# RAM KIRPAL BHAGAT & ORS v. STATE OF BIHAR

- **Citation:** [1970] 3 S.C.R. 233
- **Court:** Supreme Court of India
- **Decided:** 1969-11-13
- **Case number:** Criminal. Appeal No. 210 of 1966
- **Bench:** M. Hidayatullah, S. M. Suoo, G. K. Mitter, A. N. Ray, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-kirpal-bhagat-ors-v-state-of-bihar-4907
- **Pages:** 20

## Headnote

Sea Customs Act 8 of 1878-lmports & Exports Act 18 of 1947Efject of s. 3(2) of Act 18 of 1947-Whether only s. 19 of Act 8 of
1878 attracted or other provisions also--Sec Customs Act whether applicable to Santhal Parganas in Bihar-Land Custllm.1 Act
19 of 1924
ll'hether applicable to Sc:nthal Parganas-Pol1.'er of Gorernor under Art.
244 ,& Fifth Schedule of Constitution of India 1950 to extend laws to
sclie<luled areas-Cloves whether 'prohibited goods' under Act 18 of 1941
and 1111ports Control Order 1955-Whether dutiable under Indian Tariff
Act J 934-Power of Inspectors of Central Excise cniployed on Central
t.'xcise & Custon1s Intelligence ivork to 1nake crreJts
and seize ciol'es
under .1·. 173 & s. 178 of Sea Customs Act-Effect of notifications under
.1. 6 of Sea Customs Act, namely, Notification No.
69-Cus. dared
28
September 1951 and CBR Notification I. L. Cus. dmed 25th January,
1958 Sea Cust'oms Acts. 178A-Onus of proof u1rder.
H
One Nazir Mian \Vas arrested at Pakur Railwav Station in the Santhal
Parganas of Bihar hy two Inspectors and a constable belonging
to
the
Central Excise Department. · The Inspectors were employed on Central
Excise and Customs Prevention Intelligence work.
Two bags of cloves
on which duty was requi'rcd to be paid under the In1ports Control Order
1955, but had not been paid, were seized from the possession of Nazir
mian who had locked himself inside the latrine of a railway compartment
in the said station.
The arrest and seizure were effected under ss. 173
and 178 of the Sea Customs Act 1878. Helped by certain persons, Nazir
i\fian escaped and the cloves we:re also taken away.
In the scuffle the
said two Jnspectors were injured, one grievously. Alongwith four others
'.\iazir Mian was tried in connection with the incident. The charges against
the accused included the offences of offering resistance
to
the
lawful
apprehension of Nazir Mian and of causing hurt to a public servant in the
discharge of his official duties.
Four of the accused including the three
appellants were convicted by the trial Court. The High Court dismissed
their appeals.
In appeal by special leave against the judgment of the
High Court the appellants contended before this Court that : ( 1 ) The
Sea Customs Act. 1878 did not apply to the place of occurrence
and,
therefore, the arrest purporting to have beefi. made under ss. 173 and 178
of that Act and the seizure of the cloves\ were unlawful. (ii) The Land
Customs AcUl 924 did not apply to the place of occurrence and therefore
the Jnspecto
were not officers ot Customs who could invoke the autho·
ritv of the
, nd Customs Act. 1924 to arrest and
seize the appellant
~~zir Mian: (iii) The seizure of cloves was not authorised by s. 178 of
the Sea Customs Act 1878 nor was the arrest authorised under s. 173 of
the Sea Customs Act 1878; (iv) Section 178A of the Sea Customs Act
1878 eoulJ not apply because there was no notification to attract the
application of the said section.
HELD: (i) The Sea .Customs Act. 187R was applic:ibk ro the Santhal
P<.irg:anas by virtue of s. 3('!) of the Jn1porls & Export, Cctntrol /\er. J.94"7
1.r.su11 c.l./iO· 1r;
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·234
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· S:uPR,EME _ coJRT
. ,
REPORTS
c__ ___ [1970]3-S.C.R. _
'
"'·hich.\h?d. been niadc applicable bY. th~ ~·overno~ to the-Santhal :arganas .
under B1har Regulation I of 1951.
- \
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Sub-secti9n (2) of •: 3 of the Imports & Exports Control Act, 1947
enacts that goods to which ai;iy orde:r: under sub-section (I) applies shaU
be deemed to be goods of which the 1mpd.rt or export has been prohibited
under s. 19 of the Sea Customs Act, 1878 and the second limb of sub-.
section (2) of-s. 3 is that all the provisions of that Act (The Sea Customs
Act, 1878) shall have effect accordingly. To accede to the contention on
behalf of the appellants that only s. · 19 of the Sea' Customs Act 1878 will
apply and no, other provisions of- the Sea Customs Act 18J8 will be
effective or operative \\'ill-be· not only to

## Text

_Characters 0–39,751 of 54,527. This is a partial read: ask again with offset=39751 for what follows._

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RAM KIRPAL BHAGAT & ORS.
v.
STATE OF BIHAR
November 13, 1969
233
[M. HIDAYATULLAH, C.J., S. M. Suoo, G. K. MITTER, A. N. RAY
AND P. JAGANMOHAN REDDY, JJ.]
