Patna High Court
Jhaman Mian And Ors. vs The State on 31 January, 1966
Equivalent citations: AIR1966PAT375, 1966CRILJ1183, AIR 1966 PATNA 375
JUDGMENT Sahai, J.
1. The four appellants were placed upon their trial along with one Raghunath Prasad Yadav before the Assistant Sessions Judge of Dumka in the Santal Parganas. Raghunath Prasad Yadav has been acquitted. Appellant Nazir Mian was charged for offences under the Land Customs Act, 1924, the Sea Customs Act, 1878, and the Imports and Exports (Control) Act (XVIII of 1947). The learned Assistant Sessions Judge has held that, in view of the special procedures provided in these Acts for taking cognizance of offences under them, he had no Jurisdiction to take cognizance of those offences or to try them. He, therefore, purports to have acquitted Nazir Mian of the charges for those offences, though it seems that what he calls acquittal really amounts to discharge.
2. Out of the appellants, Jhaman Mian Nazir Mian and Gangadayal Sah are residents of Kotal Pokhar within Barharwa Police Station, and Ramkripal Bhagat is a resident of Barharwa. These places are under Pakur Sub-division within the Santal Parganas.
3. All the four appellants have been convicted under Section 147 of the Penal Code, and each of them has been sentenced under that section to undergo rigorous imprisonment for one year. All of them have been further convicted under Section 332 of the Penal Code, and each of them has been sentenced under that section to undergo rigorous imprisonment for two years. This appears to be due to a mistake because, in Para. 46 of his judgment, the learned Assistant Sessions Judge has found only Jhaman Mian and Ramkripal Bhagat guilty of the offence under this section, and has convicted them of that charge. That means that he has acquitted Gangadayal Sah and Nazir Mian of this offence. When, therefore, he has convicted and sentenced these two appellants in the final part of his order, he has obviously done so by Inadvertence. Jhaman, Ramkripal and Gangadayal have also been convicted under Section 225 of the Penal Code, and each of these three appellants has been sentenced under that section to undergo rigorous imprisonment for one and a half years. Jhaman has been further convicted under Section 333, ana has been sentenced under that section to undergo rigorous imprisonment for five years. Ramkripal and Nazir Mian have been further convicted under Section 379, and each of these two appellants has been sentenced under that section to undergo rigorous imprisonment for two years. All these sentences have been ordered to run concurrently. There was a charge under Section 333 read with Section 149 of the Penal Code against all the four appellants; but they have been acquitted of that charge.
4. Shri Uma Shankar (P. W. 1) was posted on the relevant date at Barharwa as Inspector of Central Excise and Customs, and he worked in the preventive and intelligence sections. His main duty was to prevent smuggling of contraband commodities and collection of intelligence. Shri B.N. Jha (P. W. 3) was also posted as Inspector of Central Excise at Barharwa, and was attached to the preventive and intelligence sections. The areas of Pakur, Sahebganj ana Dumka Sub-divisions were within their jurisdiction. Constable Bishun Singh (P. W. 4) was also posted at Barharwa as Central Excise constable.
5. The prosecution case is that all the above-mentioned three witnesses proceeded on the 13th December 1961, by 330 Down Barauni passenger from Barharwa to Pakur side in one of their usual journeys on checking duty. When they reached Pakur Railway Station, Bishun Singh (P. W. 4) informed Uma Shanker that there were two bags of contraband cloves in the latrine of the compartment which was next to the railway engine. All the three witnesses (P. Ws. 1, 3 and 4) entered that compartment and found the door of the latrine closed. Uma Shankar gave a push, whereupon it was opened from inside. The witnesses then found two bags of cloves and Nazir Mian in the latrine. The cloves weighed approximately 2 maunds 10 seers. Uma Shankar disclosed his identity to Nazir Mian, and questioned him as to whether he had paid the duty for the cloves. Nazir Mian replied in the negative. Uma Shankar then seized the two bags of cloves, and arrested Nazir Mian. By that time, the train had started moving. At the instance of Uma Shankar, B.N. Jha (P. W. 3) pulled the chain for stopping the train.
