Delhi High Court
S. K. Sinha And Etc. Etc. vs Asstt. Collector Of Customs And Etc. ... on 28 March, 1985
ORDER J.D. Jain, J.
1. This order of mine shall dispose of all the above mentioned six petitions filed under Section 482, Code of Criminal Procedure Article 227 of the Constitution of India for quashing the impugned orders of different Additional Sessions Judges to which reference shall be presently made.
2. Vide order dated 7th November 1975, Shri M. S. Mehta purporting to act as Collector of Customs and Central Excise, New Delhi, sanctioned the prosecution of S/Shri S. K. Sinha, (petitioner in Cr. M(M)216/84), Surinder Sood (petitioner in Cr. M. (M)321/84), D. K. Malik (petitioner in Cr. M. (M)215/84) and four others in exercise of the powers vesting in him under Section 137(1) of the Customs Act, 1962 (hereinafter referred to as 'the Act') for their prosecution under Sections 135(1)(a) and 135A of the Act. The allegation against them was that 48 packages containing skins of reptiles and wild animals were seized on 22nd April 1975 while they were lying at Bay No. 17, Palam Airport, New Delhi and were sought to be loaded in an aircraft belonging to Air France with a view to smuggle them out of India The said items were contraband, their export being prohibited under law, in particular under Clause 3(1) of the Export Control Order, 1968 issued under Sections 3 and 4(a) of the Imports and Export (Control) Act, 1947. Further 25 similar packages containing snake skins were found lying in the Air France Cargo House, Palam Airport, which were seized on 26th April 1975. During the course of investigation it transpired that the abovementioned petitioners S. K. Sinha, Surinder Sood and some other persons were concerned in attempting to smuggle out the contraband goods mentioned above. So pursuant to the sanction accorded by Shri M. S. Mehta, a complaint was instituted against them by the Assistant Collector of Customs on November 11,1975 under Section 135(1)(a), Section 135A of the Act and Section 5 of the Imports and Exports (Control) Act, 1947. After pre-charge evidence, charges were framed against the accused persons by the Additional Chief Metropolitan Magistrate, New Delhi, on 30th June 1982. Feeling aggrieved the petitioners went in revision in the Court of Session. However, their revision petitions were rejected by Shri Mahesh Chandra, Additional Sessions Judge, New Delhi, vide common order dated 30th November 1983 holding that there was no substance in the contentions raised by them. S/Sh. D. K. Malik, S. K. Sinha and Surinder Sood, petitioners have filed the above petitions challenging the propriety and legality of the aforesaid order of Shri Mahesh Chandra primarily on the ground that Shri M. S. Mehta had not been validly appointed as Collector of Customs under the relevant provisions of the Act and as such the so-called sanction accorded by him is absolutely illegal and inoperative.
3. In Criminal Misc. (Main) No. 884/84, the respondent Kundan Lal Chhabra was allegedly intercepted on 29th June 1982 outside Railway Booking Office, Town Hall, Chandni Chowk, Delhi while he was going on a scooter from Fatehpuri side and 32 gold bars bearing foreign markings collectively weighing 4225.5 gms. valued at Rs. 6.60 lakhs, foreign currency equivalent to Rs. 2.50 lakhs approximately and Indian currency amounting to Rs. 3.00 lakhs were recovered from his possession. Later on further recovery of Rs. 27,900 and U.S. 100$ was also made from a steel almirah belonging to him which had been kept at shop No. 1214, Chandni Chowk, Delhi. During the course of investigation it transpired that Banwari Lal respondent No. 2 and one Vinod Bhardwaj were also concerned in dealing with the above gold which had been apparently smuggled into this country. The prosecution of these persons for offence under Section 135(l)(a) and 135A of the Act was sanctioned by Shri B. B. Julka, acting as Collector of Customs and Central Excise, Delhi, vide order dated 30th June 1982. The validity of the said sanction too was challenged by the accused persons on the ground that he had not been validly appointed as Collector of Customs under the relevant provisions of the Act and as such he was not competent to accord the requisite sanction. Their contention was, however, repelled by the learned Additional Chief Metropolitan Magistrate but it was upheld in revision by Shri B. B. Gupta, Additional Sessions Judge vide order dated 30th November 1983. He found that notification dated 1st February 1963 issued by the Central Government under Section 4 of the Act did not confer powers of Collector of Customs on Shri Julka who was posted at Delhi as Collector of Central Excise Only, Feeling aggrieved the Union of India has filed this petition.