Sea Customs Act 8 of 1878-lmports & Exports Act 18 of 1947Efject of s. 3(2) of Act 18 of 1947-Whether only s. 19 of Act 8 of
1878 attracted or other provisions also--Sec Customs Act whether applicable to Santhal Parganas in Bihar-Land Custllm.1 Act
19 of 1924
ll'hether applicable to Sc:nthal Parganas-Pol1.'er of Gorernor under Art.
244 ,& Fifth Schedule of Constitution of India 1950 to extend laws to
sclie<luled areas-Cloves whether 'prohibited goods' under Act 18 of 1941
and 1111ports Control Order 1955-Whether dutiable under Indian Tariff
Act J 934-Power of Inspectors of Central Excise cniployed on Central
t.'xcise & Custon1s Intelligence ivork to 1nake crreJts
and seize ciol'es
under .1·. 173 & s. 178 of Sea Customs Act-Effect of notifications under
.1. 6 of Sea Customs Act, namely, Notification No.
69-Cus. dared
28
September 1951 and CBR Notification I. L. Cus. dmed 25th January,
1958 Sea Cust'oms Acts. 178A-Onus of proof u1rder.
H
One Nazir Mian \Vas arrested at Pakur Railwav Station in the Santhal
Parganas of Bihar hy two Inspectors and a constable belonging
to
the
Central Excise Department. · The Inspectors were employed on Central
Excise and Customs Prevention Intelligence work.
Two bags of cloves
on which duty was requi'rcd to be paid under the In1ports Control Order
1955, but had not been paid, were seized from the possession of Nazir
mian who had locked himself inside the latrine of a railway compartment
in the said station.
The arrest and seizure were effected under ss. 173
and 178 of the Sea Customs Act 1878. Helped by certain persons, Nazir
i\fian escaped and the cloves we:re also taken away.
In the scuffle the
said two Jnspectors were injured, one grievously. Alongwith four others
'.\iazir Mian was tried in connection with the incident. The charges against
the accused included the offences of offering resistance
to
the
lawful
apprehension of Nazir Mian and of causing hurt to a public servant in the
discharge of his official duties.
Four of the accused including the three
appellants were convicted by the trial Court. The High Court dismissed
their appeals.
In appeal by special leave against the judgment of the
High Court the appellants contended before this Court that : ( 1 ) The
Sea Customs Act. 1878 did not apply to the place of occurrence
and,
therefore, the arrest purporting to have beefi. made under ss. 173 and 178
of that Act and the seizure of the cloves\ were unlawful. (ii) The Land
Customs AcUl 924 did not apply to the place of occurrence and therefore
the Jnspecto
were not officers ot Customs who could invoke the autho·
ritv of the
, nd Customs Act. 1924 to arrest and
seize the appellant
~~zir Mian: (iii) The seizure of cloves was not authorised by s. 178 of
the Sea Customs Act 1878 nor was the arrest authorised under s. 173 of
the Sea Customs Act 1878; (iv) Section 178A of the Sea Customs Act
1878 eoulJ not apply because there was no notification to attract the
application of the said section.
HELD: (i) The Sea .Customs Act. 187R was applic:ibk ro the Santhal
P<.irg:anas by virtue of s. 3('!) of the Jn1porls & Export, Cctntrol /\er. J.94"7
1.r.su11 c.l./iO· 1r;
'\
'~
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' - -
I'
·234
\
~ \ . ,,
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· S:uPR,EME _ coJRT
. ,
REPORTS
c__ ___ [1970]3-S.C.R. _
'
"'·hich.\h?d. been niadc applicable bY. th~ ~·overno~ to the-Santhal :arganas .
under B1har Regulation I of 1951.
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-
Sub-secti9n (2) of •: 3 of the Imports & Exports Control Act, 1947
enacts that goods to which ai;iy orde:r: under sub-section (I) applies shaU
be deemed to be goods of which the 1mpd.rt or export has been prohibited
under s. 19 of the Sea Customs Act, 1878 and the second limb of sub-.
section (2) of-s. 3 is that all the provisions of that Act (The Sea Customs
Act, 1878) shall have effect accordingly. To accede to the contention on
behalf of the appellants that only s. · 19 of the Sea' Customs Act 1878 will
apply and no, other provisions of- the Sea Customs Act 18J8 will be
effective or operative \\'ill-be· not only to render the words '"and all the
provisions of that Act shall have effect" otiose but also nugatory. When
the statute enacts that all the provisions of that Act shall have effect
accordingly, it \\1ill be an erro'r to hold iti spite Of the Ianguacre of such
legislation that the provisions of the Sea Customs act shall not have effect.
!Jle effect of !'ringing into -an Act~ the proVisions of an earlier Act is to
introduce the incorporated sections of the earlier Act into the subsequent
Act as. if these provisions have been enacted in-it for the first time. [242
H-250 01
All that_ can be said on the authority of the Madras Custonzs case is
that if s. 19 of the Sea Customs Act 1878 were repealed then the Sea
_Customs Act 1878 would not be attracted. Section 19 of the Sea -Customs
Act, ·1878 has not been repealed and was extant and is now re-enacted as
-s. l _l in the Sea Customs Act. 1962 and there has been corresponding
-change in the Imports and Exports Control Act, 1947 by reference to the
Sea Customs Act,· 1962 and s. 11 ther_eof. (243 HJ
The Collector of Custo1ns, MGdras v. Nathello
Sa111pathu Chetty &
Anr., [1962) 3 S.C.R. 786, explained.
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The Secretary of State for India in
Council v. Hindustan Co-operaE
,five Insuranct; Societ.v Ltd., referred to.