As a result, the train stopped at the railway crossing near the eastern cabin at 1.30 P.M. The three witnesses then detrained with the two bags of cloves and appellant Nazir Mian. The Station Master of Pakur Railway Station came, and he behaved with the witnesses in an unpleasant manner because they had stopped the train by pulling the chain. In the meantime, a crowd assembled there. Some of them remained outside; but, after the Station Master went away, several persons came inside the gate of the railway crossing, shouting "maro, maro, laung Chhin lo, etc.". Members of the mob started throwing brickbats, at the Central Excise party, and commenced trying to snatch Nazir Mian and the cloves from their custody. Appellants Ramkripal Bhagat and Jhaman gave some blows with fists and slaps on the chest of Uma Shankar. One stone thrown by a member of the mob also struck him on the left arm. Appellant Jhaman struck B.N. Jha (P. W. 3) with a big stone on the head. The injury began to bleed, and B.N. Jha fell down. Members of the mob then fled away. While going, however, Nazir Mian lifted one bag of cloves, and Bamkripal and Hiralal Bhagat, who is absconding, lifted the other bag or cloves, and carried them away.
6. Uma Shankar went to the police station at Pakur where Sub-Inspector Sukhdeo Malik (P. W. 5) drew up a fard-bayan (Ex. 3) at 2-16 P.M. on his statement. P. W. 5 sent the fard-bayan to Sahebgani Government Railway Police Station, as the place of occurrence was within its jurisdiction, and a formal first information report (Ex. 5) was drawn up there. A Sindhi doctor (P. W. 9) gave first aid to B.N. Jha. Subsequently, the lady doctor (P. W. 11) examined the injuries on the persons of Uma Shankar and B.N. Jha. She found simple injuries on the persons of these two witnesses; but one injury on the head of B.N. Jha, caused by hard and blunt substance such as stone, was grievous. It is for causing this injury that appellant Jhaman has been convicted under Section 333 of the Penal Code.
7. No version has been given by the defence; but the appellants' case is that they are innocent.
8. The learned Assistant Sessions Judge has held that the evidence of P. W.'s 1, 3 and 4 is reliable, and that the occurrence took place in the manner alleged by them. He has also accepted their evidence of identification against all the four appellants; but he has given Raghunath Prasad Yadav the benefit of doubt on the point of identification. He has held that Jhaman caused the grievous injury to B.N. Jha, that Bamkripal Bhagat and Jhaman assaulted Uma Shankar with fists and slaps on the chest, that all the four were members of the unlawful assembly, members of which committed the offence of rioting, and that, out of the two bags of cloves recovered from the possession of Nazir Mian, he (Nazir Mian) removed one bag and appellant Ramkripal Bhagat and Hiralal Bhagat absconding accused ) removed the other bag from the lawful custody of Uma Shankar. I may mention that a Sub-Inspector of Central Excise (P. W, 7) has attempted to support the evidence of P. W.'s 1, 3 and 4; but the learned Assistant Sessions Judge has not accepted his evidence.
9. Mr. Ghoshal, who has appeared on behalf of the appellants, has not challenged before us the evidence given by P. W.'s 1, 3 and 4 nor has he challenged the findings of the Court below in respect of the occurrence. Having gone through the evidence of these witnesses, I am definitely of the opinion that they are undoubtedly reliable witnesses. Some discrepancies in their evidence were pointed out in the Court below, and they have been dealt with by the learned Assistant Sessions Judge. I agree with him that the discrepancies are immaterial. In my opinion, there can be no doubt that, when Uma Shankar pushed the door of the latrine and Nazir Mian opened it from inside, Uma Shankar found two bags of cloves in Nazir Mian's possession. There is also no doubt that Uma Shankar disclosed his identity as Inspector of Central Excise and Customs to Nazir Mian and questioned him about the payment of duty, whereupon Nazir Mian replied that no duty had been paid. Uma Shankar thereupon arrested Nazir Mian, and seized the cloves. I am also satisfied that Uma Shankar (P. W. 1), accompanied by P. Ws. 3 and 4, detrained at the level crossing near the eastern cabin of the Pakur Railway Station with the two bags of cloves, weighing approximately 2 maunds 10 seers, and Nazir Mian at about 1.30 P.M. on the 13th December 1961. The evidence of these three witnesses proves beyond doubt that at least six or seven members of the mob entered inside the gate of the railway crossing, shouting and throwing brickbats, that appellants Ramkripal and Jhaman, from amongst them, assaulted Uma Shankar, that Jhaman caused grievous injury to B.N. Jha, that Jhaman, Ramkripal and Ganga-dayal rescued Nazir Mian from the custody of Uma Shankar, and that Nazir Mian and Ramkripal, besides Hiralal, removed the two bags of cloves from Uma Shankar's custody. I may also add that the words of Para. 16 of the written statement filed by the appellants appear to show that they have themselves assumed as correct the allegation that two bags of cloves were found in the possession of Nazir Mian in a compartment of 330 Down Barauni-Howrah Passanger at Pakur Railway Station, though they have challenged the allegation that the cloves were Pakistani cloves for which no duty had been paid.