4. In Criminal Misc. (Main) No. 551/84, on 2nd August 1977 two slabs of gold weighting one kg. each with foreign markings were allegedly recovered from a car found near Ritz Cinema, Kashmere Gate, Delhi. The investigation revealed that the respondents K. C. Gupta, Kanshi Ram, Om Parkash and Som Parkash were engaged in smuggling activities relating to the aforesaid contraband gold. So, sanction for their prosecution for offence under Section 135(1) of the Act was accorded by Shri B. B. Julka, acting as Collector of Customs and Central Excise, vide his order dated 23rd March 1982. In their case too, Shri B. B. Gupta, Additional Sessions Judge has held vide aforesaid order dated 30th November 1983 that there was no valid appointment of Shri B. B. Julka under Section 4 of the Act and as such the sanction in question is bad in law. Feeling aggrieved the Union of India has come up with this petition.
5. Similarly in Cr. M.(M) 120/84 Shri B. 5. Chaudhary, Additional Sessions Judge, New (Delhi, has held vide order dated 20th October 1983 that Shri B. B. Julka had not been) validly appointed as Collector of Customs and as such the sanction accorded by him vide circular dated 20th May 1981 for prosecution of the respondent was bad in law. Hence, the Union of India has challenged the legality and validity of the said order.
6. It would be thus seen that the only crucial question, which is common to all these petitions, is with regard to the legality and validity of the appointments of S/Shri Mr. S. Mehta and B. B. Julka as Collectors of Customs under Section 4 of the Act which empowers the Central Government to appoint such persons as it thinks fit to be officers of Customs. Section 3 of the Act enumerates various classes of officers of Customs which, inter alia, include Collector of Customs. So, in exercise of the powers conferred by Sub-section (1) of Section 4 of the Act the Central Government issued notification No. 37-Cus. dated 1st February 1963 which runs as under :
In exercise of the powers conferred by Sub-section (1) of Section 4 of the Customs Act, 1962 (52 of 1962), the Central Government hereby appoints -
(a) the officers specified below to be Collectors of Customs within their respective jurisdictions, namely:
1. Director, Directorate of Revenue Intelligence.
2. Collector of Customs and Central Excise, Cochin.
3. Collectors of Land Customs and Central Excise, Delhi, Calcutta and Shillong.
4. Collectors of Central Excise, Baroda, Bombay, Poona, Bangalore, Madras, Hyderabad, Calcutta, Nagpur, Patna, Allahabad and Kanpur.
(b) the Deputy Collectors posted under the Collectors specified in clause (a) to be Deputy Collectors of Customs within their respective jurisdictions;
(c) the Assistant Collectors posted under the Collectors specified in clause (a) to be Assistant Collectors of Customs within their respective jurisdictions.
7. The said notification was subsequently amended from time to tune by notifications No. 136-Cus. dated 25th May 1963, No. 237-Cus. dated 27th November 1963, No. 88-Cus. dated 26th September 1970 etc. The last such-notification being No. 196-Cus, dated 17th September 1977. However, the basic tenor of the amended notifications remained unaltered except that in sub-clause (1) the words "Director of Revenue Intelligence, New Delhi and the Director of Inspection, Customs and Central Excise, New Delhi" were substituted for Director, Directorate of Revenue Intelligence and the jurisdiction of the said officers was extended to the whole of India. Further, in sub-clauses (3) and (4), the word "Calcutta" was deleted However, "Delhi and Shillong" continued to remain in sub-clause (3) while some more areas like Chandigarh, Guntur etc. were added to sub-clause (4).