Re: Wood's Estate, [1881J 31 Ch. D. 607, applied.
Bihar Regulation 1 of 1951 was not in excess of the
Governor's
powers. _The Santhal Parganas are included in the Scheduled Areas dealt
"With in Art. 244, and the Fifth Schedule to_ the Constitution.
Paragraph
:5 in -the Fifth Schedule deals with laws applicable to Scheduled Areas.
SuQ-paragraph 2 of Paragrapfi 5 enacts that the Govemo~ may make regulations for the peace and good government of any area in a State which
is for the time being a Scheduled Area. Under sub-paragraph ~ of paragraph 5 the Governor may repeal or amend any. ~ct of Parh_ame:it or
any Act of the legislature of the Stat~ or any e~ishng .la~ w·h1ch ts ~or
the time being applicable. to the area in question._ The B1har Re~lat~on
I of 1951 is a valid piece of legislation emanating from. the leg1sla.ttvc
authority of the. Governor in its plenitude of power.
The contentions
that ~the Governor's power of making regulations. did not
incl~de . the
power to_ apply l~ws and that the. Bihar ~egulat10~ I ~f 1951 is either
a piece of <lelej.rated legislation or, a cond1t1onal leg1slahon, could not he
accepted. [245 B-C, HJ ·
.
Riel v. The Queen. LR. 10 A.C. 657, refe'rred to.
(ii) The Land Customs Act. 1924 was not applicable to the Santhal
Parganas as an 'existing Jaw' v.'ithin the f!leaning of Art. 372( 1) of the
Constitution.
It was also not made a2phcable to the Santhal Pargan~s
by the Governor bv the exercise of power un~er th~ Gov~rnm:nt of India
Act or the Constitution.
Nevertheless by virtue of notification No. 69
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t{A.~I KIRPAL V. HlllAR
Cus. dalcJ 18th Scplcmhcr, 195 l under ~ccLion .6 of Lhc Sea Custom~ct,
I X78 and notifi9ation No. ('BR Notitis;:alion 1. L. Cus. dated 25th Janq3ry,
1958 (as umcndell in Muy, 1958) the '1:\VO Jnspccto'rs in the present case
IHJ<l <lllthority to ;.1rrcsr the :.1ppcllunt N;.1zir J\-fittn and lo seize the ha~of
i:loVes in hi.Ii posscssiol).J
Fron1 the sai<l notificutions it appenrc<l that under !<.. 6 of the ~ca
Custorhs Act.· 181 N Lund Custon1!rl Officers arc appointed Officers of Cus·
1oms.
SeconJly, the potification ,under the Lunt.I Customs Act is that all
the .officers n1cntio~J -..therein including the Inspectors of Central Excise
L'mPloyc<l on the Central Excise Or ('uston1s Prevention ·Intelligence Work
and attached to the Headquarter"s are- Land Customs Officers.
The corn·
hinc<l effect of both the notificaticins is that the
J nspectors
of Central
Excise in the present c:.1se \Vere Land_ Custon1s Officers un<l Officers of
Customs as a result of the application of the Sea
('ustoms Act, I X7X.
1246 H; 251 B-DJ
(iii) (a) The in1port of cloves \\'Us prohibi1cd
under
the
Imports
Cont:rol Order 1955 m:u.lc
under
s.
3
of the
Imports
&
Exports
Control Or<lcr I 94 7.
Thoy w_crc
~ilso dutiable
!!Ooμs unLic r thl! Jn.di1.1n
·rariff Act. 1934 which, \\'as af)plicahlc to the Sunthal Parganus heing one
of the Acts mentioned ~n the Schedule to the Santhal Parganas Scttlcn1cnt
Regulation. 1872.
Hcipg prohihitcd goods under the Imports & Exports
Control Act, J 947 clov~s un: <.1ee1ned to he prohihih.:<l under s. 19 of the
Sea Customs Act, !878. [250· A]
(h) 1"he evidence in the
p·rcsent
case
estahlished
the
follo\ving
facts.
First. the appellant Nazir Mian ha<l in possession
two
hags
of
cloves ahd no <luty
\\~u"s gaid on those cloves.
Secondly the said appellant
kept the cloves in two hags arid concealed the same in the latrine of the
failw~s cou1partmcnt
Thirdly,
the cloves \Vere dutiable goods
"an<l
there was prOl\ibition ·on the imPort of those goods.
Fourthly. the place
of occurrence was at a distance of only 11 & 12 n1iles from the East
Pakistan border.
Fifthly, cloves are not grown in India.
These eireumsranccs indicated a rcasonabJC suspicion :.ind. therefore the Officers \\1erl!
iustifieU in arresting the aopellant Nazir f\fian under :-;ection 173 of the
S.Oa Customs Act. 1878. 1251 El
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(iv) In the absence of special notificution und1.:r s. I 78A of the Sen
("u!<.toms Act. 1878 specifying goods to \\'hich the section applies. the
onus of proof ui:ider ttiat section cannot he placed on persons '"hose gooJs
i1re seizeJ for violatioq ;of othcr''P·roVisions of the Sea Custon1s Act. 1878.
In vic\v bf the fact that in the present c<1sc the scizeJ articles \\'ere rcn1oved bv the accusct.1 it n:.is unncccssury to denl uny further \\'ith this
aspect of the case because if any order \Vas passed for return of th1.:
hags the order could not he enforced ~I :!51 H1
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal )';'0.
