22 of 1953.
This brings us to the second point raised in the present appeal, namely, that even if the 1333 F Act had not been completely repealed by the introduction of the Dangerous Drugs Act and the Drugs Act and could be properly amended by the Hyderabad Act of 1953, the Rules were not within the power conferred by the Act.
For that purpose we have to look at the 1333 F Act as it stands after the amendment of 1953.
The amended Act defines "intoxicating drugs" to mean (i) Indian hemp including all forms known as bhang, sendhi or ganja, (ii) charas, (iii) any mixture of the above or any drink prepared therefrom, and (iv) any other intoxicating and narcotic substance which the Government may by notification declare to be an intoxicating drug, such substance not being opium, 118 coca leaf or a manufactured drug as defined in section 2 of the Dangerous Drugs Act.
The amended Act is also clearly an excise Act as will be clear from the definition of "intoxicating drugs revenue" in section 2(2) which means revenue from any duty, fee, tax, fine or confiscation imposed, or ordered under the provisions of this Act.
It was therefore open to the State Government to declare by notification any substance as an intoxicating drug within the meaning of the Act provided it was an intoxicating and narcotic substance, If such a declaration is made, the substance will be liable to excise duty under the amended Act and the Rules framed thereunder and will be liable to such incidental control as may be necessary for the collection of duties.
Further, drugs being in the Concurrent List, the provisions of the 1953 amendment Act will also be a law under item 19 of List III and will be in addition to the Drugs Act of 1940 by virtue of section 2 thereof.
Now, it appears that chloral hydrate has been notified by the Government of Andhra Pradesh as an intoxicating drug within the meaning of the amended Act.
It was thereafter that the Rules were framed.
The Rules provide for the manufacture of chloral hydrate under a licence and for payment of duties of excise of Rs. 500 per year on such manufacture.
They also provide for possession, sale, import, export and transport.
If chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule and is an intoxicating drug and narcotic substance within the meaning of section 2(1) (iv) of the Amended Act, it could be notified under the amended Act and on such notification it would be liable to excise duty and to such incidental control as may be necessary for the purpose of collection of excise duty.
We are in the present case mainly concerned with the grant of licence and imposition of excise duty of Rs. 5001per annum.
If chloral hydrate is an intoxicating and narcotic substance, the Rules could be framed with respect to its control and the appellant could be asked to take out a licence and pay excise duty on the manufacture thereof, even though chloral hydrate may be a drug which is controlled under the Drugs Act.
The case of the State Government in this connection is that chloral hydrate is a narcotic drug or a narcotic within the meaning of entry 51 of List II of the Seventh Schedule.
Its further case is that it increases intoxication if mixed with liquor and that it is being produced in large quantities in order that it may be mixed with liquor.
That is the reason why the State has framed the Rules to control the production of chloral hydrate.
The appellant in its writ petition admitted that chloral hydrate was used in small doses as a hypnotic and sedative.
Now the dictionary meaning of 119 the word "narcotic" is a substance which relieves pain, produces sleep, and in large doses brings on stupor, coma, and even death, as opium, hemlock, alcohol etc.
Obviously, therefore, if chloral hydrate is hypnotic and sedative as admitted by the appellant, it would be a narcotic.
The appellant however relies on the statement in the affidavit filed on behalf of the State to show that chloral hydrate is not a narcotic or a narcotic drug within the meaning of entry 5 1 of List II, for if it is not a narcotic or a narcotic drug within that meaning no duty of excise can be imposed by the State legislature thereon.
The part of the affidavit on behalf of the State relied upon by the appellant was dealing with a vague allegation of the appellant that chloral hydrate was a medicinal preparation.
In that connection it was submitted on behalf of the State that chloral hydrate was not a medicinal or toilet preparation coming within the definition of the Medicinal and.
Toilet Preparations (Excise Duties) Act, 16 of 1955 "as this substance in a finished form does not contain either alcohol, opium, Indian hemp or other narcotic drug or narcotics".
These last words were taken from the schedule to the Act of 1955 which mentions any medicinal preparation not containing alcohol but containing opium, Indian hemp or other narcotic drug or narcotic.
In the 1955 Act narcotic drug or narcotic has been defined as meaning a substance (other than alcohol) which when swallowed or inhaled by, or injected into, a human being induces drowsiness, sleep, stupefaction or insensibility in the human being and which is a dangerous drug within the meaning of the Dangerous Drugs Act, 1930.
Obviously, therefore, the words " narcotic drug" and "narcotic" used in the 1955 Act have a special meaning and this was all that was intended when in the affidavit filed by the State these words were used.
But all narcotics or narcotic drugs are not covered by the Dangerous Drugs Act and there, can be narcotics and narcotic drugs which are not covered by the Dangerous Drugs Act.