8. In order to comprehend the real bone of contention between the parties in proper perspective and construing the aforesaid notification in a more rational and realistic way, some more facts need be given. As it happened prior to coming into force of the Act on 1st February 1963, there were two separate enactments, viz. The Sea Customs Act, 1878 and The Land Customs Act, 1924 which amongst themselves dealt with all aspects of Customs duties leviable on goods imported into/exported out of this country by sea or land. The Sea Customs Act which laid down the basic law relating to Customs was enacted more than 80 years ago. Of course, it had been amended from time to time. The Land Customs Act which was passed in 1924 was not a self-contained Act and was applicable by reference to provisions of the Sea Customs Act to Land Customs with . certain modifications. There was, however, no. separate law relating to air customs and the administration of air Customs was governed by certain rules made under the Indian Aircraft Act, 1911 (See Statement of Objects and Reasons). So, with a view to consolidate and amend the law relating to Customs, the Act was passed and it came into force with effect from 1st February 1963. Consequently both the Sea Customs Act and the Land Customs Act were repealed with effect from the same date vide Section 160 of the Act. However, by virtue of saving clause embodied in the said Section certain notifications, rules and regulations etc. were saved so far as the same were not inconsistent with the provisions of the Act,
9. Section 3 of the Land Customs Act authorised the Central Government to appoint by notification in the official gazette any person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification. It would appear that the Central Government treated the whole compact block consisting of the State of Punjab, State of Jammu and Kashmir and States of Rajasthan, Himachal Pradesh and Delhi as one area adjoining the West Pakistan frontier and for this one area it appointed a Collector of Land Customs in exercise of the powers conferred upon it by Section 3 of the said Act vide notification No. 55-Cus. dated 24th July 1951 (annexure 'A' filed along with affidavit dated 12th November 1984 of Shri M. L. Kapur, Asstt. Collector (Law), Customs Collectorate, New Delhi). Its perusal would show that the Collectors of Central Excise, Delhi, Calcutta, Patna, Shillong and Madras were appointed as Collectors of Land Customs also in their respective jurisdictions. Thus, it would appear that the jurisdiction of the Collector, Central Excise, Delhi, who was also designated as Collector of Land Customs extended not only over Delhi but also to States of Punjab etc. mentioned above. See Hukma v. State of Rajasthan . Evidently with the coming into force of the Act the Collector, Central Excise, Delhi, was stripped off the powers of Collector of Land Customs but he continued to be Collector of Central Excise as before. Since the Land Customs Act was replaced by the Act, it became imperative for the Govt. to appoint a Collector of Customs under Section 4 of the Act. It was obviously with a view to appoint a successor officer that the aforesaid notification dated 1st February 1963 was issued so that there was no interregnum between the abolition of the designation of Collector of Land Customs and the appointment of Collector of Customs under the Act. Admittedly, the then incumbent Shri K. Narasimhan, who was having dual designation as Collector of Land Customs and Central Excise took over as Collector of Customs and Central Excise with effect from 1st February 1963. This is one segment of chronology.
10. I may notice here some notifications regarding the postings and transfers of Shri M.S. Mehta and Shri B. B. Julka, copies of which have been placed on record. By order No. 151/73 dated 19th December 1973 (annexure 'F) Shri M. S. Mehta, who was formerly posted as Collector of Customs (Prev), Bombay, was transferred as CCE, Delhi (which is obviously an abbreviation for Collector of Central Excise). He assumed charge of the office of Collector of Customs and Central Excise with effect from the afternoon of 30th January 1974 relieving his predecessor Shri B. S. Chawla of the additional charge. (Vide notification dated 19th February 1974, copy annexure 'G' issued by the Ministry of Finance. Government of India, in the Gazette of India). Still later vide Order No. 20/76 dated 5th February 1976 (copy annexure 'H') Shri M. S. Mehta was transferred from the post of Collector of Customs and Central Excise, Delhi, to that of Director (Anti-Smuggling), New Delhi. Thus, the contention of die learned counsel for the UOI precisely is that by virtue of these orders and notification dated 1st February 1963 (supra) Shri M. S. Mehta enjoyed the powers of both Collector of Central Excise and Collector of Customs and as such he had the requisite authority under Section 137(1) of the Act to, sanction prosecution of the various accused persons involved in these cases for offences falling under Section 135(1) of the Act. In other words, the impugned order of sanction dated 7th November 1975 suffers from no jurisdictional or legal infirmity. On the contrary the learned counsel for the petitioners S. K. Singh and Surinder Sood have placed reliance on a notification dated 28th February 1976 which reads as under :
CUSTOMS & CENTRAL EXCISE ESTABLISHMENT S. No. 27 : The following officers of the Indian Customs and Central Excise Service, Class I, have been appointed to officiate as Collectors of Customs and Central Excise (Level I) - (Scale Rs. 2500-2750) with effect from the 1st January, 1973 and until further orders:
------------------------------------------------------------
S. Name of the Post held at present/
No. Officer post last held
------------------------------------------------------------
1 2 3
------------------------------------------------------------
S/Shri
1. ... ...