182 of 1966.
Appeal by special leave from the judgment and order dat~d
January 31, 1966 of the Patna High Court in Criminal. Appeal
No. 210 of 1966.
H
Ramesl11var Dial and A. D. Mathur, for the appe!lai1ts.
Lal Narayan Sinha, Atlvncat~-GrnC'raf ;or tfl<' Stare of Bilwr
a·nd U. P. Sing/1, for the respondent.
SUPREME COURT REPORTS
(1970] 3 S.C.R.
L. M. Si11gh1·; and S, P. Nayar, fdr t\le Union of India.
A.
Lal Narayan Sinha, Advocate-Genera/ for ihe State of Bihar
and D. Gob11rd/111n, for the State of Bihar.
The Judgment of the ,Court was delivered by
Ray, J.-This is an ap'peal by special leave from the judgment
8 .
rn' the High Court at Patna challenging first the authority of the
Excise In,p~ctors as· Officers of Ct\~toms. namely, public servants
and secondly their power fO arrest Nazir Mian and seize 2 bag'
or cloves from his possession under1scctions 173 and 178 respecti\"cly of the Sea Customs Act, 1878.
/
The. facts giving rise to this uppc;I ure us
follo~s.
Ot! ... - C
13 December. 1961. Inspectors Uma Shankar and Bisiiddha
Nanj Jha and Constable Bishan Singh, all belonging to the Central Excise Department were on checking patrol duty on 330
Dow·n Baruuni passenger train proceeding fro1n B'arharwa to
Pakur .which are Railway Stations in. Santhal Parganas in Bihar.
The appellant Nazir Mian. was travelling by Barauni passenger
D
tr"in.
When the train stopped at Pakur the excise staff found
Nazir Mian in the latrine of one of the co111part1nents of the train
\rith t\VO bags of clove's weighing about 2 n1aunds 10 seers. Th,;
do,1r of the latrine \\'as closed.
Inspector Vma Shankar pushed
tho door when it was opened from inside.
Uma Shankar disclosed his i<.leptity and asked if duty had been paid for the cloves.
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l\azir Mian answered in the negative.
lnspcctor Uma Shanhtr
thereupon seized the bags and arrested l'<azir Mian.
While thi'
was being done, the train started.
Shorlly after the train lu1d
'tarted it 'topped at a level cro'5ing in ccmsequencc of one of
the persons of the excise staff puliing the aiarnt chain. The excise
staff got do\vn with Nazir M ian.
~fhc two bags of cloves were
ab;:i brought down.
Certain persons collected on the spot. Nazir
f
Mian is allegqd to have been rescued by other appellants and
the bags of cloves were taken away.
Jn the scumc that ensued.
one of the Inspectors received. sin\ple injuries and the other a
grievous injury'.
The three appellants Nazir Miah; Ram Kirpul Bhagat :ind
Ganga Dayal Shah and two other persons Jhaman Mian and
H.ughunath Prasad 'r' ad av were aIJ ·charged under section 147.
149.' 333 and 379 of the Indian Penal Code for forming an unlawful assembly in u>Saulting Inspectors Uma ,Shankar and B. N .
.I hu :.ind in rescuing accu:-;ed Nazjr f\.1ian frorn their Jaw'ful custody
and in re111oving two bags of seized cloves fron1 their possession.
The accused persons with the exception of Raghunath Prasad
Yadav were further charged under section 332 of the Indian
Penal Code for \"Oluntarily' causing hun to Uma Shankur a public
(,
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RAM KIRPAL v. BIHAR (Ray, J.)
servant in the discharge of his public duties.
The accused with
the exception of Nazir Mian were charged under section 225 of
the Indian Penal Code for intentionally offering resistance to the
lawful apprehension of accused Nazir Mian.
Nazir Mian was
also charged under sectiol) 7 of the Land Customs Act, 1924
for contravention of section 5 of the said Act and also under
section 167 item 81 of the Sea Customs Act, 1878 for contravention of section 19 of the said Act and also under section 5 of the
Imports and Exports Control Act, 1947 for contravention of
section 3(1) of the Imports Control Order, 1955.
At the tdal before the Assistant Sessions Judge, Dumka in
Santhal Parganas, Raghunath Prasad Yadav was acquitted of all
the charges and the appellants Nazir Mian, Ram Kirpal Bhagat
and Ganga Dayal Shah along with Jhaman Mian were all convicted under sections 147 and 332 of the Indian Penal Code.
Jhaman Mian, Ram Kirpal Bhagat and Ganga Dayal Shah ''ere
also convicted under sections 225 and 333 of the Indian Penal
Code.
Ram Kirpal Bhagat and Nazir Mian were also convicted
under section 379 of the Indian P"enal Code.
The said four
accused including the three appellants were sentenced to sehTa I
terms of imprisonment and the said sentences were ordered lO
run concurrently.
The Assistant Sessions Judge, Dumka, however, acquitted
the appellant Nazir Mian of the charges under the Land Custcms
Act, the Sea Customs Act, 1878 and the Imports and Exports
Control Act.
The Assistant Sessions Judge, Dumka held that
section 6 of the Imports and Exports Control Act, 1947 raised
a bar of taking cognizance by any court except upon a complaint
in writing made by an officer authorised in that behalf by the
Central Government by general or special order and in the
absence of any complaint in writing by the officer concerned, the
Assistant Sessions Judge, Dumka found that he had no jurisdiction to take cognizance of the offence under this Act.