There can be no other conclusion on the evidence in the present case than that chloral hydrate is a narcotic or a narcotic drug within the meaning of entry 51 of List 11 of the Seventh Schedule.
It also has intoxicating effect when mixed with liquor and so is an intoxicating drug within the meaning of the amended Act.
The appellant also relies on the , No. 16 of 1955, in this Court.
It is true that the appellant stated in its writ petition that it was holding a licence under the 1955 Act; but there was no clear averment in the petition that chloral hydrate was being manufactured as a medicinal preparation under the 1955 Act.
The licence which has been produced shows that chloral hydrate is being manufactured under the 120 Drugs Act and the rules framed thereunder.
Further the judgment of the High Court shows that no argument was raised before it to the effect that choral hydrate was a medicinal preparation under the 1955 Act.
In the circumstances we are not prepared to allow the appellant to raise this point for the first time before us, even though there was some kind of denial on this point by the State Government in its affidavit to which we have already referred.
In the result the appeal fails and is hereby dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was a manufacturer of drugs, (including chloral hydrate) in Hyderabad.
In 1962, the State of Andhra Pradesh issued the Andhra Pradesh (Telangana Area).
Chloral Hydrate (Chloral) Rules with respect to manufacture, possession, sale import, export and transport of chloral hydrate under the Andhra Pradesh (Telangana Area) Intoxicating Drugs Act of 1333 Fasli, as amended by the Hyderabad Opium and Intoxicating Drugs (Amendment) Act of 1953.
The Rules provided that the manufacture of chloral hydrate shall be in accordance with the conditions of a licence granted by the Excise Commissioner on payment of the excise duty of Rs. 500 per annum.
The appellant refused to take licence and challenged the validity of the Rules by a writ petition, but the High Court dismissed the petition.
In appeal to this Court, the appellant contended that (i) the 1333 F Act had been repealed in toto by the introduction into the State of the Dangerous Drugs Act, 1930 and the Drugs Act 1940, and therefore.
, there was no power in the Hyderabad legislature to amend the 1333 F Act by the 1953 Act, and in consequence; there was no law in force on the basis of which the Rules could be promulgated in 1962; and (ii) even if the Act was not repealed, the Rules were not within the powers conferred by the 1333 F Act as amended in 1953, as chloral hydrate was not a narcotic or narcotic drug within the meaning of item 51, List II of the 7th Schedule to the Constitution.
HELD: The 1333 F Act continued in existence in so far as it dealt with collection of duties of excise on substances covered by it and it could therefore be amended by the 1953 Act.
[117 F] The 1333 F Act was in the nature of an excise Act and provided for licences and collection of duties of excise and made provisions incidental thereto.
It applied to the intoxicating drugs mentioned therein and other intoxicating drugs which might be notified by the Government.
The Act continued in force in Hyderabad after 26th January 1950.
In 1950, the Dangerous Drugs Act was applied by Parliament, to Hyderabad, by Central Act 33 of 1950.
This Act however.
is not an Act imposing duties of excise.
Consequently., it could not affect that part of the 1333 F Act which dealt with the grant of licences, and collection of duties of excise.
Further, as a result of section 39(1) of the Dangerous Drugs Act dealing 'With the saving of local and special laws and entry 51 of List II, the introduction of the Act in Hyderabad did not result in complete effacement of the 1333 F, Act.
It remained alive with respect to substances which might be notified as intoxicating drugs under the 1333 F Act.
If there was any such notification before 1950, that notification would be valid and the Act would apply to it.
If there was no such notification, the Act would remain on the statute book as a conditional statute under which a notification could be issued.
, [114 G H; 115 E F; 116 A C] 111 The Drugs Act was extended to Hyderabad by Central Act 3 of 1951.
This Act is mainly concerned with the standard and quality of drugs manufactured and therefore controls the manufacture, sale and distribution of drugs.
It has also nothing to do with duties of excise and with their imposition on narcotics and narcotic drugs.
Therefore, the fact that this.
Act was introduced into Hyderabad in 1951 would not affect in any way that part of the 1333 F Act which dealt with collection of excise duties and provided for licences in that connection, as such duties can be imposed only by the State legislature under item 51 of List II.
Hence, the 1333 F Act in so far as it deals with the collection of duties of excise on any drugs which are narcotics or narcotic drugs would remain alive to that extent.
[116 D G; 117 D F] (ii) Narcotic is a substance which in small doses relieves pain and produces sleep and since it was admitted by the appellant that chloral hydrate is hypnotic and sedative, it would be a narcotic within the meaning of entry 51 of List II.
The statement in the respondents ' affidavit that it did not contain narcotic or a narcotic drug was only made in reply to the appellants allegation that chloral hydrate was a medicinal preparation.
All that was intended by the State by using those words was that chloral hydrate did not contain any narcotic drug or narcotic is defined in the .