2. ... ...
23. M. S. Mehta Collector of Central
Excise, Delhi.
... ...
11. The submission made by the learned counsel for the petitioners is that Shri M. S. Mehta who was holding the post of Collector of Central Excise, Delhi, only could not have been appointed to officiate as Collector of Customs with retrospective effect i. e. from 1st January 1973 and as such on the date of the impugned sanction he was merely Collector of Central Excise and was not vested with the powers of Collector of Customs. On a plain reading of this notification, however, it is manifestly clear that these notifications pertains to promotion of Shri Mehta on officiating basis as Collector of Customs and Central Excise (Level-1) which carries a higher pay-scale of Rs. 2500-2750 and is presumably the selection grade in contradistinction to the ordinary scale of pay of the officers of Indian Customs and Central Excise Service Class I. This inference becomes abundantly clear if this notification is read in juxtaposition with orders dated 19th December 1973 (annexure F) and 5th February 1976 (annexure 'H7) which relate to promotions of officers as Collector of Customs and Central Excise but which make no reference to Level-I of the Service. That there does exist Level-II also in the grade of Collectors of Customs and Central Excise would be further borne out by a perusal of Order No- 12/80 dated 25th January 1980 (annexure T) which, inter alia, pertains to posting and transfer of Shri B. B. Julka to which I shall presently advert. Hence, nothing seems to turn on the notification dated 28th February 1976 so far as powers of Shri M. S. Mehta as Collector of Customs are concerned.
12. As for Shri B. B. Julka, the Union of India has placed on record copies of (a) Order No. 12/80 dated 25th January 1980 (annexure T) and (b) charge report dated 30th January 1980 of Shri Julka (annexure T). The former shows that Shri Julka was transferred from the post of Director (Prev. Operations), New Delhi, to that of Collector of Central Excise, Delhi. However, his charge-report would show that he took over the charge of the office of the Collector of Central Excise and Customs, New Delhi, pursuant to the aforesaid order. Thus, the contention of the learned counsel for the Union of India is that in view of Central Government's notification dated 1st February 1963 (supra) it was taken for granted by the Department ,as well as the concerned officer that by virtue of posting at Delhi as Collector of Central Excise the concerned officer was also appointed ex-officio as Collector of Customs. Since the impugned orders of sanction were made by Shri Julka subsequent to his posting at Delhi on 30th January 1980 the same must be held to be perfectly legal and in order.