The
Assistant Sessions Judge, Dumka, also held that section 187 A
of the Sea Customs Act, 1878 laid' down that cognizance as to
offence was to be taken upon a complaint in writing made by
the. Chief Customs Officer or any other officers of customs not
lower in rank than an Assistant Collector of Customs authorised
in this behalf by the Chief Customs Officer.
The Assistant
Sessions Judge, Dumka, found that in the present case there was
no such complaint, and, therefore, he did not take cognizance
for the contravention of section 19 of the Sea Customs Act,
1878 .
The appellants and Thaman Mian thereafter preferred an
appeal to the 'High Conrt. Jn the High Court the appellant Nazir
238
SUPREME COURT REPORTS.
(1970] 3 S.C.R.
Mian co1..ended that Inspector Uma Shankar had no power to
arrest him and seize the cloves, and, therefore, · the Inspector
could not be .held to have acted in the discharge of his public
duties. In.aid of that contention it was submitted first, that the
Imports arnf'Exports Control Act, 147, tl!e Land Customs Act, .
1924, the Sea Customs Act, 1878 and the Indian Tariff Act,
1934 were not extended to Santhal Parganas and were not, therefore,. applicable.
The second contention was that cloves were
not dutiable articles. The third contention was that section 173
of the Sea Customs Act, 1878 had no application, because there
was no evidence of reasonable suspicion that Nazir Mian was
guilty of an offence under the Sea Customs Act, 1878. It was
also cop tended· that Inspector Uma Shankar was not an officer
of the Customs.
The High Coun came to the conclusion that the Sea Customs
Act, 1878 and the Imports and Exports Control Act, 194 7
applied to the Santhal Parganas with the result that the import
of cloves was prohibited; duty was payable on cloves; the Inspec·
tors were officers of Customs within their respective jurisdiction,
and, therefore, they could exercise power under section 17 3 of
the Sea Customs Act, 1878 and they could seize· the goods under
section 178 of the Sea Customs Act, 1878.
Th(\ High Court
further held that under section, 178A of the Sea Customs Act;
1878, the burden was on the appellant Nazir Mian to prove that
. cloves seized were not smuggled goods and that the appellant
Nazir Mian failed to do so.
The High Court held that the appellants. had been rightly
convicted for certain offences but the sentences under section
332 of the Indian Penal Code against Nazir Mian, Ganga Dayal
Shah were set aside to correct an error in the judgment of the
Assistant Sessions Judge, Dumka, who at one place convicted
all the four accused under section 332 of the Indian Penal Code
and• at another place found only Jhaman Mian and Ram Kirpal
Bhagat guilty of the offences under section 332 of the Indian
Penal Code.
'
·
Counsel on behalf of the appellants contended first, that the
Sea Customs Act, 1878 did not apply to the place of occurrence,
and, therefore, the arrest and the seizure were unlawful. The second
contention was that the Land Customs Act, 1924 did not apply
· to the place of occurrence, and therefore, the Inspectors were
not officers of Customs who could invoke the authority of the
Land .Cl1stoms Act, 1924 to arrest and seize the appellant Nazir
Mian. The third contention was that the seizure of cloves was
not authorised by section 178 of the Sea Customs Act, 1878 nor
was the arrest· authorised under section 173 of the Sea Customs ·
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RAM KIRPAL V. BIHAR (Ray,/.)
239
Act, 1878.
The arrest and the seizure under the Sea Customs
Act 1878 were impeached as illegal on the ground that the Sea
Customs Act, 1878 did not apply to the place of occurrence,
namely, Pakur in Santhal Parganas in Bihar.
The fourth contention was that section l 78A of the Sea Customs Act, 1878
could not apply, because there was no notification to attract the
application of the said section.
The first question which falls for decision is whether the Sea
Customs Act, 1878 applies.
In order to appreciate this contention it is necessary to refer to .the statutes by virtue of which
the Sea Customs Act, 1878 is said to aprly to the place of occurrence. The Bihar Regulation I of 1951 enacted t!lat rhe Imports
and Exports Control Act, 194 7 was applicable to Santl}al Parganas.
The relevant sections under the Imports and Exports Control
Act. 1947 in the present case are the two sub-sections in section 3 which are as follows :-
''3. Powers to prohibit or re.1·t1 ict imports and
exports.
( 1) The Central Government may, by order
published in. the Official Gazette, make provisions 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 intended to be
taken out of India without being removed from the
ship or conveyance in which they are being carried.
( 2) All goods to which any order under subsection (1) applies
shall be deemed to be goods of
which the import or export has been prohibited under
section 19 of the Sea Customs Act, 1878, and all the
provisions of that Act shall have effect accordingly".
The first contention on behalf of the appellants is that sub- .
section (2) of section 3 of the Imports and Exports Control Act,
1947 means that only section 19 of the Sea Customs Act, 1878
is applicable and the other section do not apply.
The second
contention on behalf of the appellants that the Bihar Regulation
I of 19~1 is in excess of the power of the Governor contained
in the Fifth Schedule to the Constitution will be dealt with hereinafter. Counsel on behalf of the appellants contended that sec-
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[1970] 3 S.C.R.
ti on 3 ( 2) of the Imports and Exports Control Act, 194 7 meant
that goods to which sub-section ( 1) of secti~~ 3 of t~e Act of
1947 applied were deemed to be goods of w111ch the nnport or
export had been prohibited under section 19 of the Sea Customs
Act, 1878, and, therefore, only section 19. of that Act was. to
have effect for that restricted purpose.