Chloral hydrate has also an intoxicating effect when mixed with liquor and so is an intoxicating drug within the meaning of the Amendment Act.
[119 A F] The 1333 F Act after the amendment of 1953 is also an excise Act and defines intoxicating drugs to mean inter alia any intoxicating and narcotic substance which the Government may by notification declare to be an intoxicating drug.
[118 A B] Since chloral hydrate is an intoxicating and narcotic substance it could be notified under the Amendment Act.
It would be liable to excise duty and therefore the Rules could be framed with respect to its control, and the appellant could be asked to take out a licence and pay excise duty on the manufacture thereof.
[118 D F]


judgement:
Appeal No. 701 of 1964.
Appeal from the judgment and order dated August 10, 1961 of the Calcutta High Court in Civil Rule No. 1428 of 1958.
section V. Gupte, Solicitor General, R. Ganapathy Iyer and R. H. Dhebar, for the appellant.
G. section Chatterjee and P. K. Chatterjee, for the respondent.
directed against the judgment of the High Court accepting a petition under article 226 of the Constitution and quashing adjudication proceedings under the Foreign Exchange Regulation Act, 1947 (VII of 1947) hereinafter referred to as the Act.
The relevant facts are as follows: Following the recovery in 1954 of some foreign currency and Travelers Cheques at No. 311, Bow Bazar Street, Calcutta, where the respondent alongwith his, mother and brother, carried on the business of jewellers, the Director of Enforcement issued a notice on April 23, 1958,on the petitioner calling upon him to show cause within 10 days of the receipt of the notice why adjudication proceedings should not be.
held against him for contravention of s.23(1)of the Act.
On May 10, 1958, the respondent replied to the above memorandum giving his version as to how he came into possession of the foreign currency, but he denied having sold any travellers cheques.
He prayed that the proceedings may be dropped and the currency seized returned to him.
The Director of Enforcement, after considering the cause shown by the respondent came to the conclusion that the adjudication proceedings should 'be held.
He, therefore, requested the respondent to arrange to be present either personally or through, his authorized representative before the Director on May 13, 1958, in the office of the Calcutta Branch of the Directorate.
On, this, on May 13, 1959, the respondent filed a petition under art 226 of the Constitution challenging the adjudication proceeding& 36 on various grounds, the principal grounds being that section 23 (1) (a) and section 23D of the Act were ultra vires of article 20(2) of the Constitution, and that the offence having been committed in 1954, the proposed adjudication was illegal and entirely without jurisdiction.
Before the High Court, at the time of the final hearing, the petitioner was allowed to raise the point that section 23 ( 1 ) (a) as well as section 23D contravened article 14 of the Constitution.
Mitter, J. held that section 23 (1) (a) violated article 14 of the Constitution and was accordingly ultra vires the Constitution, and that the relative provision of section 23D must also be condemned.
Regarding the second point, namely, whether section 23 (1) (a), having, been substituted by the Amending Act XXXIX of 1957, would have retrospective operation in respect of the alleged offence, which took place in 1954, the High Court came to the conclusion that the petitioner "had a vested right to be tried by an ordinary court of, the land with such rights of appeal as were open to all", and although section 23 (1) (a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure.
Thea, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation.
The learned Judge observed that "the impairment of a right by putting a new restriction thereupon is not :a matter of procedure only.
It impairs a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment." Accordingly, is stated before, the adjudication proceedings were quashed being without jurisdiction.
This Court held in Shanti Prasad Jain vs Director of Enforcement(1) that section 23(1) and section 23D of the Foreign Exchange Regulation Act did not violate article 14 of the Constitution.
Mr. P. K. Chatterjee, counsel for the respondent, properly concedes that he cannot press this point.
The learned Solicitor General, who appeared on behalf of the appellant, contends that the High Court was in error in holding that the accused had a vested right to be tried by an ordinary criminal court.
He says that the amendment only changed the venue of trial from a Magistrate to the Director of Enforcement in some cases and no vested right was affected.
He refers to the decision of this Court in Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh(2) where Jagannadhadas, J., speaking for the Court, observed at p. 1200 as follows (1) ; (1) ; 37 "In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sentence under an ex post facto law and not the trial thereof.
Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional.
A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.
" Before its amendment by Act XXXIX of 1957, section 23(1) of the Act read as follows : "23(1) Whoever contravenes any of the provisions of this Act or of any rule, direction or order made thereunder shall be punishable with imprisonment or a term which may extend to two years or with fine or with both, and any Court trying any such contravention may, if it thinks fit and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated. .