10. The point which Mr. Ghosal has urged is that the appellants' conviction cannot be upheld because Uma Shankar (P. W. 1) had no power to seize the cloves or to arrest Nazir Mian, and hence he cannot be held to have been acting in discharge of his public duties in making the seizure and the arrest nor can it be held that the cloves or Nazir Mian were in his lawful custody. In support of this argument, the first point which he has urged is that the Imports and Exports (Control) Act (XVIII of 1947), the Central Excises and Salt Act (I of 1944), the Land Customs Act (XIX of 1924), the Sea Customs Act (VIII of 1878) and the Indian Tariff Act (XXXII of 1934) have not been extended to the Santal Parganas, and are, therefore, not applicable there.
11. I may first mention the legal position before the Constitution came into force. Section 3 (2) of the Santal Parganas Settlement Regulation (Regulation No. 3 of 1872), after omitting the words with which we are not concerned at present, reads:
"(2) No other enactment, heretofore or hereafter passed, shall, unless the Santal Parganas be expressly named therein, be deemed to apply to the said Parganas.... ."
12. Section 92 of the Government of India Act, 1935, provided, amongst other things, as follows:
"...... No Act of the Federal Legislature or of the Provincial Legislature shall apply to an excluded area, or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions nr modifications as he thinks fit."
13. The effect of Section 3 (2) of Regulation No. 3 of 1872 read with Section 92 of the Government of India Act. 1935. was that no enactment, which did not expressly name the Santal Par-ganas, was applicable to those parganas (with the exception of two sub-divisions which did not form part of the excluded area or a partially excluded area) unless the Governor directed that it would apply with or without exceptions or modifications.
14. The notification which made the Indian Tariff Act. 1934, applicable to those Parganas has not been found; but the amendments to the Indian Tariff Act have been made applicable under notification No. 628-Com., dated the 22nd July 1940 (published in the Bihar Gazette, 1940, Part II, p. 826). The Central Excises and Salt Act, 1944, was made applicable under notification No. 414-Com., dated the 14th April 1944 (published in the Bihar Gazette, 1944. Part II, p. 184).
15. The Imports and Exports (Control) Act. 1947, was not made applicable to the Santal Parganas before the Constitution came into force. The Bihar Scheduled Areas Laws Regulation (Bihar Regulation No. 1 of 1951) was promultated for the purpose of applying to Santal arganas "certain Central and Provincial Laws which were enacted before the 26th January 1950, but were not applied to the partially excluded areas in Bihar under Sub-section (3) of Section 3 of the Santal Parganas Settlement Regulation, 1872, or under Section 92 of the Government of India Act, 1935, to the Scheduled Areas in the State of Bihar". Several Acts, including the Imports and Exports (Control) Act, 1947, and the Imports and Exports (Control) Amendment Act, 1949, were applied to the Santal Parganas under this Regulation. I may mention that several sub-divisions of the Santal Parganas, including Pakur Sub-division, form part of the scheduled areas in this State. Section 3 (2) of the Imports and Exports (Control) Aot reads as under:
"All goods to which any order under Sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly. .....".
In view of this sub-section, the provisions of the Sea Customs Act, 1878, must also be held to have become applicable to the Santal Parganas. Thus, all the four enactments, referred to in this and the last paragraph, are applicable to, and effective in, the Santal Parganas.
