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6. Mr. Sorabji, who appears for the petitioners, formulated his point thus:- (1) Customs Act, 1962, provides for two alternative punishments, which are different from one another, one of them more serious or drastic than the other, for the same offence. The two punishments are (i) adjudication proceedings resulting into penalty under Section 112 read with Section 111 of the Customs Act, and (ii) sentence after a criminal trial under Section 135 of the said Act. On the same facts, either only adjudication proceedings can be held or resort can be had to both adjudication proceedings and prosecution under Section 135. Choice or selection of the proceedings to be adopted against a person alleged to have violated Section 111, is by the Customs Act left to the unguided, uncontrolled and arbitrary discretion of the Customs authorities. The Customs Act does not provide any criteria, nor any guidelines to control or guide the exercise of the said discretion. Guidelines must have relevance and bearing on the question of selection of the proceedings by the Customs authorities whether they should adopt only adjudication proceedings or both adjudication proceedings and prosecution. Guidelines must be clear and definite, they must not be latent, nor hidden in the crevices of the statute. Although Section 137 of the Customs Act provides for a sanction to prosecute, there is no statutory obligation on the Collector of Customs to hold an inquiry first and find out whether penalty imposed was inadequate punishment, hence criminal prosecution was called for. There is no provision in the Customs Act corresponding to Section 23D of the Foreign Exchange Regulation Act, 1947 (hereinafter referred to as the Exchange Act). The status or position of the officer who is empowered to grant sanction under the Customs Act may be a safe-guard against the abuse of power to grant sanction, but this safe-guard cannot furnish guidelines or criteria for the exercise of the discretion conferred by Sections 135 and 137 of the Customs Act, if such guidelines or criteria do not exist in the provisions of the Act itself.

18. Relying on these decisions, Mr. Sorabji submits that there being no provisions in the Customs Act or the rules thereunder to indicate the type of cases in which criminal prosecution shall be resorted to under Section 135 read with Section 137 of the Customs Act, the two Sections 185 and 137 - should be held to be invalid in view of Article 14 of the Constitution in the absence of any guidelines for the exorcise of the discretion conferred by the said sections. Mr. Sorabji further submits that the practice actually followed by the Customs Department in exercising the discretion conferred by the said sections, even assuming it to be good, cannot supplement the requirements of a valid law. In support of this contention, reliance is placed on the observations in para. 33 of the judgment of the Supreme Court in Collector of Customs v. Sampathu Chetty [1962] A.I.R. S.C. 404. The relevant observations are as follows (p. 332):

39. While ascertaining the purpose and policy of the statute, it would certainly be relevant to take the legislative history and background into account. As already mentioned above, prior to the Amendment Act of 1955 there was no provision for criminal prosecution in the Sea Customs Act. It was introduced for the first time by the Amendment Act of 1955. The preamble to the Sea Customs Act, 1878, reads:

An Act to consolidate and amend the law relating to the levy of sea Customs-duties.

This preamble makes it clear that the purpose of the Act is to levy sea customs-duties and to collect them. It follows as a corollary that checking the evasion of customs-duties would also be a subject-matter to be dealt with by the Act. The Act contains various provisions for investigation into the cases of smuggling to evade customs-duties, and provides for confiscation and penalty as punishment for smuggling. Since smuggling could not be effectively checked, the Amendment Act of 1955 introduced criminal prosecution as an additional measure for checking smuggling effectively. This is obvious. In para. 15 above, we have referred to the statement of objects and reasons and the notes on the various clauses of the bill, which subsequently became the Sea Customs (Amendment) Act, 1955. The statement of objects and reasons makes it clear that the Legislature thought it necessary (i) to place certain existing practices on a statutory basis; (ii) to confer additional powers with regard to investigation on the Customs Officers in order to check smuggling effectively; and (iii) to provide by way of a more effective mode of checking smuggling criminal prosecution in addition to confiscation and penalty. Item 81 was added to Section 167 of the Sea Customs Act, which we have quoted above ad verbatim. This item makes it clear that the intentional import of prohibited goods and the import of goods with intent to defraud the Government of any duty payable thereon were made punishable by resorting to criminal prosecution. Section 187 of the Sea Customs Act, as amended in 1955, provided that no cognizance of the offence relating to smuggling of goods could be taken, except upon a complaint in writing, by the Chief Customs Officer or any other officer of customs not lower in rank than an Assistant Collector of Customs. Section 170A conferred on the Customs Office the power to X-ray the body of a person reasonably suspected to have secreted dutiable or prohibited goods in his body under the order of a Magistrate to that effect. By further amendment in 1962 resistance to such an order was made punishable. Section 178A introduced by the Amendment Act of 1955 placed the burden of proof on the person from whom goods are seized to establish that the goods are not smuggled goods. Sub-section (2) of Section 178A empowered the Central Government to make Section 178A(1) applicable to other articles, in addition to those already mantioned in Section 178A(2), by a notification to that effct. Section 171 (introduced by the Amending Act of 1957) and Section 171A (introduced by the Amending Act of 1955) conferred on the Customs Officers additional powers with regard to investigation. This legislative history and back-ground does, in our opinion, make it clear that the purpose of the Act was to levy customs duties, collect the same and check smuggling. Since punishment by way of confiscation and penalty was found inadequate to check smuggling effectively, more serious punishment by way of criminal prosecution was introduced. This itself furnishes a guideline that criminal prosecution is to be resorted to only in serious cases, particularly in cases where there are reasonable grounds to believe that the offender or offenders concerned are habitual offenders and carry on smuggling on a large scale. This is also clear from the fact that even under the Sea Customs Act, as amended by Act of 1955, an offender could be prosecuted only on a complaint filed by a responsible Customs Officer named in Section 187 of that Act. Section 137 of the Customs Act of 1962 furnishes a better safe-guard against indiscriminate prosecution of smugglers by providing for a sanction by a high and responsible Customs Officer.

44. Clauses (c), (f), (j) and (k) of Section 11(2) of the Customs Act, 1962, were relied upon as furnishing guidelines. Although the purposes mentioned by these clauses are to be considered with the provisions of the Act to ascertain whether there are enough guidelines for exercise of the discretion in question, these purposes by themselves cannot furnish guidelines.

45. Provision as to sanction under Section 137 of the Customs Act, 1962 is itself a safeguard against indiscriminate prosecution. In effect, the contention of the petitioners is that in the absence of express provisions furnishing guidelines, power to sanction prosecution is likely to be abused by resorting to discrimination. Mere possibility of abuse of power would not be a ground to hold Sections 135 and 137 of the Customs Act, 1962, invalid. For reasons indicated above, we are unable to accept the contention that the Act furnishes no criteria or guidelines for exercise of the discretion conferred by Section 137 read with Section 135 of the Customs Act, 1962. In our opinion, the legislative history and back-ground of the statute in question, its purpose, its scheme and policy as disclosed by the various provisions thereof furnish enough guide-lines and the impugned sections do not confer unguided, unfettered discretion so as to violate Article 14 of the Constitution. In our opinion, those guide-lines are apparent from the purposes and policy of the Customs Act, 1962, as disclosed by the provisions thereof, and one need not go to the crevices, if any, of the Act to find out these guidelines.