13. From the foregoing conspectus of material and facts on record it clearly emerges that the officers posted as Collector of Customs are members of Indian Customs and Central Excise Service Class I. Sometimes they are appointed as Collectors of Central Excise and sometimes as Collectors of Customs and sometimes they have dual designation of both Collector of Customs and Collector of Central Excise. This conclusion is clearly borne out from notification dated 28th February 1976 (supra) on which reliance has been placed by the learned counsel for the petitioners. It is equally clear from the foregoing resume of facts that the substantive post at Delhi was , that of Collector of Central Excise. The same was the position with respect to several other stations like, Calcutta, Patna Shillong and Bombay etc. and, therefore, the Collectors of Central Excise at the said stations were also designated as Collectors of Land Customs in their respective jurisdictions (See notification dated 24th July 1951 annexure 'A' (supra)). It would thus appear that the appointment of Collector of Land Customs and for that matter Collector of Customs on the repeal of the Land Customs Act and coming into force of the Act was ex-officio rather than by name in each individual case. Section 15 of the General 9- Clauses Act provides that where a power to appoint any person to fill any office or execute any function is conferred then any such appointment may be made either by name or by virtue of office unless, of course, it is otherwise expressly provided in any Central Act or Regulation. Thus, there are two ways of making any appointment. One way is to appoint a person by name and the other is to appoint a person by office and there is no necessity to issue individual orders conferring the powers of the office, to which the officers are so appointed, on a particular individual. Notification No. 56-Cus. dated 24th July 1951 issued by the Central Board of Revenue which was similar to notification No. 55-Cus. dated 24th July 1951 (supra) came up for consideration before the Bombay High Court in Laxman Padma Bhagat v. The State and it was held by a Bench of that court that the effect of the said notification was that all officers of the Central Excise referred to in the notification became Land Customs Officers within the jurisdiction of their respective Collectorates. Since no particular mode of appointment is prescribed in Section 4 of the Act, it would be open to the Central Government to appoint Collectors of Customs by adopting any mode of appointment. Hence, a general order of appointment by issuing a notification, as in the instant case, would be a perfectly legal and proper mode of appointment. So far so, there seems to be no controversy between the parties and the real bone of contention is with regard to the true and proper interpretation of sub-clause (3) of the notification in question, viz., No. 37-Cus. dated 1st February 1963.
14. The learned counsel for the accused persons, namely S/Shri K. L. Arora, Harjinder Singh and N. C. Chawla etc. have canvassed with considerable force that on a plain reading of the aforesaid clause, a person must be holding the post of both Collector of Land Customs and Central Excise before he may claim to have been validly appointed as Collector of Customs at Delhi/Shillong under the aforesaid notification. However, the admitted position is that the post/designation of Collector of Land Customs was abolished on the repeal of the Land Customs Act with effect from 1st February 1963. Hence, there was no officer/post at Delhi having dual designation of Collector of Land Customs and Collector of Central Excise even on 1st February 1963 when this notification was issued. Thus,' according to them, this notification can at best be construed as implying that the then incumbent of the post Shri Narasimhan, who was working in dual capacity and performing the functions of both Collector of Land Customs and Collector of Central Excise at Delhi was sought to be covered by mentioning both his designations in the notification in question. In other words, this notification was aimed at meeting a particular contingency situation arising out of the repeal of the erstwhile Land Customs Act and coming into force of the Act and on the transfer of Shri Narasimhan this notification ceased to be operative and the subsequent' officers who were posted at Delhi as Collectors of Central Excise only could not be deemed to have been appointed ex-officio as Collectors of Customs at Delhi under sub-clause (3) of this notification which stood exhausted automatically on the exit of Shri Narasimhan from Delhi. No doubt this argument appears to be very attractive at the first blush but on little deeper consideration the mischief underlying it looms large and indeed becomes quite patent.