16. Mr. B.D. Singh, the learned Additional Standing Counsel, has not been able to point out any notification, extending the provisions of the Land Customs Act, 1924, to those Parganas. He has argued that that Act must be held to be applicable because the Act itself provides that it extends to the whole of India. In support of this argument, he has relied upon the decision in Collector of Vizagapatam v. Krishna Chandra, ATR 1928 Mad 1181 (FB).
In that case, the question was whether the Stamp Act was applicable to the Agency tracts in Madras in the absence of a notification issued under the Scheduled Districts Act (XIV of 1874), extending the provisions of the Stamp Act to those tracts. Their Lordships held that the Scheduled Districts Act did not apply to the Acts of the Indian Legislature passed after the passing of that Act, and that, therefore, the Stamp Act was applicable to the Agency tracts in spite of the absence of a notification under that Act. It is manifest that this decision has no application to the facts of the present case. As I shall presently show, the Constitution has made a change in the legal position; but, leaving aside the change brought about by it, there is no escape from the conclusion that, in view of Section 3 (2) of Regulation No. 3 of 1872, an enactment, which did not expressly name the Santal Parganas could not be held applicable to those Parganas merely because it provided that it was applicable throughout India. The learned Standing Counsel's argument in this connection cannot, therefore, be accepted.
17. I may now point out the change effected by the Constitution, The Government of India Act, 1935, has been repealed by Article 395 of the Constitution. Article 372 (1) provides that "all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority". On the basis of this provision, Mr. Ghoshal has argued that Regulation No. 3 of 1872 must be deemed to have remained effective even after the Constitution came into force. I am unable to accept this argument.
Under Articles 146 and 246 and other Articles of Chap. I of Part XI of the Constitution, Parliament has exclusive power to make laws for the whole of India with respect to various matters Including the matters enumerated in List I in the Seventh Schedule. An Act of Parliament, relating to matters with respect to which it has exclusive power to legislate, must override any restriction which may have been placed upon the legislative power of the Legislature by any law which was in force before the Constitution. The restriction provided for in Section 3 (2) of Regulation No. 3 of 1872, to the effect that no Act would apply to the Santal Parganas unless those Parganas were expressly named therein, must be held to have lost its force and effect inasmuch as it is in conflict with the provisions of Chap. I of Part XI of the Constitution.
18. I may now refer to Para, 5 (1) of the Fifth Schedule of the Constitution which runs:
"(1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect."
It is manifest from this provision that, the change brought about by the Constitution is that a law made by Parliament becomes applicable to the Santal Parganas even though the Governor does not direct that it would be so applicable. The only power given to the Governor under this paragraph is that he can direct that any particular Act of Parliament would not apply to a Scheduled Area or that it would apply with such exceptions or modifications as he may specify in his notification.
19. The question which has now to be considered is whether an Act passed by any Legislature before the Constitution came into force would also become applicable under it to the Santal Parganas just as an Act of Parliament would be. It seems to me that the only answer which can be given is 'No'. Reference has been made by the learned Assistant Sessions Judge to the definition of 'Central Act' in Section 3 (7) of the General Clauses Act, 1897, which is as follows:
"(7) 'Central Act' shall mean an Act of Parliament and shall include-
(a) an Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution, and
(b) an Act made before such commencement by the Governor-General in Council or the Governor-General, acting in a legislative capacity."
It is to be noticed that the definition is that of Central Act' and not that of 'Act of Parliament', while the expression 'Central Act' must include Acts of the legislative authorities mentioned in the definition, the expression 'Act of Parliament' does not include those Acts. An 'Act of Parliament' must necessarily mean, as the words signify, an Act passed by the Indian Parliament.
20. Since the expression used in paragraph 5 (1) of the Fifth Schedule is 'Act of Parliament' and not 'Central Act', it is manifest that the provisions contained in that paragraph apply only to an 'Act of Parliament'. The Land Customs Act, 1924, passed, as it was, long before the Constitution or the Indian Parliament came into existence, cannot be held to have become applicable to the Santal Parganas by virtue of Para. 5 (1). I am, therefore, unable to hold that that Act is effective in those Parganas.