In aid of that comentilm
reliance was placed on the decision of this Court in The Cv//ector
of Customs, Madras v. Nathe//a Sampathu Chelly & A111'.\ ').
The question for consideration in the ,Wadras Customs case was
whether section l 78A of the Sea Customs Act, 1878 applied.
The Collector of Customs there seized gold because he was,
prima facie, of the view that it had been smuggled and notice
was issued to the respondent to show cause why the gold should
not be confiscat~d. Import of gold was dealt with by section $
of the Foreign Exchange Regulation Act, 194 7 which provided
that the Central Government might by notification order that no
person except with the general or special penrnssion of the .
Reserve Bank and on payment of prescribed fee bring or send
into India any gold or silver.
Section 23A of the Forcig11
Exchange Regulation Act wh!d1 came into existence in the year
1952 was as follows :-
"23A. Without prejudice to the provisions of secticn 23 or to any other provision contained in this Act
the restrictions imposed ~J sub-sections ( 1) and (2)
cf section 8, sub-section (I) of section 12 and clause
(a) of sub-section (I ) of section 13 shall be deemed to
have been imposed under section 19 of the Sea Customs Act, 1878 and ail the provisions of that Act shall
have effect accordingly, except that section 183 thereof
shall have effect as if for the word "shall" therein the
word "r11ay" Vvere ~ubstituted".
·section 178A of the Sea Customs Act, 1878 was introduced into
the Act in the year 1955. It was, therefore, contended that
when the Foreign Exchange Regulation Act, 1947 was enacted
the provisions of the Sea Customs Act, 1878 were not at ell
attracted, and secondlv. when section 23A was introduced in
1952 as a part of the. Foreign Exchange Regulation Act. !947
it would have the effect of bringing into operation only those
sections of the Sea Customs Act. 1878 which were part of the
Sea Customs Act, 1878 in 1952.
Counsel for the appellants relied on the observations at
page 834 of the Report in the Madras Customs case(1) that "the
effect of section 23A is to treat the text of the notification by
·the Central Government under section 8 (1) as if it had been
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issued under section. 19 of the Sea Customs Act with the tit,e
and the recital of tlie source of power appropriate to it by the
creation of legal fiction".
Counsel for the appellants extracted
from these observations the proposition that only section 1 9 of
the Sea Customs Act, 1878 would attracted in the present case
to make effective the notifications under the Imports Control
and Exports Control Act,
194 7 and
the
Imports Control
Order, J 955 and no other section of the Sea Customs Act, 1878
would be attracted.
The decision of this Court in the Madras
Customs
case(')
does
not
support
that
contention
for
the Gbvious reason that section l 78A of the Sea Customs Act,
1878 was held to be applicable there. If only section 19 of the
Sea Customs Act, 1878 were attracted for the purpose '.lf giving
sanction to notifications under the Foreign Exchange Regulation
Act section 178A of the Sea Customs Act, 1878 could not have
· been held to be applicable in Madras Customs case(').
Further this Court in the· Madras Customs case(') at page
799 of the Report held first, that on the law as it stood upto
1952 before section 23A of the Foreign Exchange Regulation
Act was inserted, importation of gold in contravention of the
notification of August, 1948 issued under section 8 (I) of the
Foreign Exchange Regulation Act would have been an importation contrary to section 19 of the Sea Customs Act, with the
result that any person concerned in the act of importation would
have been liable to the penalties specified in the third column of
section 167 ( 8) of the Sea Customs Act and imported gold would
have been liable to confiscation under the opening words of that
column.
This conclusion indicates that a restriction on the
import of gold by a notification under the Foreign Exchange
Regulation Act would be a prohibition or restriction on importation or exportation of gold under section 19 of the Sea Customs
Act, 1878 which occurs in Chapter IV of the Sea Customs Act,
1878.
The other conclusion of this Court in the Madras Customs
case was that though section 187 A of the Sea Customs
Act, 1878 was introduced in. the year 1955 section 23A of the
Foreign Exchange Regulation Act, 1947 which came into existence in 1952 would be operative to introduce the subsequent
amendments of the Sea Customs Act, 1878 in dealing with contravention of the Foreign Exchange Regulation Act in relation
to importation or exportation of gold.
In dealing with the contemtion in the Madras Custom case
that section 178A cf the Sea Customs Act, 1878 did not apply
because it was not a part of the Sea Customs Act, 1878 when
section 23A of ihe Foreign Exchange Regulation Act was en-
(t) [1962] 3 S.C.R 786.
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SUPREME COURT REPORTS
[1970] 3 S.C.R.
acted in 1952, the decision of the Judicial Committee in The
Secretary of State for India in Council v. 'Hindustan Co-operative
Insurance Society Ltd.(') was referred to by this Court for the
purpose of showing that in the Hindustan Co-operative Insurance
Society case
the Calcutta
Improvement
Trust Act,
1911
referred to the provisions of the Land Acquisition Act by
enacting that "the provisions of the Land Acquisition Act shall
apply as if they were herein re-enacted" to mean that the Calcutta Improvement Trust Act 1911 in adopting the provisions
of the Land Acquisition Act did not intend to bind themselves
to any future additions which might be made to the Land Acquisition Act.