15. No doubt, it is an established canon of construction that the intention of the legislature has always to be gathered from the words used by it giving to the words their plain, normal and grammatical meaning. In other words, the court should read the Section/ provision of law or a passage in a notification as it is and it cannot re-write it to suit its convenience. It is equally well established rule of interpretation that the court is not permitted to read the section or the provision in a rule or regulation etc. in such a manner as to render it to some extent otiose. Adverting to Nalinakhya Bysack v, Shyam Sunder Haldar, , the learned counsel for the accused have urged that it is not competent to any court to proceed upon the assumption that the legislature has made a mistake. The court must proceed on the footing that the legislature intended what it has said. Even if there is some defect in the phraseology used by the legislature the court cannot aid the legislature's defective phrasing of an Act or add or amend or by construction make up the deficiencies which are left in the Act. So, applying this criterion there can be no escape from the conclusion that a person must be having both the designations i.e. Collector of Land Customs and Collector of Central Excise at Delhi before he can be said to have been appointed as Collector of Customs by virtue of this notification in question. However, this is only one side of the picture because it is equally well settled rule of construction that a statute, even more than a contract, must be construed ut res magis valeat quam pereat so that the intentions of the legislature may not be treated as vain or left to operate in the air. In other words, if possible the words of an Act of Parliament and other documents must be construed so as to give a sensible meaning to them. Hence, the court has to make sense of the ambiguous language and cannot permit the plain intention of the document to be defeated by reason of a slight inexactitude in the language of the notification. The tests laid in Heydon's case, (1584) 3 Co. Rep. 7a, which has been quite often noticed by the courts in India may be helpful to arrive at a true construction of ambiguous language appearing in a statute or notification etc. One of the principles laid therein is that the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for the continuance of the mischief and pro private commode and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico. (See 'Craies on Statute Law', 7th Edition P. 96). "It may not always be possible", said Jessel M. R. in Yorkshire Insurance Co. v. Clayton (1881) 8 QBD 421, "to give a meaning to every word used in an Act of Parliament," and many instances may be found of provisions put into statutes merely by way of precaution. "Nor is surplusage or even tautology, wholly unknown in the language of the legislature." (See 'Craies on Statute Law' (supra) P. 104). Said Brett J. in Stone v. Yeovil Corporation (1876) 1 CPD 691 : "It is a canon of construction that, if it be possible, effect must be given to every word of an Act of Parliament or other document, but that if there be a word or a phrase therein to which no sensible meaning can be given it must be eliminated." (See 'Craies on Statute Law' (supra) at Page 107). Thus, a court of law may reject words as surplusage if it appears to it that, by "attempting to give a meaning to every word the statute/notification (as in the instant case) is made insensible or if it is clear that otherwise the manifest intention of the legislature will be defeated. It has been held repeatedly by the Supreme Court that where the literal meaning of the words used in a Section would manifestly defeat its object by making it meaningless and ineffective it is legitimate and even necessary not to adopt the rule of literal construction so as to give up a meaning and make it effective and operative. In Tirath Singh v. Bachittar Singh , it was observed by their Lordships that :
Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.
16. Reference in this context be also made with advantage to Mahadeolal Kanodia v. Administrator General of West Bengal , Amar Nath Basheshar Dass v. Tek Chand , State of Haryana v. Sampuran Singh , State Bank of Travancore v. Mohammed Mohammed Khan , K. P. Varghese v. Income-Tax Officer, Ernakulam and Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal . In the State Bank of Travancore (supra) their Lordships while interpreting Section 2(4)(1) of the Kerala Agriculturists' Debt Relief Act, 1970 went to the extent of re-constructing clause (1) by adding "and at" after the words "before" observing that the literal construction would create an anomalous situation and lead to absurdities and injustice and defeat the very object of the Act. In K. P. Varghese (supra) their Lordships observed that :
It is now a well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even 'do some violence' to it, so as to achieve the obvious intention of the legislature and produce a rational construction.
17. Hey don's case was, inter alia, noticed by their Lordships in this authority and they observed that the rules of construction stated therein had been repeatedly applied in India in interpreting statutory provisions.