21. Another point which Mr. Ghosal has argued in support of his main argument is that cloves are not dutiable articles. In this connection, he has referred to the evidence of B.N. Jha (P. W. 3), who has stated that cloves are available in India, and that there is no limitation upon the quantity of cloves which can be purchased. I do not think that this is of any help to the appellants. Section 3 of the Imports and Exports (Control) Act, 1947, runs:
"(3) Powers to prohibit or restrict imports and exports.--(1) The Central Government may, by order published in the official Gazette, make provision for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order,--
(a) the import, export, carriage coastwise or shipment as ships' stores of goods of any specified description;
(b) the bringing into any port or place in India of goods of any specified description in tended to be taken out of India without being removed from the ship or conveyance in which they are being canled."
I have already quoted Sub-section (2) of that section which has made the provisions of the Sea Customs Act, 1878, applicable.
22. In exercise of the powers conferred by Section 3 (1) of the abovementioned Act, the Central Government has made Imports (Control) Order, 1955, Clause 3 of this Order, reads:
"3. Restriction on import of certain goods.--Save as otherwise provided in this Order, no person shall import any goods of the description specified in Schedule I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II."
Item No. 27 of Part IV of the First Schedule of that Order is:
"27. Cloves, all sorts, whether ground or underground".
Hence, it follows that clove is an article, import of which, in the absence of a licence or customs clearance permit, is prohibited under the Imports and Exports (Control) Act, and, as such, this must be deemed to be also prohibited under Section 19 of the Sea Customs Act, and all the provisions of that Act must be held to be applicable, in view of the provisions of Sub-section (2) of Section 3 of the Imports and Exports (Control) Act, already referred to.
23. Under Section 2 of the Indian Tariff Act, 1984, duty is to be levied and collected in respect of the articles specified in the First and Second Schedules. Item No. 9 (8) of Section 2 of the First Schedule of that Act includes cloves. This makes it quite clear that clove is a dutiable article.
24. The next point which Mr. Ghosal has argued is that Uma Shankar (P. W. 1) had no power to arrest appellant Nazir Mian. Section 173 of the Sea Customs Act, however, lays down;
"173. Persons reasonably suspected may be arrested.--Any person against whom a reasonable suspicion exists that he has been guilty of an offence under this Act may be arrested in any place in India either upon land or wafer, or within the Indian customs waters, by any officer of Customs or other person duly employed for the prevention of smuggling."
25. In order that this provision may be applicable, the first question which arises is whether there could be a reasonable suspicion that Nazir Mian had been guilty of an offence under the Sea Customs Act. Section 167 of the Act provides for punishments for offences under the Act. Item 81 of that section lays down the punishment for an offence which is described as follows:
"If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with 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;"
Firstly, it appears from the evidence of P. W. 7 that Pakur is at a distance of only about 11 or 12 miles from the East Pakistan border. Secondly, it also appears that cloves are not grown in India. It has, therefore, to be imported from outside. Thirdly, Nazir Mian was taking a large quantity of cloves and was keeping them in two bags. He was concealing them in the latrine of a railway compartment. In view of these circumstances, he could, without doubt, be reasonably suspected to be carrying cloves which were chargeable with a duty which had not been paid and thereby to have been guilty of an offence under the Act.
26. The next question which arises for consideration in order to decide whether Section 173 is applicable is whether Uma Shankar is an officer of Customs. In this connection, I may first quote C. B. R. Notification No. 1 L. Cus., dated the 25th January 1958, as amended by No. 8 L. Cus., dated the 17th May 1958. which runs:
"In exercise of the powers conferred by Sub-section (1) of Section 3 of the Land Customs Act, 1924 (19 of 1924), read with the notification of the Government of India in the late Finance Department (Central Revenues) No. 5944, dated the 13th December 1924 and in supersession of its notification No. 56-Customs., dated the 24th July 1951, as subsequently amended, the Central Board of Revenue hereby appoints all Deputy Collectors, Assistant Collectors, Headquarters Assistant Collector, Superintendents, Deputy Superintendents, Inspectors, Nakedars, Supervisors, Range Officers, Assistant Range Officers, Women Searchers, Jamadars, Petty Officers, Amaldars, Sepoys and Peons, including all the officers of Central Excise employed for the time being on Central Excise or Customs Preventive Intelligence work and attached to the Headquarters and the Circle and Divisional Officers of the Collectorate of Central Excise, Delhi, Allahabad, Patna, Shillong, Madras, Born-bay and Baroda, to be Land Customs Officers within the jurisdiction of the respective Collectors of Land Customs under whom they are working."