After the amendment by Act XXXIX of 1957, another section 23(1) was substituted and section 23D was added, which read as follows "23(1) If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub section (2) of section 12, section 17, section 18A or section 18B or of any rule, direction or order made thereunder, he shall (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or. . . " "23D. (1) For the purpose of adjudging under clause (a) of sub section (1) of section 23 whether any person has committed a contravention the Director of Enforcement shall hold an inquiry in the prescribed manner 38 after giving that person a reasonable opportunity of being heard and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provision of the said section 23; Provided that if, at any stage of the inquiry, the Director of Enforcement is of opinion that having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate, he shall, instead of imposing any penalty himself, make a complaint in writing to the Court. " The effect of these provisions is that after the amendment of 1957, adjudication proceedings or criminal proceedings could be taken up in respect of a contravention mentioned in section 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender.
The High Court, as already observed, held that the new amendment did not apply to contravention which took place before the Act came into force.
Mr. Chatterjee, the learned counsel for the respondent, urges that a substantive vested right to be tried by an ordinary court existed before the amendment, and he relied on Maxwell 11 th Edition, p. 217, where it is stated that "the general principle, however, seems to be that alterations in procedure are retrospective, unless there be some good reason against it." He says that there is a good reason if the principles of article 20 are borne in mind.
In our opinion, there is force in the content on of the learned Solicitor General.
As observed by this Court in Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh(1) a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular procedure except in so far as there is any Constitutional objection by way of discrimination or the violation of any other fundamental right is involved.
It is well recognized that "no person has a vested right in any course of procedure" (vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case.
There is no principle underlying article 20 of the Constitution which makes a right to any course of procedure a vested right.
Mr. Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal Procedure Code.
But if this is a matter of Procedure, (1) ; 39 then it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective.
No right of appeal under the Criminal Procedure Code is affected because no proceedings had ever been started under the Criminal Procedure Code.
Mr. Chatterjee 's next point is that the new section 23(1)(a) con travenes article 20(1) of the Constitution.
He says that section 23(1) (a) prescribes a minimum penalty while under the old section 23(1) the Magistrate had an option of fixing a fine less than the minimum prescribed under section 23 ( 1 ) (a).
But we are unable to agree with him that the new section prescribes any minimum.
What it does prescribe is a maximum.
The words "not exceeding" cover not only the expression "three times the value of the foreign exchange" but also the words "five thousand rupees" Therefore, no greater penalty than might have been levied under the old section has been prescribed by the new section 23 (1 ) (a), and consequently there is no breach of article 20(1) of the Constitution.
We may add that the offence is alleged to have been commit ted in 1954 and notice of adjudication was sent in 1958 and now we axe in the year 1965.
It would be expedient if the adjudication proceedings are disposed of as expeditiously as possible.
In the result the appeal is accepted and the petition under article 226 dismissed.
The appellant will have his costs here and in the High Court.
Appeal allowed.

summary:
In 1954 some foreign currency and Travelers Cheques were recovered from the respondent 's premises.
By Act 39 of 1957 the Foreign Exchange Regulation Act was amended, section 23(1} was substituted and section 23D was added.
After the amendment either adjudication proceedings or criminal proceedings could be taken up in respect of a contravention mentioned in section 23(1), while, before the amendment only criminal proceedings before a court could be instituted to punish the offender.
The Director of Enforcement in 1958 issued a show cause notice to the respondent why adjudication proceedings be not held against him for contravention of section 23(1) of the Foreign Exchange Regulation Act.
The respondent showed cause, on consideration of which the Director of Enforcement concluded that adjudication proceedings should be held, and therefore, required the respondent to appear before him.
Thereupon, the respondent filed a petition under article 226 of the Constitution challenging the adjudication proceedings on.
the grounds : (i) section 23( 1 )(a) as well as section 23D contravened article 14 of the Constitution; (ii) the amendment in 1957 did not apply to contravention which took place before it came into force; and (iii) s 23(1)(a) of the Act was ultra vires of article 20(1) of the Constitution.
The High Court upheld the objections and quashed the adjudication proceedings, In appeal to this Court; HELD: The appeal must be accepted.
(i) Section 23(1) and section 23D of the Act did not violate article 14 of the Constitution.
[36 F] Shanti Prasad fain vs Director of Enforcement, , followed.
(ii) A person accused of the commission of an offence had no vested right to be, tried by a particular court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved.
There is no principle underlying Art 20 of the Constitution which makes a right to any course of procedure a vested right.
[38 F H] Rao Shiva Bahadur Singh vs State of Vindhya Pradesh, ; followed.
it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective.
No right of appeal under the Criminal Procedure Code is affected because no proceedings had even been started under the Criminal Procedure Code.
[39 A] 35 (iii) The new section does not prescribe any minimum.
What it prescribes is a maximum.
No greater penalty than might have been levied under the old section has been prescribed by the new section 23(1)(a), and consequently there is no breach of article 20(1) of the Constitution. [39 C D] The words "not exceeding" in section 23 (1) (a) of the Act cover not only the expression "three times the value of the foreign exchange" but also the words "five thousand rupees." [39 C]