18. Applying this criterion to the ; notification in question, there can be no room for doubt that literal construction" thereof would lead to manifestly unreasonable and absurd consequences. It is, therefore, imperative for the court while construing it to avoid, if possible, the absurdity and the mischief which may flow from such construction. That the intention of the Central Government was to make appointments of Collectors of Customs under Section 4 of the Act forever is manifestly clear from a reading of the whole of the notification. Under sub-clause (2) Collector of Customs and Central Excise, Cochin, was appointed Collector of Customs within his respective jurisdiction. Obviously the expression "Collector of Customs" used therein refers to the designation of the post appearing in the erstwhile Sea Customs Act (See annexures 'B', 'C and 'D' in this connection). Further under sub-clause (4) Collectors of Central Excise, Baroda, Bombay, Puna Bangalore etc. were appointed as Collectors of Customs within their respective jurisdictions obviously because the incumbents of the posts of Collector of Central Excise at those stations did not ex officio have the designation of Collector of Land Customs/Collector of Customs also. Thus, on a harmonious construction of the whole of the notification in question, there can be no room for doubt that the intention of the Central Government while issuing the said notification obviously was to appoint certain officers as Collectors of Customs ex officio within their respective jurisdictions and, therefore, they advisedly trifurcated the various categories of the then incumbents having regard to their designations at different stations. Indeed, it would appear that the notification in question was always construed in this manner by the Government as well as by the concerned officers. That is why while taking over charge of their office at Delhi both S/Shri M. S. Mehta and B. B. Julka stated in their reports that they had resumed charge of the office of the Collector of Customs and Central Excise instead of merely mentioning Collector of Central Excise as stated in their transfer and posting orders. Further, as seen above, in order dated 5th February 1976, M. S, Mehta was described as Collector of Customs and Central Excise from which post he was transferred as Director (Anti-Smuggling), New Delhi, My attention has also been invited by the learned counsel for the Union of India to two more notifications viz. notification No. 121 dated 18th June 1966 and notification No. 22-Cus. dated 6th February 1965 issued by the Central Government conferring certain powers on the Collectors of Central Excise, Allahabad, Baroda, Delhi etc. who were Collectors of Customs by virtue of notification in question. That clearly shows that the intention of the Central Govt. was to appoint certain officers ex officio Collectors of Customs also as envisaged in Section 4 of the Act and the said notification was to hold good in future also. Significantly this notification has now been rescinded by the Central Government vide notification No. 253-Cus. dated 27th August 1983 and a fresh notification No! 252-Cus of even date has been issued on similar lines except that the words "Collectors of Land Customs, Delhi and Shillong" have been removed there from and sub-clause (3) has been recast in tune with the erstwhile sub-clause (4). Hence, I am of the considered view that the words "Collectors of Land Customs" were introduced by the concerned draftsman ex major cautela only to avoid any possible objection or difficulty and to apprise that the erstwhile Collectors of Land Customs and Central Excise at Delhi and Shillong would be henceforth termed as Collectors of Central Excise and Collectors of Customs. In this view of the matter, therefore, the appointment of both S/Shri M. S. Mehta and B, B. Julka as Collectors of Customs by virtue of the aforesaid notification is perfectly valid and in order and it suffers from no legal infirmity. The learned counsel for the Union of India then canvassed with great fervour that having regard to the repeal of both Land Customs Act and the Sea Customs Act with effect from 1st February 1963 the addition of the designation Collector of Land Customs in sub-clause (3) of the notification dated 1st February 1963 should be ignored not as being merely surplusage but. also because their being, in fact, no post of Collector of Land Customs and the post at Delhi being only of Collector of Central Excise, the conjunctive "and" must be read as "or" having regard to the background and context of the notification. This aspect of the matter has been considered at length by my learned brother Jagdish Chandra, J. in Chander Prakash Tyagi v. Department of Customs (Preventive) Cr. M. (M) No. 1090/83-etc. decided on April 3, 1984 (reported in (1984) 2 Crimes 24). In the said cases, the appointment of Shri B. B. Julka as Collector of Customs, Delhi was under challenge and reliance had been placed by the Union of India on the selfsame notification dated 1st February 1963 which has been pressed into service in the instant case too. No doubt, in ordinary usage "and" is conjunctive and "or" disjunctive but it is well settled that to carry out the intention of the legislature it may be necessary to read "and" in plaice of conjunction "or" and vice versa. (Maxwell on 'Interpretation of Statutes' 12th Edition, page 232). In Ragina v. Newbould (1962) 2 QB 102, the expression "local and public authorities" appearing in Section 4(2) of the Prevention of Corruption Act, 1916 has been held by Winn J. not to "mean authorities which are both local and public... (but) authorities which are either local or public." Similarly while interpreting the definition of drug as contained in Section 3(b) of the Drugs Act, 1940, the Supreme Court held in Ishwar Singh Bindra v. State of U.P. that :
Now if the expression "substances" is to be taken to mean something other than "medicine" as has been held in our previous decision it becomes difficult to understand how the word "and" as used in the definition of drug in Section 3(b)(i) between "medicines" and "substances" could have been intended to have been used conjunctively. It would be much more appropriate in the context to read it disconjunctively.