I may also quote M. F. (D. R.) Notification No. 89-Cus., dated the 29th September 1951, which is as follows:
"In exercise of the powers conferred by Section 6 of the Sea Customs Act, 1878 (VIII of 1878), and in supersession of the Government of India in the Ministry of Finance (Revenue Division) Notification No. 71, dated the 12th August 1950, the Central Government hereby appoints all Land Customs Officers who have been appointed or may be appointed from time to time to be such under Sub-section (1) of Section 3 of the Land Customs Act, 1924 (XIX of 1924), to be Officers of Customs for their respective jurisdictions and to exercise the powers conferred and to perform the duties imposed on such officers by the first named Act."
In view of these notifications, it is perfectly clear that all officers of Central Excise employed on Central Excise and Customs preventive intelligence work are Land Custom Officers as well as officers of Customs within their respective jurisdictions. That being so, there can be no possible doubt that Uma Shankar, who was an Inspector of Central Excise and Custom having jurisdiction over Pakur and other subdivisions of the Santal Parganas, was an officer of Customs for the purpose of exercising power under Section 173 of the Sea Customs Act.
27. The last point which Mr. Ghosal has argued in support of his main argument is that Uma Shankar had no power to seize the cloves which Nazir Mian was carrying. Section 178 of the Sea Customs Act provides for seizure of goods. The provisions of Section 178-A (1) are also relevant. These two sections read:
"178. Seizure of things liable to confiscation.--Any thing liable to confiscation under this Act may be seized in any place in India either upon land or water, or within the Indian customs waters by any officer of Customs or other person duly employed for the prevention of smuggling.
178-A (1). Burden of proof.--(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the foods were seized.' I have already shown that Uma Shankar was an officer of Customs. The only question, therefore, which remains for consideration in order to decide whether Section 178 was applicable is whether cloves were articles which were liable to confiscation under the Sea Customs Act. Item No. 8 of Section 167 of that Act provides that "goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chap. IV of this Act, be imported into or exported from India contrary to such prohibition or restriction" are liable to confiscation. Section 19, which falls under Chap. IV, gives power to the Central Government to prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India. I have already quoted Section 3 (sic) of the Imports and Exports (Control) Act which provides that goods, to which any order under Sub-section (1) applies would be deemed to be goods of which the import or export has been prohibited or restricted under Section 19 of the Sea Customs Act. I have also stated that the Central Government has issued the Imports (Control) Order, 1955, in exercise of the powers conferred upon it by Section 3 (1) of the Imports and Exports (Control) Act, 1947. As a result, clove, which stands in item No. 27 of Part IV of the first schedule of the Imports (Control) Order, must be held to be an article which is liable to confiscation under the Sea Customs Act. In view of Section 178-A (I), the burden would have been upon Nazir Mian to prove that the cloves seized by Uma Shankar were not smuggled goods if they had remained in possession of Uma Shankar and if a prosecution had been launched against Nazir Mian for carrying smuggled cloves. As, however, the seized cloves were carried away by two of the appellants, viz., Nazir Mian and Ramkripal, besides one who has not yet been tried, it cannot be held that the seizure of the cloves by Uma Shankar was not lawful. Indeed, there can be no doubt that the seizure was lawful.
28. For the reasons given above, I hold that there is no substance in Mr. Ghosal's contention that Uma Shankar (P. W. 1) had no power to seize the cloves or to arrest Nazir Mian. It is manifest that he was acting in discharge of his public duties, and that the arrest of Nazir Mian and the seizure of the cloves were lawful. Hence, Nazir Mian and the cloves were in the lawful custody of Uma Shankar when Nazir Mian was rescued and the cloves were dishonestly taken away.
29. In view of the findings of fact which I have given above, the appellants have been rightly convicted for the several offences mentioned above, though convictions under Section 332 have been wrongly recorded against Nazir Mian and Gangadayal Sah which convictions and sentences imposed thereunder are hereby set aside. In the circumstances of this case, the sentences imposed upon the appellants for other offences are not at all severe. I would, therefore, dismiss the appeal subject to the modification just mentioned.
Dutta, J.
30. I agree.