The other consideration which weighed with the
Judicial Committee was that the Calcutta Improvement Trust
Act did nothing more than incorporate certain provisions from
an existing Act, and for convenience of drafting did so by reference to that Act instead of setting out for itself at length the
provisions which it was desired to adopt. This Court said that
!here was no analogy between the manner in which the provisions of the Land Acquisition Act had been incorporated in the
Calcutta Improvement Trust Act, 1911 and the operation of the
Sea Customs Act, 1878 as a result of section 23A of the Foreign
Exchange Regulation Act. Section 23A of the Foreign Exchange
Regulation Act was construed to mean that the restrictions imposed
by section 8 (I) of the Foreign Exchange Regulation Act shall
be deemed to have been imposed under section 19 of the Sea
Customs Act and all the provisions of the Sea Customs Act,
1878 shall have efiect accordingly.
At page 837 of the Report
this Court said that a notification issued under section 8 ( l) of
the Foreign Exchange Regulation Act was deemed for all purposes to be a notification issued under section 19 of the Sea
Customs Act and the contravention of the notification attracted
to it each and every provision of the Sea Customs Act which was
in force at the date of the notification.
The ratio of the decision in the Madras Customs case(2 )
is that the provisions of the Sea Customs Act, 1878 were
attracted by relation to the provisions of section 19 of the Sea
Customs Act, 1878 which deal with restrictions or prohibitions
on import or export and the notifications under the Foreign
Exchange Regulation Act prohibiting import of gold become an
integral part of section 19 of the Sea Customs Act, 1878, and,
therefore, the contravention of such a notification would brin2
into effect each and every provision of the Sea Customs Act'.
1878.
In the present case, sub-section (2) of section 3 of the Imports
and Exports Control Act, I 947 enacts that goods to which any
0) 5~ :-',\. 259.
12)-1962] 3 S.C.R. 786.
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order under sub-section ( l ) applies shall be deemed to be goods
of which the import or export_ has been prohibited under section
19 of the Sea Customs Act, 1878 and the second limb of subsection (2) of section 3 is that all the provisions of that Act
(meaning thereby the Sea Customs Act, 18 7 8) shall have effect
accordingly.
To accede to the contention of counsel for the
appellants that only section 19 of the Sea Customs Act, 1878 will
apply and no other provision of the Sea Customs Act, 1878 will
be effective or operative will be not only to render the words "and
all the provisions of that Act shall have effect only" otiose but
also nugatory.
When the statute enacts that all the provisions
of that Act shall have effect accordingly, it will be an error to hold
in spite of the language of such legislation that the provisions of
the Sea Customs Act shall not have effect. The effect of bringing into an Act the provisions of an earlier Act is to introduce
the incorporated sections of the ·earlier Act into the subsequent
Act as if those provisions have been enacted in it for the first
time.
The nature of such a piece of legislation was explained
by Lord Esher M. R. in Re Wood's Estate(')
that "if s-C!me
clauses of a former Act were brought into the subsequent Act
the legal effect was to write those sections into the new Act Just
as if they had been written in it with the pen".
This Court noticed
in
the Madras
Customs case( 2)
the distinction between a mere reference to or a citation of one
statute in another· on the one hand and an incorporation on the
other, for the purpose of showing as to what would be the effect
of the repeal of the former statute on the latter statute. It is in
that context that this Court observed that if section 19 of the Sea
Customs Act, 1878 would be repealed then there would no longer
be any legal foundation for invoking the penal provisions of the
Sea Customs Act, 1878 to a contravention of a notification under
section 8 ( 1) of the Foreign Exchange Regulation Act.
The
ratio is that if the contravention of the notification under the
Foreign Exchange Regulation Act is equated with a contravention of the notification under section 19 of the Sea Customs Act,
1878, the effacement of section 19 of the Sea Customs Act, 1878
from the statute book would naturally remove the substratum
of the Sea Customs Act, 1878.
In the present case, the provisions of the Sea Customs Act,
1878 are attracted by reason of the provisions contained in section 3 of the Imports and Exports Control Act, 194 7 and on
the authority ·of the decision of this Court in the Madras
Customs case(') all that can be said is that if section 19 of the
Sea Customs Act, 1878 were repealed then the Sea Customs Act,
1878 would not be attrackd.
Section 19 of the Sea Customs
(I) i18811 31 Ch. D. 607.
(2) [1962] 3 S.C.R. 785.
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(1970] 3 S.C.R.
Act, 1878 has not been repealed and was extant and is now reenacted as section 11 in the. Sea Customs Act, 1962 and there
has been corresponding change in the Imports and Exports Control Act, 194 7 by reference to the Sea Customs Act, 1962 and
section 11 thereof.
The second question which falls for consideration is whether
the Bihar Regulation I of 1951 is in excess of the Governor's
powers.
The contentions were: first, that the Regulation I of
1951 ,;ould not at all have been made; secondly, that Regulations deal with the subject matter and did not mean power to
apply law and thirdly, the power to extend a Jaw passed by
another legislature was said to be not a legislative function, but
was a conditional legislation. The legislation, in the present case,
is in relation. to what is described as Scheduled Areas. The
Schedured Areas are dealt with by Article 244 of the Constitution and the Fifth Schedule to the Constitution.
Prior to the
Constitution, the Excluded Areas were dealt with by sections 91
and 92 of the Government of India Act, 1935. The excluded
and the partially excluded areas were areas so declared by order
in Council under section 91 and under section 92 no act of the ·
Federal Legislature or of the Provincial Legislature was to apply
to an excluded or a partially excluded area unless the Governor by
public notification so directed. Sub-section (2) of section 92 of the
Government of India Act, 1935 conferred power on the Governor
to make regulations for the peace and goods government of any
area in a Province which was an excluded or a partially excluded
area and any regulations so made might repeal or amend any
Act of the Federal Legislature or the Provincial Legislature or
any existing Indian law which was for the time being applicable
to the area in question.
The extent of the legislative power of
the Governor under section 92 of the OoveliillOent of India Act,
1935 in making regulations for the peace and good government
of any area conferred on the Governor in the words of Lord
Halsbury "an utmost discretion of enactment for the attainment
of the objects pointed to". (See Riel v. The Queen) (1).
In that
case the words which fell for consideration by the Judicial Committee were "tpe power of the Parliament of Canada to make
provisions for the administration, peace, order and good government of .any territory not for the time being included in any
province". It was contended. that if any legislation differed from
the provisions which in England had been made for the administration, peace, order and good government then the same could
not be sustained as valid.
That contention was not accepted.
These words were held to embrace the widest power to legislate
for the peace and good government for the area in question ..
(!) L.R. IO A.C. 657 at 658.
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The Fifth Schedule to the Constitution consists of 7 paragraphs and consists of Parts, A, B, C and D.
Paragraph 6 in
Part C deals with Scheduled Areas as the President may by order
declare and there is no dispute in the present case that the Santhal
Parganas falls within the Scheduled Areas.
Paragraph 5 in the;
Fifth Schedule deals with Jaws applicajJJe to Scheduled Areas.
Sub-paragraph 2 of paragraph 5 enacts that the Governor may
make regulations for the peace and good government of any ·area
in a State which is for the time being a Scheduled Area. Under·
sub-paragraph 3 of paragraph 5 the Governor i:nay repeal or
amend any Act of Parliament or of the Legislature of the State or
any existing law which is for the time being applicable to the area
in question. It may be stated that a contention was advanced by
counsel for the appellants that section 92 of the 'Government of
India Act, 1935 was still in operation and the Governor could
Oitly act under that section.
This contention is utterly devoid.
ot any substance because section 92 of the Government of India
Act, 1935 ceased to exist after repeal of the Government of
India Act, 1935 by Article 395 of the Constitution. It was contended that the power to make regulations did not confer power
on the Governor to apply any law. It was said that under section
92 of the Government of India Act, 1935 the Governor could
do so but under the Fifth Schedule of the Constitution the
Governor is not competent to apply laws.
This argument is
without any merit for the simple reason that the power to make
regulations embraces the utmost power to make laws arid to
apply laws.
Applying Jaw to an area is making regulations.
which are laws.
Further the power to apply laws is inherent
when there is a power to repeal or amend any Act, or any existing law applicable· to the area in question. The power to apply
laws is really to bring into legal effect sections of an Act as ;f
the same Act had been enacted in its entirety.
Application of
laws is one of the recognised forms of legislation. Law can be
made by referring to a statute or by citing a statute or by incorporating a statute or provisions or parts thereof in a piece of
legislation as the law which shall apply.
It was said by· counsel for the apppellants that the power to
apply laws under the Fifth Schedule was synonymous with conditional legislation.
In the present case, it cannot be said that
the Bihar Regulation I of 1951 is either a piece of delegated
legislation or a conditional legislation.
The Governor had full
power to make regulations which are laws and just as Parliament
can enact that a piece of legislation will apply to a particul"r
State, similarly, the Governor under paragraph 5 of the Fifth
Schedule can apply specified laws to a Scheduled area. The Bihar
Regulation I of 1951 is an instance of a valid piece of legislation
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[1970] 3 s.c.R.
emanating from the legislative authority in its plenitude of power
and there is no aspect of delegated or conditional legislation.
The question which next arises for consideration is whether
the Land Customs Act, 1924 applied on the relevant date of
occurrence namely 13 December, J 961 to the Santhal Parganas.
The Land Customs Act was enacted in the year 1924 and it was
declared to apply to the Santhal Parganas. Prior to the Constitution the Central Acts or Federal Acts or Acts of the Dominion
Legislature did not apply to an excluded or a partially excluded
area unless they were declared by the Governor to apply to those
areas. After the enactment of the Constitution, Article 244 and
the Fifth Schedule deal with excluded or partially excluded areas.
It was contended on behalf of the State that after the enactment of the Constitution the Land Customs Act, 1924 became
applicable to excluded or partially excluded areas because first
it was an existing law and secondly the restriction under section
92 of the Government of India Act, 1935 which required a
specific declaration of the Governor to apply any legislation to
the areas in question was no longer operative.
Article 372(1)
of the Constitution enacts that the law in force in the territory
of India immediately before the commencement of the Constitution is to continue in force until altered or repealed or amended
by a competent legislature or other comryetent authority. Explanation I -to Article 372 is that law in force in the Article shall
include a law passed or made by the legislature or other competent
authority in the territory of India before the commencement of the
Constitution notwithstanding that it or parts of it may not be then
in operation either at all or in particular area or areas. The contention on behalf of the respondent that the Land Customs Act, 1924
would apply to the Sanihal Parganas on the ground that it is an
existing law is not acceptable.