19. An illustration of the converse may be found in Govindlalji v. State of Rajasthan . Indeed as stated by Reed Dickerson in his book "The Interpretation and Application of Statutes" if loss suffered from the diseases of language like ambiguity, over-vagueness, over-precision, over-generality and under-generality, courts must cure the patient not kill him. Hence, I am in respectful agreement with Jagdish Chandra, J. in the view he has taken in Chander Prakash Tyagi v. Department of Customs (Preventive). He has rightly observed that :
Thus, when there was no such joint post of "Collector of Land Customs and Excise" the interpretation sought to be put by the learned counsel for the accused persons becomes "unacceptable and merely because some officers happened to discharge both the functions, i.e. Collector of Land Customs and Collector of Central Excise; would not go to show the existence of a joint post of "Collector of Land Customs and Excise" even though there was either a Collector of Customs or a Collector of Central Excise.
Looked at the problem from this aspect too, the only rational construction which may be placed on sub-clause (3) would be that irrespective of whether the Collector of Central Excise at Delhi was formerly functioning as Collector of Land Customs also he was vested with the powers of the Collector of Customs under Section 4 of the Act by virtue of the said clause and the said notification held good till it was rescinded in 1983 by way of abundant precaution.
20. Lastly but very rightly Shri V.D. Mahajan appearing on behalf of the Union of India in some of these cases has invoked what is termed the doctrine of de facto jurisdiction". The doctrine is now well established that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure. This doctrine has been analysed threadbare and affirmed by the Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh . In that case while criminal revisions and appeals were pending before the High Court, the Supreme Court quashed the appointment of the Sessions Judges who had heard those cases on the ground that their appointment was in violation of Article 233 of the Constitution. Thereupon, it was urged before the High Court that the judgments rendered by those Judges were void and required to be set aside. The High Court of Andhra Pradesh rejected the contention. Dismissing the appeal the Supreme Court held (at Pp. 881-82) :
A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy; The defective appointment of a de facto judge may be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack.
21. Reference in this context was made by their Lordships to the statement of law as enunciated in Cooley's Constitutional Limitations, Eighth Edition, Volume 2, p. 1355 and the following observations of the United States Supreme Court in Norton v. Shelby County (1886) 118 US 425 :
Where an office exists under the law, it matters not how the appointment of the incumbent is matle, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions...The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having officiate business to transact.
22. Their Lordship's also quoted the following observations of Field with approval :
The doctrine which gives validity to acts of officers de facto whatever defects there...may be in the legality of their appointment or election is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the-public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question.
23. In view of this authoritative pronouncement of the Supreme Court there can be no room for doubt that the title of Shri M. S. Mehta and Shri B. B. Julka as Collectors of Customs cannot be brought into jeopardy in this fashion, namely, legality and validity of their appointment as Collectors of Customs and the exercise of authority by them under Section 137 of the Act cannot be called into question collaterally. The de facto doctrine naturally saves their such acts. Looked at the matter from this angle too, there is no escape from the conclusion that the sanctions accorded by S/Shri M. S. Mehta and B. B. Julka to the prosecution of various accused persons in these cases must be deemed to be valid and in order. In other words, the sanctions are as effective and binding as they would have been, had S/Shri M. S. Mehta and B. B. Julka been validly appointed as Collectors of Customs (Of course, I do not mean to say that they have not been validly appointed).
24. To sum up, therefore, I allow the prayer made by the Union of India in Cr. (M) Nos. 884/84, 551/84 and 120/84 and set aside the impugned orders passed by the learned Additional Sessions Judges S/Shri B. B. Gupta and B. S. Chaudhry in Criminal Revision No. 13/83 and Cr. R. 166/83 and in Criminal Revision No. 19/83, respectively. On a parity of reasoning, I uphold the decision of Shri Mahesh Chandra, Additional Sessions Judge, dated 30th November 1983 impugned in Criminal Misc. (Main) Nos. 216/84, 321/84 and 215/84 and dismiss these